.: I Respectfully Dissent :.

This blog is being left as is for archive purposes; new entries will not appear here. Please visit Stubborn Facts, the group blog to which I will be contributing from now on.

Federalist Society Student Symposium

OCILLA, ISPs and Contributory Infringement

This is technically the last post of 2006, rather than the first of 2007, delayed while I got my citations in order.

I wrote an internal memo dissecting a sabre-rattling email from a copyright holder warning that ISPs (like the one I work) for may be subject to legal and equitable liabilities if we don't immediately put the beat down on users that are doing file sharing. We don't like file sharers either, but this email seemed a little too ornery, so I did some research to see what the courts have had to say about contributory infringement, ISPs, and the Title II of DMCA. Since it proved interesting and valuable information, and since there are plenty of other service providers out there who may be nervous about this stuff, I have re-written it in somewhat broader terms for a wider readership.

Notice about email

Please use my gmail account if you want to contact me in the next week or so. Some blithering idiot is using my domain name as a return address for spam e-mail, and since there's nothing I can do to stop him from doing so, I can at least prevent all the bounce messages clogging my inbox. Apropos, I've removed the MX records for the domain, so anything you send to addresses @ simondodd dot org or dot net will bounce until further notice.

Seventh Circuit Review

There is a new publication out of Chicago-Kent College, the Seventh Circuit Review. For those of us lucky enough to call the Midwest home, this is manna from heaven. You can browse at the foregoing link, or download the complete first issue at this link.

Hat tip: Steve at Eminent Domain.

Ma Bell is back on the road

DoJ's antitrust division has given the green light to AT&T to acquire Bell South.

Now, let me see if I get this right. In 1984, Ma Bell was broken up into seven Baby Bells, Ameritech, Bell Atlantic, BellSouth, NYNEX, Pacific Telesis, Southwestern Bell and US West, because it couldn't survive antitrust scrutiny.

Southwestern Bell changed its name to SBC in 1995, acquired fellow baby bells Pacific Telesis and Ameritech, changed its name to AT&T last year, and now looks certain to acquire Bellsouth. Bell Atlantic bought Nynex in 1997 and GTE (the largest independent telco during Ma Bell's tenure, which had itself also bought the second largest independent, ConTel, in 1994) in 2000, before changing its name to Verizon. U.S. West was, let's put it politely, acquired by Qwest in 2000.

So in point of fact, twenty two years on, the seven Baby Bells spun off from one Ma Bell in '84, plus their two largest independent competitors, have now recombined into three corporations. To be sure, the industry has changed (from one perspective - the one that makes this funny and ironic - this looks like a return to the status quo ante, but the telecommunications market has changed radically in that time, and the antitrust calculation is performed in the context of the market competed in), but I think it's not entirely unfair to say: Elwood - we're getting the band back together!

The NSA program and the trial judge

As anyone who isn't living in a cave will by now know, a district court judge in Michigan has thrown out the NSA's eavesdropping program. You can read the opinion here, and nowhere in its pages will you find the words "border search exception" - which mystifies me, since I can think of a couple of reasons why the court might say it doesn't apply, but absolutely none that justify point-blank ignoring it.

The Volokh Conspiracy's Dale Carpenter explains here why the litigants didn't have standing in the first place (Orin Kerr rolls his eyes at the pedestrian Fourth Amendment "analysis" here), and the blog Legal Fiction - which is sympathetic to the result but apoplectic at the reasoning - has a very good post on this opinion here, explaining why summary judgement prior to discovery is almost always wholly inappropriate and is certainly so here.

Electing Judges

Legal Miscellania links to a story about the ouster of Judge Janavs in California. The essense of the story is that in California, "[m]ost of the state's 1,500 Superior Court judges are appointed by the governor [but] face retention battles [] if someone runs against them"; much shock and horror has attended the defeat in one such retention election of a popular and well-qualified state judge by a bagel shop owner characterized as having "barely practiced law in the last decade."

Footnotes
n1. Many years ago, when I was involved in student politics, I used to get very frustrated that students would routinely elect people to the Union Executive who I felt simply weren't the best candidates available (indeed, at the time, I felt that it was not unusual for the least qualified candidate to win). To be fair, only a very, very few of those who did get the nod actually went on to do a bad job; most were, at the very least, capable - and some, in fact, excelled (one in particular did such an outstanding job, I felt it necessary to apologize to her at the end of her term for my uncharitable reaction to her election) - but none-the-less, I don't accept that treading water, or simply not fumbling the ball, gets you a merit badge. For many years, I felt very angry looking back on these events, not least because I always felt that there was so much more that the union could have done for the students, in the right hands. Latterly, though, I have become more sanguine about it, concluding that, in essence, democracy doesn't mean the best person wins, it means the electorate gets the person they deserve. Or as H.L. Mencken more acerbically put it, "democracy is the theory that holds that the common man knows what he needs - and that he deserves to get it, good and hard."

n2. The comparison seems to suggest itself that this is all reminiscent of the recent events on the Hill: after six years of essentially being a lap dog to the White House, suddenly the House leadership becomes the dogs that barked only when their own power and prestige are placed under threat. (And, for better or worse, picking a fight that, in my view, they cannot win).

n3. "That" being a judicial selection scheme wherein the objectively "best" candidate, as determined by their peers in the legal elite, gets their gavel.

Moving on up