Law

Hacker, 2013

For Allen Ginsberg and Aaron Swartz

I saw the best minds of my generation destroyed by madness.
The angry fix they sought was far different from that of Ginsberg's friends.
These hipsters were typing something other than 'starry dynamo' into the search engines.
They were Google mapping the seats of power at midday, not the negro streets at dawn.
They were fighting a in new revolution, a revolution that would take their life and liberty.

A junkie with a knife can be scary. He'll take the cash in your pockets and rush off for his fix,
leaving you shaken as you walk home. But a hacker with a mission, now that is dangerous.
He will shake the very means of production and distribution, the economy you depend upon
to get that cash into your pockets.

It's all well and good when they take down an Arab dictator.
It's tolerable when they change the news media and political process, as long as it can be co-opted by the press and politicians.

But when they start threatening the profitability of the legal and academic presses in the greatest democracy of the world, they must be hounded, driven underground, labeled hacker and felon, until they kill themselves.

Aaron Swartz, Carmen Ortiz, Lanny Breuer and the Digital Revolution

Yesterday, as I wrote about institutionalized racism in America, I asked the question, "Is there something we should be learning from Sandy Hook or the death of Aaron Swartz?" Perhaps part of the answer is that we are in the midst of a digital revolution, and sometimes heroes die during revolutions.

Typically, people talk about the digital revolution the way they talk about the industrial revolution, moving from one mode of production and distribution to another. Yet with any revolution, there is upheaval. There are winners and there are losers. Are we seeking to make the digital revolution as equitable as possible? What happens to the losers? How do they fight to avoid losing any privileges they had prior to the revolution?

I think these are all important questions to ask as we think about Aaron Swartz, for it seems that much of what he fought for was to make the digital revolution as equitable as possible. How do we make information as accessible to all people as possible?

If we look at PACER or JSTOR, we see similar patterns. There were means of production and distribution that made sense in the time of the printing press. Much of the information in court papers and academic journals was produced using taxpayer money and should be available to everyone for little more than the cost of production. Prior to the digital revolution, there was one cost structure for producing and distribution information in systems like PACER or via JSTOR. As the cost of production and distribution of electronic reports plummeted, some people were benefiting from the cost differences and others were being left out.

The prosecution of Aaron Swartz was an effort by the losers in the digital revolution to cling to power. The idea of Aaron Swartz as the epitome of the digital native, confronting U.S. District Attorney Carmen Ortiz, an up and coming political figure defending the status quo as the epitome of the digital immigrant is a compelling narrative.

And, it has played out in the digital political battlegrounds. The online petition site, We The People, set up by the Obama Administration, has a petition calling for the removal of United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz. In the first three days it received over thirty thousand signatures, more than the threshold of twenty-five thousand signatures necessary for the administration to consider it.

The battle continues on, online. This afternoon, the Boston Globe ran the article, Reports: U.S. Attorney Carmen Ortiz’s husband attacks Swartz family on Twitter.

The article shows images of tweets, alleged to be from the husband of U.S. Attorney Carmen Ortiz, where he goes after some of the thought leaders in the digital revolution such as Mitch Kapor and Dan Gillmor. Yes, the battle lines have been drawn and President Obama is caught right in the middle.

Meanwhile, another blog post says, OK, But Can We Also Fire Lanny Breuer?. Perhaps U.S. Attorney Ortiz was just an ambitious foot soldier caught in the cross fire. Perhaps the General that needs to be taken out is the Department of Justice's Criminal Division head, Lanny Breuer.

We are seeing Congressional approval rates plummet, the approval rating of the Supreme Court slip, and one has to wonder what happens to the approval ratings of the Justice Department as the Swartz affair just adds more damage to a tarnished agency.

Yes, we are in the midst of a digital revolution. It is about changes in the modes of production and distribution, but it is shaking up power structures and real people, good people, are getting hurt in the cross fire.

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RIP Aaron

"Some days it seemed like all there was was gray". With those words, Aaron Swartz started off a blog post about his relationship with Quinn Norton. This morning, I started off my blog post about driving to a funeral with, "It was a grey January morning as I climbed into my black 1997 Nissan Altima and headed north".

It seems appropriate that my RSS feed is full of posts about Aaron Swartz who help with the creation of RSS. The posts are by some of the bloggers I respect most, David Weinberger, Ethan Zuckerman, and Larry Lessig to name a few.

I don't have stories of meeting Aaron when he was 14 or of him staying at my house at some point. I'm not sure if I ever met him, but given our mutual friends and mutual interests, I suspect we probably met somewhere along the way.

Yet Aaron's death hits me hard. Perhaps it is because of the recent death of my mother and of my cousin. Perhaps it is because now, more than ever, we need people like Aaron fighting for open access to information on the internet, in the courts and in our government.

There is not much more to say than I am so sad.

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Due Process and Alleged Copyright Infringement

Recently, there have been several articles about a suit brought by Capitol Records against Vimeo. Billboard’s article, Big Record Labels Push Copyright Claims Against Vimeo talks about a recent decision in the Second Circuit

that an ISP had to have actual knowledge of specific infringements through takedown notices or something else before being required to remove copyright material expeditiously

MediaPost’s article, Vimeo Argues Safe Harbor Protection In Copyright Case goes to talk about whether the alleged infringements are in fact infringements or are “fair use”.

I think this brings up an important point. How does an ISP have “actual knowledge of specific infringements”? Is an allegation of infringement by copyright holder in a takedown notice sufficient? Should the creator of the derivative work be afforded due process in determining whether or not their work is in fact an infringement or is fair use?

I commented on the MediaPost article,

I applaud Vimeo for supporting due process and I hope an important precedent can be established in this case. As I understand the safe harbor law, when a company knows about an infringement, they need to take down the offending content. Unfortunately, many companies take down content, not when they know that it is infringing, but simply when someone alleges that it is infringing. By respecting due process, web platforms should wait to take down alleged infringing content until after it has been determined in the courts to in fact be infringing. Whether or not lip dubbing is fair use, Vimeo cannot know that the alleged infringing content is in fact infringing content until a judge rules on it. If all web platforms would be so responsible and wait until infringements are ruled upon in the courts, it would significantly deter the reckless allegations of many copyright holders.

Thoughts?

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Judicial Good Behavior

Today, I read the latest court order in Planned Parenthood of Hidalgo County Texas v. Suehs about whether the State of Texas can cut off funding to the organization that provides basic preventive health care to nearly half of the participants in the states Women’s Health Program.

This is just the latest in the ongoing court battles about health care in America. Opponents of the Affordable Care Act, and especially, opponents of abortion are seeking to block health care reform through State Legislatures and the judicial system. In the Planned Parenthood case in Texas, a District Judge order a stay of implementation of a new Texas law that would defund Planned Parenthood. A judge on the Fifth Circuit, overrode that stay, allowing the law to go into effect. Then, a three judge panel, including that judge, overrode the judge's override.

So, who is this judge? Fifth Circuit Judge Jerry Smith. Does the name sound familiar? Perhaps it should. Judge Smith was appointed to the Fifth Circuit in 1987 by President Ronald Reagan. He attended Yale for both his undergraduate and his law degrees. In 1996, he wrote the majority opinion in a case in which the Fifth Circuit struck down the use of affirmative action in admissions to the University of Texas Law School. This decision was later overturned by the Supreme Court.

Yet recently, he has been making more news. Last month, he was the judge that ordered the Obama Administration to explain its position on judicial activism. It appears as if Judge Smith is in favor of judicial activism when it comes to overturning liberal laws, but in favor of judicial restraint when it comes to defending conservative laws. That is, he does not seem to possess a fair and even handed judicial temperament.

There is a long tradition of not criticizing judges, but with the Citizens' United decision by the Supreme Court, that has all changed. The Pew Research Center recently issued a report, Supreme Court Favorability Reaches New Low. The report notes that:

The court receives relatively low favorable ratings from Republicans, Democrats and independents alike.

While there have always been bad apples wherever you look, the U.S. Supreme Court has usually stayed above reproach. Yes, there was the Dred Scott decision a century and a half ago, but that is often viewed as an exception.

After the Citizens' United decision, Keith Olbermann compared Dred Scott to Citizens' United, and by extension, Chief Justice John Roberts to Chief Justice Roger Taney. We shall yet see if Citizens' United will be a greater threat to the United States as we know it than the Civil War was, or if Chief Justice Roberts shall suffer a similar fate as Chief Justice Taney. However, the current trends do not look good for Citizens' United or the esteem that our courts are held in.

Judges like Fifth Circuit Judge Jerry Smith only compound the problem of Americans' faith in the judicial system and endanger their own legacy. Wikipedia, as well as NNDB do not list Judge Smith as having been a judge, either at the district level, nor on a state court prior to becoming an Appellate Judge. No, Judge Smith's qualifications appear to come from having served on executive committee of the Texas Republican Party for over a decade.

NNDB lists his wife as Mary Jane Blackburn and Fundrace lists Mary Jane B. Smith of Houston Texas as having contributed $866 to Ted Cruz's U.S. Senate campaign back in 2009. Cruz has been endorsed by the Club for Growth, the Tea Party Express and lists repealing 'Obamacare' as one of his top priorities.

The Constitution says that judges "shall hold their Offices during good Behavior". Traditionally, "good behavior" has been determined by Congress for Federal Judges. However, given the low esteem that both Congress and the Supreme Court are held in, is it time to reconsider what "good behavior" is?

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