Law Librarian Blog

California Suspends Open Meetings Law for Three Years

Why? As part of the California Budget Act of 2012, OMB Watch reports that the state's open meetings law was suspended in an effort to reduce state expenditures, adding by way of commentary, that "[i]n suspending the law, the state is sacrificing not only a fundamental element of a democratic society, but a vital tool that can actually save money." Details and analysis at California Suspends Open Meetings Law to Save Money.

Hat tip to Free Government Information. [JH]

CRS Report on Gun Control Legislation

From the Summary:

[Gun Control Legislation (RL32842, Aug.3, 2012) discusses] salient and recurring gun control issues that have generated past or current congressional interest. Those issues include (1) screening firearms background check applicants against terrorist watch lists, (2) combating gun trafficking and straw purchases, (3) reforming the regulation of federally licensed gun dealers, (4) requiring background checks for private firearms transfers at gun shows, (5) more-strictly regulating certain firearms previously defined in statute as “semiautomatic assault weapons,” and (6) banning or requiring the registration of certain long-range .50 caliber rifles, which are commonly referred to as “sniper” rifles. To set these and other emerging issues in context, this report provides basic firearms-related statistics, an overview of federal firearms law, and a summary of legislative action in the 111th and 112th Congresses.

Hat tip to beSpacific. [JH]

Congressional Staffers Value CRS Reports Over Lobbyists

Those of us in the information business generally accept that Congressional Research Service reports are thorough for their topics and unbiased.  It seems that congressional staffers agree with that sentiment.  The National Journal takes a quick look at one part of survey of congressional staffers and lobbyists and finds that staffers find information from a CRS report valuable by a whopping 86% of respondents.  Issue experts are next on the list with the Congressional Budget Office third.  Lobbyists rate below Beltway publications, Internet searches and constituents for information.  Politico has a broader analysis of the survey results, including charts and graphs.

None of this respect for the CRS stopped the House from a budget vote last week that cut the CRS budget by 1% rather than cutting their own staff, travel, and office expenses.  The bill cuts back on repairs to the Capitol dome as well.  The Sacramento Bee reports the average congressional office budget is $1.4 million a year.  The source of that information?  A CRS report.  [MG]

Supporting FRPAA (Supporting AALL's Efforts to Support FRPAA)

Hat tip to the AALL Washington Blawg for reminding this aging and decrepit law librarian to support the Federal Research Public Access Act of 2012 (FRPAA) (S. 2096 and H.R. 4004) by signing the White House-hosted online petition: "We petition the Obama Administration to 'Require free access over the Internet to scientific journal articles arising from taxpayer-funded research.'" From Take Action: Sign the White House Petition on Open Access to Research!:

Members of the public have a right to access research funded by their taxpayer dollars. We urge you to sign the petition today.

This is a critical opportunity for AALL members to demonstrate that we believe open access to federally funded research should be a high priority for the administration. Demonstrating public support will also strengthen FRPAA’s chances in Congress. With your support, we can influence the White House to act.

(Emphasis in the original.)

Assuming you support this legislative initiative, have you signed the petition? I did over the holiday weekend. Launched in mid-May, the petition drive needs 25,000 signatures by June 19th. The last time I checked it was about 6,000 short of reaching this goal.

From the above linked AALL Washington Blawg post:

Once you have signed the petition, you can also encourage your colleagues, friends and family to do the same.

And once you sign it, you can view the list of other like-minded supporters. An example of the information you will see is provided in the above screen capture. It is not a lot of information but it is enough to connect the dots. By that I mean, you can get some idea about how many AALL official types have signed the petition. [JH] 

ACTA Dead In Europe

ACTA is dead in Europe for all practical purposes.  That is the sentiment of Neelie Kroes, The European Union Commissioner for telecoms and technology.  She has previously served as Commissioner for Competition and is well known to Microsoft and other technology companies that came in conflict with the Competition Directorate.  She is quoted in the Guardian (UK) as saying “we are now likely to be in a world without SOPA and ACTA."  Europe is officially still working to ratify the agreement, though some member states are not cooperating in the effort.  Members of the European Parliament must ratify it along with all member states for the treaty to take effect.  As of now, the treaty has been referred to the European Court of Justice for its views on the agreement's constitutionality.

The European Data Protection Supervisor (EDPS) had negative comments about the treaty, saying that implementation will have “unacceptable side effects” on individual privacy rights.  IP enforcement envisioned by the treaty could lead to large scale monitoring of users’ behavior and electronic communications.  These sentiments are contained in a press release and an official opinion from the EDPS.  Protecting IP rights is important, but the treaty does not strike a good balance in doing so. 

The treaty had been opposed by the vocal (and no so vocal) public because of the impact it would have on ordinary Internet uses and the high level of secrecy in which it was negotiated.  They only way the text became public during the negotiations were through a series of leaked drafts.  People power works in some cases.  I ask again, with the ham-fisted seizure of the Megaupload service, is something like ACTA and SOPA necessary?  [MG] 

Browsing On A Sunday: The Princeton Review in Trouble, the DPLA, and Surveillance Backdoors

The Princeton Review, creator of an alternative law school rankings list, guides to law schools, and test prep materials, is being sued by the feds under the False Claims Act.  The Review allegedly received reimbursements for services that never happened.  The complaint alleges the Review charged the Department of Education for thousands of hours of tutoring underprivileged students in New York City between 2002 and 2010 that never happened.  Employees falsified records that included a claim for teaching 74 students on New Year’s Day.  It sounds pretty ugly for such a prominent company.  More information is available at the U.S. Attorney’s Office for the Southern District of New York.

Ars Technica is reporting on last week’s conference to help create the Digital Public Library of America.  It’s an interesting idea, to put all of America’s library holdings online.  I don’t think anyone has any illusions about how hard this can be.  Manpower and organizational issues aside, I can’t imagine the copyright issues that confronted Google in its scanning project would be any different for the DPLA.  The people who own content may be just as obstructionist when it comes to the DPLA.  More on the ideas that were discussed at the conference is here.

Declan McCullagh reports from CNET that the FBI is seeking legislation (as of now not introduced) that would place mandatory surveillance back doors on social networks, VoIP, and web e-mail services.  The Bureau is lobbying technology companies not to oppose the law when it eventually gets introduced.  The proposed law would amend the Communications Assistance for Law Enforcement Act (CALEA) to extend coverage to companies beyond telecommunications providers.  The Bureau sees this as a way to keep up with communications technology.  McCullagh says that the FBI is seeking consensus in the government before it goes forward.  The White House is not inclined to move on this, though there are members of the administration, such as Joe Biden, who have promoted similar legislation in the past.  I can’t imagine any of the agencies charged with managing security would have any conceptual problems with the proposal.  Levels of privacy only impede them.  I expect movement on this after the election.  Why should advertising companies have all the fun?

CRS has a number of reports on online privacy, including Privacy Protections for Personal Information Online (R41756, April 6, 2011), Privacy:  An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (98-326, December 3, 2009), Privacy:  An Abridged Overview of the Electronic Communications Privacy Act (R41734, March 30, 2011), and a more complete version, Privacy:  An Overview of the Electronic Communications Privacy Act (R41733, March 30, 2011).  There is also Digital Surveillance:  The Communications Assistance for Law Enforcement Act (RL30677, Updated June 8, 2007).  [MG]

CISPA, Son of SOPA the Patriot Act, Passed by House a Day Ahead of Schedule

And now moves to the Senate's calendar to join two bills, S. 2105 (Lieberman) and S. 2151 (McCain) that have been sitting in the committee review stage (read no action). The Cyber Intelligence Sharing and Protection Act (CISPA), H.R. 3523, passed last Thursday, April 26, 2012, by a vote of 248 to 168, with 206 Republicans voting in favor of the bill and 140 Democrats voting against it. The vote was originally secheduled for April 27, 2012. According to the House Permanent Select Committee on Intelligence press release:

Economic cyber spies will have a harder time stealing American business plans and research and development as the House took the first step today by passing a cybersecurity bill that will help US companies better protect themselves from dangerous economic predators. 

In a show of bipartisanship, the House of Representatives passed the Cyber Information Sharing & Protection Act by a vote of 248 to 168.  The bill gives the federal government new authority to share classified cyber threat information with approved American companies and knocks down barriers to cyber threat information sharing.  With strong provisions built in to keep individual American’s private information private, the bill allows U.S. businesses to better protect their own networks and their corporate customers from hackers looking to steal intellectual property.

The day prior to CISPA's reschedule House vote, the Obama Administration threatened to veto the bill. From the statement:

H.R. 3523 fails to provide authorities to ensure that the Nation's core critical infrastructure is protected while repealing important provisions of electronic surveillance law without instituting corresponding privacy, confidentiality, and civil liberties safeguards. For example, the bill would allow broad sharing of information with governmental entities without establishing requirements for both industry and the Government to minimize and protect personally identifiable information. Moreover, such sharing should be accomplished in a way that permits appropriate sharing within the Government without undue restrictions imposed by private sector companies that share information.

The bill also lacks sufficient limitations on the sharing of personally identifiable information between private entities and does not contain adequate oversight or accountability measures necessary to ensure that the data is used only for appropriate purposes. Citizens have a right to know that corporations will be held legally accountable for failing to safeguard personal information adequately. The Government, rather than establishing a new antitrust exemption under this bill, should ensure that information is not shared for anti-competitive purposes.

In addition, H.R. 3523 would inappropriately shield companies from any suits where a company's actions are based on cyber threat information identified, obtained, or shared under this bill, regardless of whether that action otherwise violated Federal criminal law or results in damage or loss of life. This broad liability protection not only removes a strong incentive to improving cybersecurity, it also potentially undermines our Nation's economic, national security, and public safety interests.

...

H.R. 3523 effectively treats domestic cybersecurity as an intelligence activity and thus, significantly departs from longstanding efforts to treat the Internet and cyberspace as civilian spheres.

For more, see Center for Democracy & Technology's CISPA Resource Page. [JH] 

European Commission Would Rather You Keep Your Opinions To Yourself

Techdirt has a story highlighting the minutes of the most recent meeting of the European Commission as it applies to the discussion of ACTA.  Specifically the President and various members of the Commission were surprised by the “intensity and scale of the public debate and the organised campaign against the Anti-Counterfeiting Trade Agreement (ACTA).”  The President said the Commission should plan to deal with social media in future actions given how this played out.  The minutes add: 

Although the Commission had provided the necessary technical assistance and information throughout the negotiations and the conclusion of ACTA – thus ensuring that the process was completely transparent – it now found itself the focus of criticism for every possible negative aspect of the agreement. 

I found that statement particularly ironic given the high security to the negotiating process.  Leaks via members of the European Parliament, among others, managed to get the text into the public view.  The process was anything but transparent until the final text was presented as a take it or leave it proposition.  The Commission additionally stated it felt hung out to dry (not exactly those words) when no one from the IP industries spoke out in favor of the treaty.  If any did, it was not loud enough to give the Commission political cover over adopting ACTA.  

There were statements about the fate of SOPA and PIPA in the United States to the effect that votes had not taken place “following a hostile campaign by social networks and the loss of White House support.”  Note those words “organised campaign” and “hostile campaign.”  I don’t understand this attitude.  Lobbyists working in favor of ACTA in most any part of the world are organized, self-interested, and unhesitatingly in favor of stronger IP protections.  Anyone who organizes and makes contrary views known in a public and legal manner is hostile?  To what?  The Commission?  The proposed treaty?  Or maybe it’s a wake-up call that the established way of doing things can’t be controlled completely.

One of the best and worst things about the Internet is that there is no single editorial control over how information is presented.  That includes opinions on legislation.  French President Nicolas Sarkozy famously said that the Internet needs to be civilized.  There is civility and there is diverse opinion.  Both are good.  The Commission should welcome organized public opinion, not be wary of it.  The Minutes are here, with the ACTA discussion appearing on pages 17-22.  [MG]

Madison as a Platform for Crowdsourcing Legislation Critiqued

During the heat of the SOPA and PIPA debates, Senator Ron Wyden (D-OR) and Congressman Darrel Issa (R-CA) proposed The Online Protection and Enforcement of Digital Trade Act (OPEN) which they opened to crowdsourced contributions by way of Madison. Alexander Furnas, a master's cadidate at the Oxford Internet Institute evaluates the Madison platform at Can We Harness the Internet to Collaboratively Write Better Laws? (The Atlantic). From the conclusion:

[A]s a platform Madison is flawed. It is a platform designed without paying enough attention to the lessons learned and best practices developed by those already within the social web space. What its designers overlooked is that collaborative consultation online is merely a political application of already existing social web interactions. The last six or seven years have given us thousands of mini-experiments into how to do social engagement right online, and designing successful political engagement platforms need to learn from them.

[JH]

Three States Introduce UELMA Legislation

IIT-Chicago Kent Law's Gov Docs Guy blog reports that UELMA adoption bills have been introduced in Tennessee [HB 3656], Colorado, [HB 12-1209], and California [SB-1075] so far this year. The blog post also reports that AALL is targeting Connecticut, Louisiana, Minnesota, Nebraska, and Wisconsin in an effort to promote the uniform act nationwide. Details with links to the bills at First steps toward more trustworthy online state legal materials: UELMA is introduced in three states. [JH]

SOPA, PIPA, ACTA And People Power

Two articles in CNN Money take an interesting look at the recent legislative successes and failures to extend intellectual property laws.  One article, Millions in SOPA Lobbying Bucks Gone to Waste details the intersection between corporate lobbying and the populist uprising that derailed SOPA and PIPA.  Media lobbying was in the millions, as was the opposition, mostly funded by Google.  Other tech companies were firmly against the legislation but spent in the hundreds of thousands. 

What did the legislation in was the demonstration of opposition by the people who use the Internet more than the Googles of the world.  That, apparently, got the attention of Congress more than corporate dollars, not that any of those dollars are marked return to sender or anything.  The article suggests that Internet companies should pick their battles “more carefully going forward.”  Sure, but the level of engagement on the part of the public over an issue that was publicized as against its interest suggests the public could be rallied on other issues.

The second article, Meet SOPA’s Evil Twin, ACTA, is an example of what happens when government and industry work quietly together.  ACTA, in theory, is about counterfeit goods (that’s the C in ACTA) but spends an inordinate amount of language on piracy of intellectual property.  It imposes DMCA style regulation on its signatories, without necessarily requiring the safe harbor protections.  That’s not surprising since the track record of the courts in the United States is to take them seriously, much to the vexation of media companies.

I’ve written about ACTA plenty of times, and it’s not as if articles haven’t appeared in the press.  There was, however, no real outcry about the terms of the agreement or its development in secret except from the usual suspects.  The United States signed the law a while ago, and now reports indicate that the European Union is about to sign on.  That generated a DDoS attack on the European Parliament web site and protests in Poland.  Weathering the storm after the fact is something governments take into account.  Where were all of you when the treaty was negotiated?  Major pressure at that time might have made a difference politically.  The anti-SOPA/PIPA protests shows what's possible when the public conscience can be mobilized. Politicians take note:  money isn't everything.  [MG]

Megaupload Shut Down By DOJ For Piracy

Megalupload, send me a file, as the song goes.  Well, no more as the United States Justice Department shut the site down and arrested several executives on various charges of criminal copyright infringement.  The indictment, as reported, claims the company cost intellectual property rights holders a half a billion dollars while generating $175 million for themselves.  That’s Powerball jackpot levels of cash without the bad odds of winning.  I note that I use the word “reported” as the United States Department of Justice web site is under cyber-attack making the actual documents hard to get for now.  The Anonymous hacking collective is miffed about the shut down and hyped up about the anti-SOPA web action from yesterday.

Ars Technica reports that other targets include the site for Universal Music Group (UMG), the White House, and several members of Congress who support SOPA and PIPA.  The MPAA issued an angry statement yesterday calling the web blackout of Wikipedia and other sites a “stunt,” if getting the attention of people who simply use the web can be called a stunt.  Maybe Barry Manilow could write a song about it:  At the Copa we decried SOPA.  The outpouring of anti-SOPA sentiment was visible enough to turn some congressional support for the bill into opposition.  I feel a bit sorry for Apple, who announced their K-12 textbook initiative for the iPad today.  Between the SOPA protest yesterday, and the Megaupload story and cyber-attacks today, the impact of the Apple announcement was quite diminished.  Steve Jobs probably would not have been amused if he were still alive.

For the fun of it, as it is close to Friday enough for a Friday Fun, here is Jon Stewart’s take on the SOPA protests.   

The Daily Show
Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

Doesn’t the action by the Justice Department suggest that the system works without SOPA?  That existing statutes address the issue?  I’m just asking.  [MG]

ALA's Quick Reference Guide to PIPA, SOPA and the OPEN Act

"Three copyright-related bills are currently in play at the start of 2012 – all of which take aim at any website beyond U.S. borders that distribute counterfeit or copyright infringing products. All three bills operate under the assumption that there is a problem that needs to be solved – and the best, or only, way to combat online infringement overseas is with more law targeted at foreign websites. These bills have the potential to negatively impact fundamental library principles. The following chart [link] is for quick reference (not meant to be comprehensive), and outlines the primary issues and concerns of interest to the library community and those who use the Internet." Corey Williams, American Library Association.

Hat tip to beSpacific. [JH]

JSTOR Opens Up A Little On Public Research And Congress Wants To Close It Down A Lot

Several stories are popping up on JSTOR’s Register and Read program which will allow non-affiliates to have limited free access to some of the content in JSTOR, with emphasis on the word “limited.”  Signing up gives one access to a 70 journals, though that could be expanded once the beta of the program ends.  Users can store up to 3 articles in a digital locker and view them over a 14 day period.  No downloads will be allowed though there will be options to purchase some of the articles at the usual high prices.  It’s likely that the content publishers see this less as a giveaway than another way to expand their market beyond academic subscribers.  I don’t know if there will be any attempts to defeat screen captures or taking photographs of screens.  I think if any goes to that effort to get content then they probably deserve it irrespective of the screams of piracy coming from wood paneled offices.

The article in the Chronicle of Higher Education notes that the 70 journals in in beta program represent about 18% of the annual turn-away traffic on JSTOR.  The total annual turn-away is about 150 million attempts.  Alexis Madrigal writes in The Atlantic that this represents 150 million lost chances to improve the Internet.  Perhaps.  One comment to his article takes the position that “Information doesn't want to be free.  Cheapskates want information to be free.”  Other comments point to the high prices charged to non-subscribers for individual articles as a barrier to access.  I would agree that publishers see more worth in individual articles than the buying public.  JSTOR has a short video presentation on the program at YouTube.

While we are on the subject, let’s not forget the latest attempt to restrict access to publicly funded research articles, the proposed Research Works Act (H.R. 3699).  The legislation would end the requirement that research funded by any federal agency be made freely available without prior consent of the publisher.  Elsevier is particularly fond of the legislation according to a post on the Scientific American web site.

The Act is a short one.  Here is the text:

A BILL

To ensure the continued publication and integrity of peer-reviewed research works by the private sector.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Research Works Act'.

SEC. 2. LIMITATION ON FEDERAL AGENCY ACTION.

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that--

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

SEC. 3. DEFINITIONS.

In this Act:

(1) AUTHOR- The term `author' means a person who writes a private-sector research work. Such term does not include an officer or employee of the United States Government acting in the regular course of his or her duties.

(2) NETWORK DISSEMINATION- The term `network dissemination' means distributing, making available, or otherwise offering or disseminating a private-sector research work through the Internet or by a closed, limited, or other digital or electronic network or arrangement.

(3) PRIVATE-SECTOR RESEARCH WORK- The term `private-sector research work' means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

I like the part about ensuring the integrity of peer reviewed research works by the private sector.  As if.  It’s your government at work.  [MG]

Browsing On A Sunday: SOPA, E-book Loaning, and the Billable Hour

The White House released a statement yesterday in opposition to filtering the Domain Name System as a response to Internet piracy.  Three of the administration’s top technology and IP officers issues a lengthy statement on the White House web server detailing the objections.  Victoria Espinel, Intellectual Property Enforcement Coordinator at OMB, Aneesh Chopra, U.S. Chief Technology Officer and Howard Schmidt, Special Assistant to the President and Cybersecurity Coordinator for National Security Staff wrote that removing sites from the DNS system wouldn’t remove the illegal content and would drive consumers to use alternative DNS systems that could be unreliable and weaken security policy.  They recognized that piracy is a serious problem and solicit comments from the public as to how to combat it.

It didn’t take long for Rupert Murdoch to react negatively.  He sent five different tweets including “So Obama has thrown in his lot with Silicon Valley paymasters who threaten all software creators with piracy, plain thievery.”  The Register pointed out the irony of this statement given the phone hacking scandal that closed News Corp property News of the World.  Politicians sought Murdoch’s favor due to his ownership of significant media properties.  His complaining about corporate meddling in politics is not very credible given some of the reports (here and here) out there.  He might have saved some invective for Rep. Lamar Smith (R-TX), the lead sponsor of SOPA.  He said he will remove the DNS filtering provision from the bill after discussions with industry groups.  One presumes technology companies such as Google gave Rep. Smith and others an earful to prompt the move.   

The Washington Post (registration required) examines the tension between libraries as lenders of e-books and the publishing industry resisting that lending.  The article covers the usual territory of publishers expressing their concern about piracy and libraries and their users frustrated at the lack of available content.  What is interesting is some of the statistical material the article notes about demand for e-books in various Washington area library systems.  Maryland’s entire library system has less than 10,000 copyrighted e-books with 266,000 checkouts in the last year.  The trend over time is a rapidly increasing demand by a public expecting libraries to lend e-books with the same ease as physical books.  Publishers would rather see sales rather than lending, and limiting what libraries can lend certainly helps the sales market.  Perhaps the various government investigations into e-book pricing might make that sale alternative more palatable to the buyers.

Another article in the Post examines the pressure on the billable hour.  It seems members of large firms who handle major clients start their own practices and taking some of those clients with them.  The attraction is the trust in the attorney’s work and the attorney’s willingness to use alternative billing arrangements.  These may include a lower hourly rate, capped or flat fees, and bonuses depending on the success of outcome in client matters.  The article suggests that large firms are feeling the heat and are turning to similar arrangements to keep business.  Law graduates take note:  There will be less money coming in which means less compensation for jobs in the future.  [MG]

Become a Certified Patriot by Donating Cash to Draw Down the National Debt

That's the idea behind Representative Don Young (Alaska) DebtPatriots.Gov Act of 2011. Introduced last month, H.R. 3504 calls for the creation of federal government website dedicated to collecting donations to reduce the country's public debt. Quoting from the bill, here are the drafted levels of donor recognition:

(A) Corporation Award Levels:

(i) Corporate Founder ($50B).

(ii) Corporate Son of Liberty ($10B).

(iii) Corporate Constitutional Delegate ($1B).

(iv) Corporate Minuteman ($500M).

(v) Corporate Patriot ($1M).

(B) Individual Award Levels (Premium):

(i) Premium Founding Father/Mother ($1B).

(ii) Premium Son/Daughter of Liberty ($500M).

(iii) Premium Constitutional Delegate ($100M).

(iv) Premium Minuteman/woman ($10M).

(v) Premium Patriot ($1M).

(C) Individual Award Levels:

(i) Founding Father/Mother ($100K).

(ii) Son/Daughter of Liberty ($10K).

(iii) Constitutional Delegate ($1K).

(iv) Minuteman/woman ($100).

(v) Patriot ($10).

Do note Sec. 4 of the bill:

The President shall issue a signed certification of appreciation recognizing the award level of each donor who contributes to `Gifts to Reduce the Public Debt'

Of course, anyone can already donate funds to the US Treasury but now you can get certified as a patriot under this legislation.

Hat tip to Ken Chan's Congress Recruiting Founding Fathers to Save the Republic (Justia) [JH]

SOPA Mark-Up: Manager's Substitute and Links to Webcasts of Committee Hearings

Text of the Manager's Subsitute for  H.R. 3261, the “Stop Online Piracy Act", referred to in yesterday's LLB post. Links to "official" yesterday's and today's webcasts (well, sort of) and more here. [JH]

SOPA Goes to Mark-Up Today in the House Judiciary Committee

On OpenCongress Blog, Donny Shaw reports

ahead of [today's scheduled] meeting the [House Judiciary Committee] chairman, Rep. Lamar Smith [R, TX], has pulled a neat little trick. Smith has come out with a manager’s amendment that eliminates the most insanely unconstitutional elements of the bill, leaving behind an expansive censorship system for the government and the entertainment industry that is meant to seem reasonable by contrast.

It’s a common trick among experienced legislators. Load your bill up with every crazy provision and hand-out its supporters could possibly dream of, and then take some of the extreme stuff out at some point in the legislative process to make it look like you’re being an honest broker. In this case, Smith is scaling back SOPA so that it looks more like the already-draconian Senate bill it was built off of, the PROTECT-IP Act. It changes a bill with a 1% favorability rating among OpenCongress users into a bill with a 2% favorability rating. Progress!

For much more, see Shaw's SOPA Goes Through Staged Compromise, Still Censorship. Monitor SOPA, HR 3156 on OpenCongress.

SOPA Critique Redux. The Stanford Law School Center for Internet and Society hosted a panel discussion called "What’s Wrong with SOPA?" on Dec. 7th. You can now watch the video here. It's not as entertaining as the Colbert Report's video clips but it is informative. Of course, the panel discussion members did not have the manager's amendment for HR 3156 in hand at the time. [JH]

Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History

On Dec. 5, 2011, S. 1945 was tossed in the bill hopper (OK, I'm old school!), quickly read twice, because, well, the text really is brief, and referred to the Committee on the Judiciary. Hearings were held by the Subcommittee on Administrative Oversight and the Courts on the following day. Wow! Perhaps if all congressional bills were required to be one sentence long, our elected representatives would get down to business. (Think income tax reform: "All 'persons," individual human beings and business organizations, earning more than $30,000 will pay X% of their global annual income because all deductions, tax credits, loss carryovers and their kind are "history.")

Was a fire lit under the behinds of members of  the Senate Judiciary Committee because the latest USA TODAY/Gallup Poll found that 72% of the people surveyed think the Supreme Court should allow cameras to televise the 5.5-plus hours of oral arguments to be held during two days in March regarding the health care law being constitutionally challenged  by 26 states and the National Federation of Independent Business? Politics is poll-driven.

However one should note that S. 1945's sponsor is Sen. Durbin. Ah, he is (1) a Democrat and (2) a Senator from Illinois. Anyone remember which party and which state President Obama is from? (Note to readers, I voted for Obama and if I still lived in Illinois, I probably would have voted for Durbin, a relic of Illinois Democratic Party machine politics, if only because he was the brunt of a Karl Rove prank decades ago.)

S. 1945 is politically correct in that it is not focused on televising just the health care act's oral arguments. That would be too obvious. Titled, A bill to permit the televising of Supreme Court proceedings, the text reads:

SECTION 1. AMENDMENT TO TITLE 28.

(a) In General- Chapter 45 of title 28, United States Code, is amended by inserting at the end the following:

Sec. 678. Televising Supreme Court proceedings

`The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The hearings focused on whether SCOTUS proceedings should be required to be televised by statute (with the due process rights exception) or should by optional as in at the discretion of the Supreme Court. You can view the hearing's webcast here. I wonder if a Supreme Court Justice assigned one of his clerks (oops, my bad) or one of her clerks to watch the webcast.

Time to Get Serious. Federal Evidence Review has published on its website Cameras in the Courtroom Resource Page. It is an extensive collection of materials made available for an informed debate on what really is an important issue -- conducting SCOTUS proceedings in the open in the 21st century. Highly recommended. Also note that Federal Evidence Review has published a summary the Senate Judiciary Subcommittee hearing worth taking the time to read.

With a hat tip to Media Law Prof Blog, one might also be interested in reading Drexel Law prof Lisa McElroy's recent SSRN upload, Cameras at the Supreme Court: A Rhetorical Analysis.

What Would James Madison Do? While televised SCOTUS proceedings will make excellent fodder for the Onion News Network, the Corbert Report, and non-English language audiences for YouTube-ing the equivalent of the popular "Hitler parody videos," I have a hunch that if the framers of the Constitution were drafting the Consitution today, live broadcasts of SCOTUS proceedings would not even be an issue.

While Thomas Jefferson had an assine idea that the Constitution should be rewritten by each generation, I'll defer to the equally assine Originalist school of constitutional law jurisprudience for their opinion. At least one of the two long-time subscribers to that intellectually bankrupt school of thought could become a "rock star" if he sides with the proponents of televising SCOTUS proceedings --- and it ain't Justice Thomas. Besides don't we all want to verify the stats being compiled and published about which Justice is getting the most laughter in the court room?

And Now for Power Broker Gamesmanship. Call me cynical but I'm thinking President Obama et al do not want to queue up for tickets to attend the Supreme Court's oral arguments on health care reform. President Andrew Jackson would have sat in the front row. Perhaps President LBJ, too; more likely he would have called a Justice or two or three to the White House for a meeting. When LBJ really wanted to set the stage, meetings took place in his bedroom (imagine LBJ in his bathrobe ... now try to kill that image!) [JH]

SOPA/PIPA vs a Crowdsourced Alternative, the OPEN Act

U.S. Senator Ron Wyden (D-Ore.) and U.S. Congressman Darrell Issa (R-Calif.) recently released a public draft of the Online Protection and Enforcement of Digital Trade (OPEN) Act as a bi-partisan alternative to the Stop Online Piracy Act (SOPA) and the Protect-IP Act (PIPA). You can view the Issa-Wyden public draft at www.keepthewebopen.com. The site also provides a Section-by-Section Explanation for the OPEN Act and a FAQ regarding the ITC and OPEN. Much more interesting is the opportunity to use a new crowdsourcing platform called "Madison" that allows everyone to comment and collaborate to craft an even better draft of the OPEN Act before it is formally introduced.

About the OPEN Act, see Techdirt's Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue. The Techdirt post includes what is called a draft framework for discussion by the OPEN Act's sponsors titled "Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech" which closes with the following statement:

We intend to make public a draft of the legislative text of this proposal in order to enable the public to provide us with feedback and counsel before the proposal is formally introduced in the House and Senate.

A key provision of the public draft of the OPEN Act would provide the International Trade Commission with the authority to issue cease and desist orders against websites found to be dedicated to infringement. The public draft is now available via Madison here. What do you think? See, for example, Jonathan Zittrain's A SOPA compromise is floated.

End Note. Wouldn't it be interesting if someday all formally introduced federal legislation was crowdsourced and all contributions became part of the legislative history? Wouldn't need groundbreaking technology to do that... . Well until then, we still have Stephen Colbert. [JH]

Stop Online Piracy Act