February 20, 2018

Copyrights, Fundamental Rights, and the Constitution

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books, Amazon.com, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)
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Two Major updates to RECAP: Developers from Around the World Write Code in Memory of Aaron Swartz

A little over two months ago, we joined with the Think Computer Foundation to offer a set of grants in memory of our friend Aaron Swartz. Aaron worked on many issues in his too-short life, but one of those was liberating American court records from behind a pay-wall. He helped to inspire our RECAP project, which has allowed thousands of people to legally liberate and share millions of public records.

We didn’t know if anyone would take up the challenge, but today we are extremely pleased to award two of these grants. These awards recognize some truly amazing coding by software developers that were inspired by Aaron Swartz and his causes. Over the past several years, the two most-requested features for RECAP have been support for US Courts of Appeals (a.k.a. circuit courts), and a version of RECAP that works with the Chrome browser.

Ka-Ping Yee, Filippo Valsorda, and Alessio Palmero Aprosio represent the best kind of technological idealists. They are idealists that not only believe in worthy causes, but also have the engineering expertise and the dogged determination to see their vision through. Read more about them and install their code at recapthelaw.org.

A Reivew of Oral Arguments in McBurney v. Young: State FOIA and State Rights

Yesterday, I attended oral arguments in the Supreme Court case of McBurney v. Young, which I have previously written about. The case involves two different petitioners who were denied access to state records under a Virginia “freedom of information” law that limits such access to Virginia residents only. McBurney is a former Virginia resident who wanted some records related to an ongoing child support dispute. Hurlbert is a government information aggregator and reseller.

At issue is whether this preferential treatment is constitutional under the Constitution’s “Privileges and Immunities” clause, as well as the “Dormant Commerce Clause.” In my previous post, I discussed these doctrines in more detail, but I devoted most of my time to describing the privileges and immunities argument — essentially that citizens must receive equal treatment across all states when it comes to “fundamental rights.” While waiting for arguments to begin, I was chatting with another person in the audience. I asked him whether he thought that the argument was going to focus significantly on states’ rights, and he said he expected more time to be devoted to the question of whether or not the rights in question were “fundamental.” It turned out that, with the boisterous support of Justice Scalia, states’ rights were the order of the day.

[Update: Transcript of the arguments is available here]

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