We conclude that 17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners. While such a rule of reason may create some uncertainty and consume some judicial resources, it is the only meaningful reading of the statute. Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products. See H.R. Rep. No. 105-551, at 26 (1998). The courts must adhere to the language that Congress enacted to determine how it attempted to achieve that balance.UPDATE: Ernest Miller blogs his thoughts on the case here.
. . . .
. . . . A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization—as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker's device enables either copyright infringement or a prohibited circumvention.
Tuesday, August 31, 2004
Ford Motor Co., the world's second biggest carmaker, has had a television commercial for its Land Rover brand banned by the U.K. communications regulator after it was judged to "normalize" the use of guns.
The advertisement, which featured a woman brandishing a gun later revealed to be a starting pistol, breached the Advertising Standards Code and must not be shown again, Ofcom said in an e-mailed statement. The regulator received 348 complaints against the ad, many concerned that the commercial glamorized guns and made it "appear that guns are fun and cool." . . .
Ofcom said glamorization is "part and parcel" of the advertising process but this commercial "normalized" gun ownership in a domestic setting. The pistol, fired by the woman into the air as a man got into his car, was used in "an apparent casual manner and just for fun," Ofcom said. . . .
Handguns, as I understand it, are indeed largely banned in the U.K.; but this wasn't an ad for handguns. (Even under U.S. law, which as I understand it is more speech-protective than are U.K. or European free speech norms, an advertisement for an illegal product is unprotected.) Rather, it was an ad that the government thought spread an idea -- handguns are "fun and cool" -- that the government disapproves of. So of course the solution is: ban it.
Thanks to Dan Gifford for the pointer.
I've long declaimed against online polls, largely because they involve self-selected samples — that X% of the people who chose to participate voted in a particular way tells us next to nothing about what the public at large, or any other segment of the public at large, thinks.
But MSNBC has managed to come up with a poll that has a problem much less subtle than the one I describe above. Here's how the question is framed, I kid you not:
QUESTION OF THE DAY
Did Rudy Giuliani's speech reassure you or move you to support the Bush-Cheney ticket?
Reassure Move you to support
Yup, those are the only two options. The problem is so glaring that I have to assume it was an accident — but what an accident.
Thanks to Marty Lederman for the pointer.
UPDATE: Gil Milbauer reports that this has been fixed, and the choices are now "yes" and "no."
It's innuendo, but it's pretty repulsive innuendo (at least unless Dennis Hastert has something to back it up). From Fox News Sunday, Aug. 29, 2004:
[Host Chris] WALLACE: Let me switch subjects. You both had very deep reservations about McCain-Feingold campaign finance reform before it was passed. In fact, I think you say in your book, Mr. Speaker, that you thought it was the worst piece of legislation that had been passed by a Republican Congress since you've come to Washington.
Now that everyone seems upset with these so-called independent 527 groups, whether it's MoveOn.org on the liberal side of the spectrum or Swift Boat Veterans for Truth on the conservative side, do you feel like saying, "I told you so"?
HASTERT: Well, you know, that doesn't do any good. You know, but look behind us at this convention. I remember when I was a kid watching my first convention in 1992, when both the Democratic Party and the Republican Party laid out their platform, laid out their philosophy, and that's what they followed.
Here in this campaign, quote, unquote, "reform," you take party power away from the party, you take the philosophical ideas away from the party, and give them to these independent groups.
You know, I don't know where George Soros gets his money. I don't know where -- if it comes overseas or from drug groups or where it comes from. And I...
WALLACE: Excuse me?
HASTERT: Well, that's what he's been for a number years -- George Soros has been for legalizing drugs in this country. So, I mean, he's got a lot of ancillary interests out there.
WALLACE: You think he may be getting money from the drug cartel?
HASTERT: I'm saying I don't know where groups -- could be people who support this type of thing. I'm saying we don't know. The fact is we don't know where this money comes from.
Before, transparency -- and what we're talking about in transparency in election reform is you know where the money comes from. You get a $25 check or a $2,500 check or $25,000 check, put it up on the Internet. You know where it comes from, and there it is.
Hastert's substantive criticisms of campaign finance may be legitimate -- but the suggestion that Soros might be getting money from illegal drug distributors, even as a hypothetical example, is pretty reprehensible. (Imagine that, say, Ted Kennedy said "I don't know where Swift Boat Veterans for Truth are getting their money, if it comes from overseas or from neo-Nazis"; I take it that we'd be pretty appalled, even if Kennedy was just giving a hypothetical example.) And while "drug groups" may be slightly ambiguous in other contexts, where it might refer to pro-drug legalization groups, in this context it pretty clearly does suggest drug criminals, partly because Hastert didn't deny the connection when Wallace raised it and partly because the pro-legalization groups are funded by Soros, not the other way around.
As Jesse Walker (Hit & Run) points out, illegal drug dealers are actually likely to oppose drug legalization rather than supporting it: "Drug prohibition acts as a price support and a barrier to entry; it helps the cartels maintain their market position. They're about as likely to fund a legalization campaign as they are to give Denny Hastert an all-expenses-paid vacation in Bermuda or -- as long as we're throwing around groundless insinuations -- a free sex tour in Thailand." But in any event, Hastert shouldn't be making such unsupported innuendos, whether they make economic sense or not.
this time over IndyMedia's posting of delegates' "names, home addresses, e-mail addresses and the New York-area hotels where many are staying." The Secret Service is investigating.
I'm not sure whether such postings break any existing laws, or whether a law could indeed ban them consistently with the First Amendment. While such speech may indeed facilitate crime, it is also useful for legal and perhaps even constitutionally protected purposes, such as remonstrating with the delegates or demonstrating outside their hotels (or even their homes). See generally NAACP v. Claiborne Hardware (1982), which held that publishing the names of people who weren't complying with the boycott was constitutionally protected. (The speech in Claiborne didn't involve publishing addresses, but in a small county of about 10,000 people, knowing someone's name could pretty quickly get you his address.)
On the other hand, the Secret Service may be legitimately investigating to see whether any illegal conduct against the delegates is planned. Constitutionally protected speech may often trigger an investigation: This is most obvious after a crime is committed -- if Joe Schmoe is killed, and it turns out that I had earlier expressed the constitutionally protected opinion that he needed killing, the police could certainly investigate me more closely because of what I had said -- but I think it's equally true when the police are trying to prevent a crime. So it's hard to evaluate the investigation based on just the brief snippet that I saw reported.
Monday, August 30, 2004
I'm not sure I agree with the last post, which argues:
It occurs to me that impeachment may actually have been the subject of implied repeal under the much-derided (by me among others), but nevertheless law of the land, Human Rights Act 1998.
How does the impeachment process as described by the authors square with these provisions?
[Article 6] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
How can their Lordships assembled be regarded as an "independent and impartial tribunal"? And:
[Article 7] No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
An undefined "High Crime / Misdemeanour" is patently contrary to this article.
I know nothing about British law, but my instinct is that if an impeachment — even for a "High Crime" — leads only to expulsion from office, it's more akin to the firing of a high government official (though a highly specialized sort of firing) than to a true criminal conviction. It doesn't make much sense to have the same protections for the accused there as when the accused is put in danger of prison, death, or the other consequences of criminal convictions; the main issue here is the welfare of the realm, not the interests of the government official, who ought not be seen as having any property interest in his position. And it would surprise me if English courts interpret these provisions, which seem focused on true criminal prosecutions or at least matters where the individual does have some sort of personal right at stake, as applying to impeachment. But in any event, Iain is the expert on English matters, and I'm not.
UPDATE: I've exchanged a few e-mails with Iain about my quibble, and they reminded me to acknowledge what Iain quite correctly pointed out (and what Mark Kleiman has just blogged about) — — in English history, the most prominent impeachments (centuries ago) have resulted in criminal punishment. The U.S. constitutional rule that an impeachment may at most punish someone by removal from federal office, perhaps coupled with a prohibition on future federal officeholding is actually a reaction to that history.
Nonetheless, I strongly suspect that in this impeachment, all that Blair's enemies would seek is his removal from office. As a political matter, it seems highly counterproductive for them to ask for more. And if that's all they ask for, then I don't think that the process ought to be treated as a criminal process.
FURTHER UPDATE: I told you that Iain is the epxert on English matters and I'm not; he writes that a 1999 report of the Parliamentary Committee on Privilege provides the following:
Under this [. . .] procedure [i.e., impeachment], all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatsoever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There in the name of the House of Commons and of all the Commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order to that House. If a commoner, he is arrested and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints 'managers' for the trial to prepare attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and reexamination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgement is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon. The last impeachment was in 1805 (Lord Melville). The procedure has not been widely adopted in the Commonwealth. However, it survives, in a somewhat different form, in the constitution of the United States of America.I still think that if the punishment involves only removal from office (and the arrest and bail is omitted or treated as a pure formality), the process looks more like the dismissal of a high government official -- and not a matter of civil rights or criminal punishment -- even if its historical origins involved something much closer to criminal punishment. Nonetheless, I appreciate Iain's points, and I agree that formally speaking the arrest and bail are at least more reminiscent of criminal procedure, and do implicate the person's civil rights (though I'm not sure that even they would be barred by Article 6).
they just go on the web. Or so you might think after spending some time with The Living Room Candidate, which has collections of presidential campaign ads for every presidential election since 1952. I laughed my way through the Ross Perot ads from 1992, and found lots of other great stuff, too. (Hat tip: Is That Legal?)
to let Prof. Natelson teach constitutional law: As I reported in early July, quoting a local newspaper:
University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .
In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . .
A hearing officer has ruled that Prof. Natelson was indeed wrongly denied the opportunity to teach constitutional law, and should be allowed to do so; and the University President has therefore ordered the Dean of the law school to let Prof. Natelson teach the class. The decision, though, was based on the law school's having not followed its own traditional informal rules on the matter; the hearing officer said he didn't have to decide whether political discrimination was present. Some of Prof. Natelson other charges, also mentioned in my earlier post, were also seemingly not reached.
Political conventions don't generate any actual news these days, but look on the bright side: conventions are week-long campaign commercials that the major party candidates don't have to buy. Not that the conventions themselves are free, of course; according to this website, the GOP convention is expected to cost around $64 million.
1. Impose a ban/fine: This is Law & Econ 101, so I'm a bit embarrassed that I didn't think of it myself, but as usual Jonathan Klick was able to straighten me out on my economics. A "ban" is usually enforced through a fine, so if you impose, say a $25 dollar fine if someone is busted, then people will automatically tend to sort themselves into high and low users and will minimize the length of their calls to reduce the probability of being hit with a fine. The problem to my mind, is that local governments seem to use traffic regulations to raise revenue rather than to establish optimal rules, so who is to say they will set the rate at the proper price.
2. TAx on moving converstaions: Doug Lichtman had an interesting idea of taxing cell phone conversations differently depending on whether the conversation moves from one cell tower to another or remains on the same cell tower throughout. This is over-inclusive because it catches passengers too, but its a nifty idea because it tries to directly regulate the cost side of the transaction and tax at a higher rate those phone calls that have the greatest propensity to impose costs through risky driving (talking in a moving vehicle) versus low-cost calls that are stationary.
3. Technology and market adjustments: Mike Vos suggested that if there is a real cost here that the market would probably sort it out. He suggested that if cell phone drivers get in more accidents, this would create an incentive to tie cell phones into the "black box" recorders that are now in cars or GPS systems, such that it would be possible to determine if a person was traveling while talking on the phone. This has the added benefit, of course, of providing sound incentives to figure out whether cell phones actually impair driving by relying on adjustments in the insurance market to make that determination.
Thanks to everyone who wrote in with these ideas and others, all of which were very clever.
Another interesting column -- don't know if it's right, but it's definitely worth reading. Here's an excerpt:
One of John F. Kerry's most damning accusations against President Bush is that he has made America a global pariah, thereby undercutting the international cooperation we need to win the war on terrorism. . . . Opinion polls show that a large number of Americans have bought this argument. . . .
It's easy to see why so many people would come to this conclusion, since surveys do show that U.S. popularity has declined in many countries during the past four years. Obviously it's better, all things being equal, to be liked than disliked. Kerry has a point when he accuses the Bush administration of squandering some opportunities to garner support abroad. The mishandling of Turkey before the Iraq war is a case in point.
Where Kerry is dead wrong, demonstrably wrong, is in suggesting that this unpopularity is taking a heavy toll on America's efforts to win the war on terrorism. Actually, by all indications, the United States is now getting significantly more cooperation in fighting terrorists than it ever did in the balmy days of Bill Clinton, who did all the sweet multilateral things that Kerry endorses -- trying to broker an Israeli-Palestinian accord, signing the Kyoto global warming treaty, not offending "Old Europe" or threatening the power of Middle Eastern autocrats. . . .
What's going on here? Why are countries from Pakistan to Portugal doing so much to help the United States if George W. Bush has purportedly done so much to alienate them? Chalk it up to pure self-interest. Many nations have come to realize, as they never did in the past, that Islamist terrorists pose a mortal threat to them. . . .
There was no question that the United States was better liked abroad in the 1990s, at least if public opinion surveys are to be believed, but was it more respected? When the Clinton administration went privately to Middle Eastern countries seeking cooperation against terrorism, it sometimes got significant help -- the Jordanians, for instance, helped bust up the 2000 millennium plot. . . . But often the Clinton administration got the cold shoulder from governments that were wary of a fickle America that would likely flee at the first sign of adversity . . . . Pakistan and Saudi Arabia were actively aiding the Taliban and perhaps even al Qaeda before 9/11 because they were more scared of alienating Osama bin Laden and Mullah Omar than Bill Clinton. Bush's steely response to the 9/11 attacks helped change the calculus within these wavering states: They became more wary of trifling with the gunslinger in the White House than with his smooth-talking predecessor. . . .
In cataloguing the consequences of American unpopularity abroad, Democrats suggest that Bush is driving more recruits into al Qaeda's arms. This is a real possibility, but it is not a claim that can be verified or falsified, since there is no roll call of terrorists. All we can say for sure is that al Qaeda had no trouble recruiting young Muslims to attack U.S. targets in the 1990s even as Bill Clinton was doing everything possible to make America more popular. . . .
No doubt the invasions of Afghanistan and Iraq have driven some Islamic zealots over the edge and led them to pick up a rocket-propelled grenade or a homemade bomb. Certainly some Afghans and Iraqis have opportunities they never had before to attack U.S. soldiers, if not U.S. civilians. But it's also true that the international forces opposing al Qaeda have gotten immeasurably stronger during the Bush administration . . . .
(For many more details, see the column.)
According to 1990 census data, 0.003% person of the female population of the U.S., which is to say about 4000 women, are named Alexia. On the other hand, it's better than calling your boy Dick, or for that matter calling your girl either Latrina or Titiporn.
Sunday, August 29, 2004
Of course, as Larry notes, the evidence may show that the costs may be trivial, or nonexistent, or dramatically reduced by hands-free devices, in which case the overwhelming number of calls would have positive social value and there would be no problem.
"Dear Professor: We then have to also estimate the benifits of drinking... and of driving under the influence, don't we? How many people do you know who met their spouses under the influence? How many could only have met them that way?"
I'm not sure if he's married, but I'll give an anonymous thanks just in case...
With all the talk about whether John Kerry did or did not spend Christmas in 1968 in Cambodia (his campaign admits he didn't), it just seems appropriate to post the DKs 1980 classic "Holiday in Cambodia." (Thanks to a reader for the suggestion, as it hadn't yet crossed my mind.) I won't pretend for a moment that I share the Dead Kennedys' politics but I've hardly made that the basis for my musical tastes (or lyric selections). In any event, here it is.
So you been to school for a year or two
And you know you've seen it all
In daddy's car, thinkin' you'll go far
Back east your type don't crawl
Play ethnincky jazz to parade you snazzy
On your five grand stereo
Braggin' that you know how the n*****s feel the cold
And the slum's got so much soul
It's time to taste what you most fear
Right Guard will not help you here
Brace yourself, my dear...
It's a holiday in Cambodia
It's tough, kid, but it's life
It's a holiday in Cambodia
Don't forget to pack a wife
You're a star-belly sneech, you suck like a leech
You want everyone to act like you
Kiss ass while you bitch so you can get rich
While your boss gets richer off you
Well you'll work harder with a gun in your back
For a bowl of rice a day
Slave for soldiers `til you starve
Then your head is skewered on a stake
Now you can go where people are one
Now you go where they get things done
What you need, my son...
Is a holiday in Cambodia
Where people dress in black
A holiday in Cambodia
Where you'll kiss ass or crack
Pol Pot, Pol Pot, Pol Pot, Pol Pot, ....
And it's a holiday in Cambodia
Where you'll do what you're told
A holiday in Cambodia
Where the slums got so much soul
Update:Earlier this month Michele Catalano presented her own take on this song and Senator Kerry
Apparently Senator Kerry voted for the Helms-Burton Act, before he voted against it. Where have we heard this before? (Don't worry, in this campaign you're bound to hear it again.)
Saturday, August 28, 2004
Who rules us with an iron rod?Thanks to those readers who pointed me to the NPR archive and to Jim Nayder's identity (the original version of this post did not identify him), and to Michelle Dulak and N.Z. Bear who transcribed for me the text of the second stanza, which reads:
Who moves at Satan's beck and nod?
Who heeds not man,
Who heeds not God?
Van Buren, Van Buren!
Who would his friends, his country sellSweet!
Do other deeds too base to tell
Deserves the lowest place in hell
Van Buren, Van Buren!
Then again, when I was in bankruptcy practice, we used to pester the lending and corporate attorneys to take us to meet their clients for whom they were closing deals and they always blew us off. One finally fessed up that taking a bankruptcy attorney to a deal closing was like taking an undertaker to a wedding. I never asked again.
We used a high-fidelity driving simulator to compare the performance of cell-phone drivers with drivers who were legally intoxicated from ethanol. When drivers were conversing on either a hand-held or hands-free cell-phone, their braking reactions were delayed and they were involved in more traffic accidents than when they were not conversing on the cell phone. By contrast, when drivers were legally intoxicated they exhibited a more aggressive driving style, following closer to the vehicle immediately in front of them and applying more force while braking. When controlling for driving conditions and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers. The results have implications for legislation addressing driver distraction caused by cell phone conversations.
It has always struck me that the real problem with driving and talking on cell phones is an adverse selection problem. Basically the argument goes like this. Driving and talking on a cell phone is clearly riskier behavior than not talking on the phone while driving. Given that, in general the people who are most likely to talk and drive are those who either are least concerned about externalizing the costs of their risky driving on others or those who tend to underestimate the risk associated with driving in the first place (i.e., below-average drivers). So in other words, it is precisely those who are the worst drivers in the first place who are most likely to ignore the risks associated with talking while driving. Whereas those who are ceteris paribus the best drivers are the ones who are most likely to recognize and account for the risk associated with talking while driving. Same analysis goes for those who eat, put on their makeup, and change cd's while driving.
So you have this downward spiral where the worst drivers do the riskiest things while driving. And at least some of the cost of risky driving behavior is borne as an externality by others. I doubt that banning cell phones while driving is efficient either because there are legitimate uses of course, so it may be a matter of trying to develop social norms that discourage people from gabbing while driving.
And this doesn't even account for them driving slower or poking along in the passing lane oblivious to the world around them because of their cell-phone conversations.