December 09, 2012
A Brief Legal History of One of the Most Influential Players in the History of Baseball, Marvin Miller
Quoting from Christopher Schmidt's recent Legal History Blog post:
Marvin Miller, who led the Major League Baseball Players Association from 1966 until 1982, died last week. Miller is best known for his role in orchestrating the downfall of baseball’s century-old reserve clause system, under which owners basically dictated where players played and for how much. More than any other individual, Miller thrust baseball into the modern era—an era characterized by players regularly moving between teams in search of new multi-million dollar contracts and collective bargaining as a primary policy-making mechanism for the game. Under his leadership, the Players Association went from something of a joke (the players “didn’t know what a union was, but they knew they didn’t want one,” Miller later recalled) to arguably the most powerful union in America. Miller has been rightly celebrated as one of the handful of the most consequential figures in the history of baseball.
For much more, see Schmidt's Marvin Miller: A Brief Legal History. [JH]
December 07, 2012
The Supreme Court Finally, Maybe, Takes Up Gay Marriage
Well, well, well. The Supreme Court announced today that it will take up two major cases affecting the rights of homosexuals to marry. One case concerns the invalidation of California’s Prop. 8 which amended the California constitution to prohibit marriage between two men or two women. The other concerns the Defense of Marriage Act which more than one lower courts has declared unconstitutional. The Court is expected to hear arguments and decide the case in the current term. There is, however, a procedural wrinkle in both cases that gives the Court an out on the substantive issues if it so desires. The Court wants the parties to brief jurisdictional issues as well. Here is the statement in today’s orders list:
12-144 HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.
12-307 UNITED STATES V. WINDSOR, EDITH S., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
December 06, 2012
Big Bother Will Be Watching
That's not a typo in the title. One of my regular topics for this blog is developments in privacy. One thread is typically about how we are tracked via the Internet for the sake of providing us with targeted ads based on our interests. Here’s an example. I tend to read a lot of news about Windows 8 and the various kinds of hardware that runs it. I also tend to see a lot of ads for the Microsoft Surface tablet. Likely a lot of these displays are based on Microsoft buying a lot of ad space to promote the device. I suspect, however, that I may see more Surface ads than the average person due to my reading habits. There are efforts to create a standard for protecting consumers from tracking, but these are mired in disagreement. See here and here, for example.
The only reason targeted behavioral advertising is possible is because the web is interactive. Its very nature allows for bits and pieces of information to be transmitted and stored against profiles to provide this delightful service to advertisers. Google at its heart is really an advertising agency with a very good search engine that helps drive its product. Some media, such as television, do not have the built in advantage of interactivity. At least not yet.
Enter Verizon with a patent application submitted on May 26, 2011 and published on November 29, 2012 titled Methods and Systems for Presenting an Advertisement Associated with an Ambient Action of a User. It describes a system that includes a way to track immediate activity (the ambient stuff) by television users through cameras and microphones placed in the set-top box. Commercial breaks on television programs would be based on the immediate activity that is detected. Here are some selected descriptions and examples from the application:
3. The method of claim 1, wherein the ambient action comprises at least one of eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, and playing a musical instrument.
4. The method of claim 3, wherein the interaction between the user and [sic] the another user comprises at least one of cuddling, fighting, participating in a game or sporting event, and talking.
8. The method of claim 1, wherein the detecting comprises utilizing at least one of a gesture recognition technology, a profile recognition technology, a facial recognition technology, and a voice recognition technology.
10. The method of claim 1, further comprising: determining, by the media content presentation system, a mood of the user in accordance with the detected ambient action; wherein the selecting of the advertisement comprises selecting the advertisement based on the determined mood of the user.
11. The method of claim 1, further comprising identifying, by the media content presentation system, one or more physical attributes associated with the user.
14. The method of claim 1, wherein: the detecting of the ambient action comprises detecting at least one word spoken by the user; and the selected advertisement is associated with the at least one word spoken by the user.
20. The system of claim 19, wherein the detection facility is implemented by a detection device comprising at least one of a depth sensor, an image sensor, an audio sensor, and a thermal sensor.
 To illustrate, an exemplary ambient action may include the user eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, playing a musical instrument, performing any other suitable action, and/or engaging in any other physical activity during the presentation of the media content. In certain examples, the ambient action may include an interaction by the user with another user (e.g., another user physically located in the same room as the user). To illustrate, the ambient action may include the user talking to, cuddling with, fighting with, wrestling with, playing a game with, competing with, and/or otherwise interacting with the other user. In further examples, the ambient action may include the user interacting with a separate media content access device (e.g., a media content access device separate from the media content access device presenting the media content). For example, the ambient action may include the user interacting with a mobile device (e.g., a mobile phone device, a tablet computer, a laptop computer, etc.) during the presentation of a media content program by a set-top box ("STB") device.
 In certain examples, detection facility 104 may be configured to obtain data (e.g., image data, audio data, 3D spatial data, thermal image data, etc.) by way of a detection device. For example, detection facility 104 may be configured to utilize a detection device to receive an RGB video stream, a monochrome depth sensing video stream, and/or a multi-array audio stream representative of persons, objects, movements, gestures, and/or sounds from a detection zone associated with the detection device.
I can’t speak for others, but I don’t believe I would be interested in sharing personal details of my life with Verizon, from boring to intimate merely to get targeted advertising based on whatever I happened to be doing at the time. Other articles on this development speculate on the types of ads that might pop up if the patent were implemented. Some of them were pretty lurid or embarrassing. I’ll leave it at that.
I realize that a patent does not mean the technology will ever be implemented, or if it is, what the terms of service will be. Let’s say that this kind of capability does find its way into living rooms. Will it be active only when the set-top box is on? Consider that any profile it generates can be combined with other profiles to create super profiles no matter what media is involved. Moreover, how is the information represented in these profiles? Physical attributes? Facial and voice recognition? How would these characteristics be tracked over time? And most importantly, who would have access to this information? Would the government be able to subpoena collected information or even use the detectors as super wiretaps? Data mining is already creepy. It will take an exponential leap if this comes to pass.
The Tempest in the General Trade Publishing Industry: Will the past be prologue?
Reading André Schiffrin's article in The Nation, How Mergermania Is Destroying Book Publishing, reminds me of some the same sort of promises made to buyers during the early day of mergermania in the legal book publishing industry. "Don't worry, editorial quality will remain excellent, pricing won't increase more than the usual, sales-buyers relationships will be as good if not better after the acquisition is completed." Yup, like that is what happened after competitiveness was eliminated from the equation.
If anyone wonders what will really happen in the general trade publishing industry after mergermania, all one has to do is examine the now well-established consequences of the consolidation that took place in the US legal publishing industry many years ago. Will the antitrust and competition scrutiny of general trade publishing mergers by US and European regulatory agency open the door for a review of the legal publishing industry? Or will the status quo in legal publishing pave the way for regulatory acceptance of mergermania in the the general trade publishing industry? [JH]
November 28, 2012
The CRS And CBO Takes On The Fiscal Cliff
With all the talk about the impending doom regarding the “fiscal cliff,” I offer the Congressional Research Service’s take. The Service issued a report in September called The “Fiscal Cliff”: Macroeconomic Consequences of Tax Increases and Spending Cuts (R42700, September 20, 2012) by Senior Specialist in Economic Policy Jane G. Gravelle. From the Summary:
A major policy concern for Congress is when and whether to address the “fiscal cliff,” a set of tax increases and spending cuts that would substantially reduce the deficit in 2013. In projections made in March 2012 by the Congressional Budget Office (CBO), this fiscal restraint, constituting 5.1% of output in 2013, would reduce growth to 0.5% from 4.4%. Unemployment would increase by 2 million. In August, updated estimates projected growth at a negative 0.5%.
Policy choices with respect to the fiscal cliff are difficult because of the conflict between shortrun and long-run economic and budgetary objectives. In the short run, the reduction in demand from the reduced budget deficits could damage an already fragile recovery. In the longer run, however, deficit reduction is needed to address a projected unsustainable debt level.
For FY2013, compared with FY2012, the policy-related fiscal cliff is $502 billion, 80% reflecting tax increases. There is an additional $105 billion from economic changes. The expiration of the 2001, 2003, and 2009 tax cuts (extended in 2010) and the expiration of the alternative minimum tax (AMT) “patch,” which indexes the AMT exemption for inflation, account for 44% of the policy-related fiscal cliff. Other tax provisions include expiration of the temporary two percentage-point reduction in the employee’s Social Security payroll tax (19%); the expiration of other tax cuts, including depreciation and the “extenders (13%); and taxes scheduled to come into effect as a part of health reform (4%). Spending reductions include the automatic spending cuts under the Budget Control Act (13%); the expiration of extended unemployment insurance benefits (5%); and the “doc fix” that will lower Medicare payments (2%). Most changes take effect after 2012, although the AMT and many of the extenders expired after 2011.
Here is the Congressional Budget Office’s take in a report from May of this year called Economic Effects of Reducing the Fiscal Restraint That Is Scheduled to Occur in 2013. The latest CBO report is Choices for Deficit Reduction from November 8th. A companion post on the CBO Director’s Blog is here. [MG]
November 24, 2012
When Opposites Don't Attract: Partisan-Based Dating Websites for Internet Match-Making
While political opposites may make interesting couples, the successful "James Carville-Mary Matalin" hook-ups appear to be pretty rare. So here's a big dating hat tip to ATL's Non-Sequiturs: 11.20.12 for this gem. "Want to avoid dating Democrats or (Republicans)? There’s an app — okay, two websites — for that." The sites are designed to filter those awkward political converations from Internet courtship "by matching users only with people who share their political affiliation, via a sophisticated series of questions on individual viewpoints."
Erin Gloria Ryan's Jezebel post provides information on websites to allow one to screen out Republicans or Democrats for dating purposes. I view this post as a PSA for those in the government sector who are still doing the dating thing (unlike this aging and decrepit public sector law librarian) and who can fall into the trap of dating someone who is not "politically correct" by party affiliation. Just remember, politics is local. Luckily the Blog Widow votes Republican. [JH]
November 22, 2012
Being Thankful Your Back Isn't Against the Wall
While helping those hard-pressed this Thanksgiving. [JH]
November 20, 2012
A Q&A on Secession
It isn't just Texans messing with Texans on the We Petition site. Sarah Randag reports that the White House received secession petitions from all 50 states last week on ABAJ News. Her story also called attention to Eugene Volokh's Sucession post. Questions asked and answered by Volokh:
- Is It a Good Idea for Some States to Secede from the U.S.?
- Do States Have a Legal Right to Secede on Demand?
- Is It Legally Possible for States to Secede?
- Is It Treason for People to Call for Secession?
- May People Who Call for Secession Be Deported?
Does the Republican Party want to lose a Red State? That's like asking would the Republican Party not put up a fight against admitting Puerto Rico (read Blue State) to the union if that matter was given serious consideration.
End note. I haven't checked to see if the Congressional Research Service has recently covered the topic of sucession from the union in one of its reports. If not, will it? Can mere tax-paying citizens petition the White House to ask the in-house congressional research wing to issue one? Don't think so... . [JH]
November 16, 2012
US Calls For Dismissal Of Bob Kohn's Appeal In Apple e-Book Case Settlement
The United States has filed its brief with the Second Circuit Court of Appeals opposing the appeal by attorney Bob Kohn in the Apple e-book settlement entered by Judge Cote last September. Kohn had filed a motion to intervene in the case which Judge Cote denied. The appeal ostensibly is on that denial, though Kohn indicated that he intended to use the appeal as a vehicle to attack the settlement on appeal.
The Justice Department argues that the appeal should be dismissed because there is no case or controversy before the Court. Kohn, the Department argues, does not have standing because he is not a party to the settlement nor is he harmed by it. My favorite line in the argument:
But paying lower, rather than higher, prices does not in itself constitute an injury; there is no legally protected interest in paying higher prices.
Other arguments include reversing the order entering the final judgment would not redress Kohn’s alleged harms. His lists of points raised on appeal do not add to his standing before the Court. For what it is worth, Apple filed a motion to revise the caption of the case. It now shows Apple as “defendant-appellee.” Apple states that it is not a party to the settlement and it is not appealing anything. Apple’s brief also states that it takes no position on Kohn’s appeal, noting that the settling publishers also opposed his motion to intervene. His response is due by December 14.
Brief of the United States: Download United_States_of_America_v._Ap_23.
Brief of Apple: Download United_States_of_America_v._Ap_24. [MG]
November 15, 2012
Texans Messing with Texans by way of Dueling Petitions Littering the We Petition Site: Republic of Texas, State of Austin?
Launched on Nov. 9th, by Nov. 12th, the below petition hosted on the White House's We Petition site exceeded the 25,000 signature threshold by 2,000 and continues to garner substantial support. Go here for the current signature count. Do note the number of supporters who do not live in Texas.
Peacefully grant the State of Texas to withdraw from the United States of America and create its own NEW government.
The US continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the US suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect it's citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers which are no longer being reflected by the federal government.
Yes, what about Austin, TX, you ask? There's this petition. Also note the number of supporters who do not live in Texas.
Peacefully grant the city of Austin Texas to withdraw from the state of Texas & remain part of the United States.
Austin Texas continues to suffer difficulties stemming from the lack of civil, religious, and political freedoms imposed upon the city by less liberally minded Texans. It is entirely feasible for Austin to operate as its own state, within the United States, in the event that Texas is successful in the current bid to secede. It is important for Austin to remain in the union as to do so would protect it's citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers.
We would also like to annex Dublin Texas, Lockhart Texas, & Shiner Texas.
Watch out because I don't think Austin has its own air force.
And finally there are these two mean-spirited petitions hosted on the White House's We Petition site:
- Deport Everyone That Signed A Petition To Withdraw Their State From The United States Of America
- Strip the Citizenship from Everyone who Signed a Petition to Secede and Exile Them
Hat tip to Lowering the Bar's Counter-Petition Asks to Deport People Who Signed Other Petitions. [JH]
November 14, 2012
Google Asserts Fair Use To Defeat Class Action Status In Book Scanning Case
Google filed its brief on Friday contesting Judge Chin’s decision to certify the plaintiffs in the book scanning case as a class. Judge Chin at the time of certification denied Google’s request to stay the action and set the case for trial. The Second Circuit stayed proceedings in the case pending the outcome of the appeal.
Google essentially argues three points: 1) the class is divided over the benefits or harms to authors due to the scanning project; 2) Google is allowed to present the fair use defense and the application to the facts may vary with individual books; and 3) each class member’s right to recovery will vary depending on the proof of copyright and registration. Google relies on the Wal-Mart v. Dukes class action case decided by the Supreme Court in the last term, the Georgia State e-reserve case, and the HathiTrust case among others for its positions.
Google questioned the Authors Guild’s representation to the class by citing its own expert survey that showed 58% of author responders approved Google scanning their works. The Authors Guild has the burden of showing that its interests do not conflict with that of class members according to the filing. So far, that showing has not been made.
Other case law allows Google to mount the fair use defense in this action. Other cases, such as the Georgia State e-reserve case weighed fair use against the type of use made for individual volumes. Some of this measured the amount of use and the purpose for which it was used. I can imagine the Authors Guild arguing against this simply on the basis that Google is a for-profit entity where a public university is not. Google nonetheless has the right to assert that defense, especially in light of the HathiTrust case (and other precedent) where the District Court found the electronic index created as a result of scanning to be transformative and fair use.
This leads to the third argument that the class is potentially unrepresentative due to the amount of proof necessary to show a given book or author is even part of the case. Google offers that registration records would have to be produced on individual works and evidentiary hearings would be held to see if a book qualifies for a remedy under the case. The fact that different authors may have different interests in their works falls against class certification. I imagine the Authors Guild would argue against these points when its brief if filed.A copy of the brief with additional commentary and comments is available here at paidContent. [MG]
November 11, 2012
Honoring the Sacrifices Made by Our Veterans and Their Families This Veterans Day
By saying a prayer for peace and making a tax-deductible donation to organizations that help our vets and their families like the Wounded Warrior Project. Founded in 2003, WWP’s purpose is to raise awareness and enlist the public’s aid for the needs of injured service members, to help injured service members aid and assist each other, and to provide unique, direct programs and services to meet their needs. You can make a one-time or monthly gift to support WWP's mission.
In a military tribute to all American soldiers who fought in all wars, here is Til' the Last Shot's Fired performed by Trace Adkins and the West Point Glee Club. [JH]
November 09, 2012
Did Hank The Cat Come In Third In The Virginia Senate Race?
I usually stay away from writing about politics. The country is polarized politically, more so after last Tuesday’s election results. There is one election result that caught my eye that is worth mentioning however. The race for the Senator for the state of Virginia resulted in the election of Tim Kaine over George Allen. According to the Philadelphia Inquirer, Hank the Cat likely came in third with possibly as many as 29,000 write-in votes. We are used to close elections where a handful of votes could swing a major election. Allen v. Kaine v. Hank anyone? It’s a great day for feline-Americans everywhere. I don’t know who might have come in fourth or fifth, but I’d feel pretty stupid by losing to a cat. I would expect Hank to celebrate his showing with a round of catnip. Unlike human catnip, it’s legal. [MG]
November 06, 2012
Election Day Special: What Fonts Say About the Presidential Campaigns
"We asked designers of various fonts now in use by Obama and Romney what they had in mind when designing them in hopes of gaining insight into what the campaigns are going for — at least in a design sense." Check out Rani Molla's report on The Content Strategist for details. [JH]
November 01, 2012
CRS Economic Report A Bit Too Touchy For Senate Republicans
It’s a pity that Don LaFontaine has passed on. You may not have known his name, but you certainly have heard his voice. He provided the dramatic narrative to countless numbers of movie trailers, commercials, and other promotional material. If he were alive today he could speak words such as “In a world where politics define reality rather than the other way around….” Those words could easily apply to a news story in today’s New York Times. It describes successful efforts by Senate Republicans to have the CRS report titled Taxes and the Economy: An Economic Analysis of the Top Tax Rates Since 1945 (copy available courtesy of the NY Times) removed from circulation.
I wrote a brief post about the report last September. Its thesis is that tax cuts do not lead to economic growth. This conclusion came after studying 65 years’ worth of policy. I’ll repeat the report’s abstract from the earlier post:
Advocates of lower tax rates argue that reduced rates would increase economic growth, increase saving and investment, and boost productivity (increase the economic pie). Proponents of higher tax rates argue that higher tax revenues are necessary for debt reduction, that tax rates on the rich are too low (i.e., they violate the Buffett rule), and that higher tax rates on the rich would moderate increasing income inequality (change how the economic pie is distributed). This report attempts to clarify whether or not there is an association between the tax rates of the highest income taxpayers and economic growth. Data is analyzed to illustrate the association between the tax rates of the highest income taxpayers and measures of economic growth. For an overview of the broader issues of these relationships see CRS Report R42111, Tax Rates and Economic Growth, by Jane G. Gravelle and Donald J. Marples.
Throughout the late-1940s and 1950s, the top marginal tax rate was typically above 90%; today it is 35%. Additionally, the top capital gains tax rate was 25% in the 1950s and 1960s, 35% in the 1970s; today it is 15%. The real GDP growth rate averaged 4.2% and real per capita GDP increased annually by 2.4% in the 1950s. In the 2000s, the average real GDP growth rate was 1.7% and real per capita GDP increased annually by less than 1%. There is not conclusive evidence, however, to substantiate a clear relationship between the 65-year steady reduction in the top tax rates and economic growth. Analysis of such data suggests the reduction in the top tax rates have had little association with saving, investment, or productivity growth. However, the top tax rate reductions appear to be associated with the increasing concentration of income at the top of the income distribution. The share of income accruing to the top 0.1% of U.S. families increased from 4.2% in 1945 to 12.3% by 2007 before falling to 9.2% due to the 2007-2009 recession. The evidence does not suggest necessarily a relationship between tax policy with regard to the top tax rates and the size of the economic pie, but there may be a relationship to how the economic pie is sliced.
I guess the nonpartisan conclusions of the CRS seem to run counter to economic reality policy of one major political party. I guess that’s close to blasphemy in an election year. Why not rebut it rather than supress it. Too hard? [MG]
October 31, 2012
Dumb Halloween Laws
It’s Halloween. Here is a short list of laws related to Halloween courtesy of idiotlaws.com. Here’s an example:
While in Huntsville, if you see someone in an animal control officer uniform that means by law the person is in fact an animal control officer…
So… does that mean during Halloween, by law there are a bunch dead people running around?
Filed in: Huntsville
There are, of course, other dumb laws listed beyond the current holiday, though note the disclaimer:
The laws listed here are for entertainment purposes only. We have tried to cite specific references when available but, we make no guarantees on the validity of these laws and as such: the laws and regulations including the interpretation and commentary we have provided are for entertainment only.
I think I've seen the same words appear in many of the textbooks I used when I was in law school. [MG]
Hurricane Sandy: Customer Assistance Available from Thomson Reuters
For folks who may not yet have access to their business email accounts but can access the web somehow, the following message of concern and assistance was sent today:
To our customers impacted by Hurricane Sandy:
We understand that the full extent of the damage will not be fully understood for days, but we want you to know we are here to help.
Thomson Reuters is committed to helping customers affected by Hurricane Sandy restore their practices and businesses as soon as possible. To assist in the rebuilding effort, we’ve set up a dedicated hotline. If you have been displaced by the disaster, please contact Customer Service at 1-800-554-8909, ext. 43356, to let us know that you’re safe and what your needs are. When you’re ready to get back on your feet, we’re ready to help.
Thomson Reuters is committed and proud to stand with you throughout your process of recovery and rebuilding.
Very best wishes,
Senior Vice President, Customer Experience & Education
A Brief History of Trick-or-Treating on Halloween
October 30, 2012
The Kirtsaeng Oral Argument
One of the very interesting things about the oral arguments before the Supreme Court yesterday in the Kirtsaeng case is that there was very little discussion of the facts in this case. See Joe Hodnicki’s post AALL's Interest in the Owners' Rights Initiative and Today's SCOTUS Oral Arguments in Kirtsaeng and links therein for background on the issues in this case. Most of it focused on the consequences of a ruling one way or the other on the viability of the First Sale doctrine as applied to foreign made goods. The problem for the Court is that both sides are essentially asking for an all or nothing ruling. Either the §109(a) consumer First Sale rights trump the rights of a foreign copyright holder to limit importation of copyrighted goods under §602(a)(1) or they don’t.
Kirtsaeng’s counsel argued essentially that the words “lawfully made under this title” in §109(a) applies to works made in a foreign jurisdiction if they satisfy American copyright law. Wiley’s counsel, former Solicitor General Ted Olsen argued that §602(a)(1)’s limitations on imports applies to goods manufactured under the laws of another country, thus the language of §109(a) does not come into play in these situations.
Several of the Justices seized on this position and posited what happens when a library buys a foreign book, a museum buys a foreign painting, or when a Toyota contains copyrighted elements. Can these be sold downstream? Mr. Olson suggested other parts of the copyright cover those situations, such as application of the fair use defense. The Justices weren’t buying it:
JUSTICE BREYER: Now, explain to me, because they're horribles if I summarize them, millions and millions of dollars' worth of items with copyrighted indications of some kind in them that we import every year; libraries with three hundred million books bought from foreign publishers that they might sell, resale, or use; museums that buy Picassos that now, under our last case, receive American protection as soon as that Picasso comes to the United States, and they can't display it without getting permission from the five heirs who are disputing ownership of the Picasso copyrights.
Those are some of the horribles that they sketch. And if I am looking for the bear in the mouse hole, I look at those horribles, and there I see that bear. So I'm asking you to spend some time telling me why I'm wrong.
MR. OLSON: Well, I'm -- first of all, I would say that when we talk about all the horribles that might apply in cases other than this -- museums, used Toyotas, books and luggage, and that sort of thing - we're not talking about this case. And what we are talking about is the language used by the statute that does apply to this case. And that -
JUSTICE BREYER: But we need -
JUSTICE SOTOMAYOR: Don't those horribles -
JUSTICE BREYER: -- interpretation -
JUSTICE KENNEDY: But you have to look at those hypotheticals in order to decide this case.
MR. OLSON: Well, and that's -
JUSTICE KENNEDY: You're aware of the fact that if we write an opinion with the -- with the rule that you propose, that we should, as a matter of common sense, ask about the consequences of that rule. And that's what we are asking.
Olson finally said:
MR. OLSON: But the problem is -- the statutes may not be perfect with respect to this, and there may be horribles that occur under one set of interpretations of the statute, and the other interpretation of the statute is to interpret it as - as the petitioner -
The Court does not seem to want to adopt an absolute rule if it can avoid it. I’m not sure if it can craft something that comes between the two positions. Kirtsaeng was not a sympathetic character in the case, but the alternative consequences by holding against him seemed worse.
The Government filed a brief in support of Wiley and argued that the Bobbs-Merrill case applies. In this argument a distributor has the ability to segment markets but doesn’t control all downstream sales. The Court was skeptical and noted that the statute codified the Bobbs-Merrill decision. The Government ultimately stated that the consequences would be worse if the Court adopted Wiley’s interpretation:
JUSTICE ALITO: Which of the following is worse: All of the horribles that the Petitioner outlines to the extent they are realistic, or the frustration of market segmentation, to the extent that would occur, if Petitioner's position were accepted?
MR. STEWART: Well, if they actually happened, then I think the -- the horribles would be worse. But, as I say, we -- we feel that we have offered a reading of all the statutory provisions together that would avoid both.
The other couple of things I would say as to why a first sale by itself -
JUSTICE ALITO: If the -- if that middle ground is -- were found to be not viable, which of the two sets of consequences is worse from the government's perspective, or can you not say?
MR. STEWART: I would say that the consequence that all foreign-made goods, even if imported into the United States with the authorization of the U.S. copyright owner, are subject to continuing licensing requirements, etc., I would say that would be worse than the frustration of market segmentation that would occur under Petitioner's view.
The American Association of Law Libraries is a member of the Owners’ Rights Initiative. The organization issued a statement after the argument:
A very similar issue was decided squarely in favor of §109(a) in Quality King Distributors Inc., v. L'anza Research International Inc., 523 U.S. 135 (1998) in a 9-0 decision. That played a part in the argument though the facts in the case did not completely align. The Justices split 4-4 in the Costco case, keeping the 9th Circuit opinion holding for import rights in place for the time being. It’s going to be a hard case. [MG]
The Owners’ Rights Initiative hopes that the Supreme Court will take this opportunity to defend owners’ rights and clarify that if you buy something, you own it. We believe when you purchase something you should have the right to sell it, lend it, or donate it, regardless of whether that good was made in the US or elsewhere. If the Court rules in favor of Wiley, libraries may be unable to lend books, individuals could be restricted from donating items to charities, and businesses and consumers could be prevented from selling a variety of products, from electronics, to books, to jewelry, to used cars. ORI looks forward to the Court’s decision in 2013 and regardless of the outcome, we will continue to be a champion for owners’ rights in America.