Category: Law

In the twentieth century, the constitution’s commerce clause was twisted to the point of absurdity in the quest to expand government.  It’s rather heartening, therefore, to read that the commerce clause has actually been used appropriately to prevent states from discriminating against in-state and out-of-state shippers of wine.

Professor Bainbridge, of course!, has more.

Jeffrey Rosen’s NYT Magazine piece on possible libertarian Supreme Court Justices was surprisingly reasonable (the photographer, however, must have been a real statist).  It’s funny, however, how frightened the center is of Epstein, Barnett, Greve et al.  Consider this:

…Epstein was promoting a legal philosophy far more radical in its
implications than anything entertained by Antonin Scalia, then, as now,
the court’s most irascible conservative. As Epstein sees it, all
individuals have certain inherent rights and liberties, including
”economic” liberties, like the right to property and, more crucially,
the right to part with it only voluntarily. These rights are violated
any time an individual is deprived of his property without compensation
— when it is stolen, for example, but also when it is subjected to
governmental regulation that reduces its value or when a government
fails to provide greater security in exchange for the property it
seizes.

Can’t you just hear the fear?  ‘Sir, all this talk of "economic" liberties, that is wild, crazy talk.  Irresponsible, I say.  Serious people shouldn’t go around promoting this kind of thing – it’s liable to stir up the population.  Why sir, your views, they reek of revolution.’ 

Operation Falcon, a dragnet put together by the U.S. Marshals and local police agencies, netted 10,000 fugitives last week.  Cool.  But note that that there are millions of unserved arrest warrants.  The Washington Post was one of the few newspapers to get the story right:

Criminal-justice experts said that by apprehending
thousands of fugitives in a matter of days, the operation underscored
the low priority that law enforcement agencies often give to locating
people who have jumped bail, violated parole or otherwise evaded state
and federal courts.

"The dirty little secret is that there usually is not
enough effort and manpower put into apprehension of fugitives," said
David A. Harris, a law professor at the University of Toledo who
studies criminal-justice issues. "Most fugitives are aware of this, and
it makes the system a joke. . . . It’s never been a top priority."

I would add only that the commercial bail system, backed by bounty hunters, does a much better job than the public system in ensuring court appearances and capturing fugitives.  The long arm of the law belongs to the bounty hunter.   

How is that for heavyweights?  You can add William Landes, Kevin Murphy, and Steve Shavell — among others — to the list.

Here is their Amicus brief on the Grokster case coming before the Supreme Court.  (Here is a more general list of amicus briefs on the case.)  Their bottom line, however, is general rather than concrete:

They argue that indirect liability often makes economic sense.  If a file-sharing service can distinguish and police illegal files at low cost, that service should not be able to hide behind the 1984 Sony Betamax decision (i.e., the mere existence of non-infringing uses for a technology implies no liability).  Furthermore we should consider whether P2P services offer real benefits above and beyond fully legal alternatives, such as iTunes.  They stress that previous courts have failed to ask these key questions.

I’ve argued similar points myself, but my doubts grow.  I worry we cannot find a standard of indirect liability with clear lines.  Just how easy must it be to monitor illegal behavior and how hard must Grokster try?  Most likely all the variables lie along a relatively smooth continuum.

And who else can be indirectly liable?  File-sharing through iPods, email, blogs, and instant messaging is larger than you think.  36 million Americans admit to having shared files in this manner. 

"All these internet technologies share this common mass-copying capability: e-mail, web servers, web browsers, basic hard drives," said Jason Schultz, an attorney with the Electronic Frontier Foundation, which represents StreamCast Networks. "There’s no principal distinction between (P2P) and other internet technologies in the way it’s designed.

Read more here. 

Is the question which level of technology can police illegal file sharing and copying most easily?  This might not be Grokster at all, since they have only an indirect link to the downloaded files.  Such a "least cost" approach might result in a monitoring chip put into all hard drives.  Yikes. 

Does Grokster supply any economically useful product that the legitimate services don’t?  Well, how about free files for those who wouldn’t otherwise pay for them?  If we approach the problem in a utilitarian manner, we can’t flinch from this conclusion.

My current best guess is that an economic approach — however correct in general terms — won’t come up with any new solutions we can live with.  We may be stuck with the Sony case after all.

..if this case [Schiavo] has prompted a marked increase in the number of people specifying when they do not want heroic measures used to extend their biological life, then by their actions the Bush administration and both houses of Congress will have retarded rather than extended the culture of life.

Just a thought.

That is from Daniel Drezner.

Who owns the world’s largest database on Islamic terrorism?  Is it the CIA, the FBI, or the NSA?  No, the owners and operators are …a group of American tort lawyers who are preparing to sue the Saudis for one trillion dollars.  I don’t know whether to be appalled or proud.

Thanks to Carl Close for the pointer.

The Eiffel Tower is uglier than ever before; it now has new and garish flashing strobe lights.  And why?

The Eiffel Tower’s likeness had long since been part of the public domain, when in 2003, it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.

As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission.

Here is the story.  Here is my previous post on why the French take copyright so seriously.  We can’t blame it all on the French, however, "the cloud" a publicly owned  artwork in Chicago’s Millenium Park is also copyrighted and apparently protected from photographs by security guards.