Methaphorically, anyway: rc3.org | Republicans in Texas revolt against Bush
Monthly Archives: September 2003
Predicting the outcome of lawsuits is a risky game. But I'm going to predict that this motion by SCO seeking to dismiss the declaratory judgment complaint filed against it by Red Hat will fail. Miserably. Unless of course SCO's lawyers were to promise the court that they would never bring a copyright infringement claim against Red Hat or any of its customers. That's highly unlikely, but it would certainly moot the case.
SCO is the company that has been running around claiming that Linux violates its intellectual property rights. While trumpeting this claim, and offering purported licenses to users of Linux, SCO has been unwilling to make public a single convincing example of infringing code. It seems pretty obvious that SCO's own actions create a live controversy sufficient to satisfy the Declaratory Judgment Act, 28 UCS § 2201. Furthermore, the suggestion that the case is somehow precluded by a related action involving SCO and IBM is not at all persuasive, especially as many of the issues in that case involve a contract to which only IBM was a party. SCO is represented by David Boise's firm, Boies, Schiller & Flexner. So far, the paper in SCO's case and the client's general behavior are not making the Boise firm look good (yes, yes, I know some clients are beyond their lawyers' control….). Usually top-quality firms have aces up their sleeves before filing stuff like this motion, something that over time gives them credibility with judges, but right now I just can't see where an ace might be hiding.
There has also been recent action in the SCO-IBM case: IBM filed an elegant and reasonable-sounding counter-claim. It's an interesting document because it wraps IBM's case in the flag of open source and the GPL. IBM is represented by Cravath, Swaine & Moore.
The whole SCO-Linux thing is too big to summarize here. If you're just coming in at the middle, the places to go for more info are Slashdot and especially a great blog called Groklaw. Worryingly, Groklaw—imprisoned by the responsibilities of success—is about to have a bit of an identity crisis.
I had a very pleasant dinner this evening with a group that included David Carlson and Jeanne Schroeder, two professors from Cardozo law school, who were in Miami this week to give talks to the law school. The stimulating papers are unpublished, and I forgot to ask if they were ok to blog, so I won't. Profs. Carlson and Schroeder are, like Caroline and me, members of the rare group of married law faculty members who teach at the same school as their spouse.
Dinner conversation included a discussion of the Administration's $87 billion supplemental budget request for Iraq. David and I wanted to figure out how much this was per Iraqi, and how it compared to Iraq's pre-war GDP. But we realized we didn't know some basic facts about Iraq, so I promised to look them up when I got home. According to the CIA Factbook, Iraq today has an estimated population of just over 24,683,000, and (in 2002) had a GDP estimated at US$58 billion in purchasing power parity, giving it an estimated GDP per capita of about $2,400. (David's guess as to GDP was much better than mine, but I had a better guess as to the population.)
The Administration seeks $87 billion, but not all of it is for Iraq. According to the New York Times, “Of the $87 billion, military operations in Iraq would account for $50.5 billion. Military operations in Afghanistan would take up $11 billion, Iraqi reconstruction $20.3 billion, and Afghanistan reconstruction $800 million.”
Counting just the reconstruction grant, that makes a subsidy about equal to 40% of Iraq's former GDP, and about $960 for every Iraqi. Throw in what we are spending to occupy the country, and it's more than last year's Iraqi GDP, and about $3,230 per Iraqi.
Having seen these numbers, I've now cooked up a modest proposal for a US exit strategy from Iraq. Bring all the troops home. Give each Iraqi $3000 a year for the next year or two, and count on the free market to conduct the reconstruction for us at much greater efficiency than we would otherwise achieve.
Ok, I'm kidding. I think I'm kidding. Yes, I'm kidding. Definitely kidding. We can't do that until shortly before the election….
As noted by a poster, and others, I should really have noted the extent to which the Judge Nottingham's decision relies not just on the R.A.V. decision, but also on the more closely apposite Cincinnati v. Discovery Network decision. That case struck down an attempt by the city to ban newsracks with commercial handbills, but not those with newspapers (which included both commercial and political speech), on the grounds it would help beautify the city. The case is distinguishable: the Court found the rule didn't materially aid the city's objective, since the handbill racks were only about 3% of the city's total. In the do-no-call case we're looking at about 50%, so as Judge Nottingham observed if the issue were only “numerical underinclusiveness” then the do-no-call rule survives. But, the Judge held,
In Discovery Network, the Supreme Court recognized content discrimination as the primary flaw in the city's regulation of news racks. The city's regulation failed under the First Amendment because the regulation distinguished between commercial and noncommercial speech, despite the fact that there was no evidence that the commercial use of news racks was more harmful to city beautification than other uses of news racks. When a regulatory regime is pierced by content-based exemptions and inconsistencies in the government's explanation as to how the regime advances a substantial interest, it must fail under the First Amendment. Simply stated, the government's practice cannot be at odds with the asserted government interest. The regulation cannot distinguish among the indistinct, permitting a variety of speech that entails the same harm as the speech which the government has attempted to limit. Here, plaintiffs argue that the registry does not materially advance the FTC's interest because the FTC has made a content-based distinction between commercial and charitable solicitations for reasons unrelated to its interest in privacy.
… Realizing that its interest in privacy does not justify the distinction between commercial and noncommercial speech, the FI'C attempts to justify the distinction by advancing several other arguments. First, the FTC argues that nonprofit corporations and political fund-raisers are less likely than for-profit entities to engage in abusive practices because the consumer is both a potential donor and a potential voter or volunteer for the charity or political party. Distinguishing between commercial and noncommercial speech may be proper when it bears a relationship to preventing commercial harms, such as fraud. (citations omitted)
It isn't true, as one Representative said yesterday, that “50 million Americans can't be wrong.” They can be, and that's one of the reasons for the Bill of Rights. But 50 million Americans, a determined Congress, and unsympathetic plaintiffs are likely to motivate a reviewing court to see if there are any good excuses to uphold the statute. This is why I think the legislative record in Congress may matter. And, if you squint at it just right, it might provide what is needed.
Surprise, surprise, the FTC is going to appeal Judge Nottingham's decision striking down the do-not-call list program.
I had a look at the Congressional Record to see what if anything a court might mine from it. [Cites to thomas.loc.gov are not permanent so this is hard to link. Look for the Senate – September 25, 2003 at page S11957 and the House at H8916.]
The key point here is that there is some stuff a court willing to work with legislative history (itself a controversial issue) could use. But there's not a huge pile of it.
I have just added a link in the right margin to the Fagan Finder translation tool which allows readers to translate the blog with two clicks. (Note: it only works if you don't block referrers.) The translation tool covers an amazing number of languages, but like the Babelfish, the translations do leave a little to be desired. Consider this translation into French of the previous item:
Argh. Blogging se développe en culture secondaire avec son propre argot. Non, non, non, qui est pas ce que je veux. Ce n'est pas lycée. Je ne ai pas besoin d'une clique pour rendre me le sentir bon. Je veux participer aux conversations pensives qui fuient dans la sphère publique.
D'autre part, Technorati.COM prétend savoir de 994.254 weblogs (qui devraient frapper million par la semaine prochaine), avec 45.043.270 liens actifs. À plus mauvais, c'est a substantiel culture secondaire.
Mais, l'amusement comme limites aiment “Bleg,” “Blogroach,” “Fisk”, “Idiotarian,” ou “Instapundit” peut être, je ne pensent pas que je vais avoir beaucoup d'utilisation pour la plupart de jargon blogging. J'espère écrire comme prose franche comme je bidon, sujet à la nécessité occasionnelle d'exprimer des idées et la nuance complexes, et naturellement à la privation systémique de sommeil.
Well, the first sentence is great. But the last paragraph is a mess. “J'espère écrire comme prose franche comme je bidon”? I don't think that's quite what I meant.
Reminds me of the old joke about the test for a translation program. Supposedly, during the Cold War there was a lot of research on Russian-English translation for use on the hotline between the White House and the Kremlin. The story goes that the spec called for a program that could take an English phrase, translate it to Russian, then when the output was run through the program again in the reverse direction would translate it back into the original English. So the engineers came up with a prototype, and input their test phrase: “Out of sight, out of mind” and got back some Russian. When they input the Russian, they got back “Blind drunk”.