Law

Yesterday Senator Olympia Snowe of Maine became the fourth Republican senator to announce that she would vote in favor of Elena Kagan’s confirmation to the Court.  Brief coverage of Snowe’s announcement is available at the Wall Street Journal’s Washington Wire blog, the Ninth Justice, the Boston Globe, and CQ Politics.  The editorial board of the [...]

The constitutional fight over Arizona’s new alien control law appeared Wednesday to be headed toward higher courts after a federal judge in that state blocked four significant parts of the law from going into effect as scheduled early Thursday.  Enforcement of a number of other sections was allowed — partly because the U.S. government did [...]

A book released last week, In Brown’s Wake, examines the legacies of Brown v. Board of Education in perhaps unexpected places: in struggles for the integration of non-racial identity groups, in social science, and abroad.  The author, Harvard Law School Dean Martha Minow, kindly agreed to an interview on the book for SCOTUSblog. The transcript of the [...]

Through Saturday, August 7, we are continuing to accept applications for both blog internships and the job opening for a special assistant to Tom Goldstein/Howe & Russell office manager/SCOTUSblog staff member.   See instructions and requirements for applying here (for the internships) and here (for the paid position). To answer a frequently asked question, the [...]

Yesterday Senate Democrats were unable to break a Republican filibuster on the DISCLOSE Act, a legislative response to the Court’s recent decision in Citizens United v. Federal Election Commission that would require more disclosure in campaign spending. The bill, passed by the House last month, is now unlikely to clear the Senate in time to [...]

Let's catch up quickly in the Psystar/Apple situation, so we don't miss any of the action. When I read the new DMCA exemptions EFF won, I immediately started to think about Psystar, so I wanted to see what's new. Maybe you did too. So here's the latest I could find. The appeal is going forward. Presumably the next step in the appeal will be oral argument, although I can't swear to it, since Psystar filed its brief under seal with the Ninth Circuit Court of Appeals back in May, so we can't read it, and that's when they would have made the request or not. I can't believe the entire document needed to be sealed, but that is what happened. Perhaps they'd prefer we not get a chance to analyze it? Apple has now filed its answering brief [PDF], along with a request [PDF] that the court take judicial notice of the Florida litigation, and Psystar has just filed its reply brief [PDF], and these documents are not sealed, so we finally get to find out what it's all about. What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware. Wait. Isn't that kind of what TurboHercules is whining about too? Here's what TurboHercules told us it wants: "We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice - including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules." Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can. You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the SCO v. IBM case.

Setting the stage for a new challenge to the U.S. government’s use of a prison in Afghanistan to hold detainees who had been captured outside that country, the D.C. Circuit Court has told lawyers for three prisoners there that they may offer new evidence to a federal judge in a renewed test of their captivity.  [...]

Yesterday and today, a number of commentators responded to Adam Liptak’s weekend piece on the Roberts Court (which Erin covered in yesterday’s round-up.)  ACSBlog recaps the piece, while Ed Whelan of the NRO’s Bench Memos blog criticizes Liptak’s article, which he characterizes as “likely to mislead the reader.”  At Cato @ Liberty, Ilya Shapiro also analyzes Liptak’s article – [...]

In the latest news from SCO's slow boat to absolutely nowhere, Novell has filed its opposition to SCO's motion to stay taxation of costs. SCO filed this exact motion [PDF] in 2008, after it lost the first trial, Novell points out, and Novell opposed that motion too, and the motion was denied [PDF] by this very same court, and here they are with the same type of motion and even using the same stupid case that didn't work for them the last time. Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed. When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?

The Supreme Court on Monday released the first of its summer orders lists, made up of routine actions, including denials of stays or bail and denials of rehearing petitions.  It is expected there will be two more such lists during the Court’s summer recess.  The new Term begins Oct. 4.

This post is a round-up of weekend news and commentary about the Court.  A round-up of coverage from today will appear tomorrow morning. Adam Liptak has two new features on the Court in yesterday’s New York Times.  In the longer one, he reports on a recent analysis by political scientists who conduct empirical research on [...]

There are new anticircumvention rules from the US Copyright Office. Several are very good changes, such as allowing you to bypass a technological protection measure to use snips from a movie or video if your purpose is educational or for comment or criticism, and there's more flexibility for phone apps if interoperability is the goal:"When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses," the Copyright Office stated. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability," commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry. Keep in mind that copyright infringement is separate from DMCA analysis, so you still have to be careful about staying within the fair use boundaries when making a documentary. But at least now you can legally access. And while you can jailbreak your iPhone with respect to the DMCA, there's remains the issue of breaking the warranty. Also, while it's not criminal, there is still a EULA to consider. But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's "Watch Instantly" service, you have to buy a PC or an Apple computer or a DVD player. I wonder why they don't see that this situation is identical to the jailbreaking a smartphone, or should be? What's the difference? Linux users want to view movies too, and all they want is interoperability so they can. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time. I'll show you the relevant language in the document Determination of the Librarian of Congress and Text of the Regulation [PDF].

A full-time position is coming available beginning in August: Firm Manager of Howe & Russell / Special Assistant to Tom Goldstein / Staff Member of SCOTUSblog.com. To apply, please send a cover letter, résumé, transcript (either official or unofficial), and unedited writing sample (of approximately five pages) to achristensen@howerussell.com and aschlossman@akingump.com as soon as possible. We will accept [...]

The Court is in recess for the summer, and is expected to return on October 4 for the first oral argument of October Term 2010. The reply brief is due Wednesday, July 28 in Los Angeles County v. Humphries (09-350).  The respondents’ briefs are due Friday, July 30 in both Arizona Christian School Tuition Organization v. [...]

The SCO Group has filed their docketing statement [PDF] in their appeal from the jury's decision and Judge Ted Stewart's rulings and findings in SCO v. Novell. And thus we find out what the appeal is going to be about. The PDF is a honking 323 pages, mostly exhibits. What does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in ruling that Novell had the right to waive. After SCO lost the jury trial, it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now. In short, they want to win. They thought the jury "just got it wrong", they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.

Seeking the same favorable constitutional treatment that corporations and labor unions now have when they try to influence federal elections, five  individuals who have formed a group known as “SpeechNow” on Friday asked the Supreme Court to spell out the full implications of its controversial ruling in January in the Citizens United case.   The new petition in SpeechNow.org [...]

We have all the transcripts from the SCO v. Novell trial now as text, a version for each day with line numbers, so as to match the PDFs. I'll be writing about them one by one, pointing out interesting things, with versions without the line numbers, for readability as well. I've done that for day 1 and day 2, and I'll keep working through them all, all 15 days. So you can pick and choose which way you prefer to read the transcripts. I don't want you to have to wait, though, so here's a calendar you can use right now, to find whatever day of the trial that interests you the most, the text versions with line numbers: March 2010 M Tu W Th F 08 09 10 11 12 15 16 17 18 19 22 23 24 25 26 You'll find a copy of this calendar on each page, so you can navigate any way you like. Enjoy!

I have the corrected transcript for day 2 [PDF] of the SCO v. Novell trial as text. This was the very first actual day of trial, the jury having been chosen and sworn in the day before. So today is Tuesday, March 9, 2010, and we have opening arguments from each of the parties and then SCO begins to present its case. You'll find the rest of the day here [PDF; text] and then here [PDF; text]. For SCO's side, Stuart Singer begins the opening argument, and then Brent Hatch finishes up the last part of it. For Novell, it's Sterling Brennan all the way. Then SCO puts on its first witness on the stand, Robert Frankenberg, formerly CEO at Novell, who is examined by SCO lawyer Stuart Singer of Boies Schiller, then on cross for Novell by Sterling Brennan, then Singer on redirect and Brennan on recross. Here's Groklaw's coverage of that day.

In a new plea that U.S. law should not reach overseas, British American Tobacco Co. on Friday asked the Supreme Court to order a second look by lower courts at the federal anti-racketeering law’s scope. That law was used in the federal government’s massive lawsuit against nearly the entire tobacco industry, including the British firm [...]

Today, the blogosphere and news media continued to report on the anticipated outcome of the upcoming Senate floor vote on Elena Kagan’s confirmation. The New York Times’ Caucus blog reports that Indiana Senator Richard Lugar has just become the second Republican to publicly back Kagan, and the Boston Globe also has coverage of Senator Lugar’s [...]