New GAO Reports - Performance Management and Oversight, Hazardous Waste Cleanup, Spectrum Management, VA Education Benefits,
A group backed by Right to Life of Michigan has been approved to circulate petitions seeking a new state law prohibiting health insurance companies from covering elective abortion procedures.
The ballot committee No Taxes for Abortion Insurance wants to require women to purchase optional riders to cover abortion, even in cases of rape or in cest.
For the full article, see Chad Livengood, "Group seeks to block insurance coverage of abortion in Michigan", Detroit News, May 22, 2013.
Today, California Secretary of State Debra Bowen announced her plans to make the raw data behind California’s lobbyists and campaign finance database available, online, on one spreadsheet available to the public and updated daily.
Secretary Bowen’s announcement is a reversal from a position she has long held since Common Cause began asking for this disclosure in 2011. This could not have been possible without the pressures imposed from groups such as California Common Cause, Maplight, as well as the Los Angeles Times and Sacramento Bee. Of course, Secretary Bowen deserves lots credit for listening to our coalition’s concerns and ensuring this information is available to the public. Other state agencies should follow her in her footsteps and make public data, well, public.
“Great credit goes to Secretary Bowen for recognizing the importance of this data set,” said Daniel G. Newman, Co-Founder and President of MapLight. “It’s not just a small feature that she’s adding—it’s a great public access victory and a quantum leap forward for transparency.”
Currently, the information is available on a CD-ROM upon request and for a $5 fee. This new disclosure will allow raw data to be made available 24 hours a day in a single spreadsheet. Raw data disclosures will allow the public to follow and keep track of money in politics, and for watchdog groups like ourselves, to more effectively hold the people in power more accountable.
Full list of coalition partners that made this happen: Common Cause, MapLight Around The Capitol, California Forward, California Newspaper Publishers Association, Courage Campaign, Global Exchange, Los Angeles Times, Rootstrikers, The Sacramento Bee, Sunlight Foundation, and Senator Leland Yee.
Bad facts make bad law: it’s legal cliché that is unfortunately based on reality. We saw as much yesterday, in the case of Ryan Hart v. Electronic Arts. Presented with a situation that just seemed unfair, the Third Circuit Court of Appeals proceeded to make a whole bunch of bad law that puts dollars ahead of speech.
Here are the facts: Electronic Arts sells a videogame called NCAA Football.; Part of the success of the game is based on its realism and detail—including its realistic digital avatars of college players. One of those players was Ryan Hart, who played for Rutgers University from 2002 to 2005. NCAA Football did not use Hart’s name, but the game included an avatar with Hart’s Rutgers team jersey number, biographical information, and statistics. Trouble is, no one asked Hart if he wanted to be part of the game. Nor did anyone pay him for it—they couldn’t, because college players aren’t allowed to accept money for any kind of commercial activity. When Ryan discovered the game, he sued EA based on a lesser-known but pernicious legal doctrine, the right of publicity.
The right of publicity a funny offshoot of privacy law that gives a (human) person the right to limit the public use of her name, likeness and/or identity, particularly for commercial purposes like an advertisement. The original idea was that using someone's face to sell soap or gum, for example, might be embarrassing for that person and that she should have the right to prevent it. While that might makes some sense in a narrow context, states have expanded the law well beyond its original boundaries. For example, the right was once understood to be limited to name and likeness, but now it can mean just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “Here’s Johnny,”) or even a robot dressed like a celebrity. And in some states, the right can now be invoked by your heirs long after you are dead and, presumably, in no position to be embarrassed by any sordid commercial associations. In other words, it’s become a money-making machine.
But there has traditionally been at least one limit on publicity claims: the First Amendment. In a nutshell, courts are supposed to balance a person’s right to control the use of her identity against others’ right to expressive speech – including videogames. Unfortunately, the Third Circuit just threw that balance way out of whack.
The good: The court recognizes that videogames are protected expression under the First Amendment, and that free speech is important. Whew!
The bad: The court embraced the wrong test for balancing a person's commercial interests against free speech. Many courts have sensibly borrowed from trademark law and found that, where the invocation of an identity is part of the expressive purpose, the court should not punish it unless it is in essence a disguised advertisement, e.g., the user is just trying to use a person's name to call attention to a product (like potato chips).
Here, the court went off in an entirely different direction, borrowing instead from copyright law to conclude that only uses that are “transformative” can be protected by the First Amendment. In copyright, whether a work is transformative, i.e., creates something new with a different purpose or character, is an important part of the fair use analysis. However, the court imported a decidely narrow approach to transformativeness: did not consider whether the game as a whole had transformative value, as one would in a copyright case, but focused solely only on how Hart's identity was used or transformed. The court reasoned that since the “digital Ryan Hart does what the actual Ryan Hart” did, i.e. play college football, there was no transformation and Hart’s economic interests trumped EA’s free speech interests. The court was also selective about what it chose to import from copyright, ignoring several other factors relevant to fair use, such as market harm and whether the underlying work is factual (if so, copyright protection is “thinner”).
As a group of video and filmmakers pointed out, the transformation test is a bad fit for publicity rights. The fair use analysis generally balances competing speech interests—those of the original and secondary authors. But there is no speech interest in cashing in on your fame. In addition, copyright law is designed to encourage creativity through economic incentives. No such additional incentive is needed for celebrities.
It’s entirely understandable that a court might sympathize with Ryan Hart. But if the court’s test was applied broadly, it could have a devastating impact on creative works that relate to real people and life stories. For example, the rationale would apply directly to political biographies or biopics like The Social Network. It could even impact news reporting. The appellate court’s decision sends a message to all creators—if you create a work that happens to evoke someone’s identify, and your use isn’t “transformative” enough, your free speech is less important than that person’s ability to milk his or her fame for everything it’s worth.
Finally, the ugly: The Third Circuit expressly embraced a very silly notion: that your name and fame are your “property.” Nonsense. Publicity rights are, at most, a limited right to control the use of aspects of your identity for commercial purposes—nothing more, nothing less. As we’ve seen with copyrights and trademarks, treating limited monopolies in certain expression as a "property" leads people to embrace broad and dangerous new forms of protection for that "property." By treating publicity rights as equivalent to a real property rights (in your home, for example), the court gave far too much weight to celebrities’ interest in control over their image and far too little weight to free speech.
Bad facts, bad law. We hope EA appeals this decision, and that the Supreme Court overturns it.Files: hart_v._ea_3rd_cir_decision_copy.pdfRelated Issues: Free SpeechVideo GamesIntellectual Property
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When most people think of a trade agreement, they're unlikely to think that it would have anything to do with regulating the Internet. For more than a decade however, the Office of the U.S. Trade Representative has included copyright enforcement in international trade deals. Such provisions empower countries to enact digital restrictions in the name of preventing illegal file sharing. In practice, these copyright measures strip Internet users of their rights to privacy, free speech, and access to knowledge and culture, and could even work to undermine their very purpose of enabling and promoting innovation and creativity.
Such provisions closely mirror the language carried in the U.S. Digital Millennium Copyright Act (DMCA). Up to this point, we have already seen over 15 years of harmful effects due to the DMCA and now there are widespread efforts in the U.S. to reform it. It's therefore both improper and contradictory for the U.S. Trade Rep to push the U.S. copyright system around the world when our own government recognizes that our system is defective.
This new animated video explains how two provisions of the Trans-Pacific Partnership (TPP) agreement's intellectual property chapter threaten users' rights. First, it creates legal incentives for Internet and online service providers to police their users' activities for copyright infringement. Second, the TPP carries rigid protections for digital rights management (DRM) in ways that could create expansive chilling effects for anyone who wishes to legally share and interact with their content and devices.Privacy info. This embed will serve content from youtube.com
Please share this video, spread the word about this secretive multinational trade agreement, and let others know how they can help fight it.Take Action
You can express your concern about these problems — and others — that arise from a secret copyright agenda driving international agreements by signing our petition to stop it.
Wherever you are in the world, you can sign on to this petition directed at decision-makers to demand a Fair Deal.
If you’re in the U.S., take our action to send a message to your representative to demand an end to these secret backroom negotiations.
If you're in Peru, join Hiperderecho and tell the Peruvian president that our rights on the Internet are non-negotiable.Spread the Word
Our website “Why the Heck Should I Care About the TPP?” lays out some of the worst consequences for Internet users if this agreement were to pass.Intellectual PropertyInternationalTrans Pacific Partnership Agreement
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Today, EFF filed a motion in a secret court.
This secret court isn’t in a developing nation, struggling beneath a dictatorship. It’s not in a country experimenting for the first time with a judiciary and the rule of law. And, as Wired recently noted, it’s “not in Iran or Venezuela, as one might expect.” No, the court is here, in the United States (it’s in Washington, D.C., in fact). It’s called the Foreign Intelligence Surveillance Court (or the FISC), and it reviews the federal government’s applications to conduct surveillance in national security cases. It’s comprised of 11 district court judges from around the country, and its opinions and orders are the law of the United States, like other federal courts.
But the FISC is different from typical courts in one fundamental way: almost everything about the FISC is secret.1 In fact, just being able to publicly say that we filed a motion with the FISC is unusual. Most proceedings are done ex parte (in this context, meaning just with the government and the judge), and any non-governmental parties involved in proceedings are typically forbidden from ever disclosing it. Even when the FISC finds that the government has acted illegally, so far, that illegality has been been kept hidden from public scrutiny and accountability.
EFF is trying to change that. We filed a lawsuit under the Freedom of Information Act (FOIA) after the Department of Justice refused to disclose a FISC opinion we requested. The FISC opinion held that the government engaged in surveillance that was unconstitutional and violated the spirit of federal surveillance laws. We only know the opinion exists because Senators, like Ron Wyden and Mark Udall, essentially forced the government to publicly acknowledge its existence.
So why did EFF file something with the FISC? In response to our FOIA lawsuit—and in an attempt to justify hiding the government’s unconstitutional conduct—the DOJ pointed to the FISC. The DOJ argued the FISC’s procedural rules prohibited DOJ from releasing the opinion under FOIA. But, five years earlier (in response to a separate case brought by the ACLU), the FISC itself said FOIA was the proper avenue to access FISC opinions. In fact, in that case, the DOJ argued that FOIA was the only way the public could access the opinions. So we filed a motion with the FISC to allow that court to definitively resolve whether its rules prohibit the disclosure of its opinions.
But, for the time being, a DOJ-imposed Catch-22 blocks the public from knowing more about the government’s illegal surveillance. According to the DOJ, we can’t use FOIA, because the FISC rules prevent it; and we can’t go to the FISC, because the FISC says FOIA is the proper avenue. If Joseph Heller were alive today, he would be impressed. So, too, would Franz Kafka. A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial.
In fact, simply figuring out how to file the motion was a bit of a nightmare. Not surprisingly, there’s no e-filing with the FISC or public mailing address to send the motion. All we had was a phone number. And all we could do was leave messages and hope the court staff would return our calls.
But, sadly, this isn’t a work of dystopian fiction. This is a product of our democratic system. The government may assert that FISC opinions can’t be disclosed because they would reveal the legal limits of our nation’s intelligence collection capabilities, but the fact that we are a nation of laws is not a vulnerability our enemies may exploit. It is among our greatest national assets.
Granted, it’s likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America’s national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law.
- 1. Another difference is the very limited subject-matter jurisdiction of the court. Although the subject matter of the issues before it is certainly unique, in the federal system, having a restricted jurisdiction is not unique to the FISC
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Today, Sen. John Cornyn (R-Texas) introduced the Patent Abuse Reduction Act, a wide-ranging bill targeting abusive litigation tactics—a favorite tool of the patent troll.
The good news first. The bill would do significant harm to the patent troll business model, making it harder to be a troll and easier to fight one in court. Patent trolls have long taken advantage of the fact that patent litigation is expensive (costing into the millions of dollars) and can take years, draining companies of resources. Patent trolls are in the very business of litigation and deploy a variety of techniques (shell companies and contingency fee arrangements, for example) to keep their own costs much lower.
The proposed legislation would level this playing field by incorporating one of our favorite reforms, fee shifting. This means that if a party accused of infringing a patent actually fights back in court and wins, the troll could be on the hook. (Unfortunately, the legislation doesn't require the suing party to post a bond—an important tool for deterring patent trolls.) The bill also includes provisions limiting the type and amount of discovery a troll can get and what kind of information a troll needs to disclose at the outset of a lawsuit. The latter is particularly promising because it would force patent trolls to do true due diligence before they sue and to name who is really behind the lawsuit (information that is currently quite difficult to find). These provisions make the troll's case more expensive and takes away another of its favorite tools—secrecy.
The not-so-good news is that these reforms are all litigation focused and, thus, limited. We believe the problem is much bigger. The bill does not address patent quality and fails to consider what the Patent Office could do to help those facing lawsuit threats. It does not include protection for end users, consumers who find themselves staring down patent trolls over widely available technologies. And it fails to address the very root of the problem by not considering whether we should be able to patent software to begin with.
We will continue to raise those issues and fight those fights. In the meantime, we are encouraged to see the introduction of large scale-reform that would go to the heart of the patent troll business model. We hope that those policy makers who have publicly recognized the patent troll problem will join in the upcoming debate on this important legislation.Files: patent_abuse_reduction_act.pdfRelated Issues: PatentsPatent Trolls
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