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Supreme Court Hears Proposition 8-Marriage Equality Reconsidered

R Tamara de Silva — Wed, 27 Mar 2013 04:30:00 GMT

Supreme Court Hears Proposition 8-Marriage Equality Reconsidered

First Sale Doctrine in Overseas Copyright Case

R Tamara de Silva — Tue, 19 Mar 2013 22:51:00 GMT

First Sale Doctrine in Overseas Copyright Case

By R Tamara de Silva

March 19, 2013

The United States Supreme Court ruled 6-3 today that the “first sale” doctrine, a limitation on the rights of a copyright owner in the copyright law, applies to copyrighted books manufactured overseas.[1] The “first sale” doctrine is found in section 109 of the Copyright Act and it means that a person who legally purchases a book or work, protected by copyright may “sell or dispose” of it as she sees fit. [2]

Libraries operate under the first sale doctrine wherein they purchase copyrighted books and loan them out to their patrons. This doctrine was formed before the onslaught of digital media and software. While the first sale doctrine permits a person to lend, discard or re-sell a purchased copyrighted item, it does not mean that person can reproduce it, display it publicly or republish it-these are actions reserved for the copyright holder. Software manufactures have had to get around the first sale doctrine by characterizing software purchases as license purchases governed by specific terms of use, as opposed to an outright sale.

The first sale doctrine states in pertinent part that,

Notwithstanding the provisions of section 106(3) [the section that grants the owner exclusive distributionrights], the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or other¬wise dispose of the possession of that copy or phonorecord. (Emphasis added)

The Court found that in the Copyright Law, copyright protection is bestowed on works “lawfully made” regardless of in which geographic region they are made.

In the present case Kirtsaeng v. John Wiley & Sons, Inc., Supap Kirtsaeng, is a Thai national who came to Cornell University to study mathematics. To help pay for his education, he asked his family and friends in Thailand to purchase textbooks in Thailand which he later resold on Ebay to other students including students in the United States for a profit of $100,000. The publisher of these textbooks, John Wiley & Sons, Inc., successfully sued Kirtsaeng for violating copyright laws and obtained a verdict of $600,000 in damages. The textbooks manufactured in Thailand contained a warning that they were not to be taken (without express permission) into the United States.

The Court reversed the decision of the lower courts and held in favor of Kirtsaeng by finding that he had lawfully purchased the textbooks in Thailand, and his re-selling of them on Ebay was consistent with the doctrine of first sale.

Had the Court ruled in favor of John Wiley & Sons, Inc., the implications upon students, libraries, museums, used-book dealers, software companies, retailers, buyers and sellers on Ebay, Amazon and consumers everywhere who purchase media, laptops, phones, televisions or books from other countries would potentially be immense. For example, before a retailer could sell a computer tablet manufactured overseas, it would have to obtain permission from the software manufacturer. Academic libraries would have to contact publishers before they could lend a vast portion of their collection to students.

Justice Ginsburg, who along with Justice Scalia and Justice Kennedy compromised the dissent, wrote that concerns over possible litigation and the impact on commerce from interpreting the first sale doctrine to have a geographic limitation were overstated. Fortunately, a majority of the Court disagreed.

R. Tamara de Silva

Footnotes:

[1]Kirtsaeng v. John Wiley & Sons, Inc..

[1] http://www.copyright.gov/title17/92chap1.html#109

ACLU v CIA

R Tamara de Silva — Mon, 18 Mar 2013 08:10:00 GMT

ACLU v. CIA on Targeted Killings and Drones

R. Tamara de Silva

On March 15, 2013, the United States Court of Appeals for the District of Columbia in an opinion written by Chief Justice Garland, held that the Central Intelligence Agency could not invoke the Glomar response in requests made by the American Civil Liberties Union (“ACLU”) under the Freedom of Information Act (“FOIA”) for "records pertaining to the use of the use of unmanned aerial vehicles [drones]…by the CIA and armed forces for the purpose of killing targeted individuals.” [1] The CIA had responded to the ACLU’s request for information about the use of drones for targeted killings by issuing what is called the Glomar response, that is it said that it could “neither confirm nor deny” the existence of any records in response to the ACLU’s FOIA request. In other words, the CIA responded that it could not confirm nor deny the existence of a drone program- that it had an “intelligence interest” in drones. The Court of Appeals ruled that in light of all the public statements that had already been made about the existence of drones and a drone program, the CIA could not reasonably claim not to be able to comment on their existence.

The Court of Appeals held that the CIA had not offered any reason why it could not confirm nor deny the existence of records related to drones strikes because drone strikes were already known to exist. The existence of drone strikes is a matter in the public domain when the President refers to the use of drones against Al-Qaeda targets as well as John Brennan and one time CIA director, Leon Panetta.

[G]iven [such] statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” is at this point neither logical nor plausible.

For the CIA to claim that acknowledging the existence of records on drone strikes would divulge the existence of drone strikes, what was in essence their argument, goes beyond the limits of credulity and asks the Court to approve a fiction.

Given these official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an “intelligence interest” in drone strikes, even if that agency does not operate the drones itself.

FOIA was enacted in 1966 to allow Americans to hold their government accountable by being informed about its operations. The Supreme Court described the function of FOIA as being, “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” [2]

There are nine exemptions under which a federal agency served with a FOIA request can refuse to answer. [3] In this case, the CIA can now invoke one of these nine exemptions and the ACLU is back to square one but at least it can no longer refuse to acknowledge that drone programs exists by use of the Glomar response. According to a study by the National Security Archive the Glomar response has been used by the CIA three times more often since 9/11 than it was used in the twenty-five years preceding it.[4]

Hence this decision is an important victory for the ACLU and anyone using FOIA because it provides a specific situation in which the Glomar response cannot be used. The Court of Appeals’ language about the CIA’s invoking of Glomar by seeming to beggar the truth is a rare example of the one branch of government checking the apparent excess of another,

The Glomar doctrine is in large measure a judicial

construct, an interpretation of FOIA exemptions that flows from

their purpose rather than their express language. In this case, the

CIA asked the courts to stretch that doctrine too far -- to give

their imprimatur to a fiction of deniability that no reasonable

person would regard as plausible. “There comes a point

where . . . Court[s] should not be ignorant as judges of what

[they] know as men” and women. Watts v. Indiana, 338 U.S.

49, 52 (1949) (opinion of Frankfurter, J.). We are at that point

with respect to the question of whether the CIA has any

documents regarding the subject of drone strikes.

The public’s need for transparency has always been at odds with the intelligence community whose operations necessitate secrecy. The CIA’s invocation of the Glomar response is not an exception to FOIA but a response that is perhaps more frustrating for journalists and the public because it has been invoked so often since 9/11 and it is often a dead end to any FOIA inquiry. There are only two ways to argue against or appeal a Glomar response: 1) to argue that the information requested does exist because it has been disclosed previously, as in this case; or 2) to re-file a FOIA request as part of a broader issue whose existence is established.

The most interesting thing about the Glomar response other than its liberal invocation, is its origin. It is not always that I get to write about the point of intersection between the CIA, targeted killings, the ACLU and the reclusive Howard Hughes.

In 1968 and at the height of the Cold War, a soviet submarine carrying nuclear missiles called K-129 sank about 800 miles south of Hawaii and more than three miles below the ocean’s surface. In 1972, the CIA turned to perhaps the most interesting man of the twentieth century to help recover it-a recovery that had to be kept secret from the American public and the Soviet Union. Apparently, there was no known technology at the time that could have recovered the sunken submarine.

This is where Howard Hughes comes in. Howard Hughes’s Glomar Explorer was ostensibly built to recover potato sized mineral deposits from ocean beds. In 1974, the CIA used the Glomar Explorer in what it called project Azorian, to try and pull the sunken Soviet sub from the ocean floor and to recover its nuclear missiles. The Glomar was a vessel only a Howard Hughes could have built at the time, with special engines and thrusters that managed to keep the ship from drifting more than 50 feet in any direction in the open ocean despite the ocean’s waves, gusts and currents. [5] When a journalist, Harriet Ann Phillippi asked that the CIA produce information about the recovery of K-129 and the CIA’s attempts to censor publication about it, the intelligence agency responded simply that it could neither “confirm nor deny” the story or any censorship of it. This was the first Glomar response.

Since then the CIA’s use of the Glomar response when asked about matters ranging from torture, renditions to what have been observed by international journalists and government officials as obvious unmanned aerial aircraft in the Middle East, has become ubiquitous and far less interesting. This same Court of Appeals upheld the CIA's use of the Glomar response last year in the context of cybersecurity.

What is significant about the Court of Appeals decision in the ACLU v. CIA case is that it is a rare and very real check by the Judiciary of the Executive’s otherwise seemingly absolute power over law and process for the sake of the War on Terror. For this reason alone, it is a triumph.

R. Tamara de Silva

March 18, 2013

Endnotes:

[1] ACLU v. CIA (No. 11-5320)

[2] United States Supreme Court in NLRB v. Robbins Tire Co. 437 U.S. 214, 242 (1978).

[3] http://www.sec.gov/foia/nfoia.htm

[4] http://www.nytimes.com/2012/04/30/opinion/the-cias-misuse-of-secrecy.html

[5] http://www.pbs.org/wgbh/nova/transcripts/2602subsecrets.html

The Unconstitutionality of Targeted Killings of Americans on American Soil

R Tamara de Silva — Wed, 06 Mar 2013 08:15:00 GMT

The Unconstitutionality of Targeted Killings of Americans on American Soil

7th Circuit Court of Appeals Denies Re-hearing in Moore v. Madigan

R Tamara deSilva — Sat, 23 Feb 2013 04:03:00 GMT

Seventh Circuit Court of Appeals Denies Motion for Re-hearing on Moore v. Madigan – Illinois Ban on Concealed Weapons Remains Unconstitutional

By R Tamara de Silva

February 22, 2013

Earlier today, the United States Court of Appeals for the Seventh Circuit rejected Illinois Attorney General Lisa Madigan’s petition that it reconsider its earlier three panel decision striking down Illinois’ law banning concealed weapons, en banc. Illinois was the only remaining state to have had a ban on carrying concealed weapons-it was also the murder capital of the nation in 2012. As I wrote here, on December 11, 2012, Judge Richard A. Posner authored the court’s majority opinion, which was important because it expanded the Supreme Court’s landmark Second Amendment case, McDonald v. Chicago to hold that the right to bear arms also applies outside one’s home. Judge Posner gave Illinois 180 days to come up with alternate legislation before his order striking down Illinois’ concealed weapon ban comes into effect. Also today, with 90 days remaining, Lisa Madigan’s powerful father and Illinois Speaker of the House Michael Madigan announced that the Illinois House would start considering various gun control proposals on February 26, 2013. Today’s ruling is a victory for the advocates of the Second Amendment and suggests that Ms. Madigan will be forced to appeal the Seventh Circuit’s landmark decision to the United States Supreme Court.

What is most interesting and universally missed about Judge Posner’s opinion is the naked admission, certain to disappoint both sides of the political spectrum and provide no fodder for either faction in the gun control debate—the fact that all existing studies seeking to draw a relationship between gun violence and gun regulations are in toto perfectly inconclusive.

As Judge Posner points out, after analyzing existing empirical evidence and all the studies presented to the court by both sides, it is discovered that reality does not side with the conclusion that more or less gun control leads to more or less death,

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. Bishop, supra, at 922–23; Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns 110–11 (2007). Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.1

Empirically speaking, it is a wash.

Our nation does not seem to want to address the failure of the War on Drugs or the effects of drug trafficking on the trade in unlawfully trafficked guns. A tax on guns as proposed by Cook County Board President Toni Preckwinckle while appearing to be proactive and good-natured, is completely farcical in terms of a solution.

Gang bangers and drug runners generally do not pay taxes, nor will increased regulation lead to their regulatory capture. Their business model and infrastructure supports and sustains the trade in illegal firearms while increasing death tolls, and supporting sex trafficking. Moreover, if state and federal statutes against murder and racketeering do not deter drug rings, there is no rational basis on which to think even more laws criminalizing their way of life will. As a defense lawyer I can assure you, there is no tipping point in the criminal law or deterrence point where a criminal thinks he has broken an optimal number of laws and will suddenly cease illegal activity. There are between 16,000 to 20,000 gun regulations at the municipal, state and federal level. I would love to believe that adding just a dozen more will prevent children from being slaughtered while walking home from school or sitting on their front porch as they are in Chicago. Somehow, most politicians know that you can fool most of the people most of the time and saying you have a solution, will procure more votes than honestly admitting, there is a problem that is unsolvable without a complex and uncomfortable national debate.

Unless we are willing to have an honest debate about drug laws, we will never address the source of guns to the inner cities, nor will we prevent criminals from using them to kill as many children in Chicago as several Sandy Hooks each year. Other causes of gun violence are embedded in similarly taboo topics like culture and disenfranchisement, a consideration of which would require analysis of the social and economic forces that lead to inner city war zones in the third largest city boasting of greater death tolls for Americans than our war in Afghanistan. We have accepted the issues as framed by lobbyists and politicians but the solutions proposed are red-herrings. For instance, most of the murders in Chicago are caused by handguns, (which were banned in Chicago until 2010 and impossible to purchase in the city proper) yet the national media and local politicians, who consistently lament the situation in Chicago, are obsessed with banning assault rifles. Will there come a tipping point for Americans and a time where we admit we have a serious problem?@

R. Tamara de Silva

Footnote:

1. Page 13 of the opinion which can be read here:

What the Drone Memo Means

R. Tamara de Silva — Thu, 07 Feb 2013 23:46:00 GMT

What the Department of Justice's Memo on Targeted Killing Means

United States v. McGraw-Hill, Inc and Standard & Poor's

R. Tamara de Silva — Tue, 05 Feb 2013 18:03:00 GMT

United States v. McGraw-Hill, Inc and Standard & Poor's

A Tale of Two Classes of Defendant and Lanny Breuer

R Tamara de Silva — Mon, 28 Jan 2013 15:51:00 GMT

Lanny Breuer's Resignation

Aaron Swartz, Prosecutorial Misconduct and King Cambyses

R Tamara de Silva — Tue, 15 Jan 2013 11:59:00 GMT

Aaron Swartz, Prosecutorial Misconduct and King Cambyses

Illinois Prohibition on Concealed Weapons Struck Down as Unconstitutional

R Tamara de Silva — Wed, 12 Dec 2012 07:37:00 GMT

Illinois Prohibition on Concealed Weapons Struck Down as Unconstitutional

By R Tamara de Silva

December 12, 2012

Yesterday, the United States Court of Appeals for the Seventh Circuit struck down Illinois' ban on carrying concealed weapons. Opinion Illinois was the only remaining state to have had a ban on carrying concealed weapons. The court's ruling is important because it expanded the Supreme Court's landmark Second Amendment case, McDonald v. Chicago to state that the right to bear arms also applies outside one's home.

Judge Richard A. Posner wrote the court's majority opinion, which is also noteworthy because it points to the most interesting of all facts in the gun control debate - that wherever one may stand on the issue, all existing studies that seek to draw a relationship between gun violence and gun regulations are in toto perfectly inconclusive. Illinois is the perfect example of this. Illinois is arguably the most restrictive state for gun ownership and also the 2012 murder capital of the nation.

Summary of Second Amendment Jurisprudence

In 2010, the United States Supreme Court ruled in McDonald v. Chicago, 561 US 3025 that the Second Amendment applies to the individual states. This decision meant that the right of an individual to keep and bear arms guaranteed by the Second Amendment was incorporated by the Fourteenth Amendment's Due Process Clause to apply to the states. Several other amendments have been incorporated by the Due Process Clause of the Fourteenth Amendment to apply an individual's Constitutional rights guaranteed by the First, Fourth, Sixth, Seventh and partially the Fifth and Eighth Amendments. McDonald applied the Supreme Court's earlier decision in the District of Columbia v. Heller to the states.

Justice Samuel A. Alito Jr., who wrote the opinion for the Court's majority opinion in McDonald stated that, "It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

In the District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes, such as the right to defend oneself in one's home. It was unclear until McDonald whether Heller's recognition of a personal right to own a gun (not unlimited according to the Court) applied to the states.

What makes Heller important is that it recognizes the Second Amendment's right to keep and bear arms as a individual right-not merely a residual right carried over from the days of standing militias or as a collective right, "the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors." Heller, 554 U.S. at 599. Heller was the first time that the Supreme Court recognized that the Second Amendment protects an individual's right to keep and bear arms.

The Court's ruling in Heller came by way of an extensive historical analysis of the intent and meaning behind the Second Amendment to the recognition that, "the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors." Heller, 554 U.S. at 599 Among the drafters of the Constitution, it was argued that the Second Amendment was not even necessary as it was assumed that a person's right to bear arms was so obvious a right as not to require enumeration.

However, the courts have never recognized the Second Amendment to convey an unlimited right. In Heller, the Court stated that the Second Amendment does not convey an unlimited right to own weapons because arms may not include M-16s or whatever the Court deems as, "dangerous and unusual weapons." In Heller, the Court stated that state restrictions on gun ownership such as prohibitions against felons and mentally ill persons from owning guns were, "presumptively lawful."

Some of the most surprising gun regulations occur at the federal level. For example, 18 U.S.C. § 922(g)(9), prohibits the possession of firearms by any person, "who has been convicted in any court of a misdemeanor crime of domestic violence," or been the subject after a court hearing and opportunity to be heard of an order of protection.

In several states, the mere charge of a domestic incident, whose meaning is being expanded by otherwise well meaning state lawmakers to include, remarkably, the expression of unfavorable opinions online, is sufficient to allow the prohibition of gun ownership and the removal of guns from one's home. There are many problems with this including the fact that the person calling law enforcement can easily lie. There is no proof that a domestic relationship even has to exist to invoke this law and result in someone losing their otherwise lawfully owned firearms. I once witnessed a stalker try to obtain an order of protection against the victim of his incessant and psychotic stalking by telling the judge his victim was having a relationship with him and stalked him. The domestic courts are not generally places where due process is ever perfected. Moreover, "charges" are in legal terms mere accusations, wholly unproven and antecedent to due process.

But herein lies the problem with the Second Amendment jurisprudence-the contours of the seemingly plain language of the Second Amendment contained within the four corners of the Bill of Rights have never seemed plain to the courts or the government. It is as if the courts and the legislators at the state and federal levels are perpetually at play with each other in an unending game of Battleship where the lawmakers conjure regulations on gun ownership until they are deemed not "reasonable" by the Court and its shifting and indeterminate standards of the what the Second Amendment means. The battle will continue even in this case as Illinois has been given 180 days to draft a new law on carrying weapons in the wake of its former ban.@

R. Tamara de Silva

Bob Costas' NFL Gun Control Speech

R. Tamara de Silva — Mon, 03 Dec 2012 19:22:00 GMT

Bob Costas' NFL Gun Control Speech

Feinstein Amendment to NDAA Not a Victory

R Tamara de Silva — Sun, 02 Dec 2012 04:47:00 GMT

On November 30, 2012 Senator Rand Paul co-sponsored a bill to restore the right to trial by jury and due process for Americans. He is co-sponsoring the Fienstein-Lee Amendment (H.R. 3018) to the National Defense Authorization Act ("NDAA"), an amendment which passed by a vote of 67-29. It is not enough.

Section 1021 of the NDAA suspends the due process guarantees of the United States Constitution and allows for the indefinite detention of Americans without trial. Senator Paul's own amendment would have rescinded Section 1021 of the NDAA entirely, but he could not get enough support.

In practical terms, the Feinstein-Lee Amendment does not go far enough because it states, "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States unless an act of Congress expressly authorizes it." That "act of Congress" is already the NDAA's Section 1021, which negates the Feinstein Amendment. The Feinstein Amendment is an exercise in futility.

On June 15, 1215, on a field at Runnymeade King John entered into a pact with his feudal barons that would outline the terms of a peace and end to the conflict that ensued in England following the death of King Richard I. That document, called the Great Charter or Magna Carta for the first time declared the human right to be protected from tyranny and capricious prosecution by introducing the concept of due process of law and the right to a trial by jury, “no free man shall be taken or imprisoned or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him unless by the lawful judgment of his peers, or by the law of the land." The Magna Carta set boundaries upon the King's powers, the establishment of these boundaries, was the birth of due process. The Great Charter also established the concept of a law that was above executive edict, caprice and legislative whim. It was a concept of law above the laws and whims of the rulers that was embraced by the American Revolutionaries and came to provide the foundations for our Constitution's right of due process and trial by jury.

Thomas Jefferson considered the right to trial by jury, “the only anchor ever imagined by man, by which government can be held to the principles of its constitution.”

However, most Americans have not realized that Congress suspended Due Process almost one year ago. Most Americans do not realize that the ancient right to trial by jury and due process of the law before the taking of life, liberty and property has been suspended by Section 1021 since its passage on December 31, 2011. Nor do they realize how few of their elected representatives will protect their most fundamental due process rights-the very basis of the American legal system and way of life.

R. Tamara de Silva

Drew Peterson's Verdict, Appeal and the Cranes of Ibycus

R Tamara de Silva — Mon, 10 Sep 2012 17:09:00 GMT

Drew Peterson's Verdict, Appeal and the Cranes of Ibycus

The First Amendment of Former United States Marine Brandon J. Raub

R. Tamara de Silva — Thu, 23 Aug 2012 18:44:00 GMT

http://www.timelyobjections.com/2012/08/the-first-amendment-of-brandon-j-raub.html

Oligarchy and Its Discontents-What Money Buys

R Tamara de Silva — Mon, 20 Aug 2012 09:40:00 GMT

Recent events like the decision to give Jon Corzine and MF Global a pass are legitimate examples of the role of money in politics and in the law.

http://www.timelyobjections.com/2012/08/oligarchy-and-its-discontents-what-money-buys.html