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.

Child pornography convicts are widely considered the lowliest offenders, even among criminals; only the truly depraved would indulge in such a vice. This opinion stems in large part from the innocence and vulnerability of the victims of child porn.

But what if the victims are also the defendants?

A recent Pennsylvania case is turning heads for that very reason. Six teenagers at a Greensburg, Pa., high school were facing felony charges pertaining to manufacturing, disseminating, or possessing child pornography. Three of the defendants are girls, aged 14 to 15, who took semi-nude pictures of themselves and sent them via cell phone to their male classmates.

School authorities discovered the offense when they seized a cell phone from a male student last October after he was discovered using the phone in violation of school policy. The authorities discovered a nude self-portrait taken by one of the juvenile female defendants on the phone. A subsequent investigation turned up other phones and other photographs, which led to the formal charges.

The act of sending nude pictures of one’s self electronically has become common enough to even warrant its own nickname: “sexting.”

Prosecuting Sexting

A study conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy found that about 20 percent of teenagers have posted or sent nude pictures of themselves on their mobile phones or their computers. Yet despite the belief that sexting is common, or perhaps because of it, some prosecutors are willing to press charges:

• In Fort Wayne, Indiana, a teenage boy is facing felony obscenity charges for allegedly sending a photo of his genitals to female classmates.

• In Texas, a 13-year-old was arrested on child pornography after receiving a nude photo of a fellow student on his cell phone.

• In Ohio, a 19-year-old cheerleading coach was arrested for taking a topless picture of herself and a 15-year-old girl.

In each of the three cases listed above, there is a victim who is not the defendant: the girl who received the Indiana boy’s photos, the student who was the subject of picture found on the Texas 13-year-old’s phone, and the 15-year-old that posed with the cheerleading coach in the Ohio case. However, the Pennsylvania case seems to demonstrate a new trend toward pushing prosecutorial boundaries to include subjects of child pornography whose victimization is a result of their own doing.

Is it right to charge the victims in a child pornography case, given that the protection of such victims is one of the main purposes of child pornography statutes? For example, a Wisconsin high school student is currently facing multiple felony charges after posing as a girl on Facebook and tricking at least 31 male classmates into sending him naked pictures of themselves. Should all 31 victimized students be facing child pornography charges as well?

Defense attorneys think not. “It’s clearly overkill,” said Philadelphia criminal defense attorney Patrick Artur, in response to the charging of the Pennsylvania teens. Artur noted that the convictions may mean the teens have to register as sex offenders. Westmoreland County, Pa., Chief Public Defender Dante Bertani called the charges “horrendous.”

Even former prosecutors think these recent arrests stretch the law: “The child porn laws were really designed for a situation where an adult abuses a minor by forcing that minor…psychologically as well as physically…into taking these pictures,” said Mark Rasch, a former federal cybercrime prosecutor.

Victims, defendants, or both: Statutory analysis

Last year a 17-year-old was charged with a count of child pornography after posting derogatory commentary and naked pictures of his 16-year-old ex-girlfriend on his MySpace page. Although it is unclear how the pictures came into possession of the vengeful boyfriend, the ex-girlfriend in that case was obviously a victim. However, following the reasoning in Pennsylvania, if she had previously consented to having the pictures taken and sent to her boyfriend via the internet or cell phone, she could have been charged with child pornography.

To determine whether these prosecutions are fair, it is necessary to examine why we have child pornography laws. Are we attempting to legislate morality, or are we trying to protect underage victims? If the latter, is it wrong to protect victims from their own behavior?  Proponents of charging children for these acts might argue suicide is also a crime, and is enforced primarily to protect the victim from his or her own actions. Yet the punishment for suicide is usually a brief detention in order to prevent the victim from harming himself or herself, while the punishment in child pornography cases is far more retributive, involving the potential for years in prison and registration as a sex offender.

There are several federal statutes criminalizing child pornography, and  every state has enacted statutes outlawing the sexual exploitation of children. In addition, many defendants are charged with related crimes-such as obscenity, as in the Indiana case above.

Although the Pennsylvania teens were charged under state statutes, 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual Exploitation of Children, is on point and important to this discussion. That statute criminalizes the conduct of knowingly transporting or shipping (including electronically) any visual depiction of a minor engaging in sexually explicit conduct. Offenders of this statute face a minimum five years in prison.

The above statute inspires the question of what is considered sexually explicit conduct? Are passive, naked pictures enough to be considered sexually explicit, or must there be some sort of sexual activity taking place? If naked pictures alone are enough, how much nudity is considered sexually explicit?

According to a Federal District Court in Pennsylvania, passive naked pictures are enough. In U.S. v. McCormick, the court held that a photograph which depicted a female simply exhibiting her pubic area depicted sexually explicit conduct for purposes of the statute.

The teens in the current Pennsylvania case reportedly took semi-nude pictures of themselves. If those shots are considered sexually explicit, there is nothing in the federal statute that would have precluded a federal charge, and the statutory minimum of five years’ imprisonment. (The defendants, however, were charged under state laws, not federal laws.) Surely, following case law, those shots would be considered sexually explicit: According to Greensburg Police Capt. George Seranko, the pictures “weren’t just breasts; they showed female anatomy.”

Why prosecute?

The United States Department of Justice created the Child Exploitation and Obscenity Section, which is devoted to combating child pornography. According to the USDOJ, aggressive enforcement led to the near-eradication of child pornography. However, the emergence of the internet and cell phones have provided easy access to offenders, resulting in a new proliferation of the crime. According to the USDOJ website, the CEOS works with law enforcement agencies “with the goal of rescuing the victims and preventing continued abuse of these children.”

But are they abused victims when they’re the perpetrators? Perhaps criminal charges are appropriate in many of these cases: once the information is sent electronically, it may be distributed and downloaded anywhere in the world. What may have originally been intended as an intimate email could result in the objectification of young women or men before a global audience. In that way, the defendant is made victim by his or her own act of taking and distributing the pictures.

For now, prosecutors seem more interested in decrying the behavior than pursuing retribution. Newark, Ohio authorities recently filed and then dropped child pornography charges against a 15-year-old after she sent photos of herself to her classmates over her cell phone. In return for the charges being dropped, the girl agreed to a curfew, no cell phone use, and no unsupervised internet use for several months.

Seranko said the Greensburg, Pa., students were charged specifically to send a strong message to other students contemplating sexting. To date, five of the six students charged have accepted plea deals that reduce their sentences to lesser misdemeanor charges, though the mother of one of the boys charged with possession of child pornography is considering fighting all charges.

“Hopefully we’ll get the message out to these kids,” an Allen County, Indiana prosecutor said in response to the Fort Wayne teen’s arrest. “We don’t want to throw these kids in jail, but we want them to think.”

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The Legality will resume publication on Thursday.

Nobody wants to start their day by facing down a couple of knife-wielding thugs in the kitchen, but eventually it happens to everyone. On January 7, 2009 it was Michael Arcay’s turn. When Daniel Bartlett and Justin Campbell broke through his front door that morning, Arcay was waiting for them. When the two intruders threatened him, Arcay called his roommate, who broke up the unexpected gathering by shooting Bartlett and Campbell with a shotgun. Bartlett staggered out to the front yard and died from his wounds. Campbell fled on foot, but later turned himself in to the authorities.

Even though Arcay’s (still anonymous) roommate admitted killing one man and injuring another, the Amarillo police allowed him to remain free. Isn’t shooting people against the law? Most of the time, the answer would be “yes,” but since this happened in Texas, it might not be so simple.

The Stars At Night, Are Big And Bright

In Texas, as in several other states, people have an expanded right to use deadly force to defend themselves in their own homes, thanks to a law commonly known as the “Castle Doctrine.” According to the National Rifle Association, at least 23 states have enacted some form of Castle Doctrine. The Texas statue is a good example: (1) it removes the duty to retreat when someone is threatened inside their own home, vehicle, or place of work; and (2) it provides immunity from civil liability and criminal prosecution to people whose actions fit within its boundaries. For the purpose of this article, the important conditions are (emphasis added):

(a) . . . a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:  (A) unlawfully and with force entered . . . the actor’s occupied habitation, vehicle, or place of business or employment;

[ . . . . ]

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity [....]

The first relevant element of the statute is the word “presumed.” In a legal context, presumptions have special significance–a presumption is like a gimmie from the legislature or the court. Simply put, the opposing side is required to do all the work to overcome it. In most home-invasion shootings, overcoming the presumption that the shooter acted reasonably is a daunting task. Unbiased witnesses are hard to come by in these situations, since the only people present generally are the homeowners, their friends or family, and the intruder (if they manage to survive the encounter).

Due to this high hurdle, the presumption that deadly force was reasonable is usually the whole enchilada in Castle Doctrine cases. When the Castle Doctrine conditions are met, the law orders the police, the district attorney, the grand jury, and everyone else to assume that the shooter’s use of deadly force was justified. In states with the Castle Doctrine, establishing a criminal prosecution or a civil wrongful-death case can be nearly impossible if the would-be defendant has acted in accordance with the statute.

The second element is that the Castle Doctrine grants a shooter the presumption of reasonableness only in specific locations- at home, at work, and in their vehicle. The motivation for the law is that people should be able to feel safe in these places, and should be able to defend themselves and their families if the need arises. In these specific locations, the law prioritizes the right to self-defense over any interests of an intruder.

The third important part of the code is the “and” at the end of subsection (2) above. The implication of a trailing “and” is that all of the conditions in the list must be satisfied. Which leads to the final part: “otherwise engaged in criminal activity.” The Texas statute suggests that anything more illicit than a traffic violation should be enough to trigger the limitation in part (3).

Better Homes and Basement Gardens

An unorthodox choice of interior landscaping might mean that Mr. Arcay and his roommate could have a bit of trouble pulling up the drawbridge. The intruders were reportedly trying to steal marijuana that Arcay had been growing in his house:

Arcay and the roommate are now wanted by police for possession of 25 to 35 marijuana plants.

“The suspects targeted this house and the occupants repeatedly to steal marijuana they knew was in the house,” [Police Lieutenant] Trupe said. “We still feel, though, whatever was going on in that house, the occupants were justified in the force they used.”

A discussion of the propriety of marijuana criminalization laws is beyond the scope of this article (interested readers should peruse Gonzales v. Raich, the 2005 Supreme Court ruling that upheld federal law regulating marijuana production). Despite the best efforts of netizens at Change.gov, it is still a federal crime to grow marijuana in the United States–and unfortunately for Mr. Arcay and his roommate, possession of marijuana is a felony in the state of Texas (no matter how you spell it):

Sec. 481.121.  OFFENSE: POSSESSION OF MARIHUANA. (a)  … a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana. (b) An offense under Subsection (a) is: …. a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds.

In general, judges don’t like to reward bad behavior. A criminal defendant generally can’t use a defense if the actions that need defending occurred during a different illegal act. Think: the law won’t allow you to claim self-defense if you shoot the guard who tries to stop you from robbing a bank. But can Mr. Arcay’s roommate claim self-defense as a justification for shooting intruders who were trying to steal their weed?

Applying The Law To The Facts

As noted above, the Texas version of the Castle Doctrine has a limitation that might operate to exclude Mr. Arcay’s roommate from its protection. Remember, the Texas statute tells the DA and the grand jury to presume that a shooter’s decision to use deadly force against a home intruder was justified and reasonable, unless the shooter was concurrently engaged in other criminal activity. The statute doesn’t make an exception for non-violent crimes, or for chronic or ongoing illegality.

The limitation is significant because the shooter was living in a house where Mr. Arcay had been illegally growing marijuana… which is illegal.  In the words of the statute, Arcay and his roommate were both “engaged in [the] criminal activity” of possessing marijuana as long as it was within their control. Possession of marijuana in this quantity is a felony, enough to trigger Part (a)(3) of the Texas statute and eliminate the presumption.

But that conclusion forces us to wonder whether the limitation itself is reasonable. There is every indication that Arcay and his roommate had good reason to forcefully defend themselves: they were being threatened with violence by armed men who had entered their home by force. This is the sort of self-defense that the Castle Doctrine is meant to promote. It would seem unjust that a person protecting their own life inside their own home might be charged with a criminal homicide, even though the crime that invoked the limitation was unrelated to the act of pulling the trigger.

Another Twist and What’s Next?

One last wrinkle: it’s not clear that any marijuana was actually in Arcay’s house on January 7 when the shooting occurred.  Police found and confiscated the plants  while investigating a previous burglary at Arcay’s house on December 13.  The police may have inadvertently done the roommate a big favor when they removed the plants. Without the drugs, this shooting is a perfect example of the sort of aggressive self-defense that the Castle Doctrine is meant to encourage. Without additional knowledge about the marijuana possession, Amarillo’s police did just what the law orders them to do:assume that the shooting was justified self-defense and allow the shooter to go free.

If police found marijuana at the house on the day of the shooting, Arcay and his roommate  should not have the benefit of the protections that the Castle Doctrine gives to law-abiding Texas residents. Without the presumption that deadly force was justified, the shooter may still be able to prove that he pulled the trigger in self-defense, but the ultimate decision should be left to a jury.

People love sex. From Shakespeare to Spielberg, sex has always found its place into literature, art, and history. And with its obvious popularity, it is not surprising that people will pay for it. Because some are willing to accept payment for sex, prostitution is, and has always been, a fact of human life. In fact, prostitution is commonly referred to as the world’s oldest profession, despite the dubious nature of such a claim.It is also true that Americans have a strange love/hate relationship with prostitution. The extreme attention paid to high profile news items such as former New York Governor Elliot Spitzer’s high-priced call girl scandal, the college student who auctioned off her virginity for $3.7 million, and Hugh Grant’s run in with the Hollywood police demonstrates just how strong the American fixation with prostitution really is. We are all too willing to heap scorn upon those who engage in such behavior, but we simply cannot turn away.

Despite its “popularity,” prostitution is almost totally banned in this country. Except for a few counties in Nevada, and debatably Rhode Island, prostitution is still officially illegal in the United States, with different jurisdictions imposing varying penalties.

Given its controversial standing in American culture, where does the fixation come from and what is the future of prostitution?

Sex as a Natural Phenomenon

Sexual reproduction is the method that most animals utilize to pass on their genes to the next generation. In very generic terms, evolutionary biology informs us that females choose mates on the basis of their ability to provide sufficient sperm, useful resources, parental care, or good genes. In the biological world, mating is often an elaborate game involving different levels of quid pro quo exchanges of resources for sex.  For example, male Bowerbirds spend significant energy to build elaborate nests in order to attract females and lavish gifts of food on their would-be paramours. In certain species of insects, such as praying mantises, the nuptial gift in exchange for copulation may be the body of the male insect itself. In an almost direct analogue to humans, apparently penguins engage in prostitution when resources are scarce. The message is clear: sexual opportunities cost resources in the natural world, and the males of the animal kingdom are all too willing to pay!

Similar sexual selection principles may factor in human mate selection. In many ways, relationships between people of the opposite sex mirror the resource-exchange arrangement in the natural world. However, prostitution is usually considered to be a different type of relationship than the traditionally assumed (though not empirically supported) monogamous human relationship. The intended result of a commercial sexual relationship is usually not a child, long-term attachment, future reciprocity, or love. Rather, the goal is simply the exchange of sexual pleasure for money or other resources. This extra-marital sexual arrangement has historically seen periods of tolerance, regulation, and outright bans in different regions of the world.

A (Very) Brief Moral and Legal History

The history of prostitution is varied, and there is no consistent treatment of the commercial arrangement throughout the world. For example, the Code of Hammurabi, in the 18^th Century BCE, protected the inheritance rights of prostitutes. Legal prostitution of men, women, and children was widespread in ancient Greece, complete with a class structure.  Roman culture largely continued the Greek attitude toward prostitution, even expanding the class categories with more specialization of prostitution.

Despite religious concerns, Middle Age Europe accepted prostitution as a reality of urban life. It was widely tolerated and regulated as a necessary “lesser evil” to protect respectable women from seduction and rape. In the Middle East, the attitude toward prostitution was far different, with the Prophet Mohammed having declared in the 7^th century that prostitution was a violation of Islamic Law. However, this decree did not prohibit the practice of muta’a (or Nikah mut‘ah)–essentially a contract for a “pleasure marriage” that can last anywhere from an hour to ten years–which is still practiced in certain areas of the Islamic world, including post-Sadaam Iraq. This Shiite-sanctioned arrangement is a cause of serious disagreement in the Muslim world, as Sunnis do not recognize the relationship as legal under Islamic law.

Up until the second decade of the twentieth century, prostitution was widely legal within the United States. However, during the prohibition era, in addition to the Constitutional ban on alcohol, most states outlawed prostitution. These legal developments were largely influenced by the Woman’s Christian Temperance Union. Though prohibition of alcohol was eventually abandoned, prostitution has not regained its legal status. Almost a century later, voters continue to flirt with the issue.  Last fall, San Francisco citizens voted against a measure that would have legalized prostitution in the city.

Despite the current ban on prostitution within the United States, an intense debate rages over whether our society should reshape the regulatory framework.

The Arguments

The debate over the proper regulation of prostitution is loaded with a wide range of arguments. The most cited argument against legalizing prostitution is that the act is morally wrong, and to sanction it would be rewarding immoral behavior. Though simple on its face, the power of natural moral disgust to shape people’s opinions is well documented in psychology and studies on the effect of morality on politics. The argument of morality will not be further discussed here, but is worth mentioning because of its widespread use.

Proponents of legalizing prostitution continually make the claim that it is a victimless crime. As the logic goes, a consensual arrangement where one party receives money and the other receives services in exchange does no harm. In fact, it is a legitimate commercial relationship. Therefore, the choice to enter into prostitution is actually an act of self-determination; an empowering position where a woman becomes a player in the market. Opponents attack the premise that the arrangement is consensual, arguing that women who enter prostitution usually are poor and have no other alternatives or have been forced into the business by a boyfriend, parent, or pimp. Further, women that choose prostitution almost always do it because of economic reasons and that “this is free choice [no] more than the cattle in the squeeze chute choose to go to their death.”  Being the victim of undesirable circumstances where choice is between unhealthy alternatives is not choice at all.

Prostitutes are at an obviously high risk to suffer health problems from sexually transmitted infections. Because of the nature of sex acts, and the frequency at which prostitutes partake in them, the spread of disease is rapid. Proponents of legalization argue that strict regulation of prostitution can reduce the spread of disease, as a bureaucratic system would reduce the need to engage in unsafe acts to avoid detection by police. Regulation would also empower women to control their work environment and personal safety with the increased practice of safe sex. Opponents contend that certain regulatory measures are unenforceable; i.e. women could not be forced to require a condom and health checkups could be circumvented. In addition, regulating only workers would not prevent the spread of disease from unchecked clientele. In other words, some think regulation would not solve any problems relating to the spread of disease. Since legal prostitution is so rare, it’s hard to know which of these arguments has merit.

Opponents of legalizing prostitution also argue that prostitutes are constantly exposed to rape, sexual assault, and other violent acts. In 1999, Sweden took this approach further and declared prostitution as a form of violence against women and granted general amnesty to prostitutes. Under Swedish law, selling sex is not a crime; buying it is. This has the effect of framing prostitution as a male crime of exploitation against women and children. Also, the mostly female prostitutes are considered victims and are provided access to sizable social service funds to help them transition into new jobs if they choose such a course of action. The Swedish approach appears to be the most novel regulation of prostitution attempted thus far.

Into the Future

The future of prostitution in the United States is more uncertain than Ashley Dupre’s singing career. Like with every controversial issue, there is unlikely to be a solution that satisfies all parties involved. However, a good faith effort to understand the situation, its history, and the arguments for and against regulation might take the debate out of the emotional realm and toward a rational solution that will better the lives of those who are truly exploited.

Craig Buford’s problems began with a simple dispute between teenagers. When Buford went to pick up his girlfriend for lunch, a group of teenagers he’d gambled with approached and demanded their money back. Buford refused, and when he started to leave, the disgruntled gamblers shot him in the back. After driving himself to the hospital, Buford underwent extensive surgery for his injuries, and was in the hospital for several months. Though he seemed to fully recover, Buford died on December 29, 2008. The medical examiner ruled Buford’s death a homicide: multiple organ failure caused by complications from the shooting.

What’s the catch? The shooting happened thirty-five years before he died. Will anyone be held legally responsible for his death after all these years? With this question we’ll begin our look into two aspects of the laws governing murder that are under fire today–the statute of limitations for murder and the felony murder rule.

How Long Is Too Long For A Murder Prosecution?

Can a person be charged for murder thirty-five years later? Surprisingly, yes. Section 16-5-401 of the Colorado Revised Statutes (Buford was shot in Denver) states that there is no statute of limitations on murder, meaning that the Denver District Attorney’s Office can still file charges. Will they? That’s up to them. If the office is able to find evidence and witnesses to support the case, they might.

Perhaps the better question isn’t if the DA can charge Buford’s shooter with murder, but if they should at this point. Carolyn Buford, Craig Buford’s widow, doesn’t seem to think so. According to her, Buford never had any serious health problems and “had gotten over it.” While Buford may have lived a normal life in spite of his shooting, what about a victim who can’t?

In 2001, David H. Gunby of Forth Worth Texas died–thirty-five years after being shot. Unlike Buford, Gunby was wounded in his only good kidney. For the remainder of his life he suffered through constant pain, repeated kidney problems, a rejected transplant, and dialysis three times a week. Like Colorado, Texas has no statute of limitations for murder. Does the fact that modern medicine kept Gunby alive for thirty-five years negate the shooter’s actions? Many, if not most people would likely say no. But for the shooters’ actions, both Buford and Gunby would be alive today. And yet, like Carolyn Buford, there are those who prefer to “leave it in the past.”

But I Didn’t Kill Him, Officer!

Folks get heated about the statute of limitations issue - particularly the criminal defense bar. Even more hotly debated is the question of whether a person should be charged with murder if they are guilty of a lesser crime, but someone also died during the commission of that crime.  For example, John and Jane go to rob a bank.  During the course of the robbery, Jane shoots and kills a security guard.  Even though John wasn’t the one to pull the trigger, he can be charged with murder (rather than manslaughter, which carries a lesser punishment) under what is called the felony murder rule. Though felony murder laws vary from state to state, the idea is that any death occurring during the commission (or attempt to commit) certain felonies is considered first-degree murder.  The most controversial part of the felony murder rule is that it holds every participant in the felony equally responsible for the murder– regardless of their role in it.

To take a closer look at the felony murder rule and why people have strong feelings on both sides of the issue, consider a California case involving Brandon Hein. In 1995, Hein and his friends were looking for some marijuana. They went to the home of Mike McLoren, another high school teenager and a drug dealer. Hein and three of his friends got in a fistfight with McLoren and his friend, Jimmy Farris. The fight ended when Hein’s friend Jason Holland used his pocketknife to stab and kill Farris. Though Hein was unaware Holland even had a knife, he was nevertheless charged with murder. The jury in the Hein case determined that because Hein and his friends had taken a wallet earlier in the day, they had planned to rob McLoren. Thus, the felony murder rule would apply because Holland stabbed McLoren and Farris in the midst of a robbery.

Why should a kid who didn’t stab anyone, or even have a knife, be punished the same as the one who did: with a murder conviction and life without parole? Los Angeles Deputy District Attorney Mike Latin believes Hein should. According to Latin, one of the prosecutors of the case, Holland wouldn’t “have been there if he didn’t have that bravado that the accompaniment” of Hein and friends gave him. Thus, although Hein didn’t pull out the knife, if he and his other friends had not been there, Holland would not have killed Farris. Hein was instrumental in Farris’s death.

The Felony Murder Rule Under Attack

The United States’ felony murder rule actually dates back to British common law. Other countries have done away with felony murder laws, claiming that they only wish to hold “people responsible for their own acts and not the acts of others.” Even England did away with felony murder in 1957, partly because of the public’s objection to harsh punishments for people who did not mean to kill. In the U.S., opponents of felony murder laws claim that they hold people responsible for consequences that are unforeseeable or extremely unlikely.

To demonstrate the sometimes-tenuous relationship between the person and the crime, take a look at Ryan Holle. He was a mile and a half away from the crime that triggered his murder conviction. Holle leant a friend his car. The friend used it to drive to the home of a marijuana dealer and steal a safe. The burglar became a murderer when he used a shotgun to beat the drug dealer’s daughter to death. Holle’s statements seemed to indicate he knew about the planned burglary.

So why was Holle convicted of murder? As David Rimmer, a prosecutor of the case noted, “No car, no murder.” The felony murder rule is, in Holle’s case, holding everyone involved in the incident responsible for each other’s actions “if they are all participating in the same crime.”  This is precisely why proponents of felony murder statutes support such laws: to deter crime and hold people accountable for their actions.

Whether a state has no statute of limitations for murder or applies the felony murder rule, at their heart these laws appear to be about accountability. Buford died from his gunshot wound, Gunby suffered and died because of the shooting. Farris was stabbed because Hein and his friends got into a fight, and a drug dealer’s daughter was murdered because the burglar had a car. Yet something about punishing a person for his actions from thirty-five years ago, or for charging a person the same as if he had been the one to stab a victim, makes many people uncomfortable. Whether or not the law will change, or, in the case of felony murder, be abolished as it was in England, remains to be seen. In the meantime, it’s better to be safe than sorry when a friend asks to borrow your car in the middle of the night.