Archive for the ‘lobbying’ Category

SOPA Stopped – For Now

Monday, December 19th, 2011

Under a wave of phone calls and social-media attention, Lamar Smith (R-Texas) abruptly called an end to the hearings on SOPA, saying they would be rescheduled for the future. Lamar Smith is a toughie. So getting him to take a step backward is quite an accomplishment!

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U.S. Chamber of Commerce Backing SOPA Even as Members Back Away from the Chamber

Thursday, December 1st, 2011

Declan McCullagh at CNET has a worthwhile post about one lobbying group’s puzzling and unfortunate support for SOPA:

The Chamber claims SOPA is good for businesses, but the businesses that oppose it include eBay, Google, Yahoo, Twitter, Facebook, AOL, and LinkedIn. Yahoo has quit the Chamber now, and the Consumer Electronics Association and Google may soon do the same.

Unfounded Allayances for a Misarchitected Law

Tuesday, October 25th, 2011

Huge pile of building rubbleMisarchitected.
(Photo: EEJ)

Over at Technology & Marketing Law Blog, Eric Goldman has written that the just-enacted California Reader Privacy Act may impose a new burden on individual bloggers who are on the receiving end of subpoenas. Paul Alan Levy, a lawyer with Public Citizen, a leading public-interest law firm, doesn’t agree. Levy says that the phrase “commercial entity” in the bill could not be construed to cover individuals because, individuals can’t be “entities.”

In this post, I’m going to take issue with what Levy says, and I’m going to offer some things to bolster Goldman’s critique.

Let me note at the outset that Levy is a heavy-hitting litigator who fights the good fight. He’s on the right side of battle after battle, doing pro bono impact litigation that makes our world a better place. So, I’m certainly not at odds with Levy in the greater scheme of things. But I do think that Goldman points out a serious flaw in California’s new privacy law, one that is bad for bloggers, and one that’s worth dwelling on for a bit.

Also, I’m a California litigator. I’ve spent a lot of time puzzling over California statutes. I’ve come to believe that California statutory law needs some watchdogging. So I offer my comments in that vein.

Here’s Levy’s argument that the statute won’t apply to individual bloggers:

… Professor Goldman ignores the limiting impact of the word “entity.” An individual is not an entity; rather, an entity is defined by Black’s Law Dictionary as an organization whose identity is separate from its members.

First, while a dictionary can be helpful resource for readers stumbling across unfamiliar legal words, it is not, at least in my view, a particularly persuasive foundation for interpreting a statute. Regardless, however, I don’t think the definition that Levy cites excludes natural persons. If you look at the whole definition, it clearly says that an entity can have a separate legal existence from its members, but the definition doesn’t say that a natural person can’t be an entity.

At any rate, dictionary definitions are really beside the point. The fact is, there’s a plentitude of legal precedents considering “entity” to embrace an individual person. For instance, many statutory schemes explicitly define “entity” to embrace an individuals. One prominent example is the U.S. Bankruptcy Code. See, 11 U.S.C. § 101(14).

Moreover, courts have plainly used the word “entity” to refer to an individual person. In discussing what the word “individual” meant, for instance, New York’s high court held, “An individual is one entity, one distinct being, a single one, and when spoken of the human kind means one man or one woman.” People v. Doty, 35 Sickels 225, 1880 WL 12385 (N.Y. 1880).

In defining “sole proprietorship,” a D.C. court used the word “entity,” saying, “A sole proprietorship is an entity that is so identified with its owner that the business either must undergo a fundamental change or cease to exist upon the owner’s death or retirement.” Hunter Innovations Co. v. Travelers Indem. Co. of Connecticut, 605 F. Supp. 2d 170, 173 (D.D.C. 2009).

Levy makes other arguments, however:

The statute itself confirms this construction, in that it limits any disclosure (voluntary or compelled) to a “government entity,” but limits compelled disclosure to “any person, private entity, or government entity.”

This is a helpful argument, one which I find somewhat persuasive. But it’s not the end of the matter. The fact is, “person” under the law frequently includes such entities as corporations. Often – I would even say most of the time – when the law means an individual human being, and not things such as corporations, the law uses the term “natural person.” In fact, a neighboring section of the California Civil Code, Section 1798.3, says that “‘individual’ means a natural person” and “‘person’ means any natural person, corporation,partnership, limited liability company, firm, or association.” If “person” includes “corporation,” that arguably makes the term “private entity” redundant of “person,” except that ”person” might embrace a public corporation (i.e., a corporation with publicly traded shares), whereas, perhaps, “private entity” would not.

All of this going around in circles, of course, just illustrates that this statute is poorly drafted. It’s another home run by the folks in the California Legislature. I wish someone would come up with a ballot initiative to force the California Legislature to employ a huge army of well-paid staff to draft and analyze legislative language. It would be worth every penny. The alternative is half-baked text or the made-to-order work product of lobbyists. (Although, with the ACLU, EFF, and (ahem) Google lobbying for this, you’d think made-to-order language would have been pretty good.)

Okay, let’s go on to Levy’s next argument:

A similar understanding that an individual is not an entity is shown by the fact that “government entity” is defined to include any “state or local agency” or “any individual acting or purporting to act for or on behalf of a state or local agency.” If “government entity” included individuals, this last clause would not be needed[.]

Hmmm. I get exactly the opposite out of that. By including individuals within the term “government entity,” the legislature, it seems to me, shows that it understands individual persons to qualify as a kind of entity.

Levy’s bottom line:

So the individual blogger is plainly off the hook as a “commercial entity.” A corporation that blogs, yes. A partnership blogs, yes. But not an individual.

I very much disagree with the phrase “plainly off the hook.” I’d go with “arguably.” Levy makes a fine argument. But, in my mind, that’s all it is: an argument. Take it from me – a member of the California bar who has spent approximately eleventeen bazillion billable hours researching and briefing issues of California statutory interpretation: This is not an easily-disposed-of issue.

But while we are on the subject of phraseology, I note that Goldman’s word for describing the new statute is “misarchitected” – a word which, technically speaking, doesn’t seem to exist. That’s not a knock on Goldman. To the contrary, as I’ve pointed out before, I think it’s part of the job of a law professor to use big words and to even make up new words. Every once in a while, I slip a big, nonexistent word by law-review editors. And count me on board with this one. I’m already thinking about how I can stick misarchitected into one of my working manuscripts.

In the meantime, when it comes to the Reader Privacy Act, I simply do not find Levy’s allayances persuasive. Thus, I must offer the California Legislature my regretulations on a job not-super-well-done.

Later this week, I’ll explain my biggest problem with the Reader Privacy Act.

More from me:

The Public Domain Enhancement Act

Tuesday, January 11th, 2011

Finding pictures and other raw media to enhance a blog can be frustrating – if, that is, you are staying clear of copyright infringement. Of course it would be  much easier to find great images for free and legal use if there were more material in the public domain.

A bill that attempted to get that done was the Public Domain Enhancement Act, introduced in the House of Representatives in 2003 as H.R.2601. It would have required the payment of a $1 maintenance fee on copyrighted works older than 50 years.

That’s not a big out of pocket expense. But by requiring some slight affirmative act by people wishing to maintain their copyright, the law would have caused a slew of works to enter the public domain in cases where the creators didn’t care about retaining the copyright.

Unfortunately, cheap-skates they are, the entertainment lobby defeated the bill.

But maybe in the future? Who knows. It would be nice.

You can read more about it from Larry Lessig (who called it the Eric Eldred Act) and Wikipedia.

When Do Works Enter the Public Domain?

Wednesday, January 5th, 2011

Copyright protection, under the U.S. Constitution, only lasts for “limited times.” That means eventually (at least theoretically) all copyrighted works, including photos that can be incorporated into a blog post, will enter the public domain at some point in the future.

So how old does a work have to be to enter the public domain?

Well, it’s complicated. You are generally safe assuming something is in the public domain if it was published in 1922 or before. (The hazy legal world of apparent exceptions are discussed here and here.)

Does that mean that next year works from 1923 will enter the public domain?

Unfortuntately, no. The reason why is that Congress has been, for decades now, regularly extending copyright terms at the bidding of the entertainment industry. The latest special-interest windfall was the Sonny Bono Copyright Term Extension Act (text, summary). Because of this most recent extension legislation, the public domain is stuck at 1922 and will be for quite a while.

The public domain won’t grow again because of copyright expiration until 2019 – unless Congress extends the copyright term again. And you can bet that special interests are lined up to lobby for that extension when the time comes.

Since Disney lobbied hard for its passage, the Sonny Bono Act was dubbed the “Mickey Mouse Protection Act” by some. Without the law, Mickey Mouse’s original cartoon short films would have entered the public domain by now.

But note that, because of sloppy work done in Disney’s early days, people who have looked at the matter closely (here and here) have concluded that the original Mickey Mouse and the motion picture Steamboat Willie (in which Mickey made one of his first appearances) are no longer the subject of a valid copyright. The public domain status of Mickey Mouse remains untested in court. People tend to be very afraid of Disney lawyers. I can’t imagine why.

European Parliament Approves Get-Tough Gallo Report

Thursday, September 23rd, 2010

The European Parliament voted to approve the Gallo Report calling for tough intellectual-property enforcement measures. (Photo: European Parliament. Used without permission.)

Following up on yesterday’s post, the European Parliament has approved the Gallo Report. (Europarl press release.)

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European Parliament Votes Today on Gallo Report

Wednesday, September 22nd, 2010

Logo of the European ParliamentToday the European Parliament will vote on the Gallo Report [scribd], which recommends strengthening intellectual-property enforcement, including through “non-legislative” measures.

Prepared by French MEP Marielle Gallo, the report has been criticized as a vehicle for laundering lobbying points of the entertainment industry. Although ostensibly aimed at file sharing of movies and music, there is concern that its heavy-handedness could have a detrimental impact on the expressive activities of netizens, such as blogging.

There is also concern that the Gallo Report’s adoption would be seen as a green light for aggressive measures being considered in connection with the Anti-Counterfeiting Trade Agreement, currently the subject of closed-door international negotiations. (EFF on ACTA.)

Reporters Without Borders has issued a statement opposing adoption of the Gallo Report.