Diving straight into the internet link sausage platter:
- Francisco Franco may still be dead, but King Juan Carlos of Spain is leaving office while he's still alive... which, if I'm reading things correctly, is the first time the head of state of Spain has left office alive in nearly eighty years, and the first time without threat of force in a hundred and thirty. That's food for thought for politicians everywhere.
- Death did claim my friend (and fellow tropical-shirt afficionado) Jay Lake this weekend. Fuck cancer.
So there's this popular show on HBO in which people die. A lot. Even during (and/or as a result of) trials... although last night's was somewhat inconclusive. Given that it's end of term for the Supreme Court, one must ask whether, in a trial by combat, there is a conviction (meaning further death) when both champions die. Those of us who've read the books know the book answer... but these producers haven't been afraid to introduce change, either. That it would involve the fate of the character who passes for the moral center of Game of Thrones seems all too appropriate.
- Dear FCC:
If you don't want to be eviscerated by John Oliver and other members of the Jon Stewart-inspired school of "Yes, we're comedians, but the best comedy comes from the ridiculousness of the real world" (PDF) late-night hosts, you should try recusing yourselves when you have conflicts of interest, just like judges do. For example, if you were the chief lobbyist for a cable system giant or trade association, you should neither propose nor vote upon the biggest potential boondoggle for your former employers in the history of the Federal Communications Act. If judges (and Supreme Court Justices) recuse themselves for holding a hundred shares of a corporation that might be directly affected by a lawsuit; or for having the temerity to have a brother who is also a judge, and might have participated in a case at a much, much earlier stage of the proceedings, and perhaps not on any issue actually in front of the court; shouldn't you at least try to look like you don't have the value of your own stock options as your primary motivation?
Just sayin'.
The obvious concern is that thoughtful comments will be buried in the mass of ire that will be forthcoming from internet trolls concerned that their trolldom might somehow be relegated to the slow lane on the 'net, and therefore will not be taken seriously. The parallel with lobbyists getting the fast lane on regulation and legislation because they've got the money to pay for direct access should bother everyone involved (but it won't). More to the point, though, the anti-net-neutrality/"fast lane" proposals present a fundamental conflict with basic principles of antitrust law regarding so-called natural monopolies: The monopolist uses the market and nonmarket power it accrues through its monopoly to try to expand the scope of its monopoly power. Umm, that's improper... and especially so when the subject matter of that monopoly so directly concerns First Amendment activities.
And meanwhile, everyone who thought that because John Oliver is going over to a different network that it would reduce his sense of outrage can rest easy. Well, perhaps not so easy now that he's trying to turn internet trolls loose on the government...
- And, since it's a Monday in June, that means Supreme Court opinions, today spiced with illusory unanimity.
First up, the Court confronts whether a treaty banning chemical weapons can be used to federalize attempting to poison one's rival in love/lust (even nonlethally), a matter traditionally left to state law. In a horribly fractured but in the end unanimous decision, this Court says no (PDF), ultimately holding that "the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon." OK, so far, so good; the chemical-weapons treaty in question (properly plural, but the case focuses on a single enabling treaty and not the complex array of chemical-weapons-prohibiting agreements) concerned acts by or against state actors, and were so broadly worded so as to limit loopholes — as opposed to inventive interpretations to sweep targeted, nonlethal assaults by private actors upon other private actors with no implications for international law or relations into federal jurisdiction due to dissatisfaction with the local authorities' handling of the matter. Things get interesting with the two unanimous patent reversals (now making the Federal Circuit a far clearer "loser" than the purportedly-too-liberal Ninth Circuit, at least this Term of Court).
The first of the two patent cases also involves misreading of relatively clear language. Section 112 of the Patent Act requires that inventions must be described clearly enough that those "skilled in the art" can understand what the invention is (and, necessarily, is not). The Supreme Court in Nautilus, Inc. v. Biosig Instruments, Inc., No. [20]13–369 (PDF) held that the Federal Circuit's standard for when a description is clear was itself not clear enough. Yep, another opinion revolving around bad writing in the legal profession — the statute, the patent, the opinions. This is a quite proper reversal; the Federal Circuit blew it in its opinion below (probably encouraged by less-than-clear writing in the briefs before it from both parties as much as any policy predisposition... and yes, I've read the briefs that were in front of the Federal Circuit).
But that's not the only unanimous smackdown of the Federal Circuit today. In Limelight Networks, Inc. v. Akamai Technologies, Inc., No. [20]12–782 (PDF), the Supreme Court held that § 271 of the Patent Act means what it says: No direct infringement by a single actor means no potential liability for inducing infringement. This appears to conflict with the Grokster concept of inducing copyright infringement, but it does not. Leaving aside that the statutory language is different, in Grokster the complete act of infringement took place on the filesharing network; it was only the number of and specific works infringed, and the particular method of redistribution, that were "induced." In Limelight, however, it is not the works themselves at issue — it is the very method and technology that is the "work." That's different enough (and the statutory language is different enough) that the Court believes there's no infringement. This points out, perhaps more than was otherwise intended, that method patents are themselves dubious more than it does anything about § 271... especially since the Court interprets a different part of § 271 to already deal with the inducement-of-patent-infringement issue. See slip op. at 6–7.
Really, though, this is bad writing again: The sole question on certiorari explicitly assumed a different set of facts (and different legal structure) than the patentholder now wants to assert. The Court sidesteps this and remands for further consideration, at which time the patentholder might be able to raise that issue again (if it hasn't already waived it — I haven't reviewed the record closely enough to comment on this). In this respect, copyright doctrine is actually clearer than patent doctrine, because copyright doctrine more clearly distinguishes between "infringement" and "who may be liable for inducing or performing infringement" than does patent doctrine. Indeed, that's the whole point of Grokster: Not that the many infringing copies and individual copiers — which clearly were infringing — were somehow exempt from liability, but whether the provider of the mechanism for distributing those copies (an act that is itself a copyright infringement) was also liable. In Limelight, however, it's not even clear that there's an infringement in the first place... because, as noted, it's a method patent. And yes, this does have some disturbing implications for the preceding link sausage on the platter (the FCC's "deliberations" on "net neutrality").