I can’t say I’m too disappointed that a House vote on the Holt bill has been pushed back once again. Apparently the proximate cause was two Democrats on the rules committee—which normally votes along party lines—bucking the leadership and threatening to vote against bringing the legislation to the floor unless further changes were made. It’s becoming increasingly clear that new rules won’t be ready in time for 2008, which means our focus should be on getting the rules right in 2010 and 2012. And although the Holt bill is a step in the right direction, it certainly leaves substantial room for improvement. Hence, I found the comments of the dissident committee members reassuring:
Slaughter quickly indicated she didn’t like the bill, and raised questions about the quality of the new paper ballot machines.
“I am very much concerned that we are passing this law that you have to have it by a certain date,” Slaughter said during the hearing, “when experts tell us there is not a machine that will do this right.”
In an interview, Slaughter said New York election authorities would have trouble getting equipment to replace their lever-pull machines in time for the deadline mandated in the bill.
She wasn’t the only one to express concerns. Rep. Alcee Hastings, a Democrat from Florida, said the bill didn’t go far enough.
“I need to be persuaded. Otherwise I would do something that I have not done since I have been here, and that is vote against a proposed rule,” Hastings said, according to a transcript. “If we ain’t gonna fix it all, then we oughtn’t fix something that ain’t a fix and is not an assurance that we have done the best we can. This isn’t good enough for me.”
These are precisely the questions House members ought to be asking: are these deadlines feasible, and will this legislation fix the problem or will it require the next Congress to come back and deal with the problem yet again? The obvious compromise is to completely drop the new requirements for 2008 in exchange for more robust requirements (e.g. source code disclosure and no thermal printers) in 2010 and beyond. I don’t know if that’s where Slaughter and Hastings are headed, but at least they’re asking some good questions.
I’m excited to report that Techdirt has asked me to be an occasional contributor to their blog as part of the Techdirt Insight Community. In my first contribution, I express skepticism about Japan’s plan to create a Google-killer using government subsidies. I assume that most TLF readers are already reading Techdirt, but in case you’re not, now’s the time to add it to your feed reader!
Brian Beutler has a generally good summary of the coming FISA debate. Unfortunately, it reflects the defensive crouch the Democrats continue to take on this issue, and the great degree of lattitude lefty commentators are giving the House leadership for its craven capitulation to the Bush administration. The article starts out thus:
House Democrats went limping into August recess, having watched a president with historically low public support nonetheless cram his surveillance agenda past them.
I’m no parliamentarian, but my understanding of House rules is that the House leadership can never have anything “crammed past them”—certainly not in 48 hours. What happened, rather, is that Nancy Pelosi was faced with a choice between a bad FISA bill or no FISA bill, and made the political calculation that the bad FISA bill would hurt Democrats less.
The story continues in the same vein. For example:
But Judiciary Committee aides say meeting such an ambitious timeline may be easier ordered than done. They are not at all certain they can move legislation that would survive a presidential veto before the February 2008 sunset.
Obviously any FISA legislation reining in the executive branch is likely to be vetoed, because President Bush has staked his administration on expanding executive power. Which is why Democrats in Congress should be crafting a bill that, if vetoed, will put them in a good position to shift the blame to the president for vetoing the legislation. President Bush is not a nice guy who will sign FISA legislation that strikes a reasonable balance between executive power and civil liberties. He’s a ruthless partisan who will wield his veto pen any time he thinks it will either expand executive power or put Democrats at a political disadvantage.
One of the things I think the conservative movement understands better than the liberals is that politicians will only toe the line if they’re subjected to withering criticism when they fall short. If an activist base cuts its politicians slack when they screw up, as Brian is cutting Pelosi slack here, the politicians won’t reciprocate by trying harder next time. They’ll conclude they can take their base for granted and shift even further to the center. Which is why I think it’s a mistake for left-of-center writers to act as though this was a freight train that the House leadership just couldn’t have stopped (and by implication, can’t stop this fall). It’s not true, but if it’s repeated often enough as if it were, it’s likely to be a self-fulfilling prophesy. It would be far more helpful for left-of-center journalists to write articles pointing out that Pelosi sold out her principles for the sake of short-term political gain, or depicting her as a hapless Charlie Brown being suckered once again by George Bush’s Lucy.
Don’t miss the comments to this post, wherein Joe Gratz, who unlike me is an actual lawyer, sets me straight on the Golan decision and the relationship between copyright and the First Amendment. It’s awesome having smart and knowledgeable readers.
Here’s another thing I disagreed with in this week’s podcast, from Solveig:
I think fair use often gets used very broadly as a generic term for any kind of limitation or exception to copyright law. But properly understood, the argument that fair use can evolve away and needs to change over time is really a pretty narrow one. It doesn’t mean that there shouldn’t be outer limits to copyright or that there can’t be exceptions to copyright. It just means that they don’t necessarily need to take the form of fair use. For example, there’s a hugely important outer limit that you can’t copyright ideas or facts. That’s not fair use, that’s just: copyright law doesn’t go there. Transformative use, another one. That’s not fair use, that’s transformative use.
Is that sentence right? My understanding is that the concept of “transformative use” comes from the 1994 Campbell decision, which concerned the fair use of parody. In particular, Justice Souter wrote that whether or not a work was transformative lay at the heart of determining “the purpose and character of the use,” the first and most important of the four fair use factors. For example, Judge Nelson quotes the Campbell decision in holding that displaying thumbnails in a search engine is a transformative use, and therefore fair.
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Regular TLF readers won’t be shocked to learn that I had some strong disagreements with the opinions expressed in this week’s podcast: (Update: This quote is Bill Rosenblatt of DRM Watch)
The problem with fair use is that you need a court to decide it. The whole idea of these digital content technologies is to make things happen immediately. Whenever you are in a situation where you have to revert to the legal system to figure out if you can or cannot do something, you lose. Because the legal system is very slow-moving and clunky and inefficient mechanism compared to technology. So everyone loves the fact that digital media can be distributed instantaneously and very very cheaply. But when there are deliberations about what’s kosher and not kosher, you’re often in the realm of deciding on fair use… You’re talking about what’s been called cut and paste culture, basically, which is a very controversial topic. You know, I’m not going to venture an opinion on whether that’s good or bad. I have no opinion about that. But there’s no reason why fair use has to be the mechanism that decides that or not. My feeling, which is an unconventional opinion and probably one that no lawyer would ever share is that fair use, in order to be made to work at all, needs to be expressed in ways that technology can accommodate.
The hidden premise here, which I think should be rejected outright, is the notion that our digital devices should, by default, disallow any uses of content that haven’t been explicitly approved beforehand by the copyright holder or a court. If that’s our operating assumption, then it’s absolutely true that fair use becomes cumbersome because it’s obviously not feasible to go to court every time I want to take a 5-second snippet from an iTunes song.
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Clay Shirky is one of my favorite commentators about the economic and social changes that the Internet is bringing to the media world. Last year I linked to his fantastic essays on the folly of micropayments. Last month, Shirky wrote this excellent post about what’s wrong with the Nick Carr brand of Internet old-fogeyism:
Prior to unlimited perfect copyability, media was defined by profound physical and economic constraints, and now it’s not. Fewer constraints and better matching of supply and demand are good for business, because business is not concerned with historical continuity. Fewer constraints and better matching of supply and demand are bad for current culture, because culture continually mistakes current exigencies for eternal verities.
This isn’t just Carr of course. As people come to realize that freedom destroys old forms just as surely as it creates new ones, the lament for the long-lost present is going up everywhere. As another example, Sven Birkerts, the literary critic, has a post in the Boston Globe, Lost in the blogosphere, that is almost indescribably self-involved. His two complaints are that newspapers are reducing the space allotted to literary criticism, and too many people on the Web are writing about books. In other words, literary criticism, as practiced during Birkerts’ lifetime, was just right, and having either fewer or more writers are both lamentable situations.
In order that the “Life was better when I was younger” flavor of his complaint not become too obvious, Birkerts frames the changing landscape not as a personal annoyance but as A Threat To Culture Itself. As he puts it “…what we have been calling “culture” at least since the Enlightenment — is the emergent maturity that constrains unbounded freedom in the interest of mattering.”
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I think the Golan decision is a good thing from a policy perspective, given how hard the copyright cartel has worked to keep anything from ever falling into the public domain. However, I share Joe’s puzzlement about exactly how the First Amendment is relevant:
The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.
It seems to me that if the courts find a particular grant of copyright exceeds Congress’s power under the Progress Clause, that, in and of itself, should be sufficient to declare the law in question unconstitutional. Otherwise, why would the framers have gone to the trouble of specifying the precise limits of Congress’s powers to grant patents and copyrights?
Perhaps the legal theory here is that Congress has the power to do whatever it likes unless it runs afoul of a right enumerated in the Bill of Rights, but that, if a Congressional action falls within the scope of the Progress Clause, then it’s constitutional even if it runs afoul of the Bill of Rights. That seems bass-ackwards to me, but of course, I was equally perplexed when the Supreme Court decided that growing pot in your backyard for personal use is “interstate commerce.”
For reasons I don’t really understand, Apple has slashed its high-end iPhone from $599 to $399. You know what that means? If you move fast you can get the old, discontinued, 4 GB model for $299. That sound you hear is Jerry groaning.
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