The Daily Parker

Politics, Weather, Photography, and the Dog

Changes to US copyright law

On March 4th, the U.S. Supreme Court decided two cases that change how copyright infringement cases work in the U.S. In Fourth Estate Public Benefit Corporation v. Wall-Street.com, the Court held that a copyright owner must wait for the Copyright Office to accept or reject a registration application before the owner can sue for infringement:

Justice Ruth Bader Ginsburg (who had not attended the oral argument because she was home recovering from surgery) delivered the court’s opinion. She analogized the registration requirement to an administrative exhaustion requirement that an owner must satisfy before suing to enforce ownership rights.

The court concluded that the only satisfactory reading of the text of Section 411(a) is that the Copyright Office must have registered the copyright in order for registration to have been made. Fourth Estate had argued that the phrase should be read to refer to the copyright owner’s submission of a completed application.

Note that this does not mean creators need to register every creation. Copyright accrues to the author of a work at the moment of its creation. The registration requirement only applies to lawsuits for infringement. Neither creators nor the Copyright Office want to register every single creation in the United States; that's insane. But if you infringe on a copyright, the creator may register the work and then sue you, even if the work wasn't registered when you infringed on it.

Law firm K&L Gates still recommends registration: "An initial cease and desist letter to an infringer containing proof of copyright registration demonstrates that the claim may be filed in court, providing leverage to the copyright owner. Companies and other creators should consider routine copyright application filing to protect their valuable assets without loss of time and damages waiting for registration to occur after the infringement is discovered."

So calm down: don't send every blog post or Instagram photo you create to the Copyright Office. They don't want them. If you want to sue for infringement, then register the work. But how often does that happen?

The other case, Rimini Street, Inc. v. Oracle USA, Inc., clarified what "full costs" mean in an infringement suit, and won't apply to most creators the way Fourth Estate will.

Trips to Europe will need EU registration starting in 2021

When I first heard this morning that visa-free travel to Europe would end for US citizens in 2021, I was dismayed. I remember how time-consuming it was to get a visa before the visa-waiver program started in the late 1980s. And I figured that the US would retaliate, requiring visas from Europeans, which would essentially destroy tourism between the two regions.

The reality isn't really anything like that. In fact, it merely brings the EU in line with what the US has required of visa-free travelers for years.

Starting in 2021, Americans will simply need to register with the EU equivalent of our Electronic System for Travel Authorization, or ESTA:

Currently, US citizens can travel to Europe for up to 90 days without any sort of travel authorization. ETIAS will change that.

Visa-free travelers, including US citizens, will need to request ETIAS authorization before visiting the Schengen Area. They can complete an application and pay a service fee of 7 euros (about $8) online. The authorization is valid for three years.

"Completing the online application should not take more than 10 minutes with automatic approval being given in over 95% of cases," the European Commission said in a statement.

The United States won't be the only country affected by the changes. From 2021, citizens from 60 countries will be required to apply for the ETIAS before entering the Schengen Area. Brazil, Canada, New Zealand, Singapore, Israel and Mauritius are among those countries.

So this should not affect taking a last-minute trip on the Eurostar, or crossing from Northern Ireland into the Republic. And it's fair; we've required ESTA registration from all overseas visitors for many years. I'm annoyed particularly at NPR for getting the details totally wrong in their newscast this morning.

Gosh, who do you root for?

The Times is reporting that Michael Cohen has sued the Trump Organization for $1.9m in unpaid legal fees:

The lawsuit, filed in New York Supreme Court in Manhattan, said that the Trump Organization had agreed to pay Mr. Cohen attorney’s fees or related costs connected to his work with the Trump Organization but had failed to live up to that promise.

Mr. Cohen is also seeking reimbursment for an additional $1.9 million he was ordered to pay in fines, forfeitures and restitution after he pleaded guilty to breaking campaign finance laws, tax evasion and lying to Congress, the lawsuit said.

The complaint said that around July 2017, Mr. Cohen and the Trump Organization entered an agreement under which the company would pay for Mr. Cohen’s legal fees and costs connected to investigations being conducted by Congress and Robert S. Mueller III, the special counsel who is investigating Russian interference in the 2016 election.

This should be interesting. I wonder if Trump will plead that the contract was unlawful because it served a corrupt purpose?

What about RICO?

Author Garrett M. Graff, writing for the Times, suggests that Rudy Giuliani's approach to prosecuting cases under the Racketeering-Influenced and Corrupt Organizations Act (RICO) could provide the model for dismantling the Trump Organization:

Fighting the Mafia posed a uniquely hard challenge for investigators. Mafia families were involved in numerous distinct crimes and schemes, over yearslong periods, all for the clear benefit of its leadership, but those very leaders were tough to prosecute because they were rarely involved in the day-to-day crime. They spoke in their own code, rarely directly ordering a lieutenant to do something illegal, but instead offering oblique instructions or expressing general wishes that their lieutenants simply knew how to translate into action.

Those explosive — and arresting — hearings led to the 1970 passage of the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, a law designed to allow prosecutors to go after enterprises that engaged in extended, organized criminality. RICO laid out certain “predicate” crimes — those that prosecutors could use to stitch together evidence of a corrupt organization and then go after everyone involved in the organization as part of an organized conspiracy. While the headline-grabbing RICO “predicates” were violent crimes like murder, kidnapping, arson and robbery, the statute also focused on crimes like fraud, obstruction of justice, money laundering and even aiding or abetting illegal immigration.

The sheer number and breadth of the investigations into Mr. Trump’s orbit these days indicates how vulnerable the president’s family business would be to just this type of prosecution. In December, I counted 17, and since then, investigators have started an inquiry into undocumented workers at Mr. Trump’s New Jersey golf course, another crime that could be a RICO predicate; Mr. Cohen’s public testimony itself, where he certainly laid out enough evidence and bread crumbs for prosecutors to verify his allegations, mentioned enough criminal activity to build a racketeering case. Moreover, RICO allows prosecutors to wrap 10 years of racketeering activity into a single set of charges, which is to say, almost precisely the length of time — a decade — that Michael Cohen would have unparalleled insight into Mr. Trump’s operations. Similarly, many Mafia cases end up being built on wiretaps — just like, for instance, the perhaps 100 recordings Mr. Cohen says he made of people during his tenure working for Mr. Trump, recordings that federal investigators are surely poring over as part of the 290,000 documents and files they seized in their April raid last year.

Indicting the whole Trump Organization as a “corrupt enterprise” could also help prosecutors address the thorny question of whether the president can be indicted in office; they could lay out a whole pattern of criminal activity, indict numerous players — including perhaps Trump family members — and leave the president himself as a named, unindicted co-conspirator.

Of course, the President could try to pardon everyone but himself, even if that leaves himself open to state charges in New York and elsewhere. But for the time being, the Southern District of New York and other bodies seem to be laying out the larger RICO case just fine. Can't wait to see it.

An end to civil forfeiture?

The US Supreme Court ruled today that the 8th Amendment rule against "excessive fines" applies to the states as well as to the Federal Government:

The decision is a victory for an Indiana man whose luxury SUV was seized after he pleaded guilty to selling heroin. It is also a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.

In an opinion by Justice Ruth Bader Ginsburg, the court seemed to regard the basic question before it as an easy one. The justices explained that the “historical and logical case for concluding that” the ban on excessive fines applies to the states through the 14th Amendment – which bars states from depriving anyone “of life, liberty, or property, without due process of law” – is “overwhelming.”

States and municipalities have relied on civil forfeiture laws for revenue over the past three decades or so, with ridiculous and horrifying results. Today's decision will go a long way to curbing those abuses.

Sears lives to die another day

On Thursday, a court accepted Eddie Lampert's $5.2 bn bid to keep Sears running and himself as its head:

Lampert’s purchase, made through his hedge fund, ESL Investments, is intended to keep 425 Sears and Kmart stores open, preserving some 45,000 jobs. It was the only bid submitted in an auction that would have kept the once-mighty department store giant in business and avoid liquidation.

Lampert’s plan was opposed by a committee of unsecured creditors skeptical that Hoffman Estates-based Sears will be any more successful after exiting bankruptcy. The committee pushed for a liquidation, arguing that shutting down the company and selling its assets could recover more of what Sears owes.

Still unresolved is a dispute between Sears and ESL over which is responsible for paying $166 million for inventory received after Sears filed for Chapter 11 bankruptcy on Oct. 15. Although Drain did not have jurisdiction to decide the issue, he gave an advisory opinion in favor of Sears’ claim that ESL is responsible for those liabilities.

The judge’s decision saves Sears from liquidation, but still unanswered is whether Lampert can reinvigorate a retail chain that many consumers have fond memories of, but no current relationship with. Lampert has said he wants to invest in smaller stores and those that are profitable, with a focus on popular categories like appliances and repair services.

I'm not a bankruptcy attorney, so I don't know whether this is a good ruling. I, personally, would have preferred that Sears stay open and Lampert stay far away from it. But at least it's not dead yet.

Bankruptcy laws in the US

Whether the US bankruptcy code intended to create a new indentured class of university graduates, its prohibition on discharging student-loan debt has done so.

But the code really helps badly-run businesses, and not just at the criminal scale of Sears. The private-equity fund that owned a grocery store chain in Indiana has done very well under the code, while destroying the future of the chain's retirees:

The anger arises because although the sell-off allowed Sun Capital and its investors to recover their money and then some, the company entered bankruptcy leaving unpaid more than $80 million in debts to workers’ severance and pensions.

For Sun Capital, this process of buying companies, seeking profits and leaving pensions unpaid is a familiar one. Over the past 10 years, it has taken five companies into bankruptcy while leaving behind debts of about $280 million owed to employee pensions.

The unpaid pension debts mean that some retirees will get smaller checks. Much of the tab will be picked up by the government’s pension insurer, a federal agency facing its own budget shortfalls.

“They did everyone dirty,” said Kilby Baker, 70, a retired warehouse worker whose pension check was cut by about 25 percent after Marsh Supermarkets withdrew from the pension. “We all gave up wage increases so we could have a better pension. Then they just took it away from us.”

Truly, the law is a ass. It's also working as its Republican authors intended.

How sellers use Amazon's monopsony power against each other

Via Bruce Schneier, a report on how third-party Amazon sellers use Amazon's own policies to attack their rivals:

When you buy something on Amazon, the odds are, you aren’t buying it from Amazon at all. Plansky is one of 6 million sellers on Amazon Marketplace, the company’s third-party platform. They are largely hidden from customers, but behind any item for sale, there could be dozens of sellers, all competing for your click. This year, Marketplace sales were almost double those of Amazon retail itself, according to Marketplace Pulse, making the seller platform alone the largest e-commerce business in the world.

For sellers, Amazon is a quasi-state. They rely on its infrastructure — its warehouses, shipping network, financial systems, and portal to millions of customers — and pay taxes in the form of fees. They also live in terror of its rules, which often change and are harshly enforced. A cryptic email like the one Plansky received can send a seller’s business into bankruptcy, with few avenues for appeal.

Sellers are more worried about a case being opened on Amazon than in actual court, says Dave Bryant, an Amazon seller and blogger. Amazon’s judgment is swifter and less predictable, and now that the company controls nearly halfof the online retail market in the US, its rulings can instantly determine the success or failure of your business, he says. “Amazon is the judge, the jury, and the executioner.”

An algorithm flags sellers based on a range of metrics — customer complaints, number of returns, certain keywords used in reviews, and other, more mysterious variables — and passes them to Performance workers based in India, Costa Rica, and other locations. These workers choose between several prewritten blurbs to send to sellers. They may see what the actual problem is or the key item missing from an appeal, but they can’t be more specific than the forms allow, according to Rachel Greer, who worked as a fraud investigator at Amazon before becoming a seller consultant. “It feels like it’s a bot, but it’s actually a human who is very frustrated about the fact that they have to work like that,” she says.

The Performance workers’ incentives favor rejection. They must process approximately one claim every four minutes, and reinstating someone who later gets suspended again counts against them.... When they fall behind...they’ll often “punt” by sending requests for more information....

Scary. And an example of why monopolies are bad. As Schenier says, "Amazon is basically its own government—with its own rules that its suppliers have no choice but to follow. And, of course, increasingly there is no option but to sell your stuff on Amazon."

Note that I say this while watching an old TV show on Amazon Prime, waiting for Amazon to deliver a replacement Fitbit band, and on and on.

Party like it's 1879

Atlantic editor Adam Serwer draws a straight line between the ways the Redemption court of the 1870s paved the way for the Gilded Age and Jim Crow, and how the Roberts court now (and especially with Brett Kavanaugh on it) is returning to those halcyon days:

The decision in Cruikshank set a pattern that would hold for decades. Despite being dominated by appointees from the party of abolition, the Court gave its constitutional blessing to the destruction of America’s short-lived attempt at racial equality piece by piece. By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.

The justices did not resurrect Dred Scott v. Sandford’s antebellum declaration that a black man had no rights that a white man was bound to respect. Rather, they carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.

The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.

Roberts wrote that since the declaration itself was “facially neutral toward religion” and did not discriminate against all Muslims, it did not run afoul of the Constitution. In doing so, he embraced the logic of decades of jurisprudence from his predecessors on the high court, whose rulings ensured that the Constitution would not interfere with the emergence of Jim Crow in the American South. The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees.

He lays out that in the Roberts court at least they're not vociferously white supremacist. But the deference to corporate rights, he points out, almost guarantee another generation of increasing wealth disparities in America.

Unless we win all three branches of government and pass an amendment or two. But it'll have to get a lot worse before we do that, if history is any guide.

Update: Longtime reader MB sent this: "At every crossroads on the path that leads to the future, tradition has placed 10,000 men to guard the past."—Maurice Maeterlinck

When you think it can't get stupider...

President Trump, after hearing a report on Fox News that Google search results on his name aren't totally flattering, now believes that Google is part of the conspiracy against him:

The Trump administration is “taking a look” at whether Google and its search engine should be regulated by the government, Larry Kudlow, President Trump’s economic adviser, said Tuesday outside the White House.

“We’ll let you know,” Kudlow said. “We’re taking a look at it.”

The announcement puts the search giant squarely in the White House’s crosshairs amid wider allegations against the tech industry that it systematically discriminates against conservatives on social media and other platforms.

Greg Sargent sees this as Trump once again, by instinct or design, trying to inflame his rump supporters:

Trump’s claim is, of course, absurd: As Daniel Dale explains, this is based on a bogus right wing media claim, and all it really means is that when you google about Trump, you are likely to initially see stories from major news organizations that are legitimately reporting aggressively on Trump, rather than from conservative opinion sites that are putting out propaganda on his behalf.

But while this might seem like typical Trumpian buffoonery, at its core is some deadly serious business. These attacks on the media — which are now spreading to extensive conspiracy-mongering about social media’s role in spreading information — form one part of an interlocking, two-piece Trumpian strategy (whether by instinct or design is unclear) that serves to underscore the urgency of this fall’s elections.

Trump is unleashing endless lies and attacks directed at the mechanisms of accountability that actually are functioning right now — the media, law enforcement and special counsel Robert S. Mueller III’s investigation — to persuade his supporters not only that they shouldn’t believe anything they hear from these sources, but also to energize them and get them to vote, to protect him from those institutions’ alleged conspiracy against him.

At the same time, that campaign of lies is designed to get Republican voters out for the purpose of keeping in place the mechanism of accountability that is not functioning right now — the GOP-led Congress — preventing a Democratic takeover of the House, which would impose genuine accountability.

At the same time, Republicans in Congress have circulated a list of all the scandals Democrats want to hold hearings on as soon as they win a majority in either legislative house:

The list hints at the overflowing sewer of Trumpian corruption and incompetence, and the refusal of congressional Republicans to investigate any of it. Oddly enough, this list is being circulated by Republicans in Congress. The list, composed of Democratic requests for hearings that Republicans have blocked, is meant to warn of what Congress would look into if Democrats win the midterms. Axios reports that Republican “stomachs are churning” at the mere thought that any of the items on the list could receive a public hearing.

The list includes the kinds of policies a normally functioning Congress would probe, including “Election security and hacking attempts,” “White House security clearances,” and “Hurricane response in Puerto Rico.” (Congress held bipartisan hearings on the government’s response to Hurricane Katrina, but has not done so for the response to the hurricane in Puerto Rico, where hundreds of Americans died.) But most of the cases listed focus on corruption: “President Trump’s tax returns,” “Trump family businesses — and whether they comply with the Constitution’s emoluments clause, including the Chinese trademark grant to the Trump Organization,” “Trump’s dealings with Russia, including the president’s preparation for his meeting with Vladimir Putin,” and on and on.

Probably the most picayune item on the list would be “White House staff’s personal email use,” though of course it might be difficult for Republicans to dismiss this issue given that they based their entire campaign on the premise that the use of personal email constitutes a grave criminal defense and continue to demand the imprisonment of Hillary Clinton for this very offense.

The most predominant theme of the list is corruption.

In other words, the Republican Party has completely abandoned its previously-held beliefs in the rule of law, and are now openly running on a platform of supporting the rule of Donald Trump.

We have 70 days until the Mid-Terms. Can't wait to see how bad it will get before then.