Liberia Accidentally Privatizes the Law, Owner Demands that the Government Pay for the Copyright if it Wants it Back

The Republic of Liberia’s laws have been, quite literally, lost. Due to civil war, the actual content of the country’s legislation were scattered and misplaced, and not even the Legislature has a complete collection of the law.

The chairman of the Liberian law reform commission has, however, finally assembled all of Liberia’s laws into one compilation — and he is claiming an exclusive copyright in the compilation. And he’s refusing to hand over the law until someone coughs up a sufficiently high enough sum:

[Philip] Banks sees the copyright as an altogether different tool. “These are resources that you’ve had to expend in putting all of this together, and the question is, should you be compensated? I hold the view that you should,” he asserted in his interview with FP. “And for folks that have said, no you shouldn’t, I’ve said to them, go and get your loose-leaf.”

I’m not sure why this situation is being treated as so self-evidently ridiculous. Not that I agree with his claims in the slightest, but it’s not any more absurd than a lot of the parodies of copyright claims that happen in the U.S. And to be fair to Banks, the compilation (which was begun by a U.S. professor) likely would not exist in its completed form if not for his efforts. Is there a meaningful difference between what Banks is doing and between municipal governments in the U.S. claiming a copyright in their train schedules?

However, in contrast to when such situations occur in the U.S., the FP article, and most the other commentary up, is perfectly willing to describe what Banks is doing as “taking the law hostage” and “ridiculous,” and no commentators seem inclined to accept that he has any moral rights to the data. (Whether or not he has a legal claim to the data is, for obvious reasons, rather a more difficult question.)

One thing the Foreign Policy article does not make clear (possibly because there’s no way to do so) is whether anyone in Liberia is making a distinction between copyright in the laws themselves and a copyright in the collection of the laws. Presumably, Banks can only claim the second. According to the article, “The U.S. Agency for International Development estimates that $13 million is poured into rule-of-law assistance programs in Liberia each year.” Maybe instead of pumping in millions, US AID should just go buy a copy of the laws from Banks, rearrange the compilation order, maybe add in some independent research for good measure, and then start releasing its own collection of Liberian laws under some kind of Liberian Creative Commons arrangement. It would be a cheaper way of drastically improving the rule of law in Liberia.

Or, on the other hand, why hasn’t the Liberian government just gone ahead and passed a law that clarifies that “Copyright protections are not available in any form of legislative document or compilation thereof”? Liberia’s constitution, modeled after the U.S.’s, does have prohibitions on bills of attainder and ex post facto laws, but if those clauses apply in a similar fashion to the U.S. counterparts, they would not actually prohibit the Liberian government from declaring that its copyright statutes do not apply to Liberian laws themselves. However, according to the FP article,

President Johnson Sirleaf said in an Oct. 12 interview that she is willing to entertain compensation for “whatever they may have spent out of their own resources,” but insists, “Rightfully, those copyrights belong to the government.” She hopes to have the situation sorted “within a year.”

So apparently the Liberian government is, myopically, trying to claim that they have a copyright in the laws. Which is ridiculous of them, and undermines their own cause. If the government can have a copyright in legislation, there is no principled reason (assuming Liberian law recognizes copyrights in compilations) why Banks should not be able to copyright his laboriously collected volumes of them.

In which case, I suppose, why not just go ahead and invoke constitutional prohibitions against Banks? That could be the Liberian government’s handiest solution. Under Article 15(c) of the 1984 Liberian Constitution, “there shall be no limitation on the public right to be informed about the government and its functionaries.” Allowing the Minister of Justice to keep the country’s laws secret sounds like a limitation to me.

So I’m assuming there’s something either more corrupt or more complicated going on here than the FP article suggests. Otherwise, it just doesn’t make much sense.

-Susan

Things That Made My Life Slightly Better Today: Complete* List of Law Review Abbreviations

Oftentimes while reading an article, I’ll try to find a source mentioned in a footnote, only to discover that whoever wrote the footnote has just completely invented a new citation format and is now directing me to a source that does not exist. G.W. I.L.R.? Eur.Jour.Int.L.? Seriously, people? The worst offenders, by far, are those from other academic fields, as when citing to a legal source they seem to be blissfully unaware that such a thing as standardization exists.

Which means I have to puzzle over their random list of letters and try to reverse engineer the scramble until I figure out what journal they were trying to cite to, and then go rummage around to look up the actual abbreviation.

Okay, sure, in most cases that will take all of thirty seconds. In the grand scheme of things, this is a life problem that ranks about a .2 on a 10 point scale. It didn’t used to be an actual problem, as I had a system that was pretty reliable, but now that I’m no longer a student and don’t have magical legal database access powers, it’s gone from “minor nuisance” to “actual source of irritation.” So after the thousandth time of trying to find a journal article based upon someone’s insane made up version of a law review abbreviation, I finally decided to compile a handy reference collection myself. Sloppy footnoters will never cause me research anguish again:

And, if all else fails, Cardiff Index to Legal Abbreviations and NYU Guide to Foreign and International Legal Citations. These are very bulky and not good for quickly looking up common publications, but if nothing else is working, these will totally do the job.

Finally, this site is plausibly useful, but I’ve never actually had an occasion on which I needed to use it: International Citation Manual.

-Susan

The Texas Constitution: Authorizing Same Sex Domestic Partnerships and Prohibiting Opposite Sex Marriage Since 2005

Thanks to the efforts of a Texas candidate for Attorney General, a little constitutional tweak made four years ago is now back in the spotlight. The trouble is caused by a statewide referendum that voted in the following change:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

I’ve wondered before why the 434th amendment to the Texas constitution hasn’t received more attention. It’s a real life example of a common thought experiment: What if a law says one thing, but everyone — or at least 99% of everyone — understands it to mean something it does not actually say? What, then, is the law?

Well, the answer’s not clear, aside from the amendment pretty much being Buddy Nino’s worst nightmare.

Any judge that has a case come before them based upon the Texas marriage amendment is going to find themselves in between a rock and a hard place. There simply is not a correct answer. In reality, a judge almost certainly won’t find marriage to be unconstitutional in Texas — the political heat is simply too great, and too many serious legal problems would arise based upon suddenly every marriage in the state being dissolved. But if a judge finds marriages are not prohibited in Texas, she will be ignoring the text and replacing it with what “everyone knows it actually means.” That is some textbook judicial activism right there.

And no, the existence of section (a) describing what a marriage is does not save the amendment. It’s as if it read, “Someone can only be a lawyer in this state if they have been admitted by the state bar; however, this state shall not license or recognize a foreign license that would have the effect of making someone identical to a lawyer or would make them something similar to a lawyer.” The first section provides a definition; the second section prohibits the existence of the defined item.

Although the language of the amendment is obviously ridiculous and meaningless, it is also hilariously ineffective at what it purports to do, i.e., ban same sex domestic partnerships. If “marriage is only a union between a male and a female,” then a same sex pairing is certainly not identical or even similar to marriage, because fully half of the required conditions are not present.

Moreover, from the original legislative resolution,

“This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.”

So we know that, according to the Texas legislature, an arrangement that involves a sharing of resources, power of attorney, a kinshipesque right to visit in the hospital, and a right to receive someone’s life insurance benefits is not similar a marital union. You could argue it would become similar to marriage if these bundle of rights were granted through a single “domestic partnership contract,” but why should it matter whether the bundle of rights is achieved through one contract or two or three?

I am not being facetious here; I honestly cannot imagine what would have to exist before a union between people of the same sex, which is called something other than marriage, would be considered “similar to marriage.” Precisely what are the rights that create a “similar to marriage” status? Is it the right to file joint tax returns? Well that won’t work, because under DOMA no same-sex pairing can anyway. Is it the right to inherit property? No, the state already says that’s not marriage-like. Is it the right to hold a non-state sanctioned marriage ceremony, or to wear wedding bands? Nope, the state can’t ban couples from doing that. Is it the right to hold yourself out as married under the rules of your religion? Nope, they can’t ban that either.

So basically, without intervention via judicial activism, marriage is prohibited in Texas, no matter the gender pairings involved. Likewise, unless a judge engages in judicial activism to get around it, same sex domestic partnerships are adamantly not prohibited. Opposite sex domestic partnerships, however, may or may not be prohibited — that’s a closer question, and would depend upon what rights the partnerships provide and what the judge construes “similar to marriage” to mean.

-Susan

Psalm 109:8 and Good Faith Biblical Interpretation

The latest popular religious-political brouhaha to erupt involves a new conservative slogan, which is being featured on bumper stickers, t-shirts, coffee mugs, and other items of internet kitsch. The slogan is, “Pray for Obama, Psalm 109:8.”

On the face of it, Psalm 109:8 does seem like an appropriate sentiment for a right-leaning Christian to pray for God to bring onto Obama: “Let his days be few; and let another take his office.”

But the slogan might be worth reexamining when taken with the rest of the text of Psalm 109:

6 Appoint an evil man to oppose him;
let an accuser stand at his right hand.

7 When he is tried, let him be found guilty,
and may his prayers condemn him.

8 May his days be few;
may another take his place of leadership.

9 May his children be fatherless
and his wife a widow.

10 May his children be wandering beggars;
may they be driven from their ruined homes.

11 May a creditor seize all he has;
may strangers plunder the fruits of his labor.

12 May no one extend kindness to him
or take pity on his fatherless children.

13 May his descendants be cut off,
their names blotted out from the next generation.

14 May the iniquity of his fathers be remembered before the LORD;
may the sin of his mother never be blotted out.

15 May their sins always remain before the LORD,
that he may cut off the memory of them from the earth.

Bible verses are often quoted in a way that obscures or sanitizes the meaning if taken in context, and the vast majority of the time the “true” meaning is adamantly not implied or suggested by whoever is using the quotation. However, while undoubtedly some people purchasing the Psalm 109 products do so with unawareness of the double meaning, I do not think all who advocate the slogan’s use do so in good faith.

People are defending the “Pray for Obama Psalm 109” slogan even after being informed of the larger and more sinister context of the verse. Those in favor of the slogan argue that they don’t mean the slogan “like that,” so the shirts are merely expressing a benign sentiment. However, what this argument basically boils down to is that it is acceptable to deliberately spread about misinterpretations of the Bible and to obscure the true meaning of God’s word. Somehow, I don’t think that argument is entirely coherent with certain other Biblical passages.

At least one online company has announced it will no longer sell Psalm 109 shirts, although when I checked earlier, the shirt pictured in the image above was still available for purchase. Zazzle says:

With that in mind, it is only after great thought that we have determined that these products, in the context of the full text of Psalm 109, may be interpreted in such a way as to suggest physical harm to the President of the United States. In deference to the Office of the President of the United States, and in accordance with federal law prohibiting the making of threats against the physical wellbeing of the President of the United States, Zazzle has therefore determined that these products are in violation of the Zazzle User Agreement and not appropriate for inclusion in the Zazzle Marketplace. We have begun efforts to remove them from our website, and we will be vigilant to the publication of similar products moving forward.

-Susan

Under Copyright Law’s Fedora: Paul Zukofsky’s Copyright Notice as Critical Commentary

Paul Zukofsky, the son of poets Louis and Celia Zukofsky, has published an amazing Copyright Notice, in which he threatens to bring down a storm of litigation on anyone who dares to quote his parents without paying him the required fee. Describing his letter as “an obvious ‘do not trespass’ sign,” he says:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of ‘fair use’. ‘Fair use’ is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

PZ may “expect [his] views to be respected,” but his expectations are not exactly the sort that are legally protected. Essentially, PZ is making a threat that either you do not use the work or pay him if you do, or else he will pursue you with vicious, expensive litigation that, while is unlikely to succeed on the merits, will bankrupt any grad student long before the merits could be reached.

This not an idle threat. Glancing around, I found a few examples of where scholarly commentary on Louis Zukofsky has been removed due to legally dubious copyright infringement claims made by PZ. He seems intent on making good on the threat contained in his Copyright Notice:

“In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth.”

Despite P. Zukofsky’s assertions that his motivations are “almost purely economic,” and that he is merely protecting his financial interest when he “insist[s] on deriving income from that property,” I suspect money is not the true issue. First, it is quite obvious that the stance PZ is taking will lead to less income from the copyrights he now holds. By forbidding any substantive commentary on his parents, he is ensuring that their works will rush prematurely headlong into a grave of literary obscurity — as with no one talking about their poetry or discussing their works, there are no new potential fans to become intrigued enough to purchase a copy of the Zukofskys’ works for their own.

But second, and more importantly, the “Copyright Notice” is not at all some dry and dour admonishment, written in legalese, as you would expect with a true peremptory cease & desist notice, but rather it is a self-aware “irascible [and] recalcitrant” rant. It reveals too much about the author himself, such as his apparent daddy issues, (“I hardly give a damn what is said about my father (I am far more protective of my mother)”), to not have been intended as a form of literary speech in itself, separate from any legal warning it may also convey. This becomes most obvious in the following paragraph from the Notice, in which PZ mocks the uselessness of grad students and their dissertations on poetry:

I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it. I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity. Your self-interest(s) I may understand, perhaps even agree with; but beyond that, in the words of e.e.cummings quoting Olaf: “there is some s[hit] I will not eat”.

e.e.cummings is, of course, still under copyright, and by all indications, PZ is not nearly so dense as to be oblivious to the irony of quoting another poet, in a diatribe about how no one should ever quote the Zukofskys. The use of the copyrighted quotation was almost certainly a deliberate act by PZ. Moreover, Louis Zukofsky himself wrote many volumes of critical commentary– the “so-called profession” PZ refers to with scorn is his father’s own profession — and many of the copyrights that PZ is trying to protect are themselves volumes of poetry criticism. So I do not believe that PZ could have been less than fully aware that his actions are an abuse of copyright, and contrary to his own father’s feelings on poetry.

Instead, PZ’s Copyright Notice is itself a form of literary criticism, a piece of scholarship about the Zukofskys’ works — albeit one that is, unfortunately, backed with the color of law.

Paul Zukofsky is brilliant and accomplished in his own right, and I actually cannot find it in me to condemn his instinct to protect and control the literary works of his parents. It is the asinine structure of our copyright laws that is to blame, for giving PZ the power to wield the American legal system against scholarship he dislikes, and to shut down any criticisms or homages of his parents that he disagrees with. Copyright’s only true purpose is to provide incentives for future creators — instead, perversely, under our laws today, copyright’s purpose has become to serve whatever whims the copyright holder might have, even if that whim is to have a poet’s work never be discussed again.

-Susan

p.s. If you want to at least listen to P. Zukofsky’s works, a bunch are available online here.

p.p.s.: Or read LZ’s Poetry/For My Son When He Can Read. The closing paragraph takes on a new meaning in light of Paul Zukofsky’s attempts to prevent others from finding new meaning in LZ’s own poetry:

“Writing this Paul, for a time when you can read, I do not presume that you will read ‘me.’ That ‘me’ will be lost today when he says good night on your third birthday, and not missed tomorrow when he says good morning as you begin your fourth year. It took all human time to nurse those greetings. And how else can the poet speak them but as a poet.”

The International Law of Antarctic Whiskey of Historical Value

A New Zealand expedition is planning to drill for one hundred year old whiskey in Antarctica, from two crates left behind by the Nimrod Expedition in 1909.

The Nimrod Expedition, lead by Sir Ernest Shackleton, came within 97 miles of the South Pole before they gave up and came home. They’d originally brought with them 25 crates of McKinlay’s scotch, but two were found to have been left behind in the expedition’s Cape Royds base hut.

However, a century of ice and snow isn’t the only thing standing in the way of the whiskey’s recovery. International law may also pose a barrier, as the hut at Cape Royds has been designated an Antarctic Specially Protected Area (ASPA) under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty. Art. 8(4) of the Annex requires that “Listed Historic Sites and Monuments shall not be damaged, removed or destroyed.” Although temporary removal of objects for conservation purposes is permitted, and taking samples of the whiskey for study would be permitted, the crates and most the whiskey are prohibited from being removed completely by any one party under current treaty law. Today, preservation of the hut is the responsibility of the New Zealand Antarctic Heritage Trust, hence their carrying out of the whiskey mission.

There are a couple sources of treaty requirements regarding Shackleton’s whiskey and other historical relics. Resolution 3 from ATCM XXXII incorporated the Guidelines on Preservation of Historic Areas, which states:

“To that end, Parties should notify the other Parties of the discovery, indicating what remains have been found, and where and when. The consequences of removing such remains should be duly considered. If items nonetheless were removed from Antarctica, they should be delivered to the appropriate authorities or public institutions in the home country of the discoverer, and remain available upon request for research purposes.”

Measure 5 of ATCM XXXII, “Revised Management Plan for ASPA 121 (Cape Royds),” is more specifially relevant to the McKinley whiskey, as it addresses the handling and conservation of artifacts from the Nimrod Expedition. The plan became effective in July, 2009. Section 7(vii) requires that:

“Material may be collected or removed from the Area only in accordance with a permit should be limited to the minimum necessary to meet scientific or management needs.”

“Any new artifacts observed should be notified to the appropriate national authority. Relocation or removal of artifacts for the purposes of preservation, protection or to re-establish historical accuracy is
allowable by permit.”

So while recovering a sample of whiskey with a syringe to take back for study would qualify as a “scientific need,” it or any other materials retrieved must remain in the hands of a public institution and be available to other nations for research purposes. Incidentally, I do not know exactly what “permits” are required or where they are obtained from, but I find it depressing to know that not even the remote icefields of Antarctica are free from the strictures of bureaucracy.

Finally, part of me suspects that the whiskey retrieval mission is less about getting a sample of historical whiskey and more about an awesome publicity campaign. Or possibly just part of an advertising war between whiskey makers — Jameson’s may dive into the sea during a storm to recover a barrel of their whiskey, but McKinlay’s can trump that by sending an expedition to Antarctica to retrieve Shackleton’s lost whiskey cache.

-Susan

Big Brother’s Invisible Yellow Dots: Using Secret Printer Tracking Data in Civil Litigation

This is apparently very old news, but I’ve never heard of it before. U.S. laser printer manufactures have, in cooperation with the federal government, included special tracking dot systems with their printers, so that every page printed contains hard to see dot patterns encoding the serial number of the printer and the time and date that a given page was printed.

The dots’ minuscule size, covering less than one-thousandth of the page, along with their color combination of yellow on white, makes them invisible to the naked eye, Crean says. One way to determine if your color laser is applying this tracking process is to shine a blue LED light–say, from a keychain laser flashlight–on your page and use a magnifier.

The best website up about the tracking dots is over at the Electronic Frontier Foundation. The EFF has sent in a FOIA request for information on the program. So far, they say,

“[the] [d]ocuments we’ve begun to receive in response to our FOIA requests suggest that the government may have convinced all printer manufacturers to put some kind of tracking mechanism in every color laser printer.”

The EFF has discovered the key to the tracking dot code, as shown in the picture here. They reveal the printer serial number and the exact date — down to the minute — of when the document was printed.printerguide

The Secret Service seems to be the agency that convinced printer companies to include these dots patterns. An anti-counterfeiting agent has stated that, “The only time any information is gained from these documents is purely in [the case of] a criminal act,” but there are no statutes actually limiting their use in any way.

Printing companies, like Xerox, assist the government in using the dot patterns. In the course of an investigation, the Secret Service

“decodes the information contained in the dots only to investigate counterfeiting cases. Once it has the serial number of the printer, the agency can work with printer companies to find out where the printer was sold.”

However, counterfeit investigations are only the tip of the iceberg for potential uses of the tracking dot system.

The EFF, and most other sites with information on the dots, seem primarily concerned with privacy concerns regarding government abuse of the tracking data, which is certainly a valid issue. But the first thought I had was the potential value of tracking dot information for private parties, especially for use in civil litigation. I was hoping to find an example out there of a case where tracking dots were used as evidence to either establish when a document was printed or who did the printing, but I couldn’t turn one up. Still, this seems like it’d be such an insanely useful information bonanza that there’s not way it could have not been used in litigation at some point. I’m going to scout around some more this afternoon, and if I find any cases where they were used, I’ll put them up.

Off the top of my head… Potential cases where tracking dot data might be invaluable would be, for instance, contract cases where there are allegations additional pages have been substituted in the contract, or family law cases where maybe one party is alleging they have a threatening not sent by another party, or employment cases where an employee is alleged to have engaged in improper conduct at work where printing was involved. There are thousands of cases where it might come in handy.

On a final note, because this is LL2 and because in my world essentially every subject can and should be linked to international law, there may in fact be some international law implications here as well. According to the European Parliament,

To the extent that individuals may be identified through material printed or copied using certain equipment, such processing may give rise to the violation of fundamental human rights, namely the right to privacy and private life. It also might violate the right to protection of personal data.

The protection of privacy is ensured by Article 8 of the Convention of Human Rights and Fundamental Freedoms. The Charter of Fundamental Rights of the European Union, in Article 7, provides for the protection of private and family life, home and communication, and in Article 8, for the protection of personal data.

Directive 95/46/EC of Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (‘Data Protection Directive’) ensures the protection of personal data and applies regardless of the technology used for the processing of personal data.

-Susan