If Only They'd Signed Digitally

O. Carter Snead (General Counsel of the President's Council on Bioethics) has a fascinating essay in The New Atlantis about how new technologies affect constitutional interpretation, Technology and the Constitution. A sample:

Because of its defining feature–the requirement that constitutional provisions be construed according to their original meaning–originalist textualism is profoundly affected by advances in science and technology. In cases and controversies in which such advances are centrally involved, originalist jurists are required to discern and apply temporally fixed concepts to circumstances and possibilities that could never have been contemplated by the authors of the Constitution. This collision of fixed meaning and novel realities born of technological progress stands to force a "crisis of construction," where fidelity to originalist textualism is greatly complicated or costly, and in some cases yields politically undesirable or untenable results.

He concludes with a question ("whether the solution to this growing challenge is to empower judges to interpret the Constitution by their own initiative and whim–and therefore to rely on their understanding of the significance and character of new technologies") and discusses the ramifications of the competing approaches.

Green Eggs And Spam

Just wondering if someone had nabbed that headline: yep! Mr. Geisel's prescience as to the email age was nothing short of astounding, but [Spoiler Ahead!] too bad the little guy won. Horrendous example for our youth.

Side linkage:

• Doc Searls on re-mail: "In a word, relationship."


• OC Metro, Beyond Spam: "There's no software inside the boxes. That's because mUrgent doesn't sell software – it sells access to software and related hardware."


• And won't you rest easier knowing you can, in fact, search inside this book?

Bueno Pro Bono

I and my firm are very proud of the work done by my colleagues Jayne Fleming and Ray Cardozo in a case decided today by the 9th Circuit, Garcia-Martinez v. Ashcroft (PDF). Here's the text of the email (lightly ellipsed and link added; editing is a little like nicotine to appellate lawyers) Kathy Banke, head of Reed Smith's appellate group, just sent the firm:

I am pleased to report an outstanding Ninth Circuit result in the high profile, pro bono appellate matter handled by Jayne Fleming and Ray Cardozo involving the denial of political asylum to Reina Garcia-Martinez. As you may recall..., Garcia had been gang-raped by the Guatemalan military during that country's civil war.

In a published opinion..., the Ninth Circuit today reversed the asylum denial, remarking that Garcia has "survived atrocities that most of us experience only in our worst nightmares" and that "persecution is stamped on every page of this record." The opinion recognizes several key principles that will go a long way in protecting the rights of women victims of persecution in asylum cases.

From both the appellate and asylum practitioner's standpoint, the result is particularly remarkable for two reasons. First, the ground for the decision—insufficient evidence to support the IJ's decision—is one that rarely succeeds. Second, the published opinion was authored by Johnnie B. Rawlinson, one of the Ninth Circuit's more conservative judges known for voting against asylum in the vast majority of cases.

Hats off to Ray and Jayne for their tremendous effort.

And here's more about Jayne's argument in the case, including a WMA version of the argument from the Court's audio argument archive:

• Guatelmalan "Rape As A Political Act" Case Begins, Ninth District [sic] to Review Immigration Decisions


• 9th Circuit Leans Toward Asylum for Rape Victim


• Oral argument audio

Blockbusting Late Fees

Did you see Blockbuster recently started offering an all you can eat movie pricing plan with no late fees? They have a similar thing for games. Long live competition!

IP Memes: Not SCO Fast — And More

(My June contribution to IP Memes follows.)

Not SCO Fast — Court Says SCO May Not Own UNIX Copyright

In a recent ruling destined to resonate across the several jurisdictions hosting The SCO Group's intellectual property claims over the Linux operating system, Judge Dale Kimball of the Northern District of Utah found essentially that the Emperor may have no clothes. Or worse, in this particular situation: he may have no copyright. The ruling considered procedural motions in the slander of title case by SCO against Novell, Inc., concerning SCO's contended ownership of UNIX copyrights and patents. SCO's motion to remand to state court was premised on SCO's argument there was no question the UNIX copyrights were transferred from Novell to SCO. In denying the motion, the court rejected SCO's premise and found the would-be transfer language muddy at best. This is good for Novell, which is expected to test the contractual language on summary judgment, and perhaps even better for IBM and Linux users. It's tough to enforce copyrights you don't own; pesky little thing called "standing."

Links:

• Court ruling questions SCO copyright claims


• Groklaw

Who Rustled Who?

SCO's CEO Darl McBride and Linux founder Linus Torvalds exchanged colorful barbs in remarks to the Washington Post that predated the release of Judge Kimball's order:

McBride: "'We went out one day and our Unix cows were missing,' McBride said he told his father in trying to explain the case to him. 'We looked in the Linux pen, and there's a bunch of them in there that have our brand on them . . . in this case the copyright. Someone took our cows and we want 'em back — it's as simple as that.'"

[...]

"The GPL has this sucking effect of grabbing your IP, sucking it in and destroying your property rights."

Torvalds: "Having a hole in your head has this sucking effect....The GPL doesn't 'grab' any IP at all. The only thing that is desperately trying to grab other people's IP is Darl McBride and company."

If Novell is able to capitalize on the ambiguities identified by Judge Kimball, which it almost certainly will try to do, it won't be long until SCO's copyright claims are deemed officially "all hat, no cattle."

Links:

• Showdown With The Linux Gang

Munging Up The Copyright

Speaking of open source, a new file format called Monolith promises to "muddy[] the waters of the digital copyright debate." Available through Sourceforge.net ("The world's largest Open Source development website"), Monolith transforms ("munges together") two arbitrary binary files to create a Mono binary file, with a ".mono" extension. The resulting file is not statistically related to the files that went into its creation. "Things get interesting when you apply Monolith to copyrighted files. For example, munging two copyrighted files will produce a completely new file that, in most cases, contains no information from either file. In other words, the resulting Mono file is not 'owned' by the original copyright holders (if owned at all, it would be owned by the person who did the munging)."

According to Monolith's creator Jason Rohrer, users may thus be able to create files from copyrighted material that are not themselves subject to any copyright: "What does this mean? This means that Mono files can be freely distributed....[H]ow far away from direct and explicit representations do we have to go before copyright no longer applies? Mono files, given that they contain no information from the original Element files, are not explicit representations. The binary data in a Mono file cannot be directly interpreted to produce a presentation of the copyrighted content, so they cannot be seen as representational at all. Mono files take the data a step beyond any explicit representations, and I claim that this step goes far enough to leave copyright behind."

Rohrer is the first to acknowledge that his theory is untested: "[I]f you apply Monolith in the real world, your legal mileage may vary." But you can likely already find Mono files on a P2P network near you.

Links:

• Monolith


• Sourceforge


• Jason Rohrer

[Update:] Good commentary, links (including a brief history of this sort of effort), and comments on Monolith at Copyfight.

Let It Be...Downloaded

For those who'd rather buy their digital entertainment than test the limits of copyright laws, the surviving Beatles and the widows of those gone by may soon have some good news. The group reportedly is close to inking "an exclusive deal with a leading operator such as Microsoft's MSN, which plans an internet music store soon," that would for the first time enable listeners to legally download Beatles tunes. "One idea is for a Beatles-branded store, where the group's music, videos and other multi-media products could be bought." It remains to be seen who will win the rights to distribute the Beatles catalog online, and what sort of DRM keys you'll need to have on hand in order to "drive their car."

Links:

• The Beatles take long and winding road to internet

[Via IPKat]

"I just don't want to be bothered by the shitheads on the internet!" —Harlan Ellison

AOL recently settled claims by science fiction guru Harlan Ellison that AOL was responsible for the unauthorized appearance of his works on Usenet. Earlier in the case, the 9th Circuit reversed a summary judgment in AOL's favor, concluding that AOL, although an ISP, could have liability as a "passive conduit" under the DMCA. Though the terms of the settlement have not been disclosed, both parties "are pleased this case was able to draw the courts' and the public's attention to the issue of online piracy and advance the legal issues relating to copyrights in the digital world."

Links:

• Ellison Webderland


• C.E. Petit, Ellison's lawyer, re the settlement

[Via Frank Field]

Nothing Rotten About NeimanCarcass

What would you expect to find at NeimanCarcass.com, NeimanCarcass.org, and NeimanCarcass.net? No, not a 2 pound holiday catalog, but rather pictures of baby foxes with soulful eyes who want nothing to do with haute couture. According to the National Arbitration Forum the foxes are here to stay, despite arguments by the Neiman Marcus retail chain that the domain names were confusingly similar to its trademark. "It is unreasonable to believe that a reasonable consumer would be confused as to what the website is about or whether it is owned, sponsored or affiliated with" Neiman Marcus. People who find themselves at NeimanCarcass.com "would quickly understand that the disputed domain names or the web content to which they direct their audience are not affiliated or endorsed by Complainant and in fact are critical of Neiman Marcus insofar as it is involved in the sale of fur." This would become particularly apparent once they started looking in vain for the cookie recipe.

Links:

• National Arbitration Forum Decision


• Fund for Animals Press Release


• NM Chocolate Chip Cookie Recipe

[Via Elizabeth Rader]

Patently Contestable

The EFF's Patent Busting Project, highlighted in prior IP Memes issues, has decided to make things competitive: "We're currently seeking nominations for ten patents that deserve to be revoked because they are invalid. Sadly, we don't have the resources to challenge every stupid patent out there. In order to qualify for our ten most-wanted list, a patent must be software or Internet-related and there must be a good reason to suspect that the patent claims are invalid." (Hmm, if the travel is booked online, perhaps the Doggie Luggage would qualify...?)

Links:

• 10 Worst Patents Contest


• Patent Busting Project


• Doggie Luggage patent info


• More absurd patents