Yonatan Zunger’s Blog

America’s copyright law has been amended several times over the past few decades, each time increasing the effective term of copyright. As a result, the current “public domain horizon” is 1923 —only a small fraction of works published since then have ever left copyright, and no new items are scheduled to enter the public domain until 2019. This has been largely at the instigation of some large rights-holding companies, most notably the Disney Corporation, who have a very strong reason to want to keep some of their old copyrights active. But the cost to the rest of society has been high; more and more works are going out of print (especially as the publishing industry suffers and cuts down on its backlists), becoming permanently unavailable, or becoming “orphans,” with no clear copyright holder and so no possibility of ever making their contents available to anyone.

I have a modest proposal.

A simple reduction in the term of copyright is, quite simply, never going to pass Congress. The legislative history, and the amount of money being funneled in to lobbying this issue, has ensured that. But consider what the owners of these copyrights really want to protect. Disney wants to protect the copyrights on Mickey Mouse because, frankly, they’re worth a fortune to them — the heart of their corporate identity. But a publisher holding on to a mid-list book or film right from the 1950’s isn’t doing so because it’s worth a fortune; it’s because it’s better to hold on to it than not. The actual value to the publisher of these works is trivial, even negative if one considers the cost of bringing them back into print.

So: I propose that we amend the copyright code so that the duration of copyright is set to 56 years, twice the duration specified for the first copyright term under the old 1909 Copyright Act; and following that, the holder of copyright may extend the copyright annually and without limit on duration — but that each such extension incur a fee which is significant but not exorbitant; say, $500 (to be adjusted for inflation) per year, and that this be applied retroactively (if at all possible; this may be difficult to implement) to all works copyrighted in 1963 or later.

(Why 1963? Because then the first term expires in 2019, exactly like it does under current law)

Any work which is still in “active use” by its publisher is presumably worth far more than this; the cost is trivial and the rights-holder basically gets an indefinite copyright on it. But any work which isn’t – which includes the overwhelming majority of all works – would expire after the 56-year window. The registration fee requirement would eliminate the need to define “active use” by statute (a problem in orphan works law) by simply leaving it up to an individual rights-holder to determine whether they still consider this right to be of value. This is a fairly long window, and I would personally prefer if it were somewhat shorter, but it does achieve the principal purpose of copyrights – to ensure that the creators of works are compensated during their lifetimes – while allowing a steady flow of works to enter our common treasury.

Opinions?

No, I’m not kidding.

For those of you who haven’t been following the case of the fired attorneys, Congress recently subpoenaed several former White House aides to testify before the House Judiciary Committee about their role and their knowledge of the actions of others. The President ordered the former aides not to testify, citing an executive privilege. Congress replied that he has no right to do such a thing, and started criminal contempt proceedings against the people who refused to appear.

Today, the administration made an interesting reply: they argued that “Congress has no power to force a U.S. attorney to pursue contempt charges in cases… in which the president has declared… executive privilege.” The idea is that the Department of Justice is part of the executive branch, and so if the President has declared something to be the policy of that branch (e.g., claiming executive privilege) the DoJ cannot be forced by anyone else to act contrary to branch policy.

David B. Rifkin, who worked in the Justice Department and White House counsel’s office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a “unitary executive.” In practical terms, he said, “U.S. attorneys are emanations of a president’s will.” And in constitutional terms, he said, “the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch.”

Got that? It means that the entire executive branch, including all prosecuting attorneys, are “emanations of a president’s will,” and therefore can never be caused to act against said will — and therefore, a president can never be prosecuted for an act of his own will.

Which is to say, the official position of this administration is that the president is ipso facto above the law.

I wonder if they consider this reasoning to apply to future presidents as well?

Edit:

…I’ve got a prison colony I’d like to interest you in.

A lovely little exchange between our Attorney General and Sen. Specter at the Jan. 18th Senate Judiciary Committee hearings, which were mostly about legislative and judicial oversight of Gonzales’ mass wiretapping program. The main story of that day was that Gonzales basically indicated that the executive would do everything in its power to evade the substance of the order, but the fun part was the conversation that began when Gonzales said, “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away.”

From the fact that the Constitution’s only mention of habeas is that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it,” he therefore concludes that the Constitution does not grant you this right at all.

I love the sort of fellow we have in the AG’s office. I really wasn’t certain if our administration could find a more odious person than Ashcroft, but apparently if you start with people whose past experience is in writing legal justifications for torture, you can.

Side note: This story appeared on slashdot with a note that it wasn’t being covered by the mainstream press, but only by the indies. However, today’s Washingon Post corroborates the story.

(For those who don’t follow the law, habeas corpus is the right that, if you are imprisoned, you can go to a court and demand that whoever is imprisoning you show that they have the legal authority to do so, e.g. that they’re doing so in order to charge you with a crime. Without it, you can be hauled off to prison “just because” and left there)

Edit: You know, it takes a certain marvelous skill for an Attorney-General to get Bay Area Indymedia and the John Birch Society to simultaneously consider him a dangerous scumbag, and for the same reason.

Edit 2: Here, watch the conversation. It’s a gas.

Read this.

The Central Intelligence Agency and the Justice Department have told a federal court that permitting lawyers access to high-level Qaeda suspects without tighter secrecy procedures could damage national security by revealing harsh “alternative interrogation methods” used in secret C.I.A. prisons overseas. … “Nobody is trying to keep Khan from speaking with his attorney,” [Justice Department spokesman] Blomquist said. “Rather, the government is asking that the protective order governing the information the detainee shares with his counsel be appropriately tailored to accommodate a higher security level.”

Which is to say: Not only can high-value suspects (or other suspects? Who decides again?) be tortured, but the simple fact that they are tortured is secret, and cannot be examined either in court or even be considered by their attorneys to determine whether there is a matter which can be challenged in court.
In case you were still wondering about the legitimacy of this “Military Commissions Act,” here is your case in point. A person was held by CIA, by implicit admission tortured, and not only can they not raise this in court as an argument against the validity of any confessions thereby extracted, but they may not even discuss the matter with counsel. The government is claiming the unilateral right to tell the suspect that he may not discuss a wide range of issues with his own lawyer, much less with a judge or the military commission which this act describes as a fair trial.
Every procedural safeguard is removed, with torture being effectively permitted without restriction (since any restriction on it may not, by law, ever be actually pressed!) and suspects – which, as we have seen, are falsely accused as often as not – are left to the tender mercies of the CIA and their “agents.” This is the legacy of our president, ימח שמו.

In case you haven’t read, the Military Commissions Act of 2006 passed the Senate on a roll-call vote by 65 to 34, with one abstention. Put briefly, this bill suspends most of the Constitution, stating that anyone not a citizen may be arrested and tried under military law, absent the rights to challenge evidence, have counsel of their choosing, call witnesses, or challenge the basic cause for their detention under habeas corpus. Conviction is by a majority vote of the military commission under secret ballot; they may be appealed to a military appeals court, and thence to a civilian court. (Note that this is a bit milder than some of the previous situation, in that it only affects non-Citizens; but note also that the key provision of the 14th amendment is that the rights stated under the Constitution apply to all persons, not only to citizens. This was instated soon after the Civil War, when freed blacks were persons but not citizens. You may notice that the executive branch also has the ability to strip citizenship)

Sections 7 and 8 effectively give blanket immunity to US personnel for charges of war crimes, specifically w.r.t. the Geneva Conventions. Basically, it redefines the War Crimes Act to allow whatever the President says. (Sec. 8.a.3 of this bill)

Some good news: This isn’t the first time our country has suspended the Constitution in some wholly unconstitutional manner; each time it was realized and reverted a few years later. I suspect that the same will happen here, after our current President — may his name and his memory be erased — is gone and the Congress cleaned up as well. It’s very important to do that, soon, before (more) lasting damage is done: remember to vote in this coming election, no matter where you are, and if you can contribute to electoral races, do so. And next election. And the one after that.

(On the subject of lasting damage: No real developments in the Arar case since the Canadian government’s report. Apparently they admit that they mistakenly tagged him as a terror suspect and gave this information to the US; the US promptly shipped him off to Syria to be tortured. The Canadian government apologized. But that doesn’t answer the basic question of where the safety checks went that would keep a single mistaken identification from sending someone off to a torture chamber for a year — isn’t this precisely why we have a rule of law?)

The President has started circulating draft legislation to establish military tribunals for the trying of “enemy combatants,” in response to the Supreme Court’s Hamdan ruling. (WP article here) Quick bullet points from this: An “enemy combatant” is defined pretty loosely, including an “individual who is or was part of or supporting Taliban or al Qaeda forces or associated forces,” (sec 103B) without specification on the nature of the support. The bill establishes tribunals with authority up to and including the death penalty.

Good news: they allow defense counsel as per military rules, i.e. appointed by the court; civilian counsel is permitted if they satisfy various additional requirements (sec 215b2) they prohibit self-incrimination or evidence obtained via torture (sec 211). Defense has access to compulsory process for obtaining withesses “similar to” that of civilian courts. (sec 222.a) Certain punishments are explicitly prohibited: “flogging… branding, marking, or tattooing on the body… the use of irons, single or double, except for the purpose of safe custody.” (sec. 228)

Bad news: Proceedings may be closed to the public, or to the accused, “upon a finding by the military judge that doing so is necessary to protect the national security, to ensure the safety of individuals, or to prevent disruption.” (Sec. 216.c.3) In such a case the accused will be provided with a “redacted or unclassified summary of evidence… if it is possible to do so without compromising… national security interests.” (216.c.4) There was a sentence “No evidence shall be admitted to which the accused has been denied access if its admission would result in the denial of a (fair trial?),” but that sentence seems to have been edited out. (216.c.4) The denial of hearsay evidence (sec 102.7.b), the right to a speedy trial, and the “technical rules for sworn and authenticated statements” (102.7.c) are explicitly rejected.

Mixed: Appeals go the “convening authority,” i.e. the Secretary of Defense (sec 232) After all such appeals, the US Court of Appeals for the DC circuit has appellate jurisdiction.

Overall, this bill is marginally better than the pre-Hamdan situation, in that it allows for some judicial review of proceedings, but it still has the basic problems: anyone may be entered into this military system by the exclusive decision of the Secretary of Defense or designated officers, without the need for indictment by a grand jury, and while within this system several parts of the Constitution are effectively suspended. (Article III sec. 2 p. 3 [jury trial]; amendment V, first provision [grand jury] and arguably the fourth [due process]; all of amendment VI except for a weakened version of the right to counsel; amendment VIII, first provision [excessive bail]; article I, section 9 pp. 2 [habeas corpus]) In practice, this appears to be an imposition of martial law in parallel to civilian law: the military is entitled to try people by its rules whenever it sees fit. The best argument against that seems to be a trust that the government will not abuse this power, but that’s a pretty poor argument when several stages of the bill explicitly remove the usual procedural safeguards that obstruct that. I’ll also point out the slew of reports about the actual main uses of the Patriot Act: to obtain information in drug cases and other non-terrorism-related issues. Given an alternate legal procedure that’s easier for prosecutors, they will systematically use it to go after people they see as bad; that’s completely natural, but that’s why we have the Constitution in the first place.

The President’s own public statements indicate that the objective is to be able to hold such prisoners “for the duration of the war,” but other statements of his indicate that the war is likely to be permanent, so I’ll leave the details to the reader.

Now, in practice: this bill is unlikely to come to the floor very quickly, but it may be intended for use as a political football during the midterm elections. Those elections are likely to be crucial: if the Republicans lose substantial support, and especially if they lose control of one or both houses of Congress, all such procedures are likely to vanish pretty quickly; if on the other hand the Bush movement feels that they can claim even a tenuous mandate post-election, they are likely to push very hard for measures like this and stronger ones elsewhere.

Alberto Gonzalez defended the President’s domestic espionage program today.

The biggest thing I see wrong with his statements is that they could apply equally well to anything: if those arguments are acceptable in this case, why do they not also allow the President to order summary execution of anyone suspected of involvement with an enemy? Does this theory acknowledge any limits at all to executive power?

The FISA court is arranging a formal briefing where the administration will (in theory) explain its warrantless spying program.

• Will there be any analogue of opposing counsel there? Will someone be asking hard questions of the administration, or will it simply be the administration people giving a presentation to the judges and then the judges having to decide to quit or not? Why is this not a matter for a hearing of the ordinary sort?
• Note that this WP article quietly confirms Ars Technica’s analysis of what the illegal spying program actually entailed…