Association for Molecular Pathology v. Myriad Genetics, Inc. is a case with a long and storied history in the federal courts. For our purposes, the only thing you really need to know is that the Supreme Court is set to hear oral arguments on April 15 to [hopefully] determine whether human genes are patentable.

SCOTUSblog had a symposium on this case, which goes into much better detail than I ever could about the specific issues the Court will need to address to determine whether these patents are valid (hint: most I’ve seen suggest that the Court will find that human genes are not patentable), but I am mostly interested in thinking about this from a policy perspective.

I am fairly conservative in my patent views. I don’t like business method or software patents as a general rule because I don’t think they usually serve the purposes intended by the Constitution or the Patent Act. Let’s review Introduction to Patent Law quickly:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

U.S. Const. art. I, § 8, cl. 8. The overarching idea here is that you, brilliant inventor of this invention that would be difficult to reproduce if you didn’t tell us how you made it, tell us exactly how to make it in return for a government-sanctioned monopoly for a limited term of years. The far-off secondary purpose — and indisputably the more prominent in recent history — is akin to the motives of the Copyright Act; inventors should have some incentive to invent or they won’t invent. The latter purpose necessarily envisions an inventor that can’t make money from her invention without the assistance of a monopoly. Arguably, the former envisions someone who could make money, but would make more with the assistance of a monopoly.

In the 21st Century, inventions are only as good as the company making them. Look at Lytro, for instance. Ren Ng, at the time a Stanford PhD student, designed a camera as part of his dissertation that does not need to focus before snapping a picture, and images can be focused after the picture is taken in post-processing. That’s a billion-dollar idea if I’ve ever heard one. The result from the consumer standpoint is an ugly, awkward camera with very limited functionality. In the better funded and more experienced hands of Apple or Samsung, this technology could be (as Steve liked to say) revolutionary. So do we say that because those companies could fairly easily reverse engineer the Lytro camera the mechanism doesn’t deserve government protections? Not really, because we essentially fall back to the [possibly fictional] idea that Ng wouldn’t have invented this camera in the first place if he wasn’t going to be given patent protection. Personally, I’d argue that the creation of his company to market the product is evidence that he would have invented it irrespective of patent rights, but I digress.

If we decide that genes are not patentable, which I think is the correct finding in a perfect world (on that point I’m in total agreement with my Patents & Biotech Law Prof., Dr. Eileen Kane, who filed the most recent amicus brief in support of the Petitioner), I am concerned that private investors will run away and effectively stall out (or at least set back) the incredible progress of gene research. I have looked through eight of the amicus briefs and seen no mention of this issue, which is somewhat surprising. If the Petitioners can pull out the numbers and show that withdrawal of a large chunk of private funding won’t severely hurt genetic research, then I think I’ll be satisfied.

What do you think? Should non-synthetic genes be patentable?

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We’re at a point now where technology has finally caught up to the amount of bandwidth most people have available. A few years ago, the only thing we could really do to max out our bandwidth was download huge files from the internet, but nowadays ubiquitous internet activities can easily max out our available bandwidth or put us over our data caps.

We cut the cord in my house a while ago and Netflix and Hulu have replaced our traditional TV habits. At night when my girlfriend is in one room and I’m in another, both streaming Netflix in HD, we’re using up to 5.6 gigabytes per hour. (If we were sadistic and decided to stream in 3D, that would be up to 9.4 gigabytes per hour.) A conservative estimate says that just in Netflix bandwidth, we’ll tear through about 215 gigs of bandwidth per week. The problem is that many US ISPs start to cap data at around 300 gigs per month.¹ We had to upgrade to Comcast Business to avoid those caps, and we’re paying quite a bit more as a result (although thankfully less than we would if we had a standard internet/cable bundle). Even at the increased price of Business Class, the download speeds are about the same (read: not good). Living in Central Pennsylvania, we also don’t really have any other viable alternatives.

This problem has already led, in my opinion, to the destruction of a perfectly good business model. OnLive, a streaming video game company, is in serious financial trouble even though in a perfect world its business model should be selling like gangbusters. No need for a gaming console, subscription plans for multiple games without having to shell out $60 for each new game, great hardware to render graphics, and extended demos so that people can test games instantly without needing to install anything. The problem is that due to connection speeds and server response times here in the US, the average gamer can notice a few millisecond input lag, which is apparently enough to turn most gamers off the product.

I think OnLive was the first major company to really be affected by our infrastructure, but it won’t be the last. There are some technologies specializing in reducing bandwidth costs through compression, but as our hard-wired technology continues to improve, we’ll ultimately want downloadable analogs, and that’s going to be a problem going forward. Recently, credible sources have reported that ISPs like Comcast and Warner Cable are operating at a 97% profit margin on currently-existing internet services. Even though the US is currently ranked in the high 20s to low 30s in terms of broadband measures, there’s simply no incentive in the world for the ISPs to improve what they’re already offering until someone comes along and offers something better, on a large enough scale, for cheaper. (Or until the government decides to regulate the insanity.) If things don’t change in the near future, I suspect we’ll start to see the first round of applications and services that become popular in foreign countries, but are simply unusable in the US, within the next few years.

I should note that there’s some hope at the end of the tunnel. I’ve seen some anecdotal evidence recently that Google Fiber may be shaking up the state of affairs. Unfortunately, people better versed in the issues than me have commented that it’s unlikely that Google will be able to expand across the entire US, but who knows? I’ll stay optimistic because it seems like our only shot in the near future.

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1. This was the Comcast hard cap for a while, though I’ve read that they’re likely turning it into a soft cap, where people like me will only have to pay an obscene amount of money to continue service rather than get shut off entirely.

The following is a transcription of the recently released DOJ white paper regarding the use of legal force against a U.S. citizen who is a senior operational leader of Al-Qa’ida or an associated force. A Google search reveals that no one has transcribed this yet [edit: Wikipedia also has a transcription that was initially quite bad but is getting better], so I thought it was important to make sure it gets indexed by search engines. Moreover, some reddit users have suggested that this story is not getting more attention because it’s so full of legalese, so this is an attempt to translate the document for a lay audience. These are not my personal thoughts — simply my view about what the writers were trying to say. For the sake of your sanity, I over-simplified what they were saying while trying not to lose too much in translation. Luckily, we attorneys are verbose.

Please note that although I am a lawyer, this field of law goes well outside my expertise and I welcome comments from those of you better able to elucidate the issues. For a good overview of the subject, see the ACLU’s recent blog post.

—

DEPARTMENT OF JUSTICE WHITE PAPER

Lawfulness of a Legal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force

This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force¹ of al-Qa’ida-that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans. The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a legal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an·operation against a U.S. citizen who is not a senior operational leader of such forces. Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a· senior operational leader of al-Qa’ ida or an associated force would be lawful: (1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. This conclusion is reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a U.S. citizen, and also of the extraordinary seriousness of the threat posed by senior operational al-Qa’ida members and the loss of life that would result were their operations successful.

[This white paper is only relevant when the US wants to kill a US citizen who is a senior official of a terrorist group. Legally, the US can do that so long as it determines that (1) the person poses an imminent threat of attack to the US; (2) it's unlikely we could capture the person; and (3) we follow the laws of war.]

The President has authority to· respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law. Based on these authorities, the President may use force against alQa’ida and its associated forces. As detailed in this white paper, in defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qa’ida or its
associated forces would be lawful under U.S. and international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense. Nor would it violate otherwise applicable federal laws barring unlawful killings in Title 18 or the assassination ban in Executive Order No. 12333. Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.

[We have power to do this granted by several different sources. This section is interesting as it stops referring to leaders of terrorist organizations and refers only to "members." Additionally, we can conduct one of these killings on foreign territory for seemingly any reason. (Specifically, if we have permission, or if we don't have permission because the foreign government can't or won't assist.)]

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual’s citizenship would not immunize him from a lethal operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person’s interest in his life. But that interest must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q’aida or an associated force of al-Q’aida and who is engaged in plotting against the United States.

[The DOJ believes that process would not be violated in killing a citizen with constitutional protections because the safety of the US is more important than an individual life. This brings up an interesting  question: do we look at the aggregate effect of this? Maybe the DOJ is right about an individual, but what happens when it's 100 or 1000? The counter-argument is that it seems unlikely that there would be so many terrorist leaders.]

The paper begins with a brief summary of the authority for the use of force in the situation described here, including the authority to target a U.S. citizen having the characteristics described above with lethal force outside the area of active hostilities. It continues with the constitutional questions, considering first whether a lethal operation against such a U.S. citizen would be consistent with the Fifth Amendment’s Due Process Clause, U.S. Const. amend. V. As part of the due process analysis; the paper explains the concepts of “imminence,” feasibility of capture, and compliance with applicable law of war principles. The paper then discusses whether such an operation would be consistent with the Fourth Amendment’s prohibition on unreasonable seizures, U.S. Const. amend. IV.  It concludes that where certain conditions are met, a lethal operation against a U.S. citizen who is a senior operational leader of al-Qa’ida or its associated forces—a terrorist organization engaged in constant plotting against the United States, as well as an enemy force with which the United States is in a congressionally authorized armed conflict—and who himself poses an imminent threat of violent attack against the United States, would not violate the Constitution. The paper also includes an analysis concluding that such an operation would not violate certain criminal provisions prohibiting the killing of U.S. nationals outside the United States; nor would it constitute either the commission of a war crime or an assassination prohibited by Executive Order 1233.

[A brief outline about what it's going to discuss.]

I.

The United States is in an armed conflict with al-Qa’ida and its associated forces, and Congress has authorized the President to use all necessary and appropriate force against those entities. See Authorization for Use of Military Force(“AUMF”), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001). In addition to the authority arising from the AUMF, the President’s use of force against al-Qa’ida and associated forces is lawful under other principles of U.S. and international law, including the President’s constitutional responsibility to protect the nation and the inherent right to national self-defense recognized in international law (see, e.g . U.N. Charter art. 51). It was on these bases that the United States responded to the attacks of September 11, 2001 , and “[t]hese domestic and international legal authorities continue to this day.” Harold Hongju Koh, Legal Adviser, U.S. Department of State, Address to the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010) (”2010 Koh ASIL Speech”).

[We have the power to conduct these killings for the same reasons we had the power to respond tot he September 11 attacks. The text of U.N. Charter art. 51 essentially says that until the UN makes a formal decision, a Member can respond in self-defense to "armed" attacks.]

Any operation of the sort discussed here would be conducted in a foreign country against a senior operational leader of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States. A use of force under such circumstances would be justified as an act of national self-defense. In addition, such a person would be within the core of individuals against whom Congress has authorized the use of necessary and appropriate force. The fact that such a person would also be a U.S. citizen would not alter this conclusion. The Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is a part of enemy forces. See Hamdi, 542 U.S. 507, 518 (2004) (plurality opinion); id. at 587, 597 (Thomas, J., dissenting); Ex Parte Quirin, 317 U.S. at 37-38. Like the imposition of military detention, the use of lethal force against such enemy forces is an “important incident of war.” Hamdi, 542 U.S. at 518 (plurality opinion) (quotations omitted). See, e.g., General Orders No. 100: Instructions for the Government of Armies of the United States in the Field, 15 (Apr. 24, 1863) (“[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies”) (emphasis omitted); International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II) § 4789 (1987) (“Those who belong to armed forces or armed groups may be attacked at any time.”); Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict 94 (2004) (“When a person takes up arms or merely dons a uniform as a member of the armed forces, he automatically exposes himself to enemy attack.”). Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad authorized by the AUMF or in national self-defense.

[Because we have the right to detain US citizens—so long as due process is not violated (See Hamdi)—we also have the right to kill them in certain instances.]

In addition, the United States retains its authority to use force against al-Qa’ida and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. See Hamdan v. Rumsfeld, 548 U.S. 577, 628–31 (2006) (holding that a conflict between a nation and a transnational non-state actor, occurring outside the nation’s territory, is an armed conflict “not of an international character” (quoting Common Article 3 of the Geneva Conventions) because it is not a “clash between nations”). Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities. See John 0. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws (Sept. 16, 2011) (“The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.”). For example, the AUMF itself does not set forth an express geographic limitation on the use of force it authorizes. See Hamdan, 548 U.S. at 631 (Kennedy, J., concurring) (what makes a non-international armed conflict distinct from an international armed conflict is ”the legal status of the entities opposing each other”). None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization. See, e.g., Letter for the Speaker of the House of Representatives and the President Pro Tempore of the Senate from the President (June 15, 2010) (reporting that the armed forces, with the assistance of numerous international partners, continue to conduct operations “against al-Qa’ida terrorists,” and that the United States has “deployed combat-equipped forces to a number of locations in the U.S. Central . . . Command area[] of operation in support of those [overseas counter-terrorist] operations”); Bensayah v. Obama, 610 F.3d 718, 720, 724–25, 727 (D.C. Cir. 2010) (concluding that an individual turned over to the United States in Bosnia could be detained if the government demonstrates he was part of al-Qa’ida); al-Adahi v. Obama, 613 F.3d 1102, 1003, 1111 (D.C. Cir. 2010) (noting authority under AUMF to detain individual apprehended by Pakistani authorities in Pakistan and then transferred to U.S. custody).

[The U.S. isn't restricted to a particular zone of combat because we don't confer upon al-Qa'ida legal status to constitute an "international armed conflict."]

Claiming that for purposes of international law, an armed conflict generally exists only when there is “protracted armed violence between governmental authorities and organized armed groups,” Prosecutor v. Tadic, Case No. IT-94-1AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (lnt’l Crim. Trib. for the Fonner Yugoslavia, App. Chamber Oct. 2, 1995), some commenters have suggested that the conflict between the United States and al-Qa’ida cannot lawfully extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. See, e.g., Mary Ellen O’Connell, Combatants and the Combat Zone, 43 U. Rich. L. Rev. 845, 857–59 (2009). There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a noninternational armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict. Thus, in considering this potential issue, the Department looks to principles and statements from analogous contexts.

[There is little direct guidance about the government's ability to attack al-Qa'ida outside a zone-of-combat, so they will look to other sources to figure out whether it's appropriate.]

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for instance, even in a traditional international conflict. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28–30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that translational non-state organizations such as al-Qa’ida may have no single site serving as their base of operations. See also, e.g., Geoffrey S. Corn & Epic Talbot Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Law of War to the War on Terror, 81 Temp. L. Rev. 787, 799 (2008) (“If . . . the ultimate purpose of the drafters of the Geneva Conventions was to prevent ‘law avoidance’ by developing de facto law triggers—a purpose consistent with the humanitarian foundation of the treaties—then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose.”).²

[Arguing that the nature of these sorts of terrorists is such that we shouldn't be limited to one geographic area.]

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1. An associated force of ai·Qa’ida includes a group that would qualify as a co-belligerent under the laws of war. See Hamlily v. Obama, 616 F. Supp. 2d 63,74–75 (D.D.C. 2009) (authority to detain extends to “‘associated forces,’” which “mean ‘co-belligerents’ as that term is understood under the laws of war”).
2. See Prosecutor v. Tadic, Case IT-94-1AR72, Submission of the Government of the United states of America Concerning Certain Arguments Made by Counsel for the Accused, at 27–28 (Int’l Crim. Trib. For the Former Yugoslavia, App. Chamber July 17, 1995) (in determining which body of law applies in a particular conflict, “the conflict must be considered as a whole, and “it is artificial and improper to attempt to divide it into isolated segments, either geographically or chronologically”).
3. See also 18 U.S.C. § 1119(a) (2006) (providing that “‘national of the United States’ has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act,” 8 U.S.C. § 1101(a)(22) (2006) ).
4. In light of the conclusion that section 1119 and the statutes it cross-references incorporate this justification, and that the justification would cover an operation of the sort discussed here, this discussion does not address whether an operation of this sort could be lawful on any other grounds.
5. The same is true with respect to other statutes, including federal laws, that modify a prohibited act other than murder or manslaughter with the term “unlawfully” See, e.g., Territory v. Gonzales, 89 P. 250, 252 (N.M. 1907) (construing the term “unlawful” in statute criminalizing assault with a deadly weapon as “clearly equivalent” to ”without excuse or justification”). For example, 18 U.S.C. § 2339C(a)(1) (2006) makes it unlawful, inter alia, to “unlawfully and willfully provide[] or collect[] funds” with the intention that they may be used (or knowledge they are to be used) to carry out an act that is an offense within certain specified treaties, or to engage in certain other terrorist acts. The legislative history of section 2339C makes clear that “[t]he term ‘unlawfully’ is intended to embody common law defenses.” H.R. Rep. No. 107-307, at 12 (2001).
6. Each potentially applicable statute must be carefully and separately examined to discern Congress’s intent in this respect. See generally, e.g., Nardone, 302 U.S. 379; United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148 (1994); Application of Neutrality Act to Official Government Activities, 8 Op, O.L.C. 58 ( 1984)
7. Section 1119 was designed to close a jurisdictional loophole—exposed by a murder that had been committed abroad by a private individual—to ensure the possibility of prosecuting U.S. nationals who murdered other U.S. nationals in certain foreign countries that lacked the ability to lawfully secure the perpetrator’s appearance at trial. See 137 Cong. Rec. 8675–76 (1991) (statement of Sen. Thurmond). This loophole is unrelated to the sort of authorized operation at issue here. Indeed, prior to the enactment of section 1119, the only federal statute expressly making it a crime to kill U.S. nationals abroad (outside the United States’ special and maritime jurisdiction) reflected what appears to have been a particular concern with the protection of Americans from terrorist attacks. See 18 U.S.C. § 2332(a), (d) (2006) (criminalizing unlawful killings of U.S. nationals abroad where the Attorney General or his subordinate certifies that the ”offense was intended to coerce, intimidate, or retaliate against a government or a civilian population”).
8. 18 U.S.C. § 956(a)(1) (2006) makes it a crime to conspire within the jurisdiction of the United States “to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States” if any conspirator acts within the United States to effect any object of the conspiracy. Like section 1119(b), section 956(a) incorporates the public authority justification. In addition, the legislative history of section 956(a) indicates that the provision was “not intended to apply to duly authorized actions undertaken on behalf of the United States Government.” 141 Cong. Rec. 4491, 4507 (1995) (section-by-section analysis of bill submitted by Sen. Biden, who introduced the provision at the behest of the President); see also id. at 11,960 (section-by-section analysis of bill submitted by Sen. Daschle, who introduced the identical provision in a different version of the anti-terrorism legislation a few months later). Thus, for the reasons that section 1119(b) does not prohibit the United States from conducting a lethal operation against a U.S. citizen, section 956(a) also does not prohibit such an operation.
9. See also Frye, 10 Cal. Rptr. 2d at 221 n.2 (identifying “homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time ofwar,” as examples of justifiable killing that would not be ”unlawful” under the California statute describing murder as an ”unlawful” killing); Model Penal Code § 3.03(2)(b), at 22 (proposing that criminal statutes expressly recognize a public authority justification for a killing that “occurs in the lawful conduct of war” notwithstanding the Code recommendation that the use of deadly force generally should be justified only if expressly prescribed by law).
10. The statute also defines “war crime” to include any conduct that is defined as a grave breach in any of the Geneva Conventions (or any Geneva protocol to which the United States is a party); that is prohibited by four specified articles of the Fourth Hague Convention of 1907; or that is a willful killing or infliction of serious injury in violation of the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. 18 U.S.C. § 2441(c).

Introduction

• It’s been months since the last show. What’s new? Josh’s journey from lawyer back to student (and lawyer consultant) is new! And don’t miss the scoop on Alice and Dallas.
• Josh will be getting the iPhone 5, no doubt shipping with iOS 6 (note our totally ahead-of-its-time prediction, um, as of the date of recording, that is…).
• Check out Josh on This Week in Law, Episode 177, with Denise Howell, Evan Brown, and Peter Toren.

In the News

• Wrapping Apple v. Samsung: the uber-corny Star Trek TNG parody explanation, and the trick of sorting out international rulings. IP lawyer Peter Toren predicted Apple’s win with uncanny precision.
• Late to the party with our iPhone 5 rumors and discussion of competing handhelds. Will the huge verdict box Apple into design stagnation?
• Censoring our view of the war: Apple rejects app showing US drone strikes. Is it really the look, feel, functionality, or the political content at issue here? (If it’s the design, why did Amercia pass muster?)

You’re Doing It Wrong

• Settle in for Judge Posner’s long, thoughtful ripping of Garner & Scalia’s book, Reading Law: The Interpretation of Legal Texts.
• Parole for everybody! We wonder just how much information was compromised when some New Hampshire prisoners hacked their prison database.
• Should there be secret rulings about secret things? How about when those secret things are decidedly unconstitutional? The EFF unsurprisingly things we should know about these things, and so the EFF sued the DOJ to find out about the government’s 4th-Amendment-trampling activities.

Love for Our Geeks

• Brad Snyder wants a job. An IP transactional associate job, to be exact. Check him out, and tell us if you hire him. Our finder’s fee is quite reasonable.

Like What You Hear?

If you like what you hear, please consider giving us a positive review on iTunes, leave your comments (here and/or there) and, of course, subscribe to the podcast.

We want to talk about what you want to hear about! Send questions, ideas, comments, complaints, and corrections by email to podcast /at/ legalgeekery /dot/ com. Harass Josh on Twitter at legalgeekery, Laura at lbergus.

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Not too long ago one of our associates asked me to open a file for her because, you know, I’m the de facto IT guy.

The file was a Wordperfect file (.wpd) and, it turns out, dang near impossible to easily open on my Macbook Pro. I set out to download NeoOffice or some other shareware program that I literally couldn’t even figure out how to begin downloading from the terrible website. The NeoOffice download was so large and took so long on my office network that I gave up and sent the file to my girlfriend so that she could convert it from her Wordperfect installation.

NeoOffice probably could open Wordperfect files — I don’t know, I never finished downloading it — but let’s face it: it’s big and bloated. Wouldn’t it be nice if there was a tiny (~2mb) little program that did nothing other than let you open, save, and manipulate Wordperfect files in OS X?

As luck would have it, Jason Geater over at Solvusoft Corporation sent me an email with an evaluation copy of his company’s WPD Wizard app for OS X.

I’m not going to give a detailed review as I usually do because WPD Wizard really only has one function, which it performs well. You can open a .wpd file, search, print, and save it to either PDF or RTF. What else could you want?

The down side is that it’s a little expensive in my opinion: $20 for a uni-tasker seems like a lot. I suppose though that if you’re running a Mac-based firm, the ability to open Wordperfect files for $20 could be a decent value proposition. Still, it’s a solid little program and if you can catch it on sale, you should definitely grab it.

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If you’ve missed the Legal Geekery Podcast while Laura and I undergo the growing pains known as attorney life, fear not.

The folks over at the incredibly popular web TV show this WEEK in LAW have invited me to join their always-enlightening, weekly panel discussion on Friday, August 31, at 11:00a PT / 2:00p ET.

On this week’s show they brought in Nilay Patel and Matt Macari of The Verge, as well as Sally Wentworth from the Internet Society. Those are some pretty big shoes to fill, so I hope you’ll follow me over to the TWiT Network and join me for the live recording on the 31st.

Incoming search terms:

• America law officials in this week looks for suspects
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I’ve been following American Broadcasting Cos. v. Aereo for a while now and the district court’s recent denial of the plaintiff’s motion for a preliminary injunction has me contemplating what effect this case could have within the Second Circuit.

Aereo is a neat little company that engineered a large array of television antennas¹such that it can assign each individual user of the service their own antenna. The user can then use that antenna to watch live broadcast television on any device supported by Aereo. They also have the option of a DVR-type service that records the broadcast on-site for future viewing.

The problem, the broadcast plaintiffs allege, is that such a service is potentially violative of several exclusive rights conferred upon them by the Copyright Act. Specifically, The Honorable Alison J. Nathan of the United States District Court for the Southern District of New York notes within her 52-page denial of the plaintiff’s motion that for purposes of the preliminary injunction, the plaintiff is limited to arguing only the issue relating to the transmit clause of the Act.

To refresh your memory, the relevant excerpt from 17 U.S.C. § 101 reads:

[t]o perform or to display a work “publicly” means . . . to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So that’s it, right? Open and shut case for the plaintiffs.

Not so much, it turns out, as the result of a Second Circuit case, Cartoon Network LP, LLLP v. CSC Holdings, Inc.² (“Cablevision”). Cablevision considered a similar situation where remotely hosted DVRs served content to users. In holding that Cablevision did not violate the transmit clause of the Act, the Second Circuit approached the problem with two premises in mind: (1) the act of transmitting is the performance at issue — it’s not sufficient to consider whether the public receives the underlying work; and (2) it considered the eligible recipients of the work rather than making a vague inquiry as to whether or not the recipient could be classified as “the public.”

The vast majority of the opinion is spent dismissing the plaintiff’s attempts to distinguish the present case from Cablevision. In actuality, I don’t know that it can be legitimately distinguished. Because Aereo intelligently limited users to their own antenna, there really is only one recipient of any given work. Moreover, the company limits its customers to people who could theoretically receive the actual broadcast signal with their own antenna.³

Granted, the inquiry was narrow and the standard to obtain a preliminary injunction is arguably a difficult one to overcome, but it seems to me that the Second Circuit will need to overturn Cablevision to find infringement on this issue.

So that leads us to the sensational headline. It would be nice to think that a finding in favor of Aereo here could lead to a situation where an enterprising start-up in the Second Circuit could start a similar service where its users are remotely assigned a cable tuner and programming would be available à la carte. Such a scenario is unlikely because in the event that option became reality, it’s a near certainty that cable companies would explicitly contract around that business model — an option not really available to broadcast television networks.

It’s a shame, too. I’ve cut the cable but I could really go for some HBO.

Incoming search terms:

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1. I should note that there’s a factual dispute here about whether Aereo has one giant antenna (the plaintiff’s position) or multiple very small antennas. The judge sided with the defendant mostly due to a disparity in expert testimony.
2. 536 F.3d 121 (2d. Cir. 2008).
3. Aereo verifies that users’ credit card billing information is registerred to the greater New York City area.

You’d be amazed at how often as a lawyer I find myself rueing my terrible decision not to back up my law school email account. That civil procedure outline someone in my study group emailed to me that I remember having a really great explanation of date calculations? Long gone because I wasn’t thinking ahead. The personal email address a judge once used to email me? Also gone.

I know there’s some prestige associated with sending an email from a law.xyz.edu email address, but if you aren’t willing to switch to gmail (or hey, even outlook.com) at least consider automatically forwarding copies of your emails to a dummy address you can still access after you graduate for purposes of indexing and posterity. If you don’t know how to forward your school email, I’m willing to bet your local friendly IT administrator can teach you in a matter of seconds.

If nothing else, you can look back and laugh in a few years when you discover gems like this:¹

I decided not to use exhibits since next week is all about exhibits.

My witness is also a piece of [fantastic sauce] anyway, so I’d really like to put him up on the stand and ask, “Did you see anything?  No?  SO WHY THE [FUNK] ARE YOU EVEN HERE??”

- Me, re: a trial advocacy exercise I obviously wasn’t feeling (expletives made more pleasant). 

Incoming search terms:

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1. This is an excerpt from an email that I sent a while ago, which a friend saved and sent to me recently.

Not too terribly long ago, tech aficionados were taking a serious and concerned look at Twitter’s lack of a revenue stream and theorizing about what it would mean for the company’s future. Around the same time, I was attempting to convince some law professors at my law school that Twitter wasn’t a passing fad.

Today, no one seems to question Twitter’s business model. The idea of promoted tweets appears to generate some decent revenue without angering or alienating its customers. It makes me wonder, though, have we hit the point at which Twitter is essentially a slave to its advertising partners?

I know it’s difficult to make out the screen cap of the tweet above the header, but the text in question refers to the opening ceremonies of the Olympics and reads, “The man responsible for NBC pretending the Olympics haven’t started yet is Gary Zenkel. Tell him what u think!” The tweet was sent from Guy Adams’s personal Twitter account and went on to provide the corporate email address for Mr. Zenkel.

NBC reported the tweet, and shortly thereafter, Mr. Adams’s Twitter account was suspended.

The problems here are twofold: First, Twitter and the Olympics have partnered for this year’s Olympic Games; and second, Guy Adams is a journalist who published a heavily-circulated article on the widespread criticism of NBC’s treatment of the London Games on the same day his Twitter account was suspended.

Concerning to us, I should think, is the idea that chilling journalistic speech on a service widely known for advancing anti-establishment causes and providing hundreds of millions of people access to relatively uncensored speech, is seemingly an option for Twitter’s advertisers. Other blogs have pointed out that this type of tweet is not an uncommon occurrence from celebrity Twitter accounts, and such tweets are generally never punished. Moreover, although Twitter initially suspended his account citing to a rule violation for tweeting a “personal email address,” Mr. Adams points out that the email address he provided for Mr. Zenkel was a publicly-available corporate email address.

Admittedly, one instance does not make a trend, but I’m going to be on the lookout for similar instances of favoritism for Twitter’s advertisers.

I recently finished reading Eugene Volokh’s excellent book, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers. My only regret after purchasing it is that it was not given to me as a welcome gift when I accepted the invitation to join the law review. I suspect the caliber of student Notes would increase substantially if the vast majority of associate editors were not primarily relying upon articles written by former classmates to inform their opinions of what a student Note should look like.

Nonetheless, I’ve run up against an issue that while addressed by the book, hasn’t provided enough guidance to settle this issue in my mind. I’ve been working on an article for a while now, which I believed to be a relatively novel undertaking. If I had to guess, I would estimate that I’ve spent around 100 hours researching the issue (to be fair, I’m a slow reader).

Recently, I came across an article written by an assistant professor at the School of Information at Berkeley. The article not only approached my topic in a manner similar to how I had structured my outline, but he arived at the same, novel — or so I thought — conclusion that I had devised after concluding my research. Worse, the article is exceptionally well-written and would be difficult to improve.

The only flaw I see in the article is that the author fails to adequately address the legitimate concerns of the opposing viewpoint. My background is such that I likely have a unique perspective of the common criticisms, and I’m in a good place to address and refute them. As far as I can tell, that’s the only legitimate novel discussion that I can add to the discourse.

I’d rather not totally abandon my research, but I’m honestly not sure whether the relatively minor fortifications I can make to the professor’s arguments are worthy of a law review article.

What do you all think? Is there some way to make this type of contribution novel enough to warrant a new article? All thoughts are appreciated.

Incoming search terms:

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