This is patently offensive

The Supreme Court of Washington has affirmed a murder conviction that was based in large part by DNA evidence obtained through absolutely appalling trickery, even by cop standards. Trying to close a cold case, the police concocted a ruse to obtain the DNA- they sent the suspect a letter from a fictitious law firm, claiming that he was a class member in a (phony) class action. Naturally, he signed a few documents and licked an envelope.

They got the DNA off the envelope.

This is an outrage! The cops subverted the legal process, claiming to be his attorneys! This is an instance in which bad facts made bad law. The guy was a rapist and murderer, so why let "technicalities" like the Constitution stand in the way.

I have been uninspired recently

I tried to hard to overreach with this blog. I think I wrote some interesting things at times, but I also went for weeks without anything to say.

When you cast too wide a net, you will come up empty.

Yet, I don't particularly want to reel in my focus. I am a law geek, first and foremost. I love the law, including matters outside my immediate practice.

Which is why Scott v. Harris is so fascinating. It is a summary judgment case on the issue of whether a police officer has qualified immunity when using force to stop a high speed chase. The rule at summary judgment is to accept the non-moving party's version of events as true, and then decide if there any issue of fact worthy to reach a jury.

Here, the plaintiff alleged that he was moving slowly and carefully, and that force was unnecessary. The defendant argued that the plaintiff was, essentially, a bat out of hell. Had the Court followed the usual rule, and summary judgment denied. Instead, the Court did something truly unique- they found their own facts, based on a video of the chase, then made the video part of the public record in the case, including it as part of the opinion (92Mb RealPlayer file).

Because of the video, the Court found that qualified immunity existed, 8 to 1. This is a first- the Court is usually deferential to the formalities of the law. Here, the formalities were just thrown out the window. Good- formalities run the risk of becoming meaningless lawyer's tricks when used to thwart the obvious (and just) outcome.

Open Source- Who is the "designer" for product liability purposes?

Engadget reported yesterday that the c,mm,n (pronounced "common") was unveiled at a Dutch auto show. c,mm,n is the world's first open source car, and the technology and plans are available for hacking and tweaking. Another open source car in the offing (but nowhere near a rolling prototype) is OScar. This is a day that I have been waiting for, when open source churns out major consumer products in meatspace. Given the recent financial and crappiness quality control issues that have plagued the auto industry, open source development promises to reduce R&D costs dramatically.

A legal issue exists, however, over defective design liability. Defective design is a products liability claim that exposes the designer of a product (as well as in addition to separate claims against the manufacturer and the seller NOTE: edited for clarity) to strict liability for injuries that result from the design flaw. An obvious example would be an iron that burns the house down because it doesn't shut off automatically- the designer should have foreseen that somebody somewhere would forget to turn the iron off.

So suppose that GM jumps on the c,mm,n bandwagon and produces it using the plans for version 1.0, and several years later a number of accidents reveal a design flaw that cause the vehicle to explode in rear-end collisions when both the left turn signal and license plate frame lamp are activated. So who is liable as the designer?

The open source development model has proven to be outstanding for developing software. However, since software generally doesn't kill people (at least not yet), these issues have yet to be resolved. I can see courts resolving the issue one of three ways:

1) Adoptive design. This is a kind of due diligence argument- if the General wants to slap their name on the car, then they should have made sure the plans work. This is a fairly common sense resolution- since the car is open, GM is the designer of the car if they have the opportunity to alter the design but do not do so. Clearly, if they had modified the design there would be no question as to liability; but by building the car as is, they have endorsed the design and adopted it as their own.

This is the best solution, as it encourages manufacturers to do their homework before releasing the product, and it allocates the risk to the party best able to bear it- i.e. the party who will actually profit from the design.

2) All designers are liable. This would be the worst possible solution, in my estimation, but there will be pressure coming from proprietary industries to persuade courts to embrace this approach. Imagine the onslaught of amicus briefs from Microsoft, Apple, and the patent bar arguing that "fundamental fairness" requires open source designers to be subject to the same liabilities that they are. Couple it with the lobbying and PR advantages that these industries enjoy, and I can picture the endless commercials on CNN or the Sunday morning talking head shows touting this line.

If a court were to adopt this line, and each designer were potentially on the hook, the litigation would be virtually endless. Before we even get to the ultimate issue of liability, there will be years of collateral litigation- is this kind of suit covered under a designer's homeowner's insurance? How does a court allocate the damages? If the defective component was 99% designed by one person, but 1000 other people contributes the remaining 1%, would all designers be jointly and severally liable equally or only liable for their actual contribution? If the community is jointly and severally liable, then the designers fight amongst each other in a separate trial over what their respective contribution should vis a vis each other, which would itself require a trial on who designed what. I could go on, but I am still only in my pajamas, and thus my brain is only running at 80%.

If courts adopt this rule, it would really sound the death knell of the open source movement, which is what proprietary industries really want anyway.

3) No design defect liability. A court could simply hold that an open source product is not subject to design defect liability. This option has the benefit of simplicity, but it seems unfair to plaintiffs. Design defect and manufacturer defect claims are different tort theories, not two different ways to go after somebody's pocketbook. Theoretically, a defectively designed car could be perfectly manufactured- thus no manufacturer's liability. The plaintiff's remedy is to go after the designer.

If open source products are immune from design defect, then the driver of a perfectly built but defectively designed Chevy has a remedy available to him/her that the driver of a perfectly built but defectively designed c,mm,n lacks. A market solution exists for the driver- if the driver can't bear the risk that she might not be able to recover on a design claim for the c,mm,n, then she can buy the Chevy. But what of injuries to third parties? A passenger in the defective car would be just as injured by the explosion, but would not have an opportunity to account for the risk through market action. Should that person only hitch rides from drivers of proprietary cars? What of the other vehicle in the accident?

This rule would also encourage the manufacturers of open source products NOT to perform due diligence, because taking the time to ensure that the car is well designed puts them at risk if they miss something. Obviously, we want safe products on the market, and any rule that encourages blindness to safety ought to be avoided.

I think my first option, adoptive design, works best for all concerned. It is fair to plaintiffs and defendants; it encourages manufacturers to check the work of the community; and it guarantees that open source development will continue and expand into real world consumer products. I also think I stumbled blindly and half asleepedly into a law review article. I will keep thinking about this and maybe develop it.

Tap, tap, tap... this thing on?

I've been away for awhile, actually doing, you know, important stuff.

In the meantime, let me share this. The totally brilliant John Hodgman explains executive privilege to Jon Stewart on The Daily Show.

The bad decisions

I've had an idea in my head lately- that I should write about those cases where, in my opinion, the Court screwed up. Not merely where I disagree, mind you, but where the Supreme Court just flat screwed the pooch- not only was the result wrong, but the reasoning was wrong as well. A truly bad decision will will apply bad law to achieve a bad result.

The cases in the anti-canon have a few things in common. These cases are more likely to involve claims that can be resolved narrowly, but the Court uses it as an opportunity to make a broad pronouncement; truly bad cases concern substantive rights as opposed to procedural law; the worst decisions usually have dissents that people can remember for years, long after the holding is forgotten. Finally, the bad decisions usually have major political ramifications that play out for decades. So let us begin with the worst decision in the history of the Court, the grandaddy of 'em all...

Dred Scott.

The precise question before the Court was strictly jurisdictional- is a slave of African descent a citizen of the United States, with the right to sue in Federal court? The Court ruled that slaves- in fact, that all persons of African descent, free or slave- were not citizens, and therefore the Court had no jurisdiction. Chief Justice Taney, a southerner and slaveowner, wrote (in some of the most repugnant racism you will ever see)-

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Since Africans had no rights that "the white man was bound to recognize," Dred Scott had no right to sue. End of story, right?

Wrong.

Even after deciding that the Court lacked jurisdiction, Taney went on consider the merits of the case. This is where the case transcends from a merely mistaken decision, to a truly horrendous one. The Court opined that slavery was embedded in the Constitution, in clauses like the importation clause or the three-fifths clause, suggesting that slavery was a base assumption made by all the Framers, and in that regard, Taney was probably right. However, based on that the Court decided that the Missouri Compromise, an act of Congress that prohibited slavery in northern territories, was unconstitutional. This extra step was purely political, designed to encourage slaveholder emigration to all the territories. When the territory was deemed eligible for admission as a state, it would be admitted as a slave state. Thus the Court tried to jury rig a slave state majority, so to end the slavery issue once and for all. Instead, it probably helped to steer the ship of state toward the Civil War. It took three constitutional amendments to undo the damage, not to mention a quarter-million dead.

It is perhaps easy to forget this today, because the case is so universally reviled for its dripping racism, judicial overreach, and it's subsequent total repudiation, but this was actually a very carefully considered decision. The Supreme Court heard argument on it twice before deciding and there were a plethora of opinions submitted, including two dissents. Maybe this goes to show that bad decisions are only so obviously wrong in hindsight; maybe it shows that the Court had to work very hard to achieve the particular result it wanted.

What is truly interesting about this case is the way it resonates in the major controversies of our own time. It has been called worst examples of both originalism ( "Dred Scott actually represented something quite the opposite of judicial activism. That case was a good example of 'originalist' interpretation or 'strict construction.'") and judicial activism (Justice Scalia dissenting in Casey, suggesting that Dred Scott is the birth of substantive due process). Its shadow is long, its shamefulness deep and abiding.

Oh. My. God.

I owe the Legislature of Pennsylvania an apology. The phrase "ultimate sexual act" is not an example of poor legislative drafting. Instead, it copies word for word the language of the Supreme Court in Miller v. California:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

I still contend it makes little sense, but the Legislature just followed exactly the language of the decision.

Ultimate sex acts, normal or perverted

I am working on an appeal (that is due tomorrow- no time like the present, right?) which has significant First Amendment implications. Specifically, it is about whether the no-porn clause in our local sex offender parole/probation conditions meets Constitutional muster. Among the many things at issue is whether the condition is vague and overbroad. The trial court opined that it wasn't because the words "sexual conduct" are statutorily defined. However, the statute in question is a little less than clear. Sexual conduct is defined as "Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality..."

Can anyone help me understand what the ultimate perverted sex act is? Or perhaps the ultimate normal sex act? I am, to be sure, intrigued...

I imagine that the original draft used the word "intimate," and it got changed somehow and no one noticed, which is both inexcusable and typical of Pennsylvania legislature, who seem not to read anything they pass. This is the state, after all, that will put you in jail for up to two years for beating someone up, but will put you in jail for up to five years if you threaten to beat someone up (simple assault is a second degree misdemeanor, but terroristic threats is a first degree misdemeanor).

Is there any excuse for such poor legislative drafting? I think not.

An unusual split at SCOTUS

The Supreme Court today decided the case of Philip Morris v. Estate of Williams, throwing out an $79.5 million dollar punitive damage award on the theory that awarding punitive damages as a way to punish a defendant for harms caused to other people not involved in the case is taking under the due process clause. However, and here is where my brain starts to hurt, the jury can consider harm to non-parties in determining the reprehensibility of the tortious conduct.

So they can't award punitives because other people were in harm's way, but because other people were in harm's way they can award punitives? What the hell? Justice Stevens picks up on this tortured distinction in his dissent:

While apparently recognizing the novelty of its holding, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct—which is permitted—from doing so in order to punish the defendant “directly”—which is forbidden. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant’s conduct, the jury is by definition punishing the defendant— directly—for third party harm. A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Citations omitted.

Also interesting is the way the Court split- Justice Breyer wrote the opinion of the Court, joined by the Chief Justice, and Justices Kennedy, Souter, and Alito. In dissent were Justices Stevens, Scalia, Thomas, and Ginsburg. Not the usual alignment to say the least.

Civil unions underway in New Jersey- America still not collapsing

Civil unions are officially underway in the Garden State, my much maligned but I would go to war to save her home state. The more I think about the nature of rights, the more I think that Justice Scalia is off his rocker. Controversies like same-sex marriage are exactly the sort of thing that courts should be deciding. Justice Scalia recently debated a Justice of the Supreme Court of Canada on the matter of original intent, living constitutions, and the role of the judiciary. Consider this assertion by Justice Scalia:

This notion simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts, he said.

Judge Scalia said back in the days when the United States was a true democracy, citizens changed the Constitution if a consensus developed around adding or eliminating a human right. “What democracy means is that the majority rules,” he said. “If you don't believe that, you don't believe in democracy.”

But Mr. Justice, equal protection of the law is the majoritarian principle, duly ratified by three-fourths of the States. Doesn't it behoove the alleged democratic majority to ratify and clarify the (in this case) non-meaning of equal protection? I admit that this argument is simplistic at best, and a borderline red-herring at worst, but equal protection of the law remains the democratcially adopted law of the land.

NOTE: I started to write one thing, then crossed it out and went a different way. Hence the reason that the title doesn't quite match the rest of the post.

Interesting jurisdictional problem

Thanks to Norm at Crime & Federalism for the hat tip on this, although he went off on a different angle.

The Facts (short version)- Guy from New York goes to Connecticut, allegedly has too much to drink and kills a pedestrian. Returns to New York, confesses to his parents, and they allegedly help him cover it up. Like I said, short version. Longer version here.

The guy is charged with various and sundry, and there is talk of charging the parents- but where? They never set foot in Connecticut, and their involvement seems to be entirely after the fact, meaning that they are not really conspirators to the substantive offense, and I can't find a Model Penal Code style territorial applicability statute in Connecticut. I suppose the effects doctrine from international law could apply here, or Connecticut could charge the parents with conspiracy to obstruct justice which would truly get around the jurisdictional problem altogether.

Still very interesting.

Evolution- Blame the Jews

Tip of the hat to the ACSBlog for this gem. Right wing legislators in Georgia and Texas are arguing that teaching evolution (as well as gravity, apparently) in public schools is unconstitutional because it is actually an ancient Kabbalistic conspiracy. The Kabbalah is a mystical Jewish tradition practiced by none other than Esther Ciccone! (Okay- that was mean...)

According to the memo (all italics and scare quotes in the original)-

All that can now be changed! Indisputable evidence--long hidden but now available to everyone--demonstrates conclusively that so-called "secular evolution science" is the Big-Bang 15-billion-year alternative "creation scenario" of the Pharisee Religion. This scenario is derived concept-for-concept from Rabbinic writings in the mystic "holy book" Kabbala dating back at least two millennia.

The memo goes on to conclude that the Kabbalistic evolution has a "very specific religious agenda,"making it unconstitutional to teach it in school.

Being the good liberal, constitutional lawyer that I am, I went to their source- the indisputable evidence that demonstrates conclusively their claims. The author cites as his source an organization called The Fair Education Foundation- on the web at www.fixedearth.com (yes that does say fixed earth). The site (written in stunning HTML 1.0!) greets visitors with a bold pronunciation:

The non-moving Earth

& anti-evolution web page of

The Fair Education Foundation, Inc.

Exposing the False Science Idol of Evolutionism,
and Proving the Truthfulness of the Bible from Creation to Heaven...

- since 1973 -

Marshall Hall, Pres.

***

EXTRA! EXTRA!

Read all about the Copernican and Darwinian Myths

(and their many ramifications going all the way to Kabbala-based Big Bangism!)

IN OVER NINETY LINKS BELOW....

Heh.

I am always amazed at how obvious fools manage to get taken seriously by people in places of power, but this is truly astounding. Elected officials in two sovereign states are making decisions based on the ramblings of a person who honestly and truly believes that the sun revolves around the Earth. I understand that ideas never truly die, they linger on in the meme pool competing with better ideas until only a handful of wingnuts adhere to them. But for elected officials to use these ramblings to advance an agenda just makes me scratch my head and thank my lucky (and not orbiting the Earth) stars that I don't live in Georgia or Texas.

I need to refocus this blog somewhat

When I started this blog, I envisioned it as a forum to comment on The State of the Law- that's capitalized, you see. However, with my net cast so wide, I find myself in a bit of a pickle.

With absolutely everything in the world to write about, I have nothing to say, as evidenced by my increasingly infrequent posts.

So I need to think for a few days about what I want this blog to be about, and hone in.

Well, that didn't take long

We have only just concluded the First 100 Hours, and Washington is back to its old ways. With much fanfare, the new Congress changed the rules to "break the link between lobbyists and legislation."

Link repaired!

In just the last two months, lawmakers invited lobbyists to help pay for a catalog of outings: lavish birthday parties in a lawmaker’s honor ($1,000 a lobbyist), martinis and margaritas at Washington restaurants (at least $1,000), a California wine-tasting tour (all donors welcome), hunting and fishing trips (typically $5,000), weekend golf tournaments ($2,500 and up), a Presidents’ Day weekend at Disney World ($5,000), parties in South Beach in Miami ($5,000), concerts by the Who or Bob Seger ($2,500 for two seats), and even Broadway shows like “Mary Poppins” and “The Drowsy Chaperone” (also $2,500 for two).

The lobbyists and their employers typically end up paying for the events, but within the new rules.

Instead of picking up the lawmaker’s tab, lobbyists pay a political fund-raising committee set up by the lawmaker. In turn, the committee pays the legislator’s way.

Few things are as certain as corruption in the Halls of Congress, except possibly the existence (and subsequent exploitation) of loopholes.

Aggessive trademark protection

I am a criminal defense lawyer- I have represented killers and rapists, thieves and thugs. And none of them are nearly so slimy as IP attorneys.

A stay-at-home-mom in Ohio and breastfeeding activist has gotten a C&D letter from the National Pork Board, because her Cafepress store carried a t-shirt that reads "The Other White Milk." I say carried because it seems that shirt may have been taken down. Oh, and all the sales go directly to the Mother's Milk Bank of Ohio.

I understand that they have to protect their trademark, but this paragraph actually infuriated me:

In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board's mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan "The Other White Milk." "Dairy Diva," "Nursing, Nature's Own Breast Enhancement," "Eat at Mom's, fast-fresh-from the breast," and "My Milk is the Breast.

Your apparent attempt to promote the use of breastmilk beyond merely infant consumption? It would appear that the good people at the National Pork Board have profoundly dirty minds, as well as being utterly humorless prigs, in light of their apparent attempt to be human beings.

That alone is bad enough, but let us not forget that not all hog farmers actually like the slogan- pork becomes white when factory farmed- organic pork, raised on pasture, is actually red. In fact, a majority of hog farmers voted to undo the slogan, only to have been saved by the Bush Administration.

So who benefits from aggressively protecting this trademark? Not the hog farmers, not the public, certainly a stay-at-home-mom in Ohio. So let me ask the Pork Council's lawyer, Jennifer Daniel Collins with Faegre & Benson a question that people ask me, defender of killers and rapists, all the time- how can you sleep at night?

Super Copyright Nonsense

There is a story making the rounds that the No Fun League has sent C&D letters to various churches planning to host Super Bowl parties. Apparently a church in Indiana was planning to host a "Super Bowl Bash" as a fundraiser. The NFL faxed a letter advising that the words "Super Bowl" are trademarked and that the league prohibits charging admission to watch the game. So far, the League was perfectly within its rights- so, the Pastor changed the name of the party and dropped the fee for admission.

Not good enough. The NFL claimed that the law prohibited displaying the game on a television larger than 55 inches. Legally, the NFL is correct- the Copyright Act generally holds that watching television is not an infringement, unless:

[In] an establishment other than a food service or drinking establishment, and... if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches.... 17 USC 110(5)(B)(i)(II).

This just demonstrates how technology is now outpacing the law. I'm sure there was a time when 55 inches seemed like the largest television possible, but you can now HDTVs twice that size. In any event, it hardly makes sense that infringement is based on the television you are watching on. This is a bad law that will need to be fixed, and soon.

Tyranny of the Uncool

By now you have probably heard about the Great Aqua Teen Hunger Force Fake Bomb Scare. If you haven't, I can summarize it this way- to promote the upcoming ATHF movie, viral marketers placed LED Mooninites around various cities, including Boston (where quite frankly, I would expect them to know better). Somebody who had never heard of ATHF and who did not recogize a little pixelized Space Invader flipping the bird as a cartoon character panicked and called in a possible bomb threat. The bomb squad was called out, much merriment ensued yadda yadda yadda.

Two people have been arrested and are now facing felony charges of placing a hoax device.

What I find so interesting about this case is that if you know what the Mooninites are, then it is clearly not a hoax device at all. However, some square who didn't get the joke decided it was a bomb (which if you ask me also makes him stupid- who places a bomb in plain view and then lights it up in bright green LEDs?). In other words, a person can be charged if somebody thinks it looks like a bomb, not whether the maker thinks it looks like a bomb.

These are interesting times for street artists and culturejammers. There is the Obey the Giant meme, there's Mark Jenkins' brilliant (and slightly creepy) tape sculptures, and there is Invader's use of the Space Invaders Mooninites (to bring it all back around to the ATHF). It is understood among street artists that some people will not get the point- I would argue that causing confusion is the point of most street art. Here, someone who didn't get the joke interpreted it in the worst possible way, and now two people face jail based on that man's stupidity.

Creativity is often lost on the masses. I would not expect someone whose cultural experience is limited to Oprah, Tom Clancy, and pretty pictures to get ATHF. I would not expect someone to get a felony charge for it either.

Yet another state suspends executions

I haven't posted in a bit, as I sorted through something I have written about on my personal blog. Not that there hasn't been news, I have just paid some attention to me. But now- back to the law stuff.

In a bit of news without analysis, these are happy times for death penalty opponents. A North Carolina court handed down a ruling that amounts to a moratorium on executions. The law in NC is that a doctor must attend to the proceedings, but the state medical ethics board ruled that to supervise an execution is inconsistent with medical ethics. No doctors will supervise, therefore no execution.

Finding procedural loopholes are a time-honored practice in the profession to avoid having to make a potentially unpopular decision on the merits. Last month, the Maryland Court of Appeals stayed all executions (171 page PDF file) because the Department of Corrections did not follow the necessary administrative processes in developing their execution protocols. If the Court really wanted to stop the machinery of death, their chosen method is cowardly- however, it had the effect of bringing the death penalty back to floor of the Maryland legislature, and the Governor announced that he would sign a bill to abolish. Given that Maryland has no substantial history of executions, I would venture to guess that it will pass.

My beloved home state of New Jersey- a state that has only sent about 20-odd people to death row, had more than half of the sentences overturned, and hasn't executed anyone since the sixties- is on the verge of abolishing the death penalty. In all, twelve states have suspended executions for one reason or another. Even a Federal judge has bullied prosecutors over what he believes is an unnecessary death case.

The tide is turning in this area. Analysis later.

Apple vs. Cisco

If you have been paying any attention to my shared news feeds down the right column, then you will see many stories about the Apple iPhone. I am a Mac geek, I have been waiting for this phone, and I may be in the market for a new one. So my interests and my needs may converge.

Well, iPhone was registered as a trademark by Cisco for its new line of VOIP phones. Although Cisco and Apple were in talks over licensing the iPhone name, those discussions broke down literally hours before the announcement at MacWorld. Predictably, Cisco sued. Apple's response- bring it on.

Since a lawyer's most important task is to predict likely outcomes based on the facts and the law, let me make a prediction: Cisco is going to get iBitchslapped.

For one thing, Cisco's trademark is specifically registered for use with "computer hardware and software for providing integrated telephone communication with computerized global information networks." Apple's iPhone is at root level a cell phone. Also, Cisco is not the only company to lay claim to the iPhone mark.

While both of those facts are important considerations, neither one is dispositive in my estimation. What carries the day for Apple is that everyone already associates electronics branded "iSomething" with Apple- think iPod, iBook, iMac, etc- while no one has ever heard of Cisco's iPhone. In fact, I would venture to say that if you had randomly polled 100 people
before the announcement and asked them who made the iPhone, the vast majority would guess Apple.

Trademarks are only infringing if they are confusingly similar. Here, they are not just similar, they are identical. And yet, I don't think Cisco has a chance.

Two rulings today

The Supreme Court decided two cases today. Well, they decided one, and punted on the other.

In the first ruling, the Court held that paying royalties to a putative patentee under a license agreement does not foreclose the licensee from challenging the validity of the patent at issue in the license itself. This is a great turn of events for innovation- patent trolls have basically choked the system, and anyone developing new technologies is at risk from the increasingly frivolous patent system.

In the second case, the Court granted cert to decide one question (whether a defect in the indictment can be harmless error), but decided a different question altogether (that the indictment wasn't really defective after all). This is the second case this term in which the Court dodged an important Constitutional question, the first being Musladin. I sense in this the work of the Chief Justice, who wants the Court to issue narrowly crafted decisions on the most minute of grounds. Meaning useless precedent.

Back to regular blogging tomorrow.

And the Rodney goes to....

Greg has handed out the PD Blogger Awards in a lavish ceremony at the Kodak Theatre in Hollywood, and what can I say- it was an honor to be nominated. I was totally gobsmacked when Blonde Justice did the one-armed pushups. I just wish I knew how Marisa Tomei got an award.

Seriously- congrats to all the winners! I read you all everyday!

Stealing power

Congress passes hundreds of bills each year, the vast majority being completely ordinary and uncontroversial. Funding for this or that; naming a bridge or highway in honor of some local hero; or approving a nominee for a seat on the Marine Mammal Commission. There is little debate, because as soon as the deed is done the Congress moves on to something else.

The Postal Accountability and Enhancement Act was intended to be one such wholly unremarkable piece of legislation. It passed both Houses without debate, or even recorded votes. However, the New York Daily News reports that the President issued a signing statement that would allow the Feds to open a person's mail- without a warrant or judicial oversight.

The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.

Note how the President seems to imply that the legislation authorizes the opening of mail ("which provides for opening of an item of a class of mail..."), but the Act actually prohibits the opening of mail. Subsection 1010(e) says that "No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law...." This seems clear and unambiguous, but the signing statement incorporates the phrase "exigent circumstances", which anyone with a passing understanding of search and seizure law will immediately recognize. Wikipedia's definition is both accurate and simple:

An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant.... It must be a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape.

Barring the example of the letter bomb, it is virtually inconceivable that the government could demonstrate the necessary exigency. An exigent circumstance exists when a law enforcement officer has actual knowledge of a crime in progress and reasonably believes that she must act immediately to save a life or preserve evidence- if the dealer is going to flush the crack down the toilet, the police will be able to bust in and save the evidence. It is not an exigent circumstance that someone suspected of criminal activity is receiving mail from someone else suspected of criminal activity, and the government believes that the mail contains information about the crimes.

The real meat of the signing statement seems to disregard the need for exigent circumstances altogether. This is a close reading akin to statutory construction. The statement is written like bad legislation, with too many commas. The language about exigent circumstances is immediately followed by a non-restrictive clause explaining exigent circumstances themselves ("such as to protect human life and safety against hazardous materials..."). The next clause is an entirely separate justification for opening the mail that has nothing to do with exigent circumstances- take the non-restrictive clause and other legally inoperative language out, and the statement becomes:

The executive branch shall construe... subsection 1010(e) of the Act... in a manner consistent... with the need to conduct searches in exigent circumstances... and the need for physical searches specifically authorized by law for foreign intelligence collection.

Read this way, there are two separate and distinct rationales for opening mail- 1) when exigent circumstances exist or 2) when necessary for foreign intelligence collection.

Would Congress have authorized that without debate? I doubt it.

Oh, what a day....

New Jersey will abolish the death penalty.

Iraq has arrested someone for Saddam's inhumane treatment- not the people taunting and cheering, the guy who snuck the cameraphone in.

In Ontario, a kid can have three parents.

The BBC...

sums it up succinctly: "Altogether, [Saddam's] execution as we now see it is shown to be an ugly, degrading business, which is more reminiscent of a public hanging in the 18th Century than a considered act of 21st Century official justice."