JURIST - Hotline

Sunday, November 22, 2009

Decision to suppress detainee abuse photos keeps public in dark about misconduct
11:40 AM ET

Alexander Abdo [Legal Fellow, National Security Project, American Civil Liberties Union]: "Historically, the United States has championed the use of photographic evidence of human-rights abuses to advance the cause of justice. The reason is simple: Pictures have a unique ability to transform public debate. They convey in plain and unadulterated form what words cannot. It was the video of the Rodney King beating, for example, that exposed to the country the racial tensions lurking in Los Angeles. It was the photograph of the mutilated body of fourteen-year-old Emmett Till that helped spur the civil rights movement. And it was the iconic picture of a man, hooded, wired, and balanced on a cardboard box, that signaled to our nation that our counter-terrorism policies had strayed far from our core values.

But now, to our profound disappointment at the American Civil Liberties Union, Secretary of Defense Robert Gates wants to abandon that tradition and keep from the American public potentially hundreds of photographs of abuse by American soldiers. His stated concern is that the photos, if released, will inflame anti-American sentiment and thereby endanger our national security. Secretary Gates should reverse course and release the photos.

The images at issue depict the abuse of detainees held by the United States abroad in at least seven different detention facilities throughout Iraq and Afghanistan. They are critical to a full and informed understanding of the interrogation and detention policies of the Bush administration. They document systemic abuse at a wide range of facilities and would serve to rebuke the myth, recently repeated by President Obama, that rogue soldiers are responsible for the mistreatment. And, perhaps most importantly, the pictures would illustrate in ways no words could the depraved consequences of the Bush administration's unlawful detention and interrogation regime.

These photos would certainly be disturbing, as they should be. And no one wants to endanger our troops. But the Secretary is wrong to suppress the images. In rejecting the same argument when made by the Bush administration, an appeals court noted that the risk that release of the photographs would endanger our troops is "speculative," and the possibility that it would endanger any particular solider is "miniscule." The court's analysis should sound familiar, because it was President Obama who declared on his second day in office that information should not be suppressed based on "speculative or abstract fears."

The more fundamental problem with the Secretary's rationale, however, is that it is unbounded and would justify the greatest suppression of the worst governmental wrongdoing. To prevent inflaming anti-American opinion, the government would have to suppress all evidence of torture and any discussion of Guantánamo Bay or Abu Ghraib. That fundamentally antidemocratic equation – greatest suppression of the worst misconduct – would forever keep the public in the dark about the facts most important to representative democracy and informed decision-making.

Secretary Gates should reject that distorted conception of American transparency - that evidence of misconduct may be suppressed precisely because it powerfully documents governmental misconduct - and release the photographs of abuse. The sooner we publicly acknowledge and investigate our past abuses, the safer, freer, and stronger our country will be."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Friday, November 20, 2009

State Department's religious freedom report shows global need for inter-faith tolerance
10:09 AM ET

John Esposito [Professor, Georgetown University and Founding Director, Center for Muslim-Christian Understanding]: "Despite our increasingly globalized world and the need to strengthen religious pluralism as well as to transform an outmoded notion of tolerance based simply on co-existence to one based on mutual understanding and respect and the equal rights of all citizens, many countries continue to fail the religious freedom litmus test. Religious discrimination, persecution, and violence continue to be issues in Muslim countries.

On Saturday, August 1, 2009, after several days of rioting and violence over allegations that Christians had desecrated the Quran, an estimated crowd of one thousand stormed a Christian neighborhood in Gojra, Pakistan. The mob killed eight, including six women, and burned and looted dozens of houses. This was not an isolated incident in Pakistan, where blasphemy against the Prophet and the desecration of the Quran have often been used against Christians.

Religious minorities in the Muslim world, constitutionally entitled to equality of citizenship and religious freedom, increasingly fear the erosion of those rights - and with good reason. Interreligious and intercommunal tensions and conflicts have flared up not only in Pakistan but also in Egypt, Sudan, Nigeria, Iran, Iraq, Afghanistan, Bangladesh, Malaysia, and Indonesia. Abuses range from discrimination, violence, and the destruction of villages, churches, and mosques to murder. The result in countries like Nigeria has been cycles of death and vengeance: Muslim massacre of Christians and Christian massacre of Muslims. In Pakistan and Iraq, intra-Muslim communal intolerance and violence have flared between Sunni and Shia extremist organizations and militias.

Have Muslim governments and religious leaders done enough to address them? Clearly, this year's report again indicates that while progress has been made by some countries, many have not. Some governments ignore interreligious conflicts or exacerbate them. In others like Iraq, Pakistan, Saudi Arabia and some Muslim communities in the West, intra-Muslim relations, in particular between Sunni and Shia, remain contentious. An area often conspicuously absent or only marginally covered is the extent to which some governments like Egypt and Tunisia substantially restrict religious freedom in their suppression of mainstream Islamic activist organizations. However, there are winds of change.

Increasingly, Muslim reformers, a vanguard facing resistance from conservative and fundamentalist factions, call for and promote Islamic reform, challenging long held traditions. Most build on but also transform notions of religious pluralism already present in the Islamic tradition. They argue that the Quran recognized both Jews and Christians as "People of the Book," those who have special status because God revealed his will through his prophets, including Abraham, Moses, and Jesus, which all three communities follow and that while classical Islamic law that classified Jews and Christians as "protected" (dhimmi) people who could live and practice their faith if they paid a poll or head tax (jizya) may have been advanced for its time, in today's world of modern nation-states, its application amounts to designating non-Muslims as second-class citizens.

Reformers, who redefine and broaden traditional theological notions of religious pluralism, root their interpretations in the Quran's emphasis on the equality of all humanity: God's decision to create not just a single nation or tribe but a world of different nations, ethnicities, tribes, and languages (30:22; 48:13). Many argue that religious exclusivism is not in accord with the Quran's worldview and teachings: "To everyone we have appointed a way and a course to follow" (5.48) and "For each there is a direction toward which he turns; vie therefore with one another in the performance of good works. Wherever you may be, God shall bring you all together [on the Day of Judgment]. Surely God has power over all things" (2.148).

Abdulaziz Sachedina of the University of Virginia reminds his readers that Islam and Muslims facing the future, like Christianity and Christians, are challenged to balance a sense of uniqueness or special dispensation with true respect for other faiths. For Sachedina, the "acid test of pluralism is whether a religion is willing to recognize members of other religions as potential citizens in the world to come. Is such citizenship conferred in spite of or because of the person's membership in another religion?"

Muslim popular opinion in America reflects changing Muslim attitudes. Responses to a question on Islam and religious pluralism in a February 2008 Pew survey demonstrate a pluralistic trajectory. While a minority (33 percent) of those polled responded, "My religion is the one, true faith leading to eternal life," a majority (56 percent) believed, "Many religions can lead to eternal life."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Tuesday, November 17, 2009

Federal court ruling on 'I Believe Act' relegates religious speech to second class status
4:44 PM ET

Alan Reinach [President, Western Chapter, North American Religious Liberty Association]: "When we were children, we used to have play fights. "I dare you," one would say, only to hear in response, "I double dare you!" Sadly, the culture wars have degenerated into a grown up version of such foolishness. The latest example is in South Carolina, where a Federal Court recently struck down the state's approval of a license plate motto: "I believe" complete with a graphic of the Cross and a stained glass window.

The real story here is not the constitutional issue, which is unremarkable. The Establishment Clause of the First Amendment requires strict government neutrality. The state is not to become a battleground for religious interest groups to fight over, to obtain public endorsement and promotion of its religion or belief. Yet, that is exactly what happened here. One group wanted the state to promote its ideology, "I believe," while another group opposed such abuse of state authority.

No, the tragedy here is that the Federal Court decision [PDF file] will inflame both sides of this culture war to raise more money, and superheat its followers. The good Christian people of South Carolina, and throughout the nation, are being told that the Federal courts are hostile to Christian faith, and that the First Amendment has been abused – that there is no such thing as the separation of church and state. This is simply false. Meanwhile, those of a more secular or postmodern bent are being told to congratulate themselves, and continue supporting the organization that brought the legal challenge, because this is an important victory. Hogwash!

This "important victory" only exacerbates the culture war, and makes finding common ground more difficult, perhaps impossible. It also masks the real culture war struggle that begs for a truce: the conflict between gay rights and religious freedom. The culture wars have become a zero sum game. Increasing conflict between gay rights and religious freedom poses an enormous risk to those religious institutions that live by traditional moral or biblical values regarding human sexuality. Eventually, they may be forced to "convert or die." This is truly tragic. Why can't we craft a society and a legal structure where people of faith and the GLBT community can both live in peace, and have their rights protected? Why does one group have to seek protections at the expense of the other?

The people of South Carolina have not been deprived of opportunities to express their faith on their automobiles. Americans love their cars just as much as they love God and country. Those in South Carolina can express their sentiments, whether "I believe" or "Honk if you love Jesus" on bumper stickers plastered as loudly as they wish. Or they can display their sentiments on license plate frames. Indeed, since South Carolina permits organizations to apply for special license plates, the group sponsoring the “I Believe” plate has now changed its name to “I Believe” so that it can still display “I Believe” on the plate itself.

Now we will see whether those opposing the license plates truly believe in freedom of speech and religion, or whether they are simply hostile to Christian expressions of faith. When South Carolina opens up the license plate to legitimate organizational displays, it creates a limited public forum for citizens to express their free speech. The resulting speech is not government endorsement or promotion of their message, but private speech, which is protected by the same First Amendment that was used to strike down the license plate display when it was "government approved."

I expect the antagonists to complain that even this modest approach violates the separation of church and state – that the state is still endorsing and promoting a religious message by permitting it to be displayed on the license plate. [Because we’ve heard these arguments before.] They are likely to contend that only secular organizations and messages may enjoy the use of the limited public forum to display messages on license plates. But this argument betrays their hostility to free speech and religion, and more fundamentally, to Christianity. Religious speech is not rendered second class by the First Amendment. If the state chooses to create a limited public forum, it cannot make content based distinctions and approve only secular speech while excluding religious speech.

When we were children, most of the time we were wise enough to figure a way out of the dilemma posed by the dare and double dare, without coming to physical blows. Today, everything winds up in court, the modern equivalent of the duel."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Friday, November 13, 2009

New Iraqi election law leaves resolution of Kirkuk voting issue in limbo
8:18 AM ET

Marina Ottaway [Director, Middle East Program, Carnegie Endowment for International Peace]: "The new election law approved by the Iraqi parliament on November 8 has both positive and negative features. On the positive side, it will allow the voting to take place before the mandate of the present parliament expires and will thus prevent a constitutional crisis. The law has also avoided embedding confessionalism in the political system of Iraq, as other proposals under discussion would have done. On the negative side, however, the law does not address the substance of the problem of Kirkuk - the obstacle on which the legislation almost foundered - but simply postpones any discussion of it, creating a real possibility of post-election conflict. And the choice of a system of proportional representation with no minimum threshold for parliamentary representation and open lists is likely to contribute to the fragmentation of an already badly fragmented political spectrum - 296 parties and independent candidates have registered to participate in the elections.

The main obstacle to the passage of a new election law was the determination of who has the right to vote in Kirkuk, a city where Arabs, Kurds and Turkmens claim to have been the majority until Saddam Hussein's machinations and subsequent conflicts changed the population balance. Kurds argue that Kurds who were expelled have the right to return and thus to vote in Kirkuk, and many in fact have moved into the city since 2003. Arabs and Turkmens believe that many of the newcomers have simply been relocated there by the Kurdish parties and the Kurdistan regional government in order to facilitate the eventual annexation of Kirkuk by Kurdistan. Against this background, the composition of voter lists in Kirkuk became a bone of contention. Kurds argued that the voter list should reflect the 2009 population, while Arab and Turkmens favored using the lists prepared in 2004, which they claim reflect the natural composition of the population, before Kurds artificially inflated their numbers. Failure to solve the problem prevented provincial council elections to be held in Kirkuk and the surrounding Tamim province in 2009.

The compromise reached on November 8 is that voting will take place on the basis of 2009 lists, as Kurds demanded. As a concession to Arabs and Turkmens, however, in jurisdictions where population has increased by more than 5 percent a year since 2003, election results can be challenged and a process can be set up to verify that all those who voted had actually the right to do so - the law does not specify which criteria can be used to determine who had the right to vote where. It is clear that the potential for conflict after the elections is enormous. But while the law thus is quite problematic, simply postponing rather than solving the problem, it is less so than alternative solutions that were considered, including that of apportioning seats in Kirkuk among population groups, or of creating "compensatory" seats reserved for Arabs and Turkmens in order to make up for the increased migration of Kurds into the city. Such solutions would have embedded confessionalism in the Iraqi political system, creating precedent that would have been very difficult to overcome.

The decision to adopt an open lists system - allowing voters to choose not only a party but also specific candidates within it - was strongly encouraged as more democratic by the United States and international NGOs. When lists are closed, party bosses can decide which candidates in their party will probably be seated simply by placing them higher or lower on the list. If the list is open, voters' choices can modify the order. Iraq parliamentary elections of December 2005 were based on closed lists, the provincial council elections of January 2009 on open lists. There is no denying that the open list system decreases the power of party bosses and increases that of voters. In Iraq today, however, the main problem is less the excessive power of party bosses, but the tendency of all organizations to splinter. The open lists system may further weaken the parties, further complicating what will certainly be a very complicated process of cabinet formation after the elections."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Sunday, November 08, 2009

Lake ruling addressed access to electronic records but left work for Arizona legislature
11:01 AM ET

Elizabeth Hill [Arizona's Assistant Ombudsman, Public Access]: "Arizona is beginning to embrace the electronic world in which we conduct our public business. On October 29, 2009, in Lake v. City of Phoenix [PDF file], the Arizona Supreme Court held that "when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata is subject to disclosure under Arizona's public records law." Seems straightforward enough, right? I am not so sure.

It is well-established that public records include electronic records created or received by a public entity in the course of conducting public business. However, in Arizona, access to electronic records has remained a gray area. Issues related to choice of format, inspection of electronic records, access to data contained in databases, redaction of electronic records, and fees for providing electronic copies of public records, simply have not been addressed by the Legislature or the courts.

Conversely, during the past couple of decades, the federal government and a majority of states have addressed access to electronic records in one way or another. In fact, upon request, the federal government and majority of states require that public entities furnish electronic records in the electronic format in which the record is maintained. Like the recent Arizona Supreme Court Opinion, the Washington Court of Appeals specifically addressed metadata and held that metadata describing the history, tracking, and management associated with email sent by a private citizen to deputy mayor was a public record within scope of the public records act. O’Neill v. City of Shoreline.

However, although Arizona's highest court tackled the issue of whether metadata embedded in an electronic document must be disclosed upon request, the opinion's simplicity raises some important questions. In an apparent effort to dispel agency concern regarding harassment and burdensome requests the Court states, "not every public records request will require disclosure of the native file. Public entities may provide paper copies if the nature of the request precludes any need for the electronic version." How will the public entity know, or otherwise determine, whether the nature of any given request precludes the need for the electronic version given the fact that persons requesting records for a non-commercial purpose are under no obligation to set forth the purpose for which copies of the records will be used? The Court's determination is problematic and seems contrary to the presumption favoring disclosure.

The Court also provides that "[p]ublic records requests that are unduly burdensome or harassing can be addressed under existing law, which recognizes that disclosure may be refused based on concerns of privacy, confidentiality, or the best interests of the state." Currently, however, the public record statutes do not address burdensome requests. Is the Court suggesting that public entities have discretion to deny access to requests it deems burdensome or harassing under the guise that compliance is detrimental to the best interests of the public entity? If so, what are the standards for denying access? This is a matter best addressed by the Arizona Legislature.

In addition, the Court's holding refers to public records maintained in an electronic format. Some have asked whether this requires access to the record in the format it is ultimately maintained or the format in which it was created. I believe it is the former. The Court did not decide when, or if, a public entity is required to retain public records in an electronic format. Indeed, electronic records may be converted to alternative formats so long as they are retained pursuant to the applicable retention and destruction schedule approved by Arizona State Library, Archives, and Public Records. Accordingly, public records should be available for inspection and copying in the format in which the record exists at the time of the request.

Thus, although Arizona is finally entering the 21st Century and addressing access to electronic records, it has a long way to go."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Friday, November 06, 2009

Third Circuit favors free speech in striking down broad abortion clinic protest zones
10:25 AM ET

David Cortman [Senior Legal Counsel, Alliance Defense Fund]: "Over the last several years, the government has increasingly restricted pro-life speech, particularly when it occurs on public sidewalks outside abortion clinics. These restrictions are, at best, highly suspect under the First Amendment - and, at worst, completely unconstitutional. And that was no less the case in the most recent decision [PDF file] from the 3rd Circuit in Brown v. City of Pittsburgh that struck down a very bad ordinance restricting free speech.

Historically, the Supreme Court has gone out of its way to protect speech, especially when it occurs in a public forum, such as in a park or on a public sidewalk. Even during the civil rights protests and labor union pickets of the past, the Court was always careful to carve out protected speech from unprotected conduct. No more.

In what's commonly referred to in some circles as the “abortion distortion,” the courts have abandoned their zealous protection of speech and thrown out the proverbial baby with the bathwater. Now, with the blessings of the courts, no longer are such regulations limited to prohibiting only unprotected conduct, they are prohibiting pure speech. And on a public sidewalk, no less.

Ignoring its own precedent, the Supreme Court, within the recent past, has upheld fixed buffer zones of varying distances which emanate from clinic entrances. These zones generally prohibit pro-life advocates from speaking anywhere in the zone, usually because they are prohibited from even entering the area. Interestingly, clinic workers are often exempt from those restrictions, either as written in the law (as was the case with Pittsburgh's ordinance [PDF file], which stated that no one was permitted to picket or demonstrate in the zone but then exempted clinic workers from this prohibition) or as a matter of practice.

The Supreme Court has also upheld what is known as a floating bubble zone. This restriction prohibits anyone (which, in practice, means pro-life advocates) from approaching any person closer than eight feet (hence, the floating bubble) for the purpose of leafleting or engaging in protest, education, or counseling (making it obvious where such "neutral" laws are aimed). Even without any expertise or legal background, it is easy for any person to see that these laws are designed to prohibit speech, not unprotected forms of conduct.

While arguing against Pittsburgh's defective ordinance on behalf of pro-life nurse Mary Kathryn Brown, I was asked by the 3rd Circuit judges how I would go about drafting such legislation. I responded that it is rather simple, actually: prohibit unprotected conduct (such as blocking, violence, and assaults) without regard to speech. Such a solution honors the Constitution and protects speech while at the same time protects women from any bad behavior. Everyone wins.

With that background, let's look at what the 3rd Circuit in the end called "unprecedented" restrictions that the City of Pittsburgh enacted. In an aggressive move to further push the envelope, the city, with advice and encouragement of attorneys supporting the abortion clinics, enacted a law that far surpassed any regulation that had ever before been upheld. They combined both a fixed zone with a floating zone. Considering that each zone either completely eliminates or severely hampers speech, speech hasn't got a chance when both are joined.

Did you ever try to hand out leaflets from over eight feet away from someone whom you are not allowed to approach? Not so simple. Or try to have a caring conversation beyond eight feet away from a person walking down the sidewalk while avoiding people, trees, mailboxes, or being pushed into the bus lane due to the width of the sidewalks? Kind of dangerous.

The city ridiculed Mary Kathryn Brown for having no “right” to speak to someone in a caring way. Well, at least they acknowledge she likes the compassionate approach. After all, if you are reaching out to women in love to encourage them to save their child from abortion, it's a good idea to be compassionate. Ironically, the law that the city touts as having the purpose of reducing an aggressive atmosphere actually serves to elevate it, as it encourages yelling and the use of amplification just to be heard.

Pittsburgh's law, in the opinion of the Alliance Defense Fund, and as the 3rd Circuit agreed, went too far. The court's opinion is extremely important as government bodies more frequently restrict protected speech on public sidewalks. The opinion serves to draw a line in the sand that municipalities may not cross.

Thankfully, there is a point where speech remains protected and, although not where it should be, it's a start to regaining free speech protections which the "abortion distortion" has served to chip away at the Constitution."

Mr. Cortman represented the plaintiff in Brown v. City of Pittsburgh before the US Court of Appeals for the 3rd Circuit.

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Thursday, November 05, 2009

Nokia's infringement suit against Apple illustrates need to scrap US patent system
5:48 PM ET

Stephan Kinsella [General Counsel for Applied Optoelectronics and Editor of Libertarian Papers]: "A recent lawsuit filed by Nokia against Apple alleges that the iPhone infringes 10 of Nokia's patents. Nokia is probably "seeking between $200 and $400 million in damages from Apple," which JURIST characterizes as "a relatively low amount to seek from a company that expects revenues...of over $11 billion this year." It doesn't seem trivial to me, given that $400 million is a good chunk - say, 5 to 10% or so - of Apple's profits. And Nokia's is not the only lawsuit Apple faces. Half a billion here, half a billion there, and pretty soon you're talking real money. For other examples, see here.

This case is a good example of the waste caused by the patent system. The common justification for IP is that it increases innovation and overal societal wealth (see my article "There's No Such Thing as a Free Patent"). But study after study concludes otherwise (see my article "The Case Against IP: A Concise Guide," and my post "Yet Another Study Finds Patents Do Not Encourage Innovation"). Is this surprising? After all, the patent system undeniably imposes enormous costs on society - companies spend millions of dollars on patent attorneys' fees and salaries, patent filing fees, licensing fees, litigation fees, and so on. Is the value of the extra innovation that patent law stimulates greater than all these costs? Nobody knows for sure, but the various studies almost universally conclude no. Some studies even conclude that the patent system decreases overall innovation, meaning that that we are paying a huge cost just to have innovation impeded. Thus, as noted by Mike Masnick, "if you build anything even remotely innovative these days, you're going to get sued for patent infringement, probably multiple times. It's become a massive tax on innovation, rather than a lever for innovation."

Many patent lawyers and IP advocates begrudgingly admit that the system is broken, or at least needs significant improvement. As a senior partner in the patent department of a major national law firm wrote me:

Stephan, Your letter responding to Joe Hosteny's comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the US Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hosteny] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the "tax" placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties' technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the "taxes" it imposes on them as the cost of doing business in the USA.

But I disagree that the patent system is broken, or malfunctioning at all. It benefits certain people and companies, as all taxes and regulations do. The beneficiaries of this government program defend it with various forms of propaganda. For example, they say that is a major cause of innovation and wealth - indeed, that it is necessary for innovation. But as noted above, there is no proof that patent systems generate net wealth. Another tactic is to call patent a property right - in particular an "intellectual property right." But calling it a property right does not make it so. In fact, as I have argued extensively - from the perspective of someone who is both as a practicing patent attorney familiar with the system and a libertarian who is a strong advocate of private property rights - patent rights are not genuine property rights. Patents are artificial privileges granted by the state that actually undermine private property rights. A patent is a government grant that gives the patent holder the right to tell others how they can use their own property, by vetoing certain uses. They can use this veto right to extort ransom payments, politely called licensing royalties today.

IP advocates often say that infringers "steal" ideas from the originators, to bolster their characterization of ideas and patterns as property. In fact, in the dispute at hand, as reported here, "Nokia said Apple has refused to pay for use of intellectual property developed by Nokia that lets handsets connect to third-generation, or 3G, wireless networks, as well as to wireless local area networks. 'Apple is attempting to get a free ride on the back of Nokia's innovation,' Ilkka Rahnasto, Nokia vice-president for legal and intellectual property, said in the statement." In other words, Nokia is trying to make it look like Apple copied Nokia's patented inventions, so that it looks more like a thief. But in a patent infringement lawsuit, the patentee does not need to prove copying. In fact, the infringer could have independently invented the technology, totally unaware of the patentee's invention, and still be liable. While Nokia here implies Apple is getting a "free ride" by using IP "developed by Nokia," you can bet that they will happily accept a win in court over Apple even if Apple is shown to have independently invented the technology.

And what is wrong with copying, anyway? This is how society and technolgy advances: by emulation, by learning. The free market thrives on competition and cooperation, and also on emulation and imitation. Every stage of technology is built on the body of knowledge developed over the centuries. Emulation and the acquisition of knowledge play a key role - are essential to - society and economy. Nokia's own technology was not developed in vacuo. There is nothing wrong with imitation. It is part of the market. It is essential to progress. It is no more theft than learning is. In fact, IP can be a barrier to learning, and even lead to censorship.

So, no, the patent system should not be reformed. It should be abolished, for the sake of freedom, private property rights and prosperity.

For further elaboration of the ideas expressed in this post, see my monograph Against Intellectual Property, my article "The Case Against IP: A Concise Guide," and other material on my website."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Wednesday, November 04, 2009

Lake case sets important precedent that metadata is part of a requested document
11:24 AM ET

Todd Carpenter [Managing Director, National Information Standards Organization]: "Last week, the Supreme Court of Arizona issued a ruling overturning a lower court on whether file metadata must be turned over in a public records request. The ruling [PDF file] essentially binds the inherent file metadata within the file itself. In its finding, the court ruled that the plaintiff's request for the administrative metadata records was indistinguishable from the request for the public records themselves.

Courts and governments generally have two interests in the preservation of metadata. The first relates to discovery and accessibility of information, the second is focused on provenance. The creation and management of metadata facilitates easy discovery of documents for retrieval and access. The second key value to the administrative metadata of a digital file is that it is one method for tracking the document's authenticity.

At issue in this case is the provenance of the records, not their actual content. In a print world, it can be relatively difficult to change a written date or otherwise forge a physical document. In the digital realm, changes are more easily made. However in many situations, information about creation, changes and authorship may be stored within the document. One could envision a future where, much like the wax stamps of the past, without the electronic seal of embedded administrative metadata a document may not be trusted at all.

The court did not comment on the types of data that might be required or the types of files to be used, only that the original file, with all of its associated metadata, be provided to the plaintiff. It would be a stretch by the court to know what types of files or even what types of metadata might be available in the future. The precedent that the metadata is an inherent part of the information of a document is an important one for the use of digital information in court.

As we move forward toward a world where documents are more often in a digital format than in print, we need to establish precedent for using the full range of digital information that can help to address the questions of provenance. As noted in the ruling [PDF file], "It would be illogical...to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record." If we are to trust and rely on the digital information that is presented to us, particularly in a legal environment, the validity and provenance of that information needs to be grounded in as much valid information as we can gather. The court correctly understood the ramifications of withholding access to this information.

This is but one of many examples of how our understanding of records management needs to adjust to the rapidly evolving digital environment. Standards are slowly emerging in this area, as is case law. We can expect to see many more decisions like Lake v. Phoenix in the coming years."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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