August 17, 2006

Converting DRM to Property Rights Management [6:08 pm]

Ed Felten on the changing rhetoric in the DRM debate: PRM Wars (via Derek)

I explained how advocates of DRM-bolstering laws are starting to switch to arguments based on price discrimination and platform lock-in, and how technology is starting to enable the use of DRM-like technologies, which I dubbed Property Rights Management or PRM, on everyday goods. Today I want to speculate on how the policy argument over PRM might unfold, and how it might differ from today’s debate over copyright-oriented DRM.

As with the DRM debate, the policy debate about PRM shouldn’t be (directly) about whether PRM is good or bad, but should instead be about whether the law should bolster PRM by requiring, subsidizing, or legally privileging it; or hinder PRM by banning or regulating it; or maintain a neutral policy that lets companies build PRM products and others to study and use them as they see fit.

[...] The most important feature of the PRM policy argument is that it won’t be about copyright. So fair use arguments are off the table, which should clarify the debate all around — arguments about DRM and fair use often devolve into legal hairsplitting or focus too much on the less interesting fair use scenarios. Instead of fair use we’ll have the simpler intuition that people should be able to use their stuff as they see fit.

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OT: Wow — The Rule of Law Upheld [2:36 pm]

Federal Judge Rules Wiretapping Surveillance Program Unconstitutional

A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy.

The opinion: ACLU v. NSA

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.

[...]

XI. Conclusions

For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP [defined as "a secret program" above] violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.

Defendants’ Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege.

The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.

IT IS SO ORDERED

Background via Salon’s War Room; NYTimes’ article — Federal Judge Orders End To Warrantless Wiretapping; Judge Finds Wiretap Actions Violate the Law

Later: NYTimes editorial — Ruling for the Law

But for now, with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.

The Washington Post’s editorial of the 18th is less celebratory: A Judicial Misfire - pdf

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.

[...] [T]he administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA’s program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don’t have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program’s legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won’t be the last word.

If you thought that was tough, here’s what’s characterized as a “sneering” editorial from the WSJ: President Taylor - pdf

Update: And the second-guessing continues (Aug 19): Experts Fault Reasoning in Surveillance Decision

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A Bullet Dodged? [9:46 am]

Or will we see another stupid IPR fight? At least this writer understands how tragically lame that could be: ‘The Body’ Slam: Elle vs. Heidi - pdf

In the strap snap heard ’round the world, ubiquitous unmentionables peddler Victoria’s Secret recently unveiled a campaign for its “The Body” bra, with über model Heidi Klum declaring, “They call me The Body — and now I have a bra named after me.”

This caused some thunder down under when Elle Macpherson Intimates spokeswoman Melissa Edwards pointed out that her company’s exemplar of genetic perfection has enjoyed that nickname since the ’80s. Macpherson has skin care, lingerie and workout products under the “Body” brand, setting up a supermodel smackdown for the ages.

[...] So will this battle of the babes go to court? Not likely.

“I think it’s dubious that a description as banal and obvious as ‘The Body’ can receive much in the way of legal protection,” said attorney Floyd Abrams, who represented Al Franken in his “Fair and Balanced” case against Fox News Channel. “As for the more critical issue of which of the two supermodels is more deserving of the appellation, I’m with Elle!”

Perhaps the matter can be settled via a body-part-by-body-part comparison. Of course, which of the two can be called “The Legs,” “The Neck,” etc. may be impossible for even the keenest of observers to conclusively state. Since true beauty comes from within, it may take internal organs to resolve this quandary.

It’s likely that the 6-foot-tall Macpherson could lay claim to the title of “The Pituitary Gland,” as she has three inches on the 5-foot-9 Klum. [...]

On the other hand, there’s always someone out there happy to keep funding lawyers: Apple Warns Companies About ‘Pod’ Naming

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