The Obama administration has recently decided to try Khalid Sheikh Mohammed in civilian courts instead of military tribunals.  Despite careful efforts by Congress to ensure that military tribunals offered sufficient legal protections to enemy combatants, the Obama administration has decided that military tribunals are not appropriate venues for SOME of  the enemy combatants currently being held in Guantanamo.

Attorney General Eric Holder was recently questioned on capital hill about the Obama Administration’s decision to try Khalid Sheikh Mohammed in a civilian court.  Here is a short shippet of his remarks:

Here is a brief transcript of the relevant portion:

Graham:  Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

Holder:  [pregnant pause] I don’t know… I ‘d have to look at that…

Graham:  We’re making history here Mr. Attorney General… I’ll answer it for you and the answer is no… I’m telling you right now, We’re making history and we’re making BAD history…  And let me tell you why.  If Bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

Holder:  He would certainly be brought to justice, Absolutely.

Graham:  Where would you try him?

Holder.  Well, We’d go through our protocol and we would make a determination about where he’d should appropriately be tried.

Graham:  Why would you take him someplace different than KSM?

Holder: Well, that might be the case… I don’t know.  I’d have to look at all of the evidence.

Graham:  Does it matter if you use the law enforcement theory or the enemy combatment theory in terms of how the case would be handled?

Holder:  Well, Bin Laden is an intereting case in that he has already been indited.

Graham:  When does custodial interrogation begin in his case?

Holder:  Well, that all depends.

Now, I think it important to point two things out about the interview.  First, Holder doesn’t have a clue where Osama Bin Laden would be tried.  Now, one would think that if the Obama Justice Department has put together a series of “protocols” (as Holder claims), that these protocols would be clear as to what the procedure would be for our most sought-after enemy combatant, Osama Bin Laden.  The fact that Holder doesn’t have a clue evidences to me that these “protocols” are either very poorly formulated or completely arbitrary.

The second thing I notice is that when asked where Obama would be tried, Holder responds that he would “have to look at all of the evidence”.  Now, to the layman, this may seem like a reasonable answer.  But to someone with legal training, I find this answer appalling.  What Holder is basically saying is that the decision whether or not to try a person in federal court (where there are greater legal protections available) or a military tribunal (where fewer legal protections are available), is not dependent on what the LAW says… but on the strength of the Justice Department’s evidence.  This is all but a candid admission that the Obama Administration decides where to try an enemy combatant based on the outcome it wants to reach in any particular combatant’s case.

If the case isn’t strong enough to win in federal court, then Holder’s “protocols” will ensure that those combatants who the Obama Administration thinks are actually guilty will find their way into a military tribunal.  If, on the other hand the case IS strong enough to win in federal court, Obama can safely bring a civilian case without worrying about political fallout.  In other words, Holder’s “protocols” are nothing more than political decision trees — arbitrarily giving certain combatants different levels of legal protection depending on the political cost Obama may suffer should a terrorist be let off the hook.  This has the effect of giving the Obama Administration a judicial role… and the ability to affect the outcome of any given case based on its own determination of guilt.

If this is considered “justice”… well… welcome to Barack Obama’s America.

Shelby Steele isn’t pulling punches on the Sotomayor pick.

[T]he Sotomayor nomination shows that Mr. Obama has no idea what a post-racial society would look like. In selling himself as a candidate to the American public he is a gifted bargainer beautifully turned out in post-racial impressionism. But in the real world of Supreme Court nominations, where there is a chance to actually bring some of that idealism down to earth, he chooses a hardened, divisive and race-focused veteran of the culture wars he claims to transcend.

I have called Mr. Obama a bound man because he cannot win white support without bargaining and he cannot maintain minority support without playing the very identity politics that injure him with whites. The latter form of politics is grounded in being what I call a challenger — i.e., someone who presumes that whites are racist until they prove otherwise by granting preferences of some kind to minorities.

via Sotomayor and the Politics of Race – WSJ.com.

I found these articles when doing a recent lexis search for the phrase “copyright issues”

• Who is really protecting Barbie: Goliath or the Silver Knight? A defense of Mattel’s aggressive international attempts to protect its Barbie copyright and trademark
• Second Life Strife: A Proposal for Resolution of In-World Fashion Disputes
• COMMENT: What’s in a Name? Fred Goldman’s Quest to Acquire O.J. Simpson’s Right of Publicity and the Suit’s Implications for Celebrities
• COMMENT: Does Rocky & Bullwinkle Hold The Key to Unlocking the Mystery of Fair Use in the Age of  Internet Archiving?

Ya, believe it or not, people actually write scholarly works about these things.

And finally, you know you’ve learned SOMETHING in law school when you fully comprehend and appreciate an article entitled thusly:

• ARTICLE: Copyright Infringement Litigation and the Exercise of Personal Jurisdiction Within Due Process Limits: Judicial Application of Purposeful Availment, Purposeful Direction, or Purposeful Effects Requirements to Finding that a Plaintiff Has Established a Defendant’s Minimum Contacts Within the Forum State

As I was researching a previous post, I came across a number of interesting blog posts and interviews I found quite interesting. In particular, I wanted to bring your attention to a great interview with my favorite liberal feminist, Naomi Wolf, author of the infamous “a room of ones own” (and the subject of possibly the best television prank in the last year). She is promoting her new book “The End of America” –a book that lays out the ‘Ten Steps to Closing Down an Open Society’ and “exposes” the ways in which America is mirroring the closed societies of history.

Allow me to begin this discussion by first complimenting Ms. Wolf. First, she just looked great during that interview. I was all about that red thing she was wearing (but I digress!). In all seriousness, I think this book is a valuable addition to the discussion and brings an important (albeit selective) historical context to modern politics. At the risk of cliche, I would remind you that those who are ignorant of history are doomed to repeat it. By reminding us of the evils of history Ms Wolf is, shockingly enough, being helpful… and I wish to encourage this kind of behavior.

This being said, I think it is fair to say that Ms Wolf’s conclusions are lacking… in any number of ways. It isn’t that she is always wrong, but that her foundational history is in many cases only loosely connected with modern practice. She begins with an assumption of guilt (primarily with the Bush administration… many times implying he is a ‘wannabe’ despot), finds similar parallels to dictators with completely different motivations and purposes, and then imputes those motives to Bush because factual circumstances were the same. Although a stretch, in some cases I found myself thinking that if two people washed their laundry, that would be enough for her to draw a comparison. I am, of course, exaggerating; but I do so to point out that to end one’s analysis at factual similarities without further analysis can lead to very irrational conclusions.

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Introduction 

It’s been a while since I posted on any LEGAL matter, and I must say it’s good to finally get around to the legal posts again.  Anyway, I’m not vouching for the LEGAL correctness of any of this… but I though I’d post the text of my final Copyright Exam just in case you were interested in Copyright as a general matter.  The exam was intended to be the analysis portion of a legal opinion discussing Google’s “book search” and the Copyright issues raised with Google’s scanning and indexing activities.

Let me know what you think?  I’d be interested to hear from law students and novices alike.  (Do I deserve and A?  

Update:  It turns out I DID get an ‘A’.   niiice. 

OVERVIEW

Google, an online search giant, is undertaking a project to catalogue and digitally index the contents of books in libraries across the country. To accomplish this project, each book added to the Google database must be scanned and the text converted into a digital format. Google then stores a graphical copy of the book as well as an indexed database of all words and phrases that is then searchable by the end user. For works in the public domain, Google allows users to access the work in its entirety. In the case of Copyrighted material, Google selects individual pages to be displayed in order for the user to preview the book before having the option to purchase or obtain the book by alternate means.

As a result of these activities, Publishers have sued Google for “massive” copyright infringement. They claim that the act of copying and indexing a Copyrighted work is itself an infringing activity and further assert that the opt-out policy is evidence of indifference to the rights of authors and publishers. Google asserts that the opt-out program removes them from Copyright liability and even if not, they are protected by the “fair use” doctrine.

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Here is my office… the Lucas County Court of Common Pleas.
I’m on the second floor, working for Judge Jensen.

Commercial speech has been uniquely categorized in American law. In fact, this process of splitting speech into various categories has been a hallmark of American Constitutional jurisprudence. Pulling from both British common law and more modern doctrines, the Supreme Court has established a rather complex hierarchy of under-protected categories of speech. As a result, commercial speech has been subject to a much greater amount of regulation than its more-protected forms. This essay examines the doctrine’s foundation and also its future in light of more recent cases.

Our first inquiry is what is meant by the term “Commercial Speech”? The doctrine, as we are familiar with today, originated with Central Hudson v. Public service Commission of New York. The issue in this case was whether the state could constitutionally prohibit Central Hudson (an electric-company) from advertising the use of electricity in an attempt to curb energy usage. Much of the debate in revolved around the economic interests of the state of New York in maintaining the supply of electricity for its citizens. In order to protect supply (and by extension, the interests of the public at large), the city had created a restriction on Hudson’s ability to advertise energy use. The state’s economic interests were considered substantial enough to warrant the suppression of Central Hudson’s First Amendment protections.

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In this case, I concur with the majority in result, but would rather decide the case on less questionable grounds.

I concur with the majority on the issues of spectrum scarcity and licensing. It is clear that the F.C.C. must allocate frequencies if the broadcast media is to exist in the form in which we have become accustomed. The public nature of the airwaves necessitates a licensing scheme in order for the available frequencies to be allocated in a market competing for those frequencies. Furthermore, there is no compelling reason why government licensing of airwaves should be any different than its involvement in many other marketplace where resources are scarce. In fact, were it not for the failure of the private sector to divide up the broadcast spectrum, government regulation would not have been necessary. The right of any party to use the airwaves should be looked at with no more or less favor than the rights of someone to pollute a stream or river; government regulation is needed in both instances in order to allow the most people to have the most access.

In addressing the issues arising from technological advances in distribution and digital compression, the majority correctly reasoned that the mere lack of a current demand for every available frequency neither negates the possibility that those frequencies could be filled nor solves the problem of frequency allocation. Licensing is still required to prevent spectrum “overlap”, regardless of total availability. We are increasingly becoming a media-centric society; to assume that demand will never outpace supply is, in my opinion, shortsighted.

It is after this point that I disagree with the majority’s reasoning, and concur in outcome only. It seems clear that Red Lion does not have a cause of action, given the nature of its broadcast license. I find no reason why, given the F.C.C’s authority to limit spectrum use, it may not also create time limitations on the use of of the spectrums in question. Red Lion’s argument seems to imply that they have a constitutional right to 24 hour control over the content broadcast over their frequency for the duration of their license term. I find no reason to conclude that the license granted by the F.C.C. confers this privilege.

If the broadcast license granted by the F.C.C. granted a complete bundle of rights, then Red Lion would have standing because the government would be forcing them to publish a particular viewpoint. This court held, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, that the freedom of the press was bound by 2 things: a sufficient number of readers, and the journalistic integrity of its editors and publishers. Again, in Tornillo, we held that, “The choice of material to go into a newspaper… and treatment of public issues and public official–whether fair or unfair–constitute the exercise of editorial control and judgment.” I see no reason to alter our holdings in either case.
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In my mass media class we discussed the seeming contradiction in two supreme court decisions: Tornillo and Red Lion. In Tornillo, the Miami Herald was challenging a state statute granting a political candidate the right to reply to any criticism by a newspaper. Allow me to quote the relevant passages…

we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views [in newspapers]

The Power of a privately owned newspaper to advance its own political , social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers … and second, the journalistic integrity of its editors and publishers.

a newspaper or magazine is not a public utility subject to “reasonable” governmental regulation … we prefer “the power of reason as aplied through public discussion” and remain intensely skeptical about those measures that would allow government to insulate itself into the editorial rooms of this Nation’s press.

As my instructor continually reminds us, if you know the values the Judge finds important, you can almost always predict the outcome of the case. Here, it is clear that three values influence the justices’ decisions: editorial autonomy, the unregulated marketplace of ideas, and limited government power. These values cause the court to find in favor of the newspaper instead of the government. Now compare this to the Red Lion case involving BROADCAST MEDIA…

Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the government limit the use of broadcast equipment. The [right of a broadcaster] does not embrace a right to snuff out the free speech of others.

There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community…

There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all…

Now, how does one reconcile these two cases? Is not editorial autonomy in direct competition with the unlimited private censorship of speech? How can one protect against the private censorship of speech and yet protect the editorial judgment of private newspapers at the same time?

Fortunately, the Supreme Court is not the final arbiter of truth, and its not the end of the world if their cases contradict… but one wonders what rationale is available to explain such a seeming contradiction. Does the limited nature of the broadcast spectrum warrant government protections for the fair use–just as it may restrict an electric company who monopolizes a limited electric network? What are the values espoused in the Red Lion case? Equality of opportunity for speech? Efficient use of a scarce resource? Fairness? A Complete public debate??? Should those values win in the end?

I really don’t have answers, just more questions…