European Parliament Kills Global Anti-Piracy Accord ACTA || Wired
The European Parliament on Wednesday declared its independence from a controversial global anti-piracy accord, rejecting the Anti-Counterfeiting Trade Agreement.
The vote, 478-39, means the deal won’t come into effect in European Union-member nations, and effectively means ACTA is dead.
Its fate was also uncertain in the United States. Despite the Obama administration signing its intent to honor the deal last year, there was a looming constitutional showdown on whether Congress, not the administration, held the power to sign on to ACTA.
Overall, not a single nation has ratified ACTA, although Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea last year signed their intent to do so. The European Union, Mexico and Switzerland, the only other governments participating in ACTA’s creation, had not signed their intent to honor the plan.
It's Time to Clean House || The Atlantic
America is mired in a tarpit of accumulated law. Reformers propose new laws to fix health care, schools, and the regulatory system, but almost never suggest cleaning out the legal swamp these institutions operate in. These complex legal tangles not only set goals but allocate resources and dictate the minutest details of how to meet those goals. Most are obsolete in whole or part.
Nothing important can get fixed without remaking a coherent legal framework.
The flaw is not one that can be solved by deregulation. Almost no one, for example, would disagree about the need to provide education for disabled children. But special education law, enacted in 1975, was structured as an open-ended mandate, and soon spun out of control. Today, special ed consumes 20 percent of the total K-12 budget in America. Programs for gifted children get less than half of one percent, and pre-K education gets almost nothing. Is this a sensible allocation of education dollars? No one is even asking the question.
Congress treats most laws as if they were the Ten Commandments — except they’re more like the 10 million commandments. Most legislative programs do not codify timeless principles of right and wrong. They are tools of social management. These laws allocate social resources — almost 70 percent of federal revenue in 2010 was consumed by three entitlement programs enacted a half century or more ago. Congress almost never goes back to rationalize these programs. Running government today is like trying to run a business using every idea every manager ever had….
The problem of obsolete law is not theoretical. It’s concrete, affecting daily choices across the country. It adds to cost, and slows productive activity to a crawl.
“ At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method. The showing, however, is always the Government’s to make. A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights. The right’s existence is all the reason he needs. ”
Benson Everett Legg, United States District Judge, Woollard v. Sheridan [pdf]
Uncle Sam: If It Ends in .Com, It’s .Seizable || Threat Level @ Wired
When U.S. authorities shuttered sports-wagering site Bodog.com last week, it raised eyebrows across the net because the domain name was registered with a Canadian company, ostensibly putting it beyond the reach of the U.S. government. Working around that, the feds went directly to VeriSign, a U.S.-based internet backbone company that has the contract to manage the coveted .com and other “generic” top-level domains.
EasyDNS, an internet infrastructure company, protested that the “ramifications of this are no less than chilling and every single organization branded or operating under .com, .net, .org, .biz etc. needs to ask themselves about their vulnerability to the whims of U.S. federal and state lawmakers.”
But despite EasyDNS and others’ outrage, the U.S. government says it’s gone that route hundreds of times. Furthermore, it says it has the right to seize any .com, .net and .org domain name because the companies that have the contracts to administer them are based on United States soil, according to Nicole Navas, an Immigration and Customs Enforcement spokeswoman.
On innovation and intellectual property regimes
Supreme Court Court Rejects Willy-nilly GPS Tracking || Threat Level @ Wired
The Supreme Court said Monday that law enforcement authorities might need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move — but the justices did not say that a warrant was needed in all cases.
The convoluted decision in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position that attaching a GPS device to a vehicle was not a search. The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia wrote for the five-justice majority. The majority declined to say whether that search was unreasonable and required a warrant.
Supreme Court Says Congress May Re-Copyright Public Domain Works || Threat Level @ Wired
Congress may take books, musical compositions and other works out of the public domain, where they can be freely used and adapted, and grant them copyright status again, the Supreme Court ruled Wednesday.
In a 6-2 ruling, the court said that, just because material enters the public domain, it is not “territory that works may never exit.”
The top court was ruling on a petition by a group of orchestra conductors, educators, performers, publishers and film archivists who urged the justices to reverse an appellate court that ruled against the group, which has relied on artistic works in the public domain for their livelihoods.
…
For a variety of reasons, the works at issue, which are foreign and produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.
In dissent, Justices Stephen Breyer and Samuel Alito said the legislation goes against the theory of copyright and “does not encourage anyone to produce a single new work.” Copyright, they noted, was part of the Constitution to promote the arts and sciences.
The legislation, Breyer wrote, “bestows monetary rewards only on owners of old works in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books — books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.”
Democrats and Executive Overreach || Michael McConnell (Wall Street Journal)
One reason so many Americans entrusted Barack Obama with the presidency was his pledge to correct the prior administration’s tendency to push unilateral executive power beyond constitutional and customary limits.
Yet last week’s recess appointments of Richard Cordray as the first chief of the Consumer Financial Protection Bureau and three new members to the President’s National Labor Relations Board—taken together with other aggressive and probably unconstitutional executive actions—suggest that this president lacks a proper respect for constitutional checks and balances.
The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground.
It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.
“ Iran had been the preeminent state sponsor of terrorism against United States interests for decades. Throughout the 1990s - at least - Iran regarded al Qaeda as a useful tool to destabilize U.S. interests. As discussed in detail below, the government of Iran aided, abetted and conspired with Hezbollah, Osama bin Laden, and al Qaeda to launch large-scale bombing attacks against the United States by utilizing the sophisticated delivery mechanism of powerful suicide truck bombs. Hezbollah, a terrorist organization based principally in Lebanon, had utilized this type of bomb in the devastating 1983 attacks on the U.S. embassy and Marine barracks in Beirut, Lebanon. Prior to their meetings with Iranian officials and agents, Bin Laden and al Qaeda did not possess the technical expertise required to carry out the embassy bombings in Nairobi and Dar es Salaam. The Iranian defendants, through Hezbollah, provided explosives training to Bin Laden and al Qaeda and rendered direct assistance to al Qaeda operatives. Hence, for the reasons discussed below the Iranian defendants provided material aid and support to al Qaeda for the 1998 embassy bombings and are liable for damages suffered by the plaintiffs. ”
Judge John D. Bates, 28 November 2011 (via the Long War Journal)
Anti-Hacking Law Criminalizes Most Computer Users, Former Prosecutor Says || Threat Level @ Wired
When the legislation was first enacted in the 1980s, it specifically targeted computer hacking and other computer misuse, Kerr argues in a written version of the testimony he plans to give. But since then, Congress has broadened the statute significantly four times, expanding the law’s reach and rendering it “unconstitutionally vague.”
The law as it currently stands allows prosecutors to criminally prosecute users for violating an internet service provider’s terms of service agreement, something that would normally be a breach of contract issue handled in civil court rather than through criminal prosecution.
The Road to the U.S. Supreme Court
I am having flashbacks to when I worked as a paralegal. All this is way too familiar.
“
This Saturday, we celebrate the 224th birthday of the Constitution written by the Framers in Philadelphia. In paying tribute to this inspired document, I want to talk about how we should think about the Constitution, and why that matters.
Usually, our defense of the Constitution is presented as a defense of America’s founding principles and values, and rightfully so. But our constitutional system is not just a collection of principles; it embodies an approach to government with profound practical implications for both our freedom and our prosperity. When that system is threatened, both freedom and prosperity suffer.
Freedom is lost by degrees, and the deepest erosions usually take place during times of economic hardship, when those who favor expanding the sphere of government abuse a crisis to persuade free citizens that they should trade in a little of their liberty for empty promises of greater economic security….
What makes our Constitution such an extraordinary document is that, in making the United States the freest civilization in history, the Founders guaranteed that it would become the most prosperous as well. The American system of limited government, low taxes, sound money and the rule of law has done more to help the poor than any other economic system ever designed.
I want to talk today in particular about the last of those – the rule of law, which is absolutely essential to all the other benefits of our system, to the prosperity and freedom of our country, and to the well being of all Americans, especially the most vulnerable….
The great difficulty we encounter in striving to meet Aristotle’s ideal was best summed up by James Madison: “if men were angels, no government would be necessary. And if angels were to govern men, neither external nor internal controls on government would be necessary.”
But, as Madison reminded us, men are no angels, and government is “administered by men over men.” Grounded in a proper understanding of human nature, our Founders tackled this challenge head-on with a brilliant Constitution and a healthy separation of powers, binding all men to the same set of laws and preventing any one man or group of men from gaining enough power to declare themselves above the law.
The Constitution secures other rights long understood to be essential to the rule of law, such as the right to due process, meaning that the laws of the land must be transparent, consistent, and equally applied to all men, so that no man may be arbitrarily deprived of life, liberty or property.
This constitutional cornerstone of our free society is also a critical precondition for a free and dynamic economy. Without the rule of law to safeguard the ownership of property and the enforcement of contracts, it makes little sense for an investor to put his capital at risk helping an entrepreneur to pursue a dream, advance an idea, and ultimately grow a business that creates good-paying jobs for Americans.
For decades, the U.S. economy has been a magnet for investors, entrepreneurs, and workers, because we enjoy some of the strongest and most transparent legal protections in the world. These protections provide a stable environment for business investment – stability that is undermined when the discretionary power of bureaucrats is enhanced….
If we succumb to this view that our problems are bigger than we are – if we surrender more control over our economy to the governing class – then life in America will become defined by a new kind of class warfare: A class of bureaucrats and connected crony capitalists trying to rise above the rest of us, call the shots, rig the rules, and preserve their place atop society at the expense of working Americans, entrepreneurs, and the small businesswoman who has the gall to take on the corporate chieftain.
The Constitution’s Framers knew that there is a human inclination to increase personal power at the expense of law, so they created Congress as a decentralized and internally divided institution, but they granted it ample authority to secure the rule of law in every case. Congress holds the power of the pen as well as the purse. It has the power necessary to address attacks on the rule of law in our executive bureaucracies and even in the courts. The Constitution provides us with the power to solve these problems; what we need, is the will to do it.
The solution, the defense of the rule of law, will have to involve alternative ways to address the public problems that too many on the Left want to solve by delegating power to bureaucrats. For every government curtailment of our liberty through the discretion of bureaucrats, there are alternative reforms that could address the same problems within the framework of the rule of law, and indeed they could address those problems more effectively.
”Rep. Paul Ryan (via Ricochet)
First Circuit Affirms Right to Record the Police || Cato @ Liberty
A panel of the First Circuit Court of Appeals affirmed the right of citizens to openly record police officers.
Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.
Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use || Threat Level
A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.
It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.
Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.
Righthaven has sued more than 200 websites, bloggers and commenters for copyright infringement. More than 100 have settled out of court.
A sensible call on the Wal-Mart class-action suit || Washington Post
Reports of the death of class-action lawsuits are greatly exaggerated.
Yes, a unanimous Supreme Court on Monday blocked a mammoth case against Wal-Mart Stores, in which lawyers claimed to represent roughly 1.5 million former and current female employees suing the retailer for alleged sex discrimination. All nine justices gave Wal-Mart and other corporate defendants a victory by ruling that they must be allowed to beat back individual monetary claims and not be bound by statistical models pushed by the plaintiffs. In an opinion joined by five justices, the court adopted standards that will make it harder for plaintiffs to prevail.
But these changes are largely sensible and likely to lead to some welcome developments, including smaller (although not necessarily small) and more cohesive class-action suits.
The federal rules that govern class actions require members of the class to share “questions of law or fact”; they also require that “the representative parties will fairly and adequately protect the interests of the class.” It was always hard to imagine how the disparate group of Wal-Mart employees could meet that test. As Justice Antonin Scalia reiterated in the majority opinion, the Wal-Mart employees “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed.”
The women had argued that the unifying factor in all of their cases was Wal-Mart’s policy of allowing managers almost complete discretion in hiring and promotion decisions; that discretion, the women argued, led to discriminatory abuses. But if this discretion is nearly absolute, how could the company itself be accountable for an allegedly discriminatory nationwide policy?
