Tag Archives: legislation

egg rights: South Dakota’s latest ventures into unintended consequences

South Dakota is at it again, with a new egg rights bill that defines “any organism with the genome of homo sapiens” as a person under the South Dakota Constitution. Man it’s hard to keep up with all the really poorly thought out legislation from that state!

Broadsheet has the simplest quickest coverage, and links to Feministe “Even More Questions for Pro-Lifers”, always a good read.

Anyway, inspired by the Broadsheet post title “Eggs are people, too”, henceforth I will be referring to this sort of thing as “egg rights”. (A phrase which I now see has already gained some traction.) Egg rights activists, egg rights bills, and so forth.

Equal Pay Legislation – passed and signed

The Lilly Ledbetter Act was passed and signed.

So fuck off, Justices Alito, Roberts, Scalia, Thomas, and Kennedy.

Your utterly superficial and mean (as in, scanty, beggarly, stingy) interpretation of the Equal Pay Act managed to hurt some people but did not carry the day.

Jackasses. Also, a big fuck you to the Republicans (including George W. Bush) who held off this legislation since 2007.

new US Trade Rep; same bad Hollywood favoritism

see below for update 12/19

Obama has appointed the next US Trade Representative, current U.S. Representative Xavier Becerra (D-CA 31); see also Becerra’s House site. Unfortunately, it looks like he’s going to be in the pocket of tank for Hollywood, just as prior USTR’s have been.

A few notes from some fast research (“googling”):

* He’s a Dem from LA. That’s almost saying enough right there.
* The Washington Times (crazy! but it’s what news.google.com pointed me to) reports:

With strong ties to Hollywood, Becerra fought to have the film industry included in the $137 billion tax bill. He wanted to stem the exodus of film production overseas and to Canada with tax-code changes.

* Google shows him on many, many events with, for, or about Hollywood, P2P, etc.
* He’s taken money from copyright maximalist PACs, e.g., $3000, Jan-June 1995, which went waaay up over the next decade: $38,750, 2005-06 (plus $3000 printing, for a total of $41,750 from copyright industries, against $12,000 from telcos & Internet companies). In ’07-’08, he took $47,500 from Hollywood, plus $5,000 from printing & publishing. Cost-of-lobbying increases, I guess. open secrets

But, while it may be bad on the copyright-front (did we expect anything good?), it’s not necessarily all bad. Like I’ve noticed before, Hollywood copyrightists who can’t see the public interest in copyright can definitely see it in patent law. Becerra cosponsored the “Genomic Research & Accessibility Act” to ban gene patents. Michael Crichton, Patenting Life, NYT, 2/13/2007

Last Friday, Xavier Becerra, a Democrat of California, and Dave Weldon, a Republican of Florida, sponsored the Genomic Research and Accessibility Act, to ban the practice of patenting genes found in nature. Mr. Becerra has been careful to say the bill does not hamper invention, but rather promotes it. He’s right. This bill will fuel innovation, and return our common genetic heritage to us.

He’s also done some pro-librarian work, for example, seeking to add librarians to loan forgiveness plans, e.g., by introducing the Librarian Education & Development Act of 2003 (HR 2674).LIS News 2004/6/9

And of course in other areas — human rights not dealing with access to knowledge — he’s pretty good. So, the task is to get the access to knowledge message to him …

update 12/19 So Becerra turned down the job on Monday (12/15), and instead Obama has appointed Ron Kirk, former Mayor of Dallas, and supported by tech. tech daily dose, from private list

yaay EFF & Georgia senatorial candidate

Of course, it’s never surprising when the EFF takes on the most challenging issues in technology law, but it was particularly gratifying to see them arguing to overturn the odious telecommunications immunity passed last year. The Machinist at Salon — a blog I’ve been appreciating more and more lately — has a great summary & recap of the issue.

And two for two for Salon.com today, because Glenn Greenwald, who now also blogs for Salon, highlighted today something that did surprise me: Georgia Democratic Senatorial candidate Jim Martin’s principled critique of that legislation.

Go figure. Political candidates can surprise me with something other than the depths of their ignorance and/or pandering and/or willingness to lie outright.

another exercise by the military-industrial-entertainment complex

The entertainment industry has succeeded — at least theoretically — in passing off more of their enforcement costs to the federal government — i.e., the taxpayers. Nice use of government dollars at a time of financial crisis, Congress! Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act” (“PROIPA” ?) which, besides shelling out a lot of money to make the Dept. of Justice hunt down copyright infringement, also creates the office of the Copyright Czar.

Will the Copyright Czar be as effective as the Drug Czars? One can only hope.

Variety 10/13

* PS — double points if you can identify the source of the phrase “military-entertainment-industrial complex”, without Googling it. Hint: It’s from a pop culture source in 1996.

shades of the Pinkertons

In Burger with a Side of Spies (editorial, NYT 5/7), Eric Schlosser calls for legislation to protect people from private entities, á la the Bill of rights.

The article discusses a number of incidents, including spying and infiltration
– by HP on journalists;
– by a private security firm on Greenpeace & other environmentalist groups; and
– most recently, Burger King on the Student/Farmworker Alliance.

I note that the article did not cover the related litigation against the RIAA’s minions, spying on your networks. Similarly, the article did not cover companies’ growing abuses of their employees. Still, a good start.

ohohohoh

This is highly amusing. A Constitutional flaw in the way that patent appeals judges have been appointed since 2000 (by persons without authority to do so) threatens to invalidate all the decisions made by a panel that includes a judge appointed since 2000. [My initial hearing of snatches of this made me think there was a problem with the Fed Circuit, which would have been even more hilarious! But this is pretty funny too.]

rotflol …

but seriously, folks, this will never happen. Congress will hastily fix the appointment process and pass a law grandfathering in the eight years’ worth of decisions. The grandfather statute will be challenged, and will be upheld on appeal as a lawful exercise of Congress’ power to regulate commerce. Decisions premised on this problem will be held off or actions stayed until resolution of the dispute.

Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.

rotfl, rotfl …

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce.

And now that Professor John W. Duffy has pointed it out, it’s so completely obvious! Of course the head of the PTO can’t appoint judges. How did nobody ever see this before? … Someone is going to be digging out their notes from nine years ago tonight and going “oh shit….”

teeeheeeheee…. i’m going to be chuckling on and off all the rest of the night.

Duffy paper @ SSRN

Section 108 report released

The Section 108 study group has finally released their report. See:

For those who are not copyright or library geeks, Section 108 is one of the most important parts of the Copyright Act for libraries.

For those who are having trouble reading the medium-grey on light blue summaries of recommendations in the Executive Summary (what were they thinking?), here’s my summary of the summary:

  • Museums should be covered by Section 108
  • Recommending stricter criteria for eligibility for libraries, including “possessing a public service mission, employing a trained library or archives staff, providing professional services normally associated with libraries and archives, and possessing a collection comprising lawfully acquired and/or licensed materials.” Hmm.
  • Section 108 should be amended to permit some outsourcing of library & archive exceptions.
  • Ease up on the restrictions for replacement copies in 108(c), to include fragile copies, but also some strengthening of requirements — for instance, libraries are required to look for copies available at a fair price, and the Committee recommends that can include “licensed” copies. Hmm.
  • Recommendations about preservation of unpublished works, including limiting this to “unpublished works that have not been publicly disseminated.” They include a definition of “not publicly disseminated”, but I wonder how tenable these distinctions are going to remain. Also noting that borrowed copies may not be archived by the borrowing institution.
  • An exception should be added to permit preservation of “publicly disseminated works” whether published or otherwise publicly disseminated. These are dark archives, so access is specifically restricted: “The library or archives restricts access to the preservation copies to that which is necessary to effectively maintain and preserve the work”. A long list of requirements to qualify here; this is really quite bloated IMO.
  • An Internet Archive exception “to permit … capture and reproduce publicly available online content for preservation purposes and to make those copies accessible to users for purposes of private study, scholarship, or research.” There should be an opt out, libraries and archives should not interfere with material exploitation, and labeling is required.
  • The television news exception should be amended to permit streaming of archives, but not “downloadable copies.”
  • 108(f)(1) should be amended to clarify that libraries do not have liability for unsupervised use of reproduction equipment, e.g., library users’ personal cameras, scanners, etc. And reorganize the darn section logically.

Well, I could have hoped for a lot more, but there are some improvements here. Good luck getting them through Congress, though, especially in an election year. Maybe we’ll see some substantive reforms in 2009, but I’m not going to bet the farm on it.
(cross-posted @ sivacracy)
followup 4/28: Here’s a link to Mary Minow’s post of Peter Hirtle’s analysis: posted at Stanford Library fair use website.

irrational economics @ the DOJ

The OECD is releasing a study confirming that entertainment & IP industries puff up their “lost to piracy” figures — by a lot. Actual losses are under $200 billion worldwide per year. The industry estimates at $600 to $1000 billion or more per year.

… And is there any evidence-based lawmaking afoot? No, there is not. Apparently the DOJ is even more of an evidence-free and knowledge-free zone than we knew. Gonzalez is pressing Congress to pass the “Intellectual Property Protection Act of 2007″. (Perhaps if he focused more on his pressing scandals and less on unnecessary bills he would “misspeak” less often.)

The IPPA recycles a lot of bad proposals from last year’s similar bill, which generally step up the pace of criminalizing copyright infringement, permit more wiretaps (don’t they have enough?), etc. There is a crime of life imprisonment for using pirated software if you recklessly cause or attempt to cause death. The DOJ gave an example of a hospital using pirated software instead of paying for it. … And this would lead to death, how? Never mind. Moving on … More wiretaps, more computer seizures, criminalize “attempts” to infringe, bigger penalties for circumventing TPMs, require Homeland Security to call the RIAA whenever Customs sees bootleg CDs. Bigger penalties of money and jailtime. The War on Drugs is leading by a nose, but the War on IP Piracy is gaining rapidly in the Race of Follies.

The bill was amusingly described by Declan McCullough as “the most dramatic rewrite of copyright law since a 2005 measure dealing with pre-release piracy”. I think that our diminished standards of drama and frequency suggest just how often we’re having to fend off ridiculous bills being pushed by the industry and/or some discredited government hack.

Last year’s version was so soundly decried that it didn’t go anywhere, and we can hope we’re as lucky this year.

france ipod/DRM legislation passed

(edited & corrected as I learn more)

According to MacObserver, the French legislation opening DRM (like that on apple’s ipod) has now passed into law. Presumably, this was supposed to open up Apple’s scheme to competitors so music purchased at iTunes store will play on other devices. According to consumer groups this portion was quite weakened; however, Forbes still seems critical so presumably there must be some consumer-friendly benefit left?

A few months ago, amendments had been introduced that would have made this the the first national law, so far as I’m aware, to aggressively target the anti-competitive / anti-consumer aspects of DRM. Unfortunately those were significantly watered down from the original proposal. The *rest* of the bill is pretty bad, largely anti-P2P and anti-circumvention provisions. The “fair use” pieces are interesting: France added in recognition of educational uses, disability, web caching, etc.; but then weakened all these, plus preexisting “fair use” type exceptions by importing the Berne three step test which says exceptions “cannot hamper the normal exploitation of the work … [nor] cause an undue loss to the legitimate interests of the author.”

In the meantime, Wikipedia has the most current info (Eng). Also see commentary on the bill at Ars Technica (Eng), BoingBoing (Eng), Stop DRM (Fr). I’m laboriously reading thru it the bill at http://www.assemblee-nationale.fr/12/ta/ta0596.asp (PDF) (Fr, of course).

net neutrality provision fails in the House

we knew this, right? that legislative attempts to do something positive for consumers were likely doomed? [nyt 6/9]

consumers, if you get Internet service from a phone or cable company, do you think you pay enough to have service already? do you think your broadband provider ought to be able to charge you more for getting email from a non-corporate-licensed listserve, or using Google? you might want to consider calling & explaining that you already pay them to deliver a particular service–not to spend millions of dollars in lobbying to ensure their “right” to double-bill you for Internet access.

Save the Internet and Public Knowledge are the places to go on this one. Go now, while you’re not being charged double for the privilege.

tech mandates and reproductive care

I never cease to be astonished by how smarmy politicans can be: today, leaders in the Smarm Community, the anti-choice people (‘pro-lifers’). The latest RU-486 story in the NYT, sensationalistically titled “2 More Women Die After Abortion Pills”, covers two recent RU-486 deaths (two, for a total of five; four of which were probably infection-related). Naturally the pro-lifers jumped on it, using the opportunity to pontificate piously and misleadingly. Here’s “Concerned Women of America” policy director Wendy Wright:

“Sadly, people who support RU-486 apparently believe the risk of death is preferable to having a child.”

Wright’s politicized sorrow obscures the facts, some of which are included in the NYT article. It turns out that these two deaths are from infection after RU-486 abortion, and, statistically, the deathrate from infections after childbirth and abortion remains consistent across procedures and methods. [The NYT article fails to mention anything in response to this misleading quote; I would have thought that the risk of death from 'having a child' would have been appropriate here. The risk of long-term health problems, considerably greater for childbirth than for any method of abortion, might also have improved the article. But ranting about the NYT is a task for another day. For many other days.]

Politicized Research

The statistics are unsurprising, but in the politicized world of abortion statistics you would have difficulty verifying the data, or trying to flesh out Ms. Wright’s statement. For instance, if you googled something like ‘childbirth abortion mortality rates’, you could see that Google has been successfully bombed by a flood of political sites on the topic (largely anti-abortion). You have to get to the second page of results before you actually start seeing any material from the medical community.

A search of PubMed proved much more helpful. The scientific literature largely treats abortion, pregnancy, and birth control as part of a continuum of family planning and reproductive outcomes — what I’ll call the reproductive medicine approach. This makes sense. Research that seems tailor-made to proving somebody’s point about abortion (from whatever perspective) is just inherently less trustworthy.

The reproductive medicine approach makes clear that when the government gets involved in restricting women’s reproductive choices there are clear medical consequences: Whatever the risks of specific procedures, techniques, and reproductive outcomes, what’s really risky is lack of access to family planning and contraception. Unplanned pregnancies are, ultimately, the cause of most pregnancy & childbirth-related mortality, by leading to high-risk pregnancy, or in many countries, illegal or quasi-legal abortion. In the US, for instance, restrictions on abortion delay many women’s access to the very safe first trimester abortion, perversely leading to more late-term abortions. But the message from those who would politicize and involve the government in individual medical decisionmaking, is never about healthcare or policy, probably because the healthcare policies they would propose would be unacceptable to most people. Instead, they focus on particular technologies, techniques, and procedures — effectively establishing technological mandates and prohibitions.

Technological Mandates Are Bad Government

It’s almost never a good idea for the government to establish technological mandates. Technological developments are notoriously difficult to second-guess or steer; tech mandates all too often exemplify the law of unintended consequences [Library of Economics, WikiPedia]. Whenever Congress or state legislators try to take aim at specific technologies, they end up effecting a lot of other changes, scattershot. And any technologically specific law is bound to be out of date very quickly.

We usually think of tech mandates & prohibitions in geeky areas, like copyright: the DMCA (thou shalt not tamper with copy protection measures, etc.); DAT (digital audio tape recorder manufacturers shall include copy protection schemes); broadcast flags (thou shalt include broadcast flag recognition technology in video recorders). But the same impulses are clearly at play in the politics around abortion and birth control. And as in copyright, politicians’ attempts to mark out this or that technology, technique or method as sinful and wrong is bad policy. The politicization of this or that reproductive medicine technique (most recently emergency contraception and intact dilation and extraction, or so-called ‘partial-birth abortion’) only hampers attempts to improve reproductive medicine and outcomes for women, infants, and their families.

Abortion is only the most obvious example. Legislators do nobody any favors when they start toying with technological mandates in any field.* Look at the recent Congressional hearings on stem-cell research. Saletan in Slate tried to put a good spin on it: These guys are working really hard & exploring the issues; isn’t that nice? Yeah, that’s nice from a personal growth standpoint, but the problem is these guys are making laws about very specific techniques, and they have no clue what they’re talking about, much less doing. They don’t understand biology, they don’t understand genetics, they don’t understand development.

But Congress members do understand policy-making, and one might argue that they understand ethics. Well, err, anyway, they understand policy-making. So if Congress members feel they must Take Action, then I have a suggestion for them: Do what you know — make policy. Set out broad principles of respect for life (which includes the lives and health of women as well as the lives of their potential children) and autonomy. Fund research into family planning methods that enhance autonomy and health. Make principled statements that are general about no wanton cruelty (or whatever) in harvesting stem cells. Skip the specific tech mandates.

Then Congress could let the NSF & NIH apply those guidelines when funding specific grants. That’s what regulators & grantors are good at: reviewing specific proposals to see if they fall within general guidelines. And Congress could let the courts interpret those terms in the course of litigation. That’s what courts are good at: reviewing the facts of particular cases, heartwrenching, difficult cases, and figuring out how to apply broad principles. And Congress could stop grandstanding and micromanaging cases (like Schiavo) and technologies (anything to do with biology, family planning, and copyright protection is by definition a Bad Idea for Congress to muck with — others no doubt will occur).

follow-up: 2005/7/25: The AP version of the story also pointed out that the women who got the infection and took the drugs may not have followed FDA-approved instructions.

The agency also said the four deaths occurred among women who were treated at clinics that didn’t follow FDA-approved instructions for the two- pill regimen. Although the FDA stressed that it could not prove that the “off- label” use was to blame, its new public health advisory warns doctors of the possible link to such use.

The fifth death followed a ruptured tubal pregnancy, a dangerous condition and type of pregnancy that the drug does not terminate.

Geez. Could the NYT article have been any less informative?


* For that matter, technological mandates & prohibitions really might be considered a subspecies of micromanaging generally. The Terri Schiavo fiasco demonstrates why legislators should stay out of individual cases, and far, far out of medical decisionmaking.

alabama determined to drive itself into a deep, deep hole

god what a great state i come from. on nov 2 they — unbelievable — actually retained the state constitutional language mandating segregation. now this:

MONTGOMERY, Ala. (AP) – A lawmaker seeking to ban gay marriages also wants to prohibit state money from being spent on any materials or programs that “recognize” or “promote” homosexuality.

Republican Representative Gerald Allen says, quote, “We have a culture that’s in deep trouble.”

But Representative Alvin Holmes, a Democrat, says Allen’s measure was an unconstitutional form of censorship aimed at enhancing Allen’s standing with the right-wing conservatives.

If the bill became law, public school textbooks could not present homosexuality as an alternative lifestyle, college theater groups would not be able to perform plays like the Tennessee Williams classic “Cat On A Hot Tin Roof” where homosexuality is a theme, and public school libraries could not display books that include lesbianism like Alice Walker’s “The Color Purple.”

Allen says the method of weeding out objectionable material and programs was still to be determined. His bill has been prefiled for action in the 2005 session.

— AP, 2004-11-30 Bill Would Bar State Funds Used to Foster Homosexuality

great posts on this issue:

same-sex marriage decisions

  • Newfoundland, Canada: lawsuit launched for same-sex marriage [365gay.com 11/5]
  • 2004-11-05: Saskatchewan legalized same-sex marriage, the 7th Canadian province to do so (British Columbia, Ontario, Quebec, Manitoba, Nova Scotia, and the Yukon Territory). Four of the plaintiff couples sought to get married in Saskatchewan and a fifth couple sought recognition of its British Columbian marriage. Oral arguments heard Wed, 11/3. [365gay.com 11/5]
  • 2004-11-04: Oral arguments before Judge Kramer, in the California Superior Court, where the City of San Francisco is challenging Prop. 22 (the “Knight” Initiative) on state Constitutional equal protection grounds. California AG Lockyer defended Prop 22 as did intervenor Alliance Defense Fund.
  • 2004-11-03: Every freakin’ anti-SSM amendment passed.
  • 2004-10-29 Friday: Germany expanded rights for same-sex couples, allowing registered DPs to adopt each other’s children. Germany retained restrictions on non-stepparent adoption. Germany also extended various marriage laws governing the dissolution of marriages to same-sex couples. [365gay.com 10/29]
  • 2004-10-27: Georgia said it won’t consider the validity of its opposite-sex-only marriage amendment until it’s been voted on. [nyt]
  • Louisiana said its recently-passed opposite-sex-only marriage amendment didn’t pass muster, because it had multiple purposes. (Amendments can have only one purpose.) Still looking for a copy of the decision …
  • 2004-Sept: Canadian provinces Manitoba and Nova Scotia ruled for same-sex marriage.
  • California Superior Court, 2004-Sept-8, ruling that California AB 205 did not violate Proposition 22. [decision posted at NCLR] Prop 22, the “Knight Initiative”, statutorily defined marrage in California as between a man and a woman. The court held that domestic partnerships are distinct from marriage.
  • California Supreme Court, 2004-Aug-12, ruling that San Francisco Mayor Gavin Newsom exceeded his authority in permitting city officials to marry same-sex couples, and holding the several thousand marriages legally void. [decision posted at NCLR]

‘true name’ bill signed

Sigh. Now i know why i was feeling kinda blue today: On Wed, 9/22, Schwarzenegger signed SB1506, the so-called ‘true-name’ bill, which requires anyone putting copyrighted content on a p2p system to include their name and contact information. [Sacramento: Governor signs Internet piracy bill: E-mail address required to share movies, music online by Mark Martin & Lynda Gledhill — sfgate 9/22]. Certainly it wasn’t a surprise — this bill has been steamrollering through since early this year. But it doesn’t make my day any better.

Highlights: this line from the article:

Last week [Gov. Schwarzenegger] signed an executive order prohibiting state employees from using software designed for file sharing.

Ummm … like TCP/IP? AppleShare? The web? Might make it hard to do business …

And in related news: Donna Wentworth pointed to another recent state-law copyright case [U.S. v. Jean Martignon, 03cr1287 (SDNY 2004)]: The court struck down an anti-bootleg law because it didn’t recognize copyright terms. (Attn, Gov. Schwarzenegger: Is that the drumbeat of p-r-e-e-m-p-t-i-o-n sounding in the distance … ?)

The bill, SB1506/AB (pdf as chaptered), reads:

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