Eugene Volokh's Blog, page 2749

My career comes full circle:

(David Post)

Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:

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Two of the photos in the set of monkey self-portraits bear a copyright notice: "Copyright Caters News Service. Raising the odd but interesting question: who assigned the copyright to the News Service? Slater? Perhaps, but that can't be a valid assignment, for the simple reason that he doesn't own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions concerning the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly "channeling" voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works "authored" by computer programs or Artifical Intelligence engines). (My friend and colleague Annemarie Bridy recently sent me a very interesting draft of an article exploring these issues, soon to be published, entitled "Coding Creativity: Copyright and the Artificially Intelligent Author").

But what I love about this little story is that it plumbing its metaphysical depths clearly calls for analysis by someone with deep expertise in (a) primate behavior and (b) copyright law — and guess who that might be?! Yes, it's true — having spent two years in the Kenyan bush back in the 1970s studying the feeding and ranging behavior of the yellow baboon, and a decade or so writing and teaching in the field of primatology and evolutionary biology, and then the last 15 years working on questions of copyright law and other IP matters, I finally have found the one question that I'm uniquely positioned to answer. I suppose my next step is to send the monkey a short note introducing myself and offering to represent him in his copyright battles with Slater and the Caters News Agency, demanding that his authorship rights be respected and recognized. I'd advise him/her to take a bushel of bananas (33% of which go to me, thank you very much) in return for a covenant not to sue and an irrevocable assignment of all copyright rights in the photos.

[Thanks to Fred Wilf and Diana Lin for the pointer]

Blegs: Polling on Guns and Israel. The disarmament of the Welsh.

(David Kopel)

1. Does anyone know of any polling data which has data on whether Americans who have favorable, or strongly favorable, views of Israel are more likely to support Second Amendment rights, own guns, etc.? I suspect that this is case for non-Jewish Americans. Even for American Jews (who tend to support Israel, and to favor gun control) it would not surprise me if Jewish gun-owners are more pro-Israel than non-owners.

Please supply data, and feel free to comment on data that has been supplied by other commenters. But don't use the comments just to speculate.

2. From Edmund Burke's Mar. 22, 1775, speech to Parliament:

Sir, during that state of things, Parliament was not idle. They attempted to subdue the fierce spirit of the Welsh by all sorts of rigorous laws. They prohibited by statute the sending all sorts of arms into Wales, as you prohibit by proclamation (with something more of doubt on the legality) the sending arms to America. They disarmed the Welsh by statute, as you attempted, (but still with more question on the legality) to disarm New England by an instruction. They made an Act to drag offenders from Wales into England for trial, as you have done (but with more hardship) with regard to America.

Does anyone know of good sources discussing the attempted disarmament of the Welsh, and whether it was successful?

Commenters: please stay on topic.

Our Cyberwar Strategy: Play for the Tie?

(Stewart Baker)

Deputy Secretary Lynn has given a speech unveiling the unclassified parts of the Pentagon's cyberwar strategy.  All of the "pillars" and practically all the unclassified content of the cyberwar strategy are defensive.  Here's the theme: 

"Our strategy's overriding emphasis is on denying the benefit of an attack.  Rather than rely on the threat of retaliation alone to deter attacks in cyberspace, we aim to change our adversaries' incentives in a more fundamental way.  If an attack will not have its intended effect, those who wish us harm will have less reason to target us through cyberspace in the first place."

 This is not completely comforting.  It's like hearing that our nuclear war strategy is to build more fallout shelters. 

The network defenses we have today, and even the ones we hope to have tomorrow, will not deter adversaries or deny them the benefits of an attack.  The DIB Cyber Pilot, for example, is an classified version of technology the private sector has been using for nearly ten years. It's a good thing, but it hasn't exactly stopped hackers cold.

Defensive research is also a good idea, although neither of the ideas flagged in the speech — self-healing networks and methods for processing encrypted data — are likely to change the enormous advantage currently held by attackers in cyberspace.

So this is at best a partial strategy.  The Pentagon deserves credit for taking on the issue and doing the planning.  But the plan as described fails to engage on the hard issues, such as offense and attribution and, well, winning. 

I hope that the actual classified version doesn't suffer from the same diplomatic and political correctness.

"Nothing More Than a Dispute, Fueled by a Disgruntled Cheerleader Mom, Over Whether Her Daughter Should Have Made the Squad"

(Eugene Volokh)

Words from the start of Sanches v. Carrollton-Farmers Branch Indep. School Dist., which rejects a very thin sexual harassment claim brought on behalf of a high school student. Thanks to Robert Markle for the pointer.

What About the Budget Act?

(Jonathan H. Adler)

The Honorable Michael McConnell, who not only served as a judge on the U.S. Court of Appeals for the Tenth Circuit but was also assistant general counsel of the Office of Management and Budget from 1981–83, has an op-ed in the WSJ on the collective failure to comply with the Congressional Budget and Impoundment Control Act. This law was enacted in 1974 and established specific budgeting procedures for Congress and the executive — procedures that have not been followed. Among other things, the Act requires the President submit, and Congress pass, a budget scored by CBO, yet the Senate has not passed a budget since 2009. Writes McConnell:

This defiance of the Budget Act is responsible for the current blamefest in Washington. The law was intended to bring transparency and timeliness to debates over taxing and spending. All proposals are public, and all are scored by the CBO according to the same metric. This makes it difficult for politicians to shift blame. This year, without a genuine presidential budget, or any Senate budget, the negotiations are shrouded in fog. The president may tell press conferences that he proposed $3 trillion in spending reductions, but there is no way to know what that means without a budget. . . .

The Budget Act was designed to force all competing plans to be disclosed publicly and evaluated according to the same baselines and criteria. It is too late to meet the Act's deadlines, but our leaders could still comply with its spirit.

If the president would put his plan into budgetary language, as the House already has done, and make it available to the CBO, the public could readily see who is being serious in the negotiations. We would know whether we have been offered a bracing helping of peas, or a misleading mess of pottage. As it is, the president has put a covered dish on the table and, thanks to noncompliance with the Budget Act, we do not know what it contains.

Follow Up on Breyer Op-ed

(David Bernstein)

My co-authored op-ed on Justice Breyer's jurisprudence has stirred a bit of controversy.

The basic point of the op-ed is that, as political scientist Ken Kersch puts it in a great scholarly review of Breyer's book "Active Liberty", Breyer's intellectual roots are less in the sort of modern liberalism that animated the likes of William Brennan, and more "in pre–New Deal, early twentieth century progressivism, an outlook with an animating faith in government by expert, acting as stand-ins for the (uninformed) people at large."

This does not, of course, mean that Breyer would vote the same way in particular cases in 2011 as a Progressive would have in 1911. Breyer, like everyone else, has been influenced by the civil rights movement, the women's movement, and other massive social changes that have taken place in the last one hundred years. But it does mean that he is prone to making the same category of error pre-New Deal jurists made, in giving too strong a presumption to legislative outcomes supported by a consensus of elite experts at the expense of individual rights.

My co-author and I cited Breyer's recent First Amendment dissent in Sorrell, as demonstrating how Breyer gives much shorter shrift to First Amendment rights than did Brennan and his cohorts. In another case this past term, Breyer got his liberal colleagues to sign on to an opinion stating that the First Amendment primarily protects the "marketplace of ideas," which reflects "the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people's elected representatives have voted." This harkens back to the Progressive view of free speech, not the more liberal view of Brennan et al.

It probably would have been worth adding that Breyer has long had overall the most pro-government record in First Amendment rights of his contemporaries.

Breyer's views are also on display in other contexts, including the Second Amendment, Commerce Clause, and affirmative action cases, but of course there is a general liberal consensus regarding the "right" answer in those cases, albeit not necessarily on Breyer's reasoning.

But how about Korematsu? When I've blogged about Lochner v. New York as the most reviled, anti-canonical case of the twentieth century, several commentators have insisted that Korematsu is much more loathed than Lochner, that no jurist could be taken seriously if he supports the outcome in Korematsu.

That's interesting, because Breyer discusses Korematsu at length in a recent book, and he never does get around to saying that the Court should have deemed Fred Korematsu's detention illegal. Rather, he argues that the majority was too deferential to the executive, the dissents were "unworkable", and they should have met somewhere in the middle–but not somewhere that would have entitled Korematsu to an immediate hearing, much less release. Rather, "ideally," the Court should have found a pragmatic solution somewhere in between "burdensome, case by case review, and no review at all." (I'll leave it to another time to discuss why Breyer nevertheless voted the way he did in Boumediene).

Obviously, my views are not on the modern liberal/progressive left, so I'm not going to be particularly happy with any given liberal Justice. But I much prefer left-leaning judges who have a strong sense of the importance of individual rights and the dangers of excessive government authority than ones who do not. Breyer, while certainly not wholly indifferent to civil liberties, seems closer to the latter category than any other "liberal" Justice of the last fifty or so years.

Bleg on Counsel in 42 U.S.C. 1983 and Bivens Litigation

(Orin Kerr)

I'm presently writing an article for the Cato Supreme Court Review, and I had a question that I hope some readers may help me answer: In terms of counsel, who represents defendants in civil Fourth Amendment cases against government officials in 1983 and Bivens actions, and how is this arranged? Just based on cases I've worked on and seen from afar, it seems like DOJ almost always represents the federal officials in Bivens actions, at least barring unusual circumstances; that state lawyers almost always represent state officials in 1983 actions; and that 1983 actions against county or municipal officials are a mix, sometimes involving lawyers for the government and sometimes private firm lawyers hired to represent the officials' interests. Is that accurate? I'm particularly interested in knowing when the decisions of how to litigate those cases are likely to be made by the government as compared to private counsel hired to represent the officers. (I hope that makes sense — it will make more sense in a few weeks when I can post the draft.) Thanks in advance for any help.

Litigation Over Seizure of Photographer's Camera

(Eugene Volokh)

I just ran across a procedural decision in this litigation — Blackden v. New Hampshire State Police (D.N.H. July 8, 2011) — and thought that our readers who follow such issues might want to know about it. The decision itself is focused on whether a federal court may intervene at this point, given the ongoing state proceedings; but here's the underlying fact pattern:

As alleged in the first amended complaint, doc. no. 16, Blackden is a freelance reporter and photographer for various news agencies, including plaintiff Belsito Communications. On August 25, 2010, Blackden heard a radio transmission calling the Penacook Rescue Squad to the scene of a serious traffic accident. Blackden went to the scene and donned a protective coat and a helmet marked "Photographer." After taking photographs of the accident and rescue efforts, Blackden was approached by state trooper James Decker, who asked Blackden to identify himself and to produce some form of identification. Blackden complied with Decker's request. Shortly after questioning him, Decker seized Blackden's camera, which contained a digital photo card containing the photographic files Blackden had taken at the scene.

Public records, which this court has judicially noticed, disclose the events that followed seizure of Blackden's camera. On August 26, 2010, warrants were issued authorizing a search of Blackden's camera and digital card, and seizure of image files on the card. On November 19, 2010, a warrant was issued for Blackden's arrest. Blackden was charged with obstructing government administration, impersonating medical/rescue personnel, and unauthorized use of red lights, all in violation of state law. The camera was returned to Blackden, but the digital card was retained pending resolution of Blackden's state court trial. On May 12, 2011, Blackden was convicted in the state district court of impersonating medical/rescue personnel and unauthorized use of red lights. [Text moved: –EV] Blackden may appeal (or may have already appealed) his Class A misdemeanor conviction " 'to obtain a de novo jury trial in the superior court' ", in which case, the district court conviction is deemed vacated.

Before his conviction, Blackden and Belsito filed this § 1983 suit against Colonel Quinn, in his official capacity, and Trooper Decker, individually. Plaintiffs allege that Decker's seizure of the camera and digital photo card was without probable cause, in violation of Blackden's Fourth Amendment right to be free from unreasonable search and seizure. Plaintiffs also allege that retention of the card deprived them of their First Amendment rights to publish the images contained on the digital card. They seek monetary relief against Decker and prospective injunctive relief against Decker and Quinn....

Plaintiffs' claims against Decker turn upon the alleged absence of probable cause for the seizure of Blackden's camera and digital photo card. See Am. Cmpt., doc. no. 16, pgs. 6–7 ("seizure and retention of [Blackden's] property without probable cause" violates the Fourth Amendment, and, further, has "prevented [plaintiffs] from publishing and or broadcasting" the photographs in violation of their "First Amendment rights to freedom of speech and the press .")....

Belsito's First Amendment claims, as pled, necessarily depend upon its assertion that the seizure of Blackden's digital card was unlawful. Accordingly, both Blackden's and Belsito's claims must be stayed until that issue is resolved.

Buying Search Engine Placement Triggered by a Competitor's Name

(Eugene Volokh)

Habush v. Cannon, 2011 WL 2477236 (June 8), holds that such purchases can't be enjoined under Wisconsin "right of publicity" law. Plaintiffs, Robert L. Habush and Daniel A. Rottier, are personal injury lawyers and partners in Habush Habush & Rottier. Defendants, William M. Cannon and Patrick O. Dunphy, are plaintiffs' competitors, and partners in Cannon & Dunphy. "Beginning in 2009, defendant Cannon & Dunphy, S.C. contracted with Google, Yahoo!, and Bing for a sponsored link to their law firm website to appear as the very first result, above organic results, in response to any user's input of certain search terms. Specifically, it purchased ... the right to have the Cannon & Dunphy, S.C. link appear whenever the user would type either the word 'Habush' or the word 'Rottier' into the search engine." Plaintiffs sued, asking for an injunction against this behavior, on the theory that it violated the plaintiffs' "right of publicity" — the right to block (some) uses of plaintiff's name or likeness for commercial purposes. Wisconsin law allows conduct to be enjoined if it "unreasonably invade[s]" people's privacy rights, which include the right of publicity.

The trial court held that defendants' conduct did use plaintiffs' names for commercial purposes, and that the First Amendment wasn't applicable. (The Court's First Amendment argument rested on the view that "the use of a computerized system to sequence search results is not speech," "commercial or otherwise"; I don't think that argument works, when plaintiffs' objection is precisely to the fact that defendants caused Google to communicate certain information to customers.) But the court concluded that the behavior wasn't "unreasonabl[e]," and was instead permissible competition. This means that, under the Wisconsin statute — though not necessarily under the right of publicity rules of other states — the behavior can't justify either an injunction or a damages award.

UPDATE: Prof. Eric Goldman has much more on this case.

Did the "News of the World" Phone Hacks Violate U.S. Criminal Law?

(Orin Kerr)

As most readers are aware, the English newspaper "News of the World" has recently been shut down over reports that the paper's reporters regularly hacked into the voicemail boxes of celebrities and political figures to gather news for stories. The hacking has had huge ripple effects, ranging from its impact on UK politics to Rupert Murdoch. I wanted to blog about one angle to the story I haven't seen covered elsewhere: Did these intrusions violate U.S. federal criminal law? Put another way, could the federal government prosecute individuals for the hacking in the U.K.?

We don't know all the details yet, but I think it's possible. I've blogged a lot about the Computer Fraud and Abuse Act, 18 U.S.C. 1030, which prohibits unauthorized access to protected computers. I've regularly pointed out that this statute is extraordinarily broad, and its breadth is relevant here. Some of the analysis is easy: Hacking in to another person's voicemail box is clearly an unauthorized access, and the computers that host voicemail files are clearly "computers." See, e.g., United States v. Kramer (8th Cir. 2010). But more interestingly, the fact that the hacking was probably all done outside the U.S. probably doesn't matter, even if all the computers that were hacked are outside the U.S. The Computer Fraud and Abuse Act extends to computers outside the United States in most circumstances. Here's the key statutory language:

the term "protected computer" means a computer . . . which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;

18 U.S.C. 1030(e)(2)(B) (emphasis added). Notably, the statutory phrase "affects interstate or foreign commerce" is a term of art: In U.S. law, it means as far as the interstate or foreign commerce clauses will allow. See Russell v. United States, 471 U.S. 858, 849 (1985). As a result, a computer is a "protected computer" covered by the CFAA if the interstate or foreign commerce clauses permit them to be regulated under the Constitution, even if it is located outside the United States.

That brings us to the scope of the Foreign Commerce Clause, which under Article I, Section 8, Cl. 3 provides that Congress can "regulate Commerce with foreign Nations." The scope of the foreign commerce clause is not often litigated, and its precise meaning remains somewhat unclear. See generally Anthony Colangelo, The Foreign Commerce Clause, 96 Va. L. Rev. 949 (2010). But, in general, the scope of the foreign commerce clause has been interpreted as more or less analogous to the scope of the interstate commerce clause. Communications networks such as the telephone network and the Internet are channels of interstate commerce that have long been subject to federal regulation under the Commerce Clause. See, e.g., United States v. Ho, 311 F.3d 589, 597 (5th Cir. 2002). As a result, such networks outside the United States are likely subject to regulation under the Foreign Commerce Clause, as well.

One significant uncertainty is how much if any nexus to the United States is required under the Foreign Commerce Clause to constitute a channel of foreign commerce: Does that mean a channel of commerce with the United States, or just among foreign nations? And in the case of an international network like the phone network or the Internet, is the relevant question whether the communications involved the United States at that time or whether the channels themselves interacted with United States networks more generally? These issues don't come up often because prosecutions of foreign conduct are rare. And in the case of the "News of the World" hacks, we don't know what role any U.S. networks or computers played. But depending on how the foreign commerce clause arguments are resolved, there's a chance that the intrusions may be chargeable under United States criminal law in addition to under the law of the UK.