Edward Snowden: Whistleblower or Traitor?

1371935280000-AP-NSA-Surveillance-Snowden-1306221711_4_3_rx404_c534x401Earlier this month, I learned that as a Verizon Wireless customer, my cell phone records, and those of family, may very well be sitting in some National Security Agency (NSA) analyst’s cubicle.

According to The Guardian, which first reported the story June 5, Verizon is under a court order to turn over on an “ongoing, daily basis,” information such as “the numbers of both parties on a call . . . location data, call duration, unique identifiers, and the time and duration of all calls,” and more.  However, no subscriber’s personal information or contents of a call are covered by the order.

Shortly after the story broke, Edward Snowden, a 29-year-old former NSA contractor, came forward as the informant. Time Magazine quotes Snowden as saying, “The public needs to decide whether these programs and policies are right or wrong.” He has since been charged with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.  Snowden may currently be in Moscow and is rumored to be heading to Ecuador to seek political asylum there.

Because the information that Verizon turns over is considered metadata and not communications, the NSA needs no warrant to access it. Even so, by putting together enough metadata, one can fairly easily put together a profile of who is calling whom, for how long, and from where.  While no actual content is turned over to the NSA, the breadth of this program—code named PRISM—should frighten any American because the information is handed over wholesale; no probable cause or suspicion of wrongdoing needed.  And, boom.  The NSA is keeping tabs on you.

Continue ReadingEdward Snowden: Whistleblower or Traitor?

United States Supreme Court Cites the Marquette Intellectual Property Law Review

Law professors, like everyone else, have good days and less good days. Then, sometimes, law professors have special days. In these days, something truly unique happens, something that makes law professors especially grateful for their roles as mentors and educators. This past week, I had probably one of the most special days in my law professor career, and it was not about getting tenure, getting promoted or the like (all very special days I can promise!). It was about the success of a student I had the privilege to mentor and supervise, who was one of my very best students, and who made me so very proud. So what happened? An academic dream: the Supreme Court of the United States cited the comment that my former student Lina Monten wrote in 2005, and that we published in the Marquette Intellectual Property Review.

Here is a little more “technical” background. The Supreme Court recently issued its opinion in Kirtsaeng v. John Wiley & Sons, a closely-watched copyright case concerning the issue of whether the “first sale” doctrine of copyright law applies to imported works. Justice Breyer wrote the majority opinion holding that it does, and Justice Ginsburg wrote a dissent (on behalf of herself and Justices Scalia and Kennedy) arguing that it does not. In the course of her dissent, Justice Ginsburg argued that the United States has long taken the position in international negotiations that copyright owners should have the right to prevent importation of copies of their works that they manufactured and sold in another country. (Slip op. at 20-21.) In support of her argument, Justice Ginsburg cited two items, one of which was the comment published in the Marquette Intellectual Property Law Review, written by then-student, now-Marquette Lawyer Lina M. Montén, entitled The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? (9 Marq. Intellectual Property L. Rev. 387 (2005)). I supervised the comments, which started as a paper that Lina wrote for the International Business Transaction class that I taught during spring 2005. 

Continue ReadingUnited States Supreme Court Cites the Marquette Intellectual Property Law Review

First Sale, “Lawfully Made,” and Copyright Stalking-Horses

The Supreme Court heard oral argument this morning in Kirtsaeng v. John Wiley & Sons, Inc., despite Hurricane Sandy’s imminent arrival and the fact the entire federal government in Washington DC is shut down today. Kirtsaeng is a copyright case raising the issue, argued two years ago in Costco Wholesale Corp. v. Omega, S.A., of whether the first sale doctrine applies to third-party imports of goods manufactured under the authority of the copyright owner abroad. (Costco resulted in a 4-4 affirmance due to Justice Kagan’s recusal.) In more plain English, if someone in the United States purchases legitimate copies of some item abroad that has a copyrighted work somewhere in it, can they import those items into the United States and resell them here without violating the Copyright Act? The specific issue in Kirtsaeng involves used textbooks, but it could just as easily apply to watches with a copyrighted logo on the back (the good at issue in Omega), shampoo with a copyrighted label on the bottle (Quality King v. L’Anza), or any product with copyrighted software in it.

Costco indicates the mischief that could come about from a holding saying that the first sale doctrine does not apply to imported goods. There is zero chance that Omega was actually concerned about the redistribution of its copyrighted logo, located inconspicuously on the backs of its watches, as opposed to the grey market arbitrage of the watches themselves, which of course are not copyrightable. But mischief that does not rise to a constitutional level doesn’t tell us what the law is. The arguments in Kirtsaeng focus on the meaning of the phrase “lawfully made under this title.” Section 109(a) provides that:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Kirtsaeng, the petitioner, argues that “lawfully made under this title” means “made with the authority of the copyright owners as required by Title 17, or otherwise authorized by specific provisions of Title 17,” a theory Kirtsaeng borrows from the Solicitor General’s brief back in Quality King. Wiley argues that because Title 17 does not have extraterritorial application, “lawfully made under this title” must mean “lawfully made in the United States pursuant to Title 17.”

That’s the question that cert. was granted on, but the whole debate strikes me as off-target. As a result I don’t think either side’s briefs really grapple with the problem here.

Continue ReadingFirst Sale, “Lawfully Made,” and Copyright Stalking-Horses
Newer Posts
Older Posts