Written by:  Adam Gottlieb
Researched by:  Daniel Kwak
Edited by:  Eric Blaine
Managing Editor:  Mary Anne Nash

America is losing the war on drugs.  Over the past 40 years, the United States Government

has spent more than $2.5 trillion dollars fighting the “war on drugs” yet the number of drug users in the United States has risen to a record 19.9 million Americans.  Meanwhile, each year Mexican drug cartels make billions from drug trafficking and there has been a steady increase in violence directly attributable to drug cartels, which style themselves after small paramilitary forces. Since 2006, more than 12,000 people have died in Mexico due to drug related violence, including more than 5,000 in 2009 alone.  The numbers of dollars spent and lives lost in this war are staggering, yet a disconnect persists between efforts of the U.S. government to curb drug use and the statistics of drug usage.

Many states are taking matters into their own hands and responding to what their citizens have said at the ballot box:  Some drugs are simply not worth fighting over. In some cases, such as with marijuana, many citizens believe that there are legitimate medicinal purposes for some drugs that have been outlawed. However, the United States has a rich history of legislation criminalizing drugs. This history begs the question:  Can the war on drugs be waged at the ballot box?

Puff Puff Passed Laws:  A History of Drug Regulation in the United States

There has long been tension between the Federal Government and the States regarding the right of the individual states to police themselves.  Under the Tenth Amendment, any powers not delegated to the federal government by the Constitution and not explicitly prohibited to the states are reserved to the States and the people. The federal government found a workaround by passing tax acts as an extension of their power to lay and collect taxes.  These acts taxed, and thus regulated, drugs, giving the federal government some authority over an area the courts traditionally considered within the state’s police powers.

Individual states took measures to regulate marijuana in the early 1900’s in response to the Mexican Revolution, the violence of which was spilling over the border into Texas and creating an influx of Mexican immigrants.  By 1921, Wyoming, Texas, Iowa, Nevada, Oregon, Washington, Arkansas, Nebraska and Utah had all outlawed marijuana largely as a reactionary response to the arrival of these new Mexican immigrants.  A chief difference between the new immigrants and the predominantly white populations in these states was that some of the new immigrants smoked marijuana recreationally.  This led to a push by mainly white State residents to outlaw the drug.  This was also part of a wider social movement against recreational intoxicants, as the United States passed the Eighteenth Amendment banning alcohol around the same time.

On a federal level, the government took incremental steps to police drugs. First, the Pure Food and Drug Act in 1906 created the Food and Drug Administration (FDA), which stated that certain drugs could only be sold by prescription, and required that labels for drugs that may be habit forming clearly state so. Next, in 1914, the Harrison Act criminalized non-medical use of drugs.  Using taxes on narcotics, the Harrison Act brought doctors under the regulations included in the act while effectively creating a criminal prohibition against recreational drug use.  Finally, in 1937 Congress passed the Marihuana Tax Act, effectively outlawing all marijuana use and, incidentally, the cultivation of hemp.  After the passage of this act, there was a sharp increase in the number of prosecutions for violating the act, as well as a corresponding increase in public awareness of drugs in general.

In 1969 Congress passed the Dangerous Substances Act which analyzes all drugs for two criteria:  First, whether the drug has a medicinal purpose, and second, the potential for and severity of the drug’s abuse.  Thus, Congress created what is commonly known as “scheduled” drugs, listing out five different Schedules.  To complement these schedules, penalties associated with each level correspond in severity, with the harshest penalties tied to Schedule I drugs , including LSD, marijuana, hash, heroine, cocaine, and other “hard drugs.”

Is Marijuana Medicine and Can States Legalize It?

As of this article there are currently thirteen states that have passed legislation to legalize the use of marijuana for medical purposes with four states utilizing licensed “dispensaries” where users could obtain the drug with a valid prescription. The federal stance on this issue is that marijuana is an illegal and dangerous narcotic that has no accepted medical purpose. The FDA argues that states who have made marijuana available for use upon a doctor’s recommendation are inconsistent with FDA efforts to ensure medications undergo rigorous scientific scrutiny under an FDA approval process and are proven safe and effective for it’s intended purpose. Currently the federal government, through the Department of Health and Human Services, owns the patent for all medicinal uses of marijuana. The FDA has concluded that marijuana has been correctly placed under Schedule I of the Controlled Substances Act as it meets the criteria for the schedule.

In the 2005 case of Gonzales v. Raich, the US Supreme Court ruled that the Commerce Clause allowed the government to ban the use of marijuana for any purpose, including medicinal use. Justice John Paul Stevens wrote for the majority which held, “Congress’ power to regulate purely activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established,” regardless of the legality of that commerce.  This decision allows for federal prosecution of both medicinal users and producers of marijuana earmarked for medicinal use.  This case was a major victory for the Bush administration, which had been involved in federal raids of medicinal marijuana dispensaries in California and other states.

Shortly after his election President Obama appointed Attorney General Eric H. Holder Jr., who stated the Justice Department’s new enforcement policy would be restricted to drug traffickers who masqueraded as medical dispensaries and who use State medical marijuana laws to shield themselves from criminal prosecution.  This statement has been widely interpreted to be a tacit acknowledgement that States may regulate medicinal marijuana without excessive federal involvement.

Legalize It – Don’t Criticize It?

It’s no secret the economy has been bad recently and many states are having budgetary problems.  One state looking at an unorthodox method of raising revenue is California.  There are two proposals that may be be included on the November 2, 2010 ballot that could dramatically reform the state’s marijuana regulation.  The first is the Legalize, Regulate and Tax Marijuana Initiative and the second is the Regulate, Tax and Control Cannabis Act of 2010.  Govenor Arnold Schwarzenegger has publicly stated, “Well, I think it’s not time for (legalization), but I think it’s time for a debate.”

The reasons for the open debate are projections that legalization and taxation of marijuana could bring an estimated $1.4 billion dollars in revenue into the cash strapped state, which is still fighting a $26.3 billion dollar budget deficit.  Furthermore, the Legalize, Regulate and Tax Marijuana initiative includes a provision to retroactively expunge any conviction for marijuana related charges and provide convicts a “clean slate,” including releasing those in prison convicted of marijuana charges.  This in turn could free up some much-needed money from the $9.7 billion dollars allotted per year for the California prison system.

Several other states have attempted to decriminalize or legalize marijuana in recent years. In Alaska it is legal to possess up to 4 ounces of marijuana in a private home under the Alaska Supreme Court case of Ravin v. State. In that case the Court found that under the State constitution the citizens have a right to privacy within their own home that extends to possession and use of the drug.  This case is still good law in Alaska even though there have been several attempts to re-criminalize the drug in recent years.

In Colorado, the city of Denver voted to essentially legalize possession of marijuana in amounts less than 1 ounce by setting the fine at $1.  However, a 2006 ballot initiative to legalize marijuana on a statewide basis was definitively defeated.  The effect of this is that state law enforcement officials may still prosecute marijuana offenders to the fullest extent of the law. These test cases for the legalization of marijuana are still rife with constitutional implications, and the debate on how to balance state rights against federal powers is far from over.

Where Are the Laws Headed Now?

While the debate about legalizing marijuana for medicinal use or recreational use has become a hot topic in the United States, Mexico has been facing a severe crisis due to the violent drug cartels that smuggle drugs into the United States.  Violence along the border of Mexico and the United States has been extreme, with casualties and kidnappings of both Mexican and American citizens.  The problem has become so severe that Attorney General Eric Holder has stated that Mexican drug cartels pose a national security threat to America and threaten to destabilize the Mexican government.  Mexico has gone so far as to mobilize more than 36,000 troops to combat the cartels, which have no problem funding their business and paramilitary enterprises.  In one of its most recent reports, the U.S. Department of Justice disclosed that an estimated $17.2 billion dollars was funneled into Mexico in the past two years as a result of money laundering operations.

Beyond activating troops and looking to the United States for more help, Mexico has recently taken a drastic step in their battle on drugs. They legalized them. As of the end of August anybody caught with “personal usage amounts” of marijuana, cocaine, heroin, ecstasy, or crystal meth will not be subject to any criminal penalties. The socially conservative President Felipe Calderon argued that the Mexican government needs to refocus its efforts on combating the sources of drugs and violence, rather than the users. This sweeping change will have an impact in Mexico and could have one here in the United States. Drug reform groups have celebrated these laws as an example the United States should follow if they prove effective across the border.  Whatever your position is, with California’s ballot initiatives gaining momentum, this debate looks to be far from over.

Benjamin Albers

Moorisha Bey-Taylor

Jennifer Hill

Amanda Husted

Jesus Palomares

Stephen Robbins

Adam Shelton

They don’t know it yet but they are about to embark on a journey they might never forget. Look for upcoming contributions from them the next time you check the site.  Thanks and congratulations!

- the Legality

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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or that gives a fancy name to a simple idea. This week’s word is the latter.

Written by: Kirk Strohman

How many times have you attended a sporting event and heard the fans launch verbal assaults on the referee for errant calls? If the referee is so bad, why not just sue him for “referee malpractice”? If the referee has a contract with the league that requires him to exhibit professional competence does he breach that contract by making a really bad call? What if you owned an apparel store and this terrible ref made a call that cost your team the game and thereby cost you big sales – could you sue him then?

Courts say no. The legal concept of privity blocks these types of suits. In certain situations your privity is the difference between having a right to sue and finding yourself without legal recourse. Privity is simply a relationship or a mutual interest between parties. If the relationship is significant enough then the parties are in privity and may sue on behalf of or against the other person. In contract law, privity to the contract is a requirement whereby a claim fails where privity is lacking (though there are exceptions for third-party beneficiaries). In the referee story, the store owner does not have privity with either the referee or the league and so has no right to sue on the contract between those parties.

In tort law courts relaxed the privity requirement as it relates to products liability throughout the 20th century. When you buy a pot pie from the grocery store you are in privity with the grocery, but not the maker of the pot pie. But what if the pot pie is spoiled and you get sick? Today courts will allow you to sue the manufacturer of the pot pie even though privity is lacking. One rationale is that society should expect the pot pie-maker to anticipate anyone that eats a spoiled pot pie could get sick. Hopefully the manufacturer will never produce a spoiled pot pie and avoid being sued. Looking back to the referee example, society does not expect the referee to consider the endless possibilities that could result each time he makes a call. We just want him to make the best call possible during the game. Therefore we do not allow just anyone to sue for breach of a contract to which they are not a party.

Privity is relevant in other areas of law. Privity might bar you from suing under the theory of res judicata if you are in privity to a party that has already made a similar claim. In property law a covenant cannot be enforced with horizontal and vertical privity. While it may seem a confusing or antiquated concept, privity exists to protect us and prevent others from using the law with an unfair advantage.

The Legality is on the long road back from Summer break.  Please look for a new article by the end of September.  Until then we have posted a new Word of the Week, so check it out and browse the rest of the site.

Thanks for stopping by,

the Legality Staff

The threat of piracy has been around as long as ships have been carrying goods across water. Recent events on the high seas show that the days of dramatic attacks and heroic rescues live on today, sans eye-patches and wooden legs. Earlier this month, Somali pirates attacked an American cargo ship and took Captain Richard Phillips hostage. After failed negotiations and repeated requests from the Defense Department to use force, President Obama authorized Naval snipers to shoot and kill the pirates if the captain’s life was in “imminent danger.” The Navy Seals, upon hearing gunshots from the pirates’ vessel, took aim and fired.

This incident is one of many that has caused anxiety in the international community. Policymakers and citizens alike want to know: what causes pirate activity and how do we catch them? Even if pirates are caught and detained, however, procedural and substantive legal questions continue to arise. Pirates’ trademark use of force and intimidation has sparked a debate over whether pirates should be treated as terrorists. While occurrences of piracy and terrorism on the high seas have both swelled in the past few years, the increasing rate of seaborne piracy has eclipsed that of terrorism. According to a study conducted by the Rand Corporation, the number of piracy incidents has far outpaced terrorist attacks and plots between 2000 and 2006. Not surprisingly, these grim statistics have shifted the attention of policymakers back to the pre-Internet days of old-school piracy law. Should seaborne pirates be prosecuted as pirates or as terrorists, and why does it matter from a legal standpoint what we call them?

The Piracy Problem

A growing number of shipping companies do not report incidents of piracy in order to avoid the risk of higher insurance premiums and costly investigations; consequently, actual statistics of piracy are unknown. The International Maritime Bureau (IMB), however, estimates that pirates have successfully hijacked 61 boats since beginning of 2008, with 19 coming just in the first few months of this year.

Several high-profile piracy incidents in the open sea off the Horn of Africa over the last decade have caused some experts to point to lawlessness in Somalia as the root of the piracy problem. In a country where half the population is in need of food aid, the potential reward and relatively high probability of success generally outweigh any fears of capture for most Somali pirates who long for a taste of the high life. Additionally, patrolling the commonly pirated area off the coasts of Kenya and Somalia (an area of over a million square miles) has proven to be a difficult task.

So, Should Pirates be Treated as Terrorists?

The debate over whether pirates should be prosecuted under anti-terrorism laws is ongoing. Many experts liken piracy to terrorism–especially after incidents like the one seen earlier this month. Douglas R. Burgess Jr., author of The Pirates’ Pact: The Secret Alliances Between History’s Most Notorious Buccaneers and Colonial America, draws a parallel between piracy and terrorism: “both crimes involve bands of brigands that divorce themselves from their nation-states and from extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction . . . ‘for private ends.’” Further, international laws treat the two criminal offenders similarly as “enemies of the human race.”

Others argue that piracy and terrorism are different because the former commits crime for personal financial gain while the latter commits crime for political reasons. Democratic Senator Russ Feingold (Wisconsin) acknowledges they are different, but argues that they share the same roots. Clearly, the question of whether crimes committed for political reasons should be punished more severely than those committed for financial gain is still an unresolved policy issue. Either way, enforcement requires actual legal authority. Although pirates and terrorists may share commonalities, they are in fact prosecuted differently in the United States. Determining whether an enemy combatant is a pirate or a terrorist, therefore, is an important issue that affects the treatment of detainees.

What Arrrr the Applicable Laws?

In the United States, Article 1, Section 8 of the Constitution gives Congress the authority “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Congress’ first anti-piracy law (passed in 1790) banned murder and robbery at sea. Both were punishable by death. The U.S. Supreme Court in 1818, however, ruled in United States v. Palmer that the law did not cover foreign pirates targeting foreign citizens. Congress responded the following year with a law that extended U.S. jurisdiction over all pirates—American and foreign.

The principal source of anti-piracy law in the United States today is embodied in 18 U.S.C. Chapter 81. Section 1651 states: “[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” Section 1652 invokes the same penalty for U.S. citizens who engage in piracy, and Section 1653 does the same for pirates who are citizens of other countries. Authorization to prosecute pirates of any nation comes from universal jurisdiction, an age-old international law principle that “allows any nation to try certain offenders who have committed international crimes, even if the crime, the defendant and the victims have no nexus with the state carrying out the prosecution.”

The international community, through the United Nations, developed thirteen international counter-terrorism instruments during the last fifty years to address growing concerns over terrorism. One of the most notable is the United Nations Convention on the Law of the Sea. Enacted in 1982, this Convention establishes guidelines for governments and businesses in their usage of marine resources. A year later, the U.N. General Assembly introduced the International Convention Against the Taking of Hostages. Article Three of the International Convention provides that “[t]he State Party in the territory of which the hostage is held by the offender shall take all measures it considers appropriate to ease the situation of the hostage, in particular, to secure his release and, after his release, to facilitate, when relevant, his departure.” The recently amended Convention for Suppression of Unlawful Acts Against Safety of Maritime Navigation is another U.N. instrument aimed at curbing piracy and terrorism. Enacted in 1988 and amended in 2005, this counter-terrorism measure forbids a person from unlawfully and intentionally seizing or exercising control over a ship by force, threat, or intimidation.

Currently, terrorists detained under the notorious Bush-era Authorization for Use of Military Force (AUMF) have little hope of being released, let alone tried. Before enactment of the U.N. instruments, pirates faced similar fates as “international criminals and enemy combatants.” Today, in accordance with the U.N. Convention on the Law of the Sea, pirates are afforded the luxury of being judicially punished while enjoying the protections and privileges of the Geneva Conventions. Even with these humanitarian protections, pirates often escape unscathed by claiming to be “simple fishermen.” Unfortunately, most pirates are in fact fishermen-by-day and pirates-by-night. Since universal jurisdiction only applies to pirates, these “simple fishermen” typically slide through the legal loopholes because it is not an international crime to have guns on a boat.

Who Will be the Hero?

Although international laws typically forbid governments from interfering with foreign vessels, universal jurisdiction gives the U.S. government and foreign governments the authority to apprehend pirates of any nation and punish them under their own laws. Unfortunately, these laws do not always produce the intended result. According to Burgess, “[t]he legal confusion extends to what happens once pirates have been caught. In theory, any nation can shoulder the burden of prosecution. In fact, few are eager to do so.” This is largely due to the fact that prosecuting and punishing pirates imposes a substantial financial burden that few governments are willing to bear.

The impracticability of policing every square mile of the open seas reinforces the unfortunate conclusion that “only a ship can guarantee its own security.” The U.S. Navy has made an effort to increase patrolling coverage and may attempt to get other countries on board. The bottom line, however, is clear: piracy will likely continue so long as the benefits of committing the crimes outweigh the risks of capture. Since most pirates are citizens of countries where starvation and poverty are commonplace, the international community must increase efforts in patrolling the high seas to outweigh the financial benefits to pirates. Until then, ship owners may want to consider making friends with sharpshooters in the U.S. military to deter pirate attacks and effectively protect their booty.

A batter digs into the soft brown dirt to face down a pitcher throwing a ball at nearly 100 miles per hour. A halfback takes a football and runs full-charge into players looking to hit him with the same physical force of a small car. A basketball player dives into a sea of elbows chasing a stray ball. Incidents like this happen every day across America. Sports have become so engrained in our culture that we often take the inevitable injuries as a given in these situations. Recently, however, lawsuits have come forward questioning whether such injuries are a given in all sports contexts and whether parties should be held liable due to sports injuries.

Generally, sports are held to be somewhat dangerous activities involving a certain assumption of risk: being hit by a fastball, a brutal tackle at midfield, an errant elbow in a basketball game are all simply part of the game. In order for athletes to assume the risks that come along with sports, the athlete must have knowledge of the risk, appreciation of the gravity of such a risk, and willingly put themselves in harm. As the old saying goes: no pain no gain.

Contact Hitter

Courts have made a distinction between the contact sports involving direct physical contact between participants and non-contact sports which involve minimal or no contact between participants. In Cohen v. Brown Universitythe court defined contact sports as including “boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.” This is a rather contentious definition: the most hardened football fans would not consider baseball a contact sport; however Major League Baseball would disagree. States which do make the contact/non-contact distinction are faced with problems of this nature when injuries outside of the “traditional” sports come up on the docket. Further complicating matters is the potential for serious injury in “non-contact sports” such as tennis where balls are served at speeds as high as 128 MPH. While there is no direct physical contact between players, tennis balls can and do cause serious injuries. Not to mention a less well known game that is considered the world’s most dangerous: jai alai.

Why divide sports between contact and non-contact sports for liability purposes? Assumption of risk plays a heavy part in these considerations: a participant in a contact sport like rugby would expect (in fact take pride in) serious injuries whereas as league night at the bowling alley comes with a certain expectation of safety. If a bowling ball were to suddenly broadside a players head, or a player were to slip from an over-oiled floor, it would almost certainly be the result of negligence, recklessness, or an intentional act.

Appeal to the Cheerocracy

The divide between contact and non-contact sports came to a head in the case of Brittany Noffke, a varsity cheerleader at a Wisconsin high school. Brittany was part of a squad executing a difficult move when Kevin Bakke, the male cheerleader holding her on his shoulders, failed to catch Britney on her way down. Ms. Noffke plunged to the gym floor headfirst, sustaining serious head injuries. Noffke’s parents then proceeded to sue both the school district and Bakke. Noffke contended the coach was negligent for not having a second spotter or protective mats on the floor when the move was performed. In Bakke’s case, the Noffke family contended that his failure to catch Brittany was a reckless act.

The Wisconsin Supreme Court dismissed both arguments, finding that cheerleading does constitute a contact sport, and thus participants enter with an assumption of risk. The Court cited to the “spirit rules” of the National Federation of State High School Associations, which contained photographs of several formations involving close contact between participating cheerleaders. The coach and school district could not be held liable for the injuries because of the assumption of risk any contact sport has.

As for Bakke, he was found to have not recklessly performed his duties freeing him from any liability for the accident. The Court agreed with Bakke’s assertion that his failure to catch Brittany was “mere inadvertence, lack of skillfulness or failure to take precautions,” did not constitute reckless behavior. While essentially ending Noffke’s ability to recover damages, this ruling was actually hailed as protective of cheerleaders. Mistakes in even the most practiced and seasoned squad do happen, and Wisconsin freed them from liability for mistakes during a performance or routine. Coaches across the country praised the ruling, as they had worried a ruling the other way would have a chilling effect. Having given cheerleaders some leeway from liability for mistakes, squads can continue to “be aggressive-b-e aggressive” in their routines.

Another Ball in the Trees

Three time Master’s winner Jimmy DeMaret was once quoted saying that “Golf and sex are the only two things you don’t have to be good at to enjoy.” Because golf is a sport that appeals to both “fairway challenged” individuals as well as the more skilled ones, errant balls have become somewhat engrained in the sport. Even an experienced pro jock can have an occasional problem.

Golf is unquestionably not a contact sport, which raises the question of errant golf balls. When one strolls onto the golf course is there an assumption of risk that you might be hit by an errant ball? In the state of California the answer is “yes.” Despite golf being a decidedly non-contact sport, the courts of California have held in Shin v. Ahn “that the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport.” The opinion (which includes footnotes defining what “shanking” a golf ball is) was no doubt a favorite amongst the duffers of the world, the court stating that “Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction.” Mulligan and shouts of fore now seem to have a somewhat legal dimension.

Advantages and Disadvantages of Liability Free Sports

Participants in sporting events will likely tell you that competition, as Yogi Berra once quipped, “is 90 percent mental, the other half is physical.” Allowing athletes to compete without worry that they’ll be held liable for the resulting injuries that may occur allows for aggression in sports: the same aggression that make competing so enjoyable to both participants and spectators alike. If athletes were held personally liable for the injuries they inflict during the course of play, professional sports in North America would suffer dramatically. The NFL and college football (not to mention high school football), arguably America’s most popular sport, would be virtually non-existent if players were held to be personally liable. If such leagues were able to survive, in the era of the super agent more aggressive players might negotiate “team liability” clauses forcing the team to take responsibility for the player’s actions.

Sports must adhere to a strict set of laws, rules, or guidelines in order to facilitate fair competition. However, every sport has its unwritten rules and sometimes these can clash with the intentions of the game.

Take baseball for example. Hall of Famer Don Drysdale once said that an intentional walk was “a waste of three pitches” and over his career, Drysdale earned a well deserved reputation as a “headhunter.” Brush back pitches and bean ball wars where pitchers will “protect” their hitters from the opposing pitchers by aiming at the head do occur from time to time. Such a pitch is not a sanctioned part of baseball, and pitches thrown at the head can be extremely dangerous. Holding pitchers liable for their intentionally thrown bean balls might discourage this dangerous practice. Things get a little murkier in sports like hockey where fighting is an accepted part of the culture.

Similar principles would apply in football. Defensive lineman might think twice before a late hit on a quarterback if they risked more than a 15 yard penalty and a fine from the NFL. Do players in these sports assume a risk that players would conduct themselves in a manner outside the rulebook? Arguably quarterbacks assume a certain risk of a late hit when they take the field: if such a hit were unanticipated then there would be no penalty for such behavior. Football does an exceptionally good job of addressing these potential problems as the occur, one only need to look at the leagues swift response to horse collar tackles.

“Look for Low and Away. But Watch Out for in Your Ear.”

Sports are as much an expression of the human desire to achieve newer and greater feats of physical performance as a competition between individuals. When an athlete steps onto the field of play they assume many risks: failing themselves, failing their teammates, failing their gifts. The risks weigh heavily on the mind of an athlete, as does the fear of injury. Ultimately athletes should feel free to compete and focus on the game at hand, rather than finding a good tort lawyer.

But when injuries do occur, it’s best to have a good sense of humor about these things. Or, as legendary college football coach Bear Bryant said “There’s no substitute for guts.”

Internet piracy doesn’t have the pedigree of the swashbucklers of old nor does it have the grimness of present day pirates. And soon it may lose one of its largest purveyors. The Pirate Bay is a website that has garnered worldwide support from the general internet populace while making many enemies in the entertainment industry. The Swedish government–along with several plaintiffs from the entertainment industry–are bringing copyright infringement claims against The Pirate Bay. The issue is not a new one: The Pirate Bay enables peer to peer file sharing which people like and the entertainment industry despises. This case, however, offers a new twist because The Pirate Bay indexes and tracks BitTorrent files. The website’s server contains no copyrighted material; rather it contains only information on where to find such materials.

Naturally, the entertainment industry doesn’t much care about who holds the material or how someone willing to download pirated material receives it. They just want it to stop. But therein lies the legal rub: in this instance the criminal charge (there is a simultaneous civil claim) against The Pirate Bay is for facilitating “other people’s breach of copyright law.” The Pirate Bay claim that they are merely a search engine and should be treated similarly and receive the same protections. So the question remains, can the person providing the treasure map to the pirated goods be held accountable without possessing anything stolen?

Mizzens, Cutlasses, and Other Technical Pirate Talk

If you have no idea what a BitTorrent is rest assured you are not alone. Yet surprisingly BitTorrent peer-to-peer (p2p) downloads account for 35% of ALL internet traffic. This number is larger than all other p2p programs combined. BitTorrent began in 2001 as a p2p file sharing protocol meant to ease the transfer of large files. Instead of downloading a complete file from a single location, BitTorrent lets the downloader snag bits and pieces of the file from wherever it can be found. This eases the strain on whoever is providing the file for download, avoiding crashes due to limited bandwidth. By allowing both connection to and downloading from many peers, BitTorrent greatly enhances the speed and efficiency with which files can be shared, providing individual downloaders a faster file transfer.

The Pirate Bay is a large BitTorrent “tracker,” or a server which helps peers communicate with other peers looking for files. The Pirate Bay, and other BitTorrent trackers like isohunt and mininova do not host any copyrighted materials themselves, and no copyrighted materials ever traverse their websites. The closest analogy the defense will try to make is that of a search engine, like Yahoo! or Google. Both of which one can use to find illegal copyrighted material and both of which are exempted from any liability for such material. Hence, the legal complication of this case.

Defending the Ship

The first day of trial saw a substantial victory for the defense as the prosecution dropped half of its charges against The Pirate Bay. Originally the prosecution alleged that The Pirate Bay “facilitated illegal downloading” but changed the allegations to better reflect what seems to have been a technological misunderstanding—“assisting making available copyrighted material.” The prosecution asserts that the dropped charges only simplify the case, but some, like technology law specialist Struan Robertson, believe with the dropped charges the case will become more difficult. To succeed, the prosecution is required to establish key evidence that The Pirate Bay is making copyrighted material available, doing so purposefully, and doing so for substantial profit. The Pirate Bay maintains the site is nothing but an intermediary and is not making any copyrighted material available. The plaintiffs, including Warner Bros, MGM, EMI, Columbia Pictures, 20^th Century Fox, Sony BMG, and Universal, obviously think the very opposite.

The Pirate Bay website is based in Sweden, a country well known for its weak copyright laws. That is not to say the Riksdag (Swedish Parliament) is not attempting to change the applicable law. In April 2009 Sweden implemented stricter legislation making it easier to gain information on people who have illegally downloaded copyrighted material. Despite the new law the Riksdag has still left a great deal of discretion to the Swedish courts, allowing for leniency if a person downloaded only a “few works.”

In the instant case, The Pirate Bay argues that the website neither hosts nor disseminates copyrighted material but merely acts as a search engine. The Pirate Bay points to a European Union Directive which defines the technical argument central to their defense, in short:

“[A service provider is exempt from liability if it] is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.”

The directive carries important language exempting the service provider from being liable for being “passive” and a “mere conduit” not involved with any of the information transmitted.

The prosecution relies on evidence it believes will prove the defendants were not passive but knew the website’s real intention and intended to profit from it. For instance, the prosecution proffered evidence that the site made millions of dollars on sixty-four separate advertisements. The defendants countered by testifying that there were only four advertisements and claimed the revenue was closer to 725,000 kronor ($87,000 USD), which is less than the site’s estimated running cost of 800,000 kronor ($96,000 USD).

The revenue argument lends credence to the defense’s theory that The Pirate Bay does not operate for a profit. The Pirate Bay exists not to make money off of illegal downloads, but simply to provide a service for third parties. The defense argues the legal use by third parties lies beyond the control of The Pirate Bay and the website shouldn’t be held accountable. The plaintiffs disagree, hoping the court takes note of two recent U.S. cases discussed below: Napster and Grokster.

Prior Pirate Offensives

In the United States, one can be accused of primary infringement or secondary infringement. The former applies to anyone who actually downloads the copyrighted material while the latter is applicable where the provider either affirmatively encourages or induces behavior to download copyrighted material. The charges against The Pirate Bay would fall under secondary infringement where the cases against Napster and Grokster are the most relevant. The theory of secondary or contributory infringement previously arose in the mid 1980s when Sony was sued over video cassette recorders (VCR’s).

In that case the court reasoned that even if VCR’s could be illegally used for recording copyrighted material, the technology had a substantial non-infringing use that precluded Sony from being liable for contributory infringement. The Ninth Circuit distinguished Napster from Sony because Napster had the requisite level of constructive (or actual) knowledge of infringing conduct by its users. The court found this knowledge allowed Napster to be held liable for contributory infringement. Alternatively, the court found in Sony that substantial non-infringing use of VCR’s prohibited any constructive knowledge on Sony’s part. Thus, Napster’s actual knowledge of infringing conduct by users and Napster’s failure to remove infringing material constituted the requisite knowledge for contributory infringement.

Initially in Grokster, the Ninth Circuit found Grokster to have had a substantial non-infringing use that would preclude it from contributory liability. The Supreme Court disagreed, finding that where inducement and encouragement of direct infringing behavior can be proven, contributory liability applies. Perhaps important to The Pirate Bay case is evidence the Court considered damning: Grokster’s aim to fill a demand for copyright infringing material, Grokster’s lack of development of a tool to filter the copyrighted material, and the fact that Grokster made money by selling advertising space.

Who Will Share in the Future if Not Pirates?

The purveyors of The Pirate Bay have shrugged off any potential prosecution, suggesting simply that “whatever the outcome, we will continue.” Even Swedish politician, Karl Sigfrid, weighed in saying “I believe it is impossible to really stop this.” Ultimately, the combination of “screw the man” attitude, technological savvy, and general demand for file sharing encourages the persistence of file sharing websites—as well as the seemingly inevitable legal battles.

Some commentators urge the entertainment industry to forgo the never-ending litigations and adjust to the changing tides. Taking note of these issues, the Recording Industry Association of America has recently changed anti-piracy tactics. Others defend piracy and pirates as innovators who in the long run improve society on a large scale by “upend[ing] inefficient systems.”On the opposite side, the argument is simple—piracy is theft—and no less vehemently defended by its supporters, who claim piracy will have “cataclysmic consequences” for artists.

Regardless of how the Swedish court rules on April 17, the entertainment industry faces an enormous shift. There have been lawsuits filed against p2p file sharing programs and websites since the late 1990s: this brief history has shown, if nothing else, that there will always be a demand for the technology and a market for file sharing, legal or illegal. The problem remains that p2p file sharing and piracy seem to be inseparable, no matter how the sharing is regulated. The Pirate Bay verdict will determine whether the two can coexist legally for BitTorrent trackers, or whether distributing a treasure map is akin to stealing the treasure.

Is that seven million books in your pocket… or are you just happy to see me? Imagine a world in which the Library of Alexandria survived, intact, to the present day.

Charged with collecting all of the world’s knowledge, the library was legendary, and its loss to the world catastrophic. Though the ultimate date of its destruction remains in constant debate, there’s a good reason for it–as Neal Stephenson put it: “It’s inherently difficult to get reliable information about an event that consisted of the destruction of all recorded information.”

The loss of the entirety of recorded human knowledge is mind-boggling to say the least. How can we possibly prevent such a tragedy in the present day? When faced with such a potentially life-altering question, I do what any sensible adult would: I Google it. Enter the Google Books Library Project (GLP), a massive undertaking wherein Google is attempting to digitize and index nearly every printed work known to man.

Library of Alexandria 2.0?

On October 28, 2008, Google announced that they had made digitized copies of more than seven million books searchable through Google Book Search (GBS), with plans to add many more. Through partnerships with many of the world’s largest universities, GBS aims to digitize their collections, index them accordingly, and ultimately make them searchable online. However, due to a slight obstacle known as “copyright law,” a significant number of authors, publishers, and publishing houses weren’t thrilled about the idea. True to (American) form, in the absence of legislation arises litigation. Enter Authors Guild v. Google, a class-action suit filed on September 20, 2005, by the Authors Guild joined by select authors, in addition to a suit filed on October 19, 2005, by five members of the Association of American Publishers (AAP): The McGraw-Hill Companies, Inc.; Pearson Education, Inc.; Penguin Group (USA) Inc.; John Wiley & Sons, Inc.; and Simon & Schuster, Inc.

Simply put, the Authors Guild was accusing Google of massive copyright infringement, based on their producing copies of works not within the public domain without the express permission of the copyright holders. Further, the AAP believed that Google stood to earn millions of dollars “freeloading on the talent and property” of their authors and publishers. These incendiary claims led to some harsh and lengthy discussions among the various parties, and over three years later we are still awaiting the Court’s final decision.

When elephants fight, the grass suffers.

On October 28, 2008, following two years of settlement negotiations, Google, the Author’s Guild, and the Association of American Publishers happily announced the settlement of the litigation in a measly 134-page agreement. This agreement, which remains subject to approval by the US District Court for the Southern District of New York, allows Google to continue scanning books still under copyright (or “in-copyright” books) into its database. In addition, Google may enable users to search the full content of said books. Further, the agreement stipulates that Google will provide $34.5 million to fund the creation of the Book Rights Registry (BRR), a mechanism that allows Google to compensate the copyright holders for the right to display their works. Google will also fund an additional $45 million for distribution through the BRR to those copyright holders whose works were scanned prior to January 5, 2009. By providing the search function, Google plans to generate revenue from both advertising and selling end-users the right to see the full text of the indexed works. Pricing will be determined every two to three years via agreement between both Google and the BRR. Prices must be set according to the terms of the agreement as well, or “to reach as many customers as possible.” Of the resulting revenue, Google will retain 37%, and remit the other 63% to the BRR.

The seven million works reportedly digitized by November 2008 include approximately one million already within the public domain, one million in copyright and in print, and roughly five million in copyright but out of print. Many of the current issues arise within the latter category as these books are ones that both the publisher and author have essentially abandoned, known as “orphan” books. Consider for a moment that if neither the author nor the publisher can be located, who receives the royalties?

Please, Sir… Can I have some more?

Google currently indexes a great majority of the information found on the Internet, but they clearly want more. However, there’s a slight problem–in order to determine whether a book has indeed been “orphaned,” the copyright holder must first be found. Due to the terms of the agreement, Google must make an effort the Court finds both “reasonable and practicable” to locate authors and publishers, particularly those of purported “orphan” works. The simple rationale is that if the works are in copyright, and Google is benefiting from the commercialization of the work, it’s only fair that royalties are paid accordingly. That becomes impossible, however, if no one has a clue who should actually get the check. Additionally, under the terms of the proposed agreement, unless a party specifically opts out of the creation of the digital doppelganger by May 5, 2009, they are automatically opting in. In the meantime, the “reasonable and practicable” effort of Google amounts to the considerable task of placing at least one legal notice in every country in the world. No, really.

A growing chorus, including Microsoft, fears that Google is obtaining monopolistic control over millions of orphaned works. With no one to pay royalties to, critics fear that through their “opt-in” program, Google is becoming the sole party able to profit from the prolific dissemination. While the great majority of these orphaned works are likely to be of little value individually, collectively they represent a “broad swath” of 20th century literature and scholarship, and as such will likely prove invaluable. Taking into account advances in on-demand publishing, and the potential of hand-held readers, Google is, in essence, creating a massive digital library of other people’s literary works from which only it can profit.

The Court is permitting objections to be filed through May 5, and plans a hearing for June 11. Of particular interest are the concerns raised by attorney Daniel Kornstein, representing New York Law School’s Institute for Information Law and Policy, who wrote a letter to the court asking permission to file an amicus curiae brief. Therein, Kornstein noted that the brief would address a number of concerns, in addition to requesting that the Court “solicit the opinions of the Anti-trust Division of the Department of Justice and the Federal Trade Commission.” While it is worth noting that Microsoft is funding New York Law School’s challenge here, it does not appear that their claims are without merit.

“Free to All.”

Those three words welcome all visitors from above the main entrance to the Boston Public Library. Article 1, Section 8 of the United States Constitution establishes within our government the right:

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.”

Authors and inventors are given exclusive right to their creations in limited circumstances and for limited times. Robert Darnton, the Carl H. Pforzheimer University Professor at Harvard, wrote an impassioned and oft-quoted piece related to this very topic. A pioneer in the field of “the history of the book,” his work is appropriately titled “Google & the Future of Books.” As Mr. Darnton noted therein in reference to the above quote, our founding fathers were careful to acknowledge an author’s rights to a fair return on his or her intellectual labors, but it was the public welfare that took precedence over individual profit.

If held subject to the terms of the agreement noted above, Google will provide a single terminal for every U.S. public library with a free “Institutional Subscription” to GBS databases. Therein, users can access all public domain works, as well as works that are in-copyright but not commercially available (i.e. the controversial “orphaned” works). And in response to this article’s opening salvo, regrettably you can’t really walk around with seven million books in your pocket; the Google Books iPhone and Android apps currently limit you to 1.5 million.

Though Google famously claims the business model “Do No Evil,” it remains to be seen whether, in this particular endeavor, it will hold true. Further, while Google Books might not yet equal the legend that is the Library of Alexandria, its founders Sergie and Larry have certainly broken ground on a new foundation. And finally, much to my relief, there’s almost no chance of Google’s library burning to the ground. Just watch out for viruses…

For every dreamer, every entrepreneur, every person with a wild idea that they want to share with the world, the internet has become their first choice and best opportunity.  Some of these dreamers have gone on to great success, such as Google, and others remain at the fringes but are grateful for the opportunity to be heard.  Since the early 1990s, a conflict has been brewing between proponents of equal access to the internet, led by Columbia Law professor Tim Wu and Stanford Law professor Lawrence Lessig, and major telecom companies who want a tiered pricing structure which may give preference to established business. This conflict was brewing in the internet underground for many years, but with President Obama’s appointment of Julius Genachowski (a staunch proponent of net neutrality) to head the FCC, the issues of internet ownership and regulation are becoming more prevalent.

There is very little legal precedent supporting either side of the argument and during this period of advanced globalization and social upheaval both sides of the debate are gearing up for a long-fought battle. Only one state has officially codified net neutrality and the FCC has only recently weighed in on the issue. Inherent to this argument is a discussion on whether the internet can be regulated at all-by telecom companies or the government. The battle over net neutrality raises other fundamental questions, such as: Has equal access to the internet become a fundamental right? Do telecom companies have a duty to provide equal access over an infrastructure massively invested in and from which a profit should be expected?

Net Neutrali-What?

The best way to conceptualize the issues surrounding net neutrality is to think of the internet as a major road in a large city. Currently, drivers on this road jockey for position on a fairly level playing field, but the roads are crowded.  City planners (internet service providers), concerned with the possibility of more congestion, and seeing the potential to raise money, are considering installing a toll on the road. The envisioned toll road forces drivers (content providers) to wait with all of the other vehicles on the road to pay the toll. Once the toll fee is coughed up, a driver passes through and shares the road with everybody else. If waiting in line won’t work, a driver can pay extra to purchase a “Fast Pass” that allows them to bypass the line, zip right through the toll, and then take advantage of special lanes to avoid congestion.

This is the type of access scheme that the major internet service providers want to establish. The idea is that as the number and quality of websites continue to grow, the amount of data being passed through to the end user is putting a strain on the delivery network. The telecom companies want to create a tiered system of content delivery and charge companies and website publishers a fee in return for special treatment, their own “Fast Pass,” to get their content to consumers in a preferred access channel.

Proponents of net neutrality argue that every website, regardless of content or ownership, should have equal treatment and equal access to the internet. This idea is based on the traditional free-market concept that without free access smaller companies or minority ideas can get squashed. Google is a major advocate for net neutrality and attributes a portion of their success as a company to their ability to launch and grow, unhindered by artificial fee structures. The inventor of the World Wide Web, (no, not Al Gore) Tim Berners-Lee also falls into this camp and believes that “the Internet thrives on lack of regulation. But some basic values have to be preserved…. Democracy depends on freedom of speech. Freedom of connection, with any application, to any party, is the fundamental social basis of the Internet, and, now, the society based on it.”

Opponents of net neutrality, including AT&T, Verizon, and Comcast, argue that from a legal perspective, antitrust laws are available to dissuade illegal discriminatory practices by the few large international providers of internet access. Opponents also argue that without charging on a tiered scale, telecom companies will have difficulty recouping costs invested in developing infrastructure essential to the internet’s survival. Furthermore, the quantity and density of information has become increasingly complex and has put a strain on the infrastructure. Isn’t it only fair to charge more or limit access to the individuals who are responsible for the data overload instead of passing that cost on to every consumer?

Status of the Debate

Very little legislation or case law speaks to either side of this debate. However, Comcast recently filed an appeal to an August 2008 FCC decision that banned bandwidth throttling and adopted the FCC’s Internet Policy Statement. Comcast had been surreptitiously limiting the bandwidth of heavy downloaders from full speeds down to “DSL levels” for 20 minutes at a time in an effort to manage bandwidth. If the FCC decision is sustained, it will set a precedent that limiting bandwidth goes against the principles of consumer access to the internet outlined in the Internet Policy Statement-for the first time limiting how far ISPs can go in managing their networks. The Internet Policy Statement includes four fundamental assertions. In order “[t]o encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to…”

1.      access the lawful Internet content of their choice;

2.      run applications and use services of their choice, subject to the needs of law enforcement;

3.      connect their choice of legal devices that do not harm the network; and

4.      competition among network providers, application and service providers, and content providers.

The most recent development in the battle over web neutrality has appeared in an unlikely place, the American Recovery and Reinvestment Plan of 2009, also known as “the stimulus package”. Buried within the bill, on pages 399-402, are provisions for grants to build out internet and wireless service in “unserved” areas of the country. Tied into these provisions are requirements that any newly developed networks operate on an “open access” basis. Coincidentally, “open access” is not defined in the bill, and since the role of the courts is to interpret legislation, any FCC definition of “open access” will be subject to the scrutiny of the courts.

Although net neutrality proponents were hoping for more, they should not be disappointed in this development. It may seem like a small step, but it is some of the first language in passed legislation directly referring to net neutrality. Further legislation is in the pipeline and the states are weighing in on the issue as well. As of this publishing, only New York has officially codified net neutrality in their telecommunications standards, but other states have been eagerly watching New York to see if these standards are challenged in the courts.

Opponents of net neutrality shouldn’t lose hope either: arguments based on traditional constitutional free speech issues may gain traction. The telecom and cable companies draw an analogy between the landmark Supreme Court case of Turner Broadcasting Systems Inc. v. FCC and the belief that government-imposed bandwidth-use criteria violates their First Amendment right to free speech. Under Turner, the Court held that “must carry” provisions requiring cable companies to give access to local broadcast stations compelled the companies to promote speech with which the companies disagreed.

Further requiring internet providers to offer an equal playing field to any web content provider bears a striking resemblance to requiring cable companies to allow public access channels on cable television. As in Turner, this argument would be subject to intermediate scrutiny, which requires “content neutral regulation [to] be sustained if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” This level of scrutiny puts the onus on the government entity trying to regulate the telecoms to prove there is an “important government interest” in requiring equal access to the internet, and the courts have traditionally leaned towards finding in favor of private individuals.

Where Do We Go From Here?

Six pieces of proposed net-neutrality legislation have been introduced to Congress since 2006, and all have died on the House floor. The most recent attempt at legislation promoting net neutrality is H.R. 5353, which would establish some broadband policy and direct the FCC to hold hearings to assess competition, consumer choice issues relating to broadband internet, and other issues. Should it pass, this legislation will be yet another small step towards net neutrality but likely it would have no drastic effect.

It is impossible to say with any accuracy how this debate will end. Antitrust litigation has been almost non-existent for the last ten years, and with the economy struggling Congress is unlikely to pass legislation that might hurt businesses. Then again, the proponents of net neutrality argue that the “problem” isn’t going away and, regardless of external pressures, something needs to be done. President Obama has expressed his support for the concept of net neutrality but, with so many other pressing issues, net neutrality may end up simmering on the back burner until it finally boils over.  The end of this story is not written and it is yet to be seen who will win out: the dreamers on the edge, or the conventions of modern business practice.  Neither party is ready to give up the fight for their beliefs, and only time will tell how access to the internet will evolve.

It should come as no surprise that political figures can get as excited about sports as the rest of us, college football in particular. With strong regional and state affiliations, enthusiastic alumni, and big-time media alliances, college football games are one of the things that make college so much fun. Barack Obama is a fan; so was Richard Nixon. In fact, Richard Nixon even declared that the winner of the 1969 Texas-Arkansas game would be the national champion. This prompted coach Joe Paterno of undefeated Penn State, to ask, “How could [he] know so much about college football in 1969 and so little about Watergate in 1973?” Lately, though, college football has been making some political figures hopping mad, and unlike the beloved JoePa, it has less to do with the right to call one’s team champion than with enormous piles of money. Utah Attorney General Mark Shurtleff is investigating whether to seek an anti-trust suit against the BCS, the system by which the major bowls and the national championship are divvied up, for unfair restriction on competition.

The key to this possible suit may lie in a 1984 Supreme Court decision, NCAA v. Board of Regents of the University of Oklahoma, and its holding that sporting events are a type of market and therefore subject to anti-trust litigation.

The Pre-Season: Where This Mess Started

The BCS, or Bowl Championship Series, is a complicated legal arrangement between the NCAA, major bowl organizers, college football conferences, major media outlets, and individual universities. There are a number of excellent sources which explain how exactly the BCS works, but for our purposes, the pertinent facts are these: the BCS system determines which teams can earn a spot in one of the most prestigious postseason bowl games: the Fiesta Bowl, the Sugar Bowl, the Orange Bowl, and the Rose Bowl. These premier bowl games offer a school’s conference a multi-million dollar paycheck (split by all the conference teams), and the school itself an unparalleled stage on which to show off.

However, not every team has an equal shot at getting into one of the lucrative bowl games. Certain conferences are guaranteed a spot in one of the premier bowls. These “BCS Conferences” will always send their champion to a premier bowl, regardless of whether a team from a non-BCS conference (the “mid-majors”) has a better record. That means, of course, that these conferences are currently assured a $17 million dollar payout, plus all the other perks of a major bowl appearance. The only way a mid-major team can earn a spot is through a complicated set of circumstances, and even when they meet these conditions, only one mid-major is guaranteed a spot.

At the end of the 2008 regular season, two teams from mid-major conferences, the Utah Utes and the Boise State Broncos, were undefeated. Under the BCS formula, only the higher ranked team, Utah, won a spot in a major bowl. Boise State was passed over for a premier bowl berth in favor of seven BCS conference teams, none of which were undefeated and one of which had a record of 9-4.

Commercial Break: Anti-trust And Anti-competition

To fully understand the BCS controversity, we must go back to the earliest days of market regulation. During the 19th century, one corporation was barred by law from owning the stock of another corporation. Society held a deep distrust of the impersonal, immortal, capital-rich corporate structure. Along came a lawyer working for John Rockefeller’s Standard Oil, who devised an elegant solution: the corporate shareholders could transfer their stock to a trust, and the trust could then operate control over the corporation, or buy stock in a new corporation, for the commercial benefit of the shareholders. Through artful manipulation of the fiction of separate control, directors and managers could circumvent the law. Thus, more economic power was consolidated into ever fewer hands, leading many critics to complain of price fixing, collusion, and a profound lack of competition. Standard Oil became the paradigmatic example of a monopolistic trust, which led to some unfavorable depictions.

In response, Senator John Sherman rammed through Congress a bill that would grant the Federal government, the authority to “bust-up” trusts and combinations that restrained trade, and allowed private individuals to bring actions against the alleged wrongdoers directly. By the early 20th century, the Sherman Anti-Trust act had been used to break up such commercial giants as American Tobacco, Northern Securities, and finally, Standard Oil itself. Though these days corporations can own each others’ stock, the principle of anti-trust regulation remains the same: to prevent unfair collusion and business practices that limit competition and establish monopolistic, consumer-unfriendly dynamics.

Since that time, anti-trust law and college football haven’t intersected too often. The most prominent exception is NCAA v. Board of Regents of the University of Oklahoma. The NCAA employed a television broadcasting contract scheme with the stated purpose “to reduce, insofar as possible, the adverse effects of live television upon football game attendance and, in turn, upon the athletic and education programs dependent upon that football attendance….” Authorities from a number of universities alleged that the NCAA was acting like a classic cartel, “hav[ing] sought and achieved a price for their product which is, in most instances, artificially high.” These universities alleged that the NCAA imposed production limits on its members, and maintained mechanisms for punishing members who sought to stray from these production quotas.

Justice John Paul Steven, writing for the majority, found against the NCAA. The NCAA policy was an unreasonable restraint of trade, and included factors the Court had previously found impermissible, including  horizontal restraints on competition, artificial limits on production, and bars against individual NCAA members from negotiating for better prices.

The Court noted that some activities (like college sports) can only be conducted jointly, and the joint nature of the activity does not make it per se invalid. In many instances it will actually increase consumer choice and prove to be pro-competitive. However, the particular features of the NCAA television plan served to promote anti-competitive effects. “[I]f member institutions were free to sell television rights, many more games would be shown on television, and [...] the NCAA’s output restriction has the effect of raising the price the networks pay for television rights.”

Referee’s Call: Anti-trust Laws And The BCS

This year’s Sugar Bowl matchup was one to remember, where the Utah Utes from the mid-major Mountain West Conference overpowered a heavily favored opponent 31-17, becoming the only team in Division I-A/FBS college football to end the season undefeated. Still, the BCS Championship game would nevertheless award the title to a team from a BCS conference – one that was not undefeated.

Utah’s Attorney General Mark Shurtleff had enough. Almost immediately, he began to investigate possible anti-trust violations. Says Shurtleff, “It’s not about bragging rights. It’s a multimillion dollar – hundreds of millions – business where the BCS schools get richer and non-BCS get poorer.” Backing him up, the Utah Legislature soon called for replacing the BCS system. “You know, when this comes down to it, it’s all about money,” said Senate Majority Whip Scott Jenkins. “The fact is the BCS alliance controls large dollars, and to not be able to be in that group is not right.”

As the Utah AG blog puts it, “If a system unreasonably restrains the opportunity of our educational institutions to freely and fairly compete to be designated as a national college football champion–a designation desired by football fans throughout the nation–such a system could unfairly deprive our institutions and my state of these important and significant revenues.”

Heading Into Overtime

Besides the fact that there are more pressing issues to occupy our time, Shurtleff certainly has an uphill battle. The BCS has recently inked a $125 million dollar deal to extend to 2014, and the BCS has some influential backers, including major television broadcasters, the bowl organizers, and most especially the presidents of the various schools that make up the system. College presidents are adamantly against the most popular alternative, a multi-team playoff.

However, if the Utah AG’s office seeks to pursue an anti-trust suit, they could not ask for a better template than NCAA v. Board of Regents. The Supreme Court has already recognized that college football can be considered a market worthy of consumer protection, and there is no question that the BCS system spreads its benefits unequally. The real question will become whether it can be shown that the BCS system, like the NCAA television plan before it, was improperly restricting competition. This might be a hard sell, since even those who despise the BCS concede that it has done a great deal to make college football more popular (and, therefore, lucrative) than ever before.

In fact, however flawed the current system is, the most likely solution to Utah’s problems is both simple and, perhaps, insidious: its conference is seeking its own automatic BCS berth. Maybe the “rich will get richer,” but this way Utah will be among the rich.

The internet is the Wild West of free-flowing information-few rules apply and everyone is trying to stake their claim. To many, the internet is the quintessence of free speech and the First Amendment. Others worry that this free expression-shielded by user names and faceless aliases-allows otherwise respectful people to unabashedly malign their colleagues. This mix of free speech and anonymity is potentially explosive, as has recently been the case with several message-board sites.

Several years ago, two female Yale Law students named Brittan Heller and Heide Iravani found shocking posts on AutoAdmit.com, the self-proclaimed “most prestigious law-school discussion board in the world.”  The postings alleged that the women had sexually transmitted diseases and had used bribery and sex to advance in law school. These allegations were damaging to these women, who understood that many legal employers use Google as a means of performing a background check. After being rejected from all positions for which she applied, one of the women asked AutoAdmit.com to take down the posts. When they repeatedly refused, the two women teamed up and sought legal redress. In August 2007, Heller and Iravani brought suit against dozens of their online tormenters in a New Haven federal court. The women sought monetary damages, but ultimately the suit was an effort to clear their names and protect their legal careers. Yet they also sent a message to others: you will be held accountable for what you write online.

The women brought suit under the claim of libel. Libel, a subcategory of defamation, is a derogatory statement made in a printed or fixed medium, such as a magazine or newspaper. The elements of a libel cause of action include: a false and defamatory statement concerning another; the unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement); and damage to the plaintiff. Material that is factually accurate is not libel. Also, context matters: courts have held that given the nature of online forums, online comments cannot be taken as seriously as those made in real life or in the media. Because of these requirements, bringing a claim for internet libel is a challenge.

The Kingdom of the Passive Aggressive

AutoAdmit.com was created as an alternative to the Princeton Review’s website for candidates seeking admission to law school. While the Princeton Review monitored and removed problematic content from their site, AutoAdmit.com’s founder, Jarret Cohen, and his assistant Anthony Ciolli advertised that, “no thread, ever, would get vaporized by the thought police.”  True to their word, Mr. Cohen and his assistants rarely removed threads, even when expressly asked to do so.

Websites such as AutoAdmit.com or Abovethelaw.com provide a forum for comments on essentially any topic imaginable. Hidden behind the shield of a screen name, users of these sites are emboldened to post without fear of backlash or accountability. Other websites actually encourage libelous and defamatory content from users. Proponents of free speech on the internet argue that the internet is a unique medium-the modern town square for the free exchange of ideas.

Regardless of their form, what all of these sites have in common is that they are merely intermediaries; they do not generate the content that they broadcast. Many of them do not monitor posts and even fewer are likely to take down libelous content on their own. For sites that will remove content when asked, the libeled party often learns about the material after it is too late and the comments have already created harm.

Like My Congressman Always Said: If You Don’t Have Anything Nice to Say…

Who should be responsible for the content displayed on a website: the intermediaries or the posters themselves?  And what should be the limits of online anonymity?  The courts first posed this question in the context of internet providers and their message boards in the 1990s, while the internet was still in a state of infancy. The courts were divided on the issue, and the government resolved the split by creating the Communications Decency Act of 1996 (”CDA”), which amended the Telecommunications Act. This act allowed censorship of material broadcast on the internet by prohibiting patently offensive material and criminalizing the act of “knowingly” transmitting such information. While the CDA was enacted to address the transmission of pornography, the entire internet came within its purview.

The CDA was highly criticized by many journalists, First Amendment supporters, and internet users. Within a year of its inception in 1996, the United Supreme Court struck down two provisions of the CDA as a violation of the First Amendment in Reno v. ACLU. The justices found that sections 223(a) and 223(d) were overly broad and lacked the precision demanded by the First Amendment, which requires that any restriction on free speech be narrowly tailored. Post Reno, websites such as AutoAdmit.com and TheDirty.com were able to flourish without fear of censorship, and thus, without fear of liability.

TheDirty.com, possibly one of the more egregious examples of an internet libel site, encourages its users to post pictures of ex-girlfriends or boyfriends, “skanks,” celebrity gossip, and accompanying scathing commentary. The site does not remove insulting content, nor does it have to. Similarly, Google-unquestionably the internet’s premiere search engine-proclaims that “Google does not remove allegedly defamatory material from our search results. You will need to work directly with the webmaster of the page in question.”  Yet even Google has its limits, and after repeatedly refusing to remove the Autoadmit.com’s posts, in March 2007 it informed the webmasters of AutoAdmit.com that they had violated their terms by posting advertising for their site along with adult content.

Don’t worry, an expensive and difficult lawsuit is all it takes to get past this.

The remedy for people that have been harmed by online libel is unclear, as the harm is often not neatly defined. While some courts might find that some postings constitute intentional infliction of emotional distress, many other posts, however tormenting, might not be viewed as extreme enough to outweigh their First Amendment protection.

Further, as was the case with Heller and Iravani, the injured party may not even know the identity of the poster. Heller and Iravani had to subpoena AutoAdmit.com for a release of this information. With concerns over confidentiality, the defendants moved to quash the subpoenas. The court outlined several factors for determining how to rule on this issue: (1) whether the plaintiff undertook efforts to notify the anonymous posters that they are the subject of the subpoena; (2) whether the exact “problematic” statements would constitute actionable speech; (3) the specificity of the discovery request and “whether there is an alternative means of obtaining the information called for in the subpoena;” (4) whether there is a “central need for the subpoenaed information to advance the plaintiffs’ claims;” (5) whether the subpoenaed party had an expectation of privacy when the online material was posted; and (6) whether the plaintiffs have made an “adequate showing” as to their claims. After weighing these considerations, the court denied the defendants motion to quash.

Online companies such as ReputationDefender.com and ReputationProfessor.net offer services to those who have been libeled online. These sites will track down postings, demand that the content be removed, and pursue legal recourse if necessary. Nevertheless, libel lawsuits are difficult to win, as the injured party must show that the allegations caused damages. Because online slander has turned into a bit of an epidemic, some states such as North Carolina have proposed bills that would make libel unlawful and punishable when communicated through an electronic medium. Other proposed legislation in New Jersey similarly protects libeled individuals and criminalizes specific salacious postings.

Without a doubt, statements posted online can damage careers, reputations, and a person’s sense of security. For those who feel injured by online libel, these proposed bills provide a possible means of protection that the court system has not provided. Yet for many, these restrictions on internet content violate the very spirit of the world wide web. Unlike print media, the internet is relatively nascent… it may take a while for a happy medium of sorts to be established. After all, the Wild West was not tamed overnight.