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Supreme Court Round-up for 6/27/05
June 27, 2005 7:59 AM   Subscribe

The Supreme Court's Big Day

The court chose not to review the controversy surrounding "reporter's privilege" in withholding the names of confidential sources; meaning reporters may continue to be jailed or fined for refusing to name sources in court.
 
In Brand-X, the Court decided 6-3 that cable providers did not have to allow competitors to access their lines (the way DSL companies do). FCC opponents had been hopeful the Court would find the other way, opening new markets for competition and service options.

The Court ruled one of two Ten Commandment displays are unconstitutional. The decalogue display on a courthouse wall in Kentucky was found 5-4 to be an unconstitutional endorsement of religion because it was serving a religious purpose. However, the Ten Commandments display on the grounds of Texas' state capitol were found to be constitutional.

The Court finally decided the MGM v Grokster case. The Court found unanimously that the file sharing service can be held liable for the copyright infringement of their users.
posted by falconred (56 comments total) 1 user marked this as a favorite

 
...as shown by clear expression or other affirmative steps taken to foster infringement...

I have not read the opinion, but it will be interesting to see how the above part of the holding will be applied. Technology and the marketplace march on.
posted by anathema at 8:05 AM on June 27, 2005


You know, fuck the Supreme Court, okay? Fuck them.
posted by keswick at 8:12 AM on June 27, 2005


Y'know, if we had some sane copyright laws, we'd be able to distinguish between onerous and benign infringment, and solve a lot of the controversy over file sharing...
posted by klangklangston at 8:13 AM on June 27, 2005


Links to Opinions here.
posted by falconred at 8:13 AM on June 27, 2005


"meaning reporters may continue to be jailed or fined for refusing to name sources in court. "

The other side of that coin is that if the sources leak to get even with enemies, as with the Plaine case, they can't hide behind the shield.
posted by brucec at 8:18 AM on June 27, 2005


They're all batshit crazy. Especially Justice Thomas. Who are these people? I didn't vote for them.
posted by mullingitover at 8:22 AM on June 27, 2005


seems like the MGM case came more down to StreamCast's actions, rather than the software.
posted by brucec at 8:30 AM on June 27, 2005


More importantly:

A journalist may not commit a crime. compromising an intelligence agent in the field is a crime. Protecting a criminal from the law is a crime.

The protection for journalists comes when the source is trying to bring a crime to light, not when the source is actively committing an act that, during wartime, would rate the death penalty.

The motive isn't even important. Whoever (My bet: Bolton) leaked this committed a major crime. Journalists aren't allowed, and have never been allowed, to protect them.

If Miller had refused to name the source who told her who had leaked Plame's name, the first court would have upheld her privilege. The reason she's lost *every* appeal is simple. The privilege she cites does not extend to aiding and abetting a felon in the commission of a crime, or of hiding the identity of a criminal from due process investigation.

She may well go to prison for far more than refusing to talk. If she was smart, she'd be pleading the fifth, not protecting her source.

Personally, I hope she fucking rots. Hell, usually, the answer of this administration to "You don't want to talk" is a quick trip to Gitmo and torture. But, "You are either with us, or against us", so I'm expecting a quick pardon -- that way, she walks *and* doesn't have to divluge her source.
posted by eriko at 8:34 AM on June 27, 2005


Who are these people? I didn't vote for them.

you're spending the summer in remedial civics class, young man!

*points, wags finger*
posted by quonsar at 8:43 AM on June 27, 2005


mullingitover - I think that's the point.....
posted by brettski at 8:58 AM on June 27, 2005


Looking at the other two branches, I'm thinking if we had voted for them it would be a lot worse. /Just sayin'
posted by SomeOneElse at 9:07 AM on June 27, 2005


Supreme Court = bunch of out-of-touch old fogeys.
posted by eas98 at 9:10 AM on June 27, 2005


I'm actually glad they didn't hear the Plame thing--it was a big crime, and reporters have been going to jail to protect their sources for years (even Mary Tyler Moore did it on TV).
Maybe this will make them talk?

The cable thing is weird--doesn't it lead to monopolies?

I don't like the 10 Commandments ruling, but they themselves have a painting of it inside the Supreme Ct, which i think is also wrong. At least they ruled the explicitly religious one was not allowed. This also means that Judge Roy Moore was smacked down too, i think.

Does the filesharing thing cover Bittorrent or is that not considered a "service"?

I'm still reeling from the eminent domain thing--appalling.
posted by amberglow at 9:23 AM on June 27, 2005


Paging wakko..., where's wakko?
posted by kimota at 9:30 AM on June 27, 2005


The Grokster outcome was right, and gratifyingly decisive. Intellectual property means nothing if tools with no economically material function other than infringement can be freely distributed. (Now we can go to work on foreign piracy, which is in some ways a more severe threat than filing sharing.)

The Ten Commandments jurisprudence is (in my opinion) on more or less the right track. There was no good reason, other than outright and unreasonable hostility at Christianity, for the Texas case and other sorts of displays. However, many of the recent inside-the-courthouse installations of the Decalogue have had a more or less explicit intent to intimidate people from asserting claims, immunities or defenses at variance with the Ten Commandmants, notwithstanding that they were entitled to the claims, immunities or defenses in question.

The cable decision was a good one, too. With consumers soon to have as many as six two-way fast pipe alternatives (DSL, cable, fiber to home, broadband over power, WiMax, and EV-DV/DO) the need for mandatory leased access is on the way out.

The Judith Miller case makes sense, too -- while I think Eriko badly overstates the case, it is a fact that there simply isn't a reporter shield law on the Federal books, and, beyond the damage of judge-invented substantative law, the problem of governing who was entitled to such a privilege might be intractable. Lawyers, doctors and clergy privileges are far more easily manageable.
posted by MattD at 9:45 AM on June 27, 2005


amberglow - I think bittorrent is out of striking range for the law, for the simple reason that it's a technology and not an organization. If someone tried to go after Bram Cohen for creating it, they'd be hard pressed to show he had intended to profit from copyright infringement. He stated explicitly that it was designed for non-infringing use (if it weren't he would've made at least a token effort at hiding the file swappers' identities). Trying to sue bittorrent would be like trying to sue the internets.
posted by mullingitover at 9:52 AM on June 27, 2005


...the high court said that displays of the Ten Commandments -- like in their own courtroom frieze -- are not inherently unconstitutional...

Well, of course. If you're going to interpret the rules, it only makes sense to do so in your own favour.
posted by GhostintheMachine at 10:02 AM on June 27, 2005


We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringemen

This seems like a pretty reasonable decision to me. If you create a service and explicitly say "This is for infringing copyright" then hellz yes, you should be busted. Bittorrent is something entirely different, as I have never seen anything along those lines with respect to bitttorrent clients (and considering that WoW uses a bittorrent-type process for its patch releases, I'd say that it definitely has legitimate uses).
posted by antifuse at 10:07 AM on June 27, 2005


kimota, don't do that. His shtick got tired after the 6th or so time.

As for the opinions, I'm still reading them, as is a good idea instead of relying on your local journalist's impression of what they want you to think.

But after looking at MGM, it's a right decision.

And I looked at the Kentucky case. Whether you hate him, disagree with him, or fear him, one has to be utter awe of the enormous power of Justice Scalia's intellect and the precision of his rhetoric. Whether right or wrong, one cannot deny that he is the most gifted jurist of his generation. The Kentucky dissent is amazing. I find I agree with it, but as a person who has to read opinions constantly, it is impressive for its clarity and thoroughness.
posted by dios at 10:09 AM on June 27, 2005


Scalia is not the most gifted jurist of his generation. He is just the most bluster-prone.
posted by ibmcginty at 10:25 AM on June 27, 2005


If someone tried to go after Bram Cohen for creating it, they'd be hard pressed to show he had intended to profit from copyright infringement.

The search engine on the front page of the BitTorrent page treads into those waters. The search results definitely returns results that are obvious copyright infringement, and has paying Google AdWords on them. I really don't understand why Bram did this. Seems like a boneheaded move to me. Your point is still valid, though, as Bram may get in legal trouble for this, but the cat's already out of the bag with regards to the technology.
posted by zsazsa at 10:29 AM on June 27, 2005


the precision of his rhetoric

Scalia is the Poggio of this age. And not in a good way.
posted by meehawl at 10:31 AM on June 27, 2005


I am still very concerened that all paper currency in the US has "In God We Trust" on it.
posted by buzzman at 10:33 AM on June 27, 2005


zsazsa writes "The search engine on the front page of the BitTorrent page treads into those waters. The search results definitely returns results that are obvious copyright infringement, and has paying Google AdWords on them."

Have you looked deeper? First, the Terms of Service are unequivocal:
"[You agree that you will not use the Site or the Services:]
...
* to develop, generate, upload, post, display, transmit, disseminate or store information that: (A) infringes any third party's intellectual property or other proprietary rights, including, but not limited to, using third party copyrighted materials, without appropriate permission, using third party trademarks without appropriate permission or attribution, or using or distributing third party information (whether or not protected as a trade secret) in violation of a duty of confidentiality or otherwise;"

In this way it is just like any other search engine - it shows results without judging them.

Second, I haven't seem any adds, Google's or otherwise.
posted by nkyad at 10:52 AM on June 27, 2005


Whether right or wrong, one cannot deny that he is the most gifted jurist of his generation.

i kind of prefer my gifted jurists to be right.
posted by brucec at 10:55 AM on June 27, 2005


Joe Wilson respondst: That two reporters may now have to go to jail is a direct consequence of President Bush's refusal to hold his administration accountable for the compromise of the identity of a CIA officer, Valerie Wilson.

Had he enforced his edict that all members of his administration cooperate fully with the Justice Department investigation, we would not be where we are today.

Equally, some senior administration officials who spoke to Matt Cooper and Judy Miller today cravenly stand by while the two journalists face jail time because of a conversation they had with them. It is an act of extraordinary cowardice that those officials not step forward to accept responsibility for their actions.

posted by amberglow at 10:56 AM on June 27, 2005


Forget point two, now I saw the adds. But I don't think this invalidate point one.
posted by nkyad at 11:01 AM on June 27, 2005


Looks like the Ten Commandments ruling may have stolen a little of Rep. Hostettler's righteous thunder:

The director of the Indiana Civil Liberties Union says US Supreme Court rulings on the display of the Ten Commandments will have an impact on Indiana cases.

Ken Falk says a case in Gibson County, Indiana, is similar to a case in Texas.

In the Texas case, the justices found that a six-foot granite monument on the grounds of the Texas capitol in Austin does not cross the line between church and state.

posted by Otis at 11:04 AM on June 27, 2005


What next?
Will the music industry go after those of us who do this?
posted by squalor at 11:26 AM on June 27, 2005


On the contention that you can't sue Bram Cohen for bittorrent because it's "a technology rather than an organization": no, no no! You could definitely sue Bram Cohen for making and distributing BitTorrent. It's just that under the new Grokster rule, you'd probably lose. For a distributor to be liable for contributory infringement, that distributor must take "affirmative steps" to "foster infringement," in the case of Grokster, all the advertising they did and apparently taking some phone calls advising people how to find infringing stuff on their networks (dumb, dumb, dumb).

Cohen, on the other hand, as the agreement posted above points out, expressly disavows all copyright infringement. And apparently not in a wink-wink, nudge-nudge sort of way; he was actually interested in, e.g., propagating Linux ISOs more efficiently. A plaintiff would be hard pressed to show that he had the object of fostering infringement on that record. But it's not the case at all that he can't be sued because he's "not an organization."

Yes, I read the opinion.
posted by rkent at 11:26 AM on June 27, 2005


squalor writes "What next?
"Will the music industry go after those of us who do this?"


Only if you can be overheard by neighbors and passersby on the street, because then it would be a "public" performance. Come to think of it, that would be a way to get rid of shower singing neighbors and roommates.
posted by nkyad at 11:36 AM on June 27, 2005


Re: Plame: can anyone explain to me why Mathew Cooper and Judith Miller are facing jail time and Robert Novak is not?
posted by Fuzzy Monster at 11:36 AM on June 27, 2005


Supreme Court = bunch of out-of-touch old fogeys.
posted by eas98 at 12:10 PM EST on June 27 [!]


Why?

I'd rather have them enforcing the laws than some wet-behind-the-ears fresh law school graduate. There are some places where experience is still valuable.

you're spending the summer in remedial civics class, young man!
*points, wags finger*
posted by quonsar at 11:43 AM EST on June 27 [!]


Perhaps not a bad idea for many of us. Remember the roles of the different branches of the government. It's been quite a long time since my last civics class, but if I recall correctly, the Legislative Branch makes the laws and the Judicial Branch simply handles decisions and rulings on the enforcement of those laws.

If we want to criticize SCOTUS for their decisions, doesn't it make more sense to do it in regards to an incorrect or improper interpretation of the law? I'm not certain we saw that today. I'm not stunned with the decisions that were announced, I'm simply stunned with the idiotic laws that exist to begin with...
posted by NotMyselfRightNow at 11:40 AM on June 27, 2005


i hate Illinios Nazis the Supreme Court
posted by tsarfan at 11:47 AM on June 27, 2005


"The most important message from today's historic decision is that progress and innovation do not have to come at the expense of recording artists, songwriters and the people who make their living in the entertainment industry," Warner Music Group CEO Edgar Bronfman said in a statement. "This important decision will allow artists and the creative community to prosper side by side with the technology industry."

Remember when music CD's were like 20 to 30 dollars and the big secret was that it only cost them pennies to make? (Yes, yes don't tell me they were sued after. I NEVER GOT MY MONEY BACK!)
Then the technology went from the elite stage (expensive and not mass marketed) to the popular (inexpensive and widely available).
The value of what they are selling has dropped because technology advanced.
The control over the technology they used to rip us off is now in our hands.
"Boo Hoo for you record companies!" get another job and stop whining!
I'm paying 60$ to see a live show (and I'm getting exactly what I'm paying for "value" wise.
But I will never buy a CD again.
posted by indifferent at 11:52 AM on June 27, 2005


Cooper and Miller were subpoenaed and refused to testify, and thus were held in contempt. Novak did not refuse to testify.
posted by aaronetc at 11:54 AM on June 27, 2005


Thanks, aaronetc. So does that mean that Novak did reveal his source for the Plame leak to the grand jury?
posted by Fuzzy Monster at 12:35 PM on June 27, 2005


All the RIAA shills called into Talk of the Nation pretending to be normal people happy about the verdict. It was disgusting.
posted by keswick at 12:42 PM on June 27, 2005


AFAIK, Novak's status -- whether he was subpeonaed, whether he took the stand, whether he named names -- is still under seal.
posted by aaronetc at 12:44 PM on June 27, 2005


Novak squealed like the pig he is, people are saying.
posted by amberglow at 12:48 PM on June 27, 2005


I figure who leaked what will trickle down to We The People one of these days: "Hey, did you hear who leaked Plame's identity to Bob Novak? Turns it out it was MARK FELT!"
posted by Fuzzy Monster at 12:55 PM on June 27, 2005


The Ten Commandments jurisprudence is (in my opinion) on more or less the right track. There was no good reason, other than outright and unreasonable hostility at Christianity, for the Texas case and other sorts of displays.

*eagerly awaits MattD's defense against attacks on my papier-mache homage to Zarathustra outside my local county courthouse as "unreasonable hostility toward Zoroastrianism"*

I find I agree with it, but as a person who has to read opinions constantly, it is impressive for its clarity and thoroughness.

we get it, you're a conservative jerkweed lawyer with his tongue up Scalia's barnhole. for the love of Zuul, say something interesting.
posted by Hat Maui at 1:18 PM on June 27, 2005


Ok, so after reading the opinion, I gotta say I agree with the Supreme Court. Also, regarding BitTorrent, it seems to me he is doubly safe because there is no searching mechanism built into the program. To download a torrent you have to know where one is, which means that the folks who'll get smacked down are the ones hosting torrents of copyrighted material and not the author of BitTorrent.

However, Edgar Bronfman's comment irks me a bit. The Sups admit that MGM would be justified if they decided to go after damages, though they admit it would be hard to determine a number because of the nature of the P2P networks, but who will their damages go to? The judges themselves point to the fact that there is no record of what was downloaded when and that it's not possible to track.

So would these big media companies award all of their artists the same amount of money? (I can't imagine that being more than a few cents for each artist.) Or would they split it between all of the corporate entities with the individual artists receiving no compensation because they can't determine to whom it should be divvied out? What do the artists gain from either of these scenarios? Nothing, is what I say.

If the big recording companies manage to completely stamp out illegal downloads, then the artists who will supposedly "prosper side by side with the technology industry" will probably lose even more because there is a large percentage of non-CD buying, lazy internet users out there who will never hear their music and subsequently not go see them play live.

The notion that the elimination of illegal downloading will substantially increase their sales (which is what I think is implied when they say, "we've lost 4 bazillion dollars to illegal downloading!") is ludicrous, I think. People using these networks will either a) simply stop trying to illegally download stuff because it's too complicated or b) trade mp3s with friends through their websites or other kinds of portable digital media. There might be slightly less illegal trading going on, but I don't think the number of people who actually go buy CDs will increase. The satisfaction of owning a CD, for me at least, is owning a physical object with particular packaging and not the content of the disc itself, which if I like it well enough will go on my computer anyway.

I know, I'm preaching to the choir. I just had to get that off my chest. (Get a blog, they'll say.)
posted by ddf at 1:20 PM on June 27, 2005


find I agree with it, but as a person who has to read opinions constantly, it is impressive for its clarity and thoroughness.

I read the dissent, and it seems mainly a rambling discourse about how lots of important people in the history of our nation invoked "God", opens with a reference to 9/11 (How...melodramatic) and contains a quote from the text that went along with the display in question stating that The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition, an assertion I'd find more believable if greater than two of the Commandments were actually reflected in US law.

The "most gifted jurist of his generation?" - Souter has more intelligence in his left pinky.
posted by jalexei at 1:56 PM on June 27, 2005


Err, bitorrent is a protocol not a product. If I start a company or organization that promotes copyright infringement using BT, in fact you can use whatever client you like, and we get struck down in court, do you really think Bram and everyone else will also be protected?

This ruling is ignorant of how computer networks work and the division between the fasttrack network and its protocol and that thing we call Grokster are very, very real. I find it hard to believe a jury or a judge will understand the difference between implementation and protocol. A "shut them down" verdict could span well beyond the plaintiff.

Also, the 10 commandments ruling is wrong any way you you look at it. Would a Scientology statue be accepted as a gift by the state or would the state dare build one and put it up? If it did, in say, LA how would the courts act? Erring on the side of the majority religion is easy and very wrong. There is no need for religious displays inside courthouses. Hell, there is no need to swear on bibles either. Might as well swear on the Koran or Moby Dick for all the good it does.
posted by skallas at 2:21 PM on June 27, 2005


von Lohmann's analysis of this ruling on the News Hour with PBS, albeit from someone who is biased, is spot on. The Supreme Court has really opened up uncertainty about what constitutes "promotion" of infringement, and in the end, that uncertainty means only wealthy corporations will get what they want.
posted by Rothko at 3:38 PM on June 27, 2005


"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement."

I am suing the living fuck out of Xerox.
posted by raaka at 3:41 PM on June 27, 2005


For what it's worth, I work retail at a copy shop and the American public could give fuck-all about copyright and trademark violation. The great thing about laws that everyone and their mother breaks is that the Powers That Be can pick and choose who to attack according to whim.
posted by Skwirl at 4:14 PM on June 27, 2005


Might as well swear on the Koran

but if you do some nice prison guard will accidentally urinate on the book, and people will die because of Newsweek
posted by matteo at 4:16 PM on June 27, 2005


So...

Regarding the Copyright one it looks to have been ruled on a technicality and that technicality has a loophole the size of Texas. At first glance I didn't really understand it until I read a bit more. It seems some of those peer to peer software companies were advertising and promoting their software's illegal benefits opposed to say a tape recorder or DVD Burner which is advertised with only the most legitimate of purposes.

The message? When crafting pirating software only advertise the legal uses and make sure users are well aware that illegal actions are not condoned by your company...


For the broadband issue I'm both disappointed and potentially satisfied. First as a 5 year Comcast Internet subscriber I can't wait for this company to go to the rotten hell that they so deserve, therefore I'm disappointed that these publicly regulated companies are not forced to allow competition. On the other hand newer technologies may allow market forces to do what this ruling did not as far as allowing competition.
posted by aaronscool at 4:21 PM on June 27, 2005


This important decision will allow artists and the creative community to prosper side by side with the technology industry.

Two things.

1. Artists can already prosper side by side with the technology industry.

2. As if this was about the poor, defenseless artists. Blech.
posted by Civil_Disobedient at 9:06 PM on June 27, 2005


Maybe it's just me, but once I heard about this decision I immediately ran to check Boing Boing, because you just know Cory Doctorow is going to throw a fit over this. :-)
posted by danb at 9:16 PM on June 27, 2005


I personally think the most interesting case, was the one you didn't mention, Gonzales v Castle Rock. It ruled 7-2 that police departments are not liable when they do not enforce court orders like restraining orders and therefore are protected from lawsuits. What I want to know is, how does that not take the teeth out of any future court order, since other than the serve and protect motto, the police departments have no reason to enforce them?
posted by shawnj at 1:35 AM on June 28, 2005


Shawn, that was interesting decision as well. There, I agree with the outcome the majority reached. Your question seems to be whether this renders court orders meaningless, but I don't think that is what the holding says at all.

The case isn't about whether the restraining order was enforceable; most surely it was. The question was whether an injured party could sue the state if she is injured by a person against whom the state has issued a restraining order. Here, I think a look at the basic tort model is helpful.

The basic tort model is that Party A injures Party B, so Party A pays Party B to "make them whole." At issue in tort is whether (1) Party A owed a duty to Party B; (2)whether Party A breached that duty, and (3) whether that breach resulted in a compensable injury to Party B. The majority focuses on whether the state had a duty to Gonzalez. I think they are right when they said the state does not. But assuming, for the sake of argument, that the state did have a duty, I don't know how one resolve the breach and causation elements in a way to hold the state liable.

The Court basically held that the state does not have a duty to ensure that a party will be restrained after a restraining order is issued. Their reasoning is that when the state issues a restraining order, it created an entitlement for Gonzalez. That is, the state didn't give her a "right" because one did not exist; they gave her a special benefit that she would be afforded extra protection. When you get an entitlement, it alters the duty relationship.

One could get far afield in the morass of duty law in this case, but here, I suspect basic common sense is helpful. How, as a practical matter, could the state ensure that a restraining order is complied with? The state would have to force Gonzalez into a program like the witness protection program. That sort of result is unworkable. A better way to think about it is that the state just creates a special law that applies only to the party restrained. As with other laws, you can't hold the state responsible when the law is broken. That is, I can't sue the state because someone stole my car. The state makes a reasonable effort enforce its law. It cannot be the guarantor of protection.

So its not a ruling which says states don't have to enforce restraining orders. The state still has a ministerial duty to enforce its laws when it can. And the restraining order still has "teeth" against the party it issues against; they still can go to jail for not complying with it. So the order still has power and effect. The issue is that the state cannot be held civilly liable if they fail in that task. They don't have a legal duty to ensure compliance.

Also at issue here is the question of sovereign immunity. Most states have immunity statues limiting when one can sue the state. That is a whole different ball of wax. But it is sufficient to note that rarely will a state be held liable for an act of simple negligence in performance of a task. It usually takes more. That alters both the duty and breach elements, though I must have missed the part of the opinion that addressed those.

In sum, I don't think this opinion alters the status quo. I didn't think one could sue the state successfully before, and we now know one can't. And this act doesn't have an effect on the ministerial act of issuing and enforcing restraining orders.
posted by dios at 6:52 AM on June 28, 2005


Well, when it comes to BitTorrent, we can certainly thank Blizzard for helping making a case for a legtimate use for BT. The World of Warcraft updater uses BT technology, which, to the best of my knowledge is a bit of a first in the consumer market.
posted by Samizdata at 4:41 PM on June 28, 2005


Time Inc says will hand over papers in Plame case
posted by Otis at 7:58 AM on June 30, 2005


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