Monday, June 27, 2005

Is Betamax Buried?

The Supreme Court has ruled. Internet file-sharing companies may be sued if they encourage illegal activity. Necessarily, such a finding of encouragement is a question of fact for a jury to decide.

"'We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties,' Justice David H. Souter wrote for the court."

It is a great victory for Hollywood, but it's not a total victory. The question now becomes whether or not the RIAA et. al., can drive all of the P2P providers out of business. There are packages that exist which are extremely hard to police (ICQ and mIRC come to mind). And those packages are completely neutral as to advertising and/or content. It makes me wonder where this will all go.

As soon as I've read the opinion, I'll have more comment.


From the opinion:

"Evidence of active steps . . . taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use, show an affirmative intent that the product be used to infringe, and a showing that infringement was encouraged overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use..."

Soooo. Even though there was similar evidence in the Betamax case (the Court even discusses Sony's trumpeting the virtues of building "your own library of your favorite shows") SCOTUS declines to draw the parallels.

They have dealt a blow to innovation this day.

Thanks to Ernest Miller for links to the bench opinion.


I forgot to answer my title question: Is Betamax Buried?

Answer: No, but the hole's been dug, it's teetering on the edge, and lots of corporations are set for a big push.

Thursday, June 23, 2005

Home is Where the Home Depot Is

Well, folks, the Supreme Court announced today that there's nothing stopping your local government from taking your property and shuffling it off to a private developer for the purpose of bolstering the economy and increasing tax revenues.

I haven't seen the opinion yet, since the slip opinion hasn't been posted and won't until later in the day.

Let me just say that I'm disgusted by this ruling. The takings clause has traditionally been interpreted to mean that private property may only be "taken" for public use. Five members of our Supreme Court have apparently determined that, even if the "use" is private, it's still okay as long as there's some demonstrable benefit to the community.

Ooooh how I wish I were on the City Council of the town in which John Paul Stevens lives. I'd "pave paradise, and put up a parking lot," quicker than you can say, "Get off the Court you old fascist!"

More later.


I've read the opinion, and here's my take.

"Promoting economic development is a traditional and long accepted function of government."

--John Paul Stevens

Essentially, what they're saying is that because the City of New London "carefully considered" its economic development plan, and because we don't quite know yet which corporate giants will be benefitting from it, they can take whatever they want to as long as it fits into that plan.

They continue the idiotic assumption that "public use" means "public purpose," which is contrary to the ideals upon which our conception of private property is based.

Accordingly, they reject the argument that the government must show a "reasonable certainty that the expected public benefits will actually accrue." Meaning, if your city says that they want to take your property for "economic development," they may do so without even being required to show a likelihood that a developer will even be interested in the property.

"We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." Actually, their opinion gives government the moon, the stars, and the kitchen sink, unless they themselves choose to limit that right.

Start lobbying your state legislatures, people, 'cause that's the only way to stop this wholesale theft and corporate welfare.

From the dissent:

"Today the court abandons this long-held, basic limitation on government power [that government may not take property from A to give it to B]. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process."

"To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property -- and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment."

" [W]ere the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff."

-- Justice O'Connor

What else can be said? Nobody's property is safe anymore.


"This is not a prank."

I certainly hope that the above-linked individual didn't get his idea from me. What am I saying? Of course I hope he read it here first. Still, I must admit that my comment about Justice Stevens' house was tongue-in-cheek.

The reason being that, in the Kelo opinion, there is plenty of discussion of the illegality of the use of the eminent domain power (enough "of"'s already!), when it's being used vindictively against a specific person or group of people. Such as, a case of the City of Weare, New Hampshire attempting to oust a Supreme Court Justice from his home.

Further, the opinion discusses the comparable illegality involved when the private party to be benefited by the taking is already known. Such as, a case where a private developer actively petitions the Council for the use of eminent domain.

Both of those things above apply to Freestar Media, L.L.C.'s attempt.

That's why, in my original post here, I stated my wish that I were a member of the City Council of Stevens' hometown. In that case, I could "carefully develop" a plan for "economic development" that just happened to include Stevens' house, and the Supreme Court wouldn't be able to second-guess me.

A brilliant plan, and a fond wish, but then some yahoo from New Hampshire had to go and ruin it.

Wednesday, June 15, 2005


I just can't help myself. I've got to say something.

Michael Jackson has been found "not guilty" of all charges. Okay.

But comparing the verdict to the collapse of the Berlin Wall? Or Nelson Mandela (which seems to be a common comparison)?

Come on, people! I know Letterman's been having a field day with referring to Jackson as "creepy." Heck, who are we to argue with that? The guy's obviously loonier than a run-over dog.

But you know what scares me?

It's not the jury, who I think made the only decision they could make for our system of justice to retain any integrity. It's not the prosecutors, who had little to work with, and an apparent inability to argue anything remotely resembling good law. It's not the defense attorneys, either, who, after all, were only doing their job.

It's those fans.

Those unbelievable, mouth-breathing, died-in-the-wool followers of the Cult of Jackson. The comparisons made on his website are only the tip of the iceberg. These people seem like they'd gladly drink the kool-aid of Michael Jackson's insanity, if only he'd allow them to gaze for a moment upon his image.

It will forever puzzlie me how a celebrity can command such blind devotion from his/her fans. I mean, even the jurors said that they were convinced he'd molested children before, just not this particular kid (which is why I said they made the only decision they could make).

So the question is, what's it going to take to turn these people off? What's Jackson going to have to do in order for these people to realize that he's drawn them into the World of Creep so deeply that they, probably literally, stink from it?

I hope they wake up soon.


Monday, June 06, 2005

Supreme Court says, "No Weed for You!"

Today, SCOTUS released an opinion stating that it's A-ok for federal authorities to prosecute people who smoke weed for medicinal purposes under the advice of a physician.

The interesting thing is that the 6-3 decision was written by Stevens, with O'Connor, Rehnquist and Thomas dissenting. They argue that states should be able to make their own rules on such matters, since they do not implicate interstate commerce in any way.

Who'da thunk it?

Now, I'm as against drug-use as the next conservative thug, but come on, people! I know all the arguments against giving certain people "a pass" on drug laws, but let's think about this seriously for a minute...

Since I agree with Sandy, Billy, and Clarence that the feds should keep their noses out of the states' legitimate business, I obviously wouldn't begrudge these people being able to take advantage of their states' political processes. Which is what they're doing!!!

Hello? Mr. Justice Stevens?!!? Anyone home?

Stevens gives us the tired-old, "If you don't like the law, yada yada yada, you should work within the law to change it, yada yada yada."

But they do like the law, and that's why they argued against you changing it, Johnny.

Why can't the Supreme Court get their black-robed federal elitism out of my state's political process?

One thing about this decision is going to be interesting, though. It certainly shows the liberals on the court to be against states' rights at all costs, especially since the states with medicinal marijuana statutes are traditionally liberal bastions. It's going to be great watching how this is spun by the left.

Unless they just ignore it.