“I Don’t Have to Take Any Time for This”

The Supreme Court will once again address alleged Brady violations by the New Orleans District Attorney’s Office.  Earlier this week, the Court granted certiorari in Smith v. Cain (No. 10-8145), in which Smith alleges that the prosecutor suppressed a veritable boatload of exculpatory evidence in his murder trial.  I’ve only read the cert. petition, which obviously has a partisan slant, but on the face of things it appears there was some pretty egregious police and prosecutor misconduct.  And, of course, there is a well-documented history of Brady violations in the DA’s office in New Orleans, including in the Supreme Court’s  earlier case of Kyles v. Whitley, 514 U.S. 419 (1995).  Earlier this very term, the Court again dealt with discovery issues in the Big Easy in Connick v. Thompson, declining to find civil liability for what even the state conceded were violations of Brady.  Indeed, according to the cert. petition, the very assistant district attorney who prosecuted Smith later had his law license suspended for a Brady violation in another case.

I’m a little surprised the Court took Smith, both because it has not been through federal habeas (it’s coming directly up from the state court system) and because it’s basically an “error-correction” case — at least as framed by the cert. petition, the case does not really present any questions of law, but will instead require the justices to roll up their sleeves and sort through a rather complex evidentiary record to produce a case-specific, fact-intensive ruling.  On the other hand, for reasons that are not clear to me, this seems to be precisely the way that the Court has engaged with Brady ever since United States v. Bagley in 1985.  See, e.g., Kyles; Cone v. Bell, 129 S. Ct. 1769 (2009).

In some ways, I’m more interested to hear what the Court has to say about a collateral procedural issue  in Smith that received relatively brief treatment in the petition, but that is also expressly encompassed by the cert. grant.  Smith claims that the Louisiana courts violated his due process rights by rejecting all of his Brady-type claims without finding any facts or providing any explanation.

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Levels of Transformativeness

Brian Frye has an interesting post up over at Concurring Opinions on Friedman v. Guetta, a recent Central District of California copyright case involving an altered photograph of Run-D.M.C. Somewhat like Fairey v. AP, the issues on summary judgement included whether the original photograph was copyrightable and whether Guetta’s use of it was fair. (You can see the original and altered photographs here.)

There’s lots of interesting issues there, but one that caught my eye is one that has been bugging me more and more every time I teach the fair use section of Copyright Law: the seemingly infinite manipulability of the transformativeness inquiry of the first fair use factor. The fair use exception to copyright infringement liability, as defined in the Copyright Act, requires the court to weigh four factors: the purpose and character of the defendant’s use; the nature of the plaintiff’s work; the amount and substantiality of the portion used; and the effect of the use on the potential market for the plaintiff’s work. The first factor—the purpose and character of the use—is typically determined by looking at whether the defendant’s use of the plaintiff’s work was “transformative”—that is, whether the defendant used the plaintiff’s work for some new and different purpose, or whether the defendant’s use merely supplanted the plaintiff’s work.

In resolving the transformativeness issue, much seems to depend on how broadly or narrowly the purposes of the two works are defined, but that categorization is almost never accompanied by any discussion of the proper level of generality. Here’s how Judge Pregerson in Friedman defined the purpose of each work:

Here, Defendant has not offered a transformative alternative use of the Photograph image. Both Plaintiff and Defendant are artists, and the image was used by both in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.

“Works of visual art for public display” is a pretty broad category; almost every photograph for any purpose will fit that description. Surely that can’t be the proper level of generality.

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Avoiding the “Every School Left Behind” Inevitability

Maybe, in 2001, it seemed like 2014 was too far away to be worth much worry. In 2011, it’s not so far away. Not that it’s clear what is going to be done now about what was one of the more idealistic, well-intended, but ridiculous, notions ever put into federal law.

In 2001, and with strong bipartisan support, Congress approved the No Child Left Behind education reform law. Amid its complex notions, there were some clear intentions: Congress and the president (George W. Bush at that point, but Bill Clinton and Barack Obama would say much the same) were tired of putting a lot of money into schools across the country and not seeing much to show for it. They wanted to see the American education world buckle down to work especially on improving the achievement of low income and minority students. And they wanted every child to be reading and doing math on grade level by – oh, pick a date far away – 2014.

So they called the law No Child Left Behind. A wonderful idea – are you in favor of leaving some children behind? I’m not.

But given the real state of children, the obstacles so many face, the entrenched depth of so many issues, and the simple realities of what could be accomplished, it was an unrealistic idea. Even if everything went great, we were never going to reach 100% proficiency by 2014, or by any date.

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