Spare tire or fifth wheel?

In an NYT op-ed today, Glenn Reynolds performs dizzying feats of illogic, twisting and stretching a strict-constructionist definition of the vice-presidency like a balloon animal at a children’s birthday party:

The most important function of a vice president is to serve as a spare president. Using the spare president in the ordinary course of business is as unwise as driving on one’s spare tire. Spares should be kept pristine, for when they are really needed.

If the president resigns or is removed from office, a vice president who has been involved in the activities of the executive branch is also likely to be at risk for impeachment. Just as important, a vice president who is enmeshed in the affairs of the president cannot offer a fresh start for the executive branch.

This odd line of defense of Sarah Palin’s ignorant statements on the subject has very little basis in either precedent or case-law (and last time I checked, that was still the way our legal system was supposed to operate).

Reynolds has been making the same case for years, but has still not found a way around earlier critiques of his underlying assumption that it is illegal for the president to delegate executive powers to elected officials.

In calling for congress to legislate the responsibilities of the VP’s office, Reynolds thus endorses a strangely activist interpretation of the constitution that does not reflect the evolution of the executive branch during the last half century. Forgive me if I’m missing something here, but I just don’t see the point (beyond reading this as a chivalrous effort to save Palin from herself).

If the congress wants to take action to prevent Cheney-esque abuses of power in the future, there are more restrained and direct ways of doing so that do not involve such precious legal reasoning.

David Brooks looks into his crystal ball…

…And foretells the end of so-called fiscal conservatism that has ruled the legislative branch for the past twenty years:

What we’re going to see, in short, is the Gingrich revolution in reverse and on steroids. There will be a big increase in spending and deficits. In normal times, moderates could have restrained the zeal on the left. In an economic crisis, not a chance. The over-reach is coming. The backlash is next.

Shortly after today’s NYT went to press, the following picture was taken of Brooks as he prepared for the worst:

David Brooks disappears behind tortoise shell frames. (photo Paul Watson cc-by-nc-sa)

As it turned out, Brooks’ preparations were unwarranted. He later re-appeared after a co-worker showed him this graph (from ThinkProgress.org):

Whew. That was a close one.

We will now have a copyright czar…

Ugh. I’ve been ranting about this idea for a while, but now it’s actually come to pass. Thank the folks at RIAA, MPAA, the entertainment industry lobbyists, and their hired guns friends in Congress (ahem, Conyers, Berman, Leahy, Specter, et al) for this criminally inefficient use of government funds during a time of economic crisis. Even George Bush and the Department of Justice tried to avoid passing this one, but to no avail.

Gizmodo and CNet have the story.

Art Brodsky, Communications Director of Public Knowledge has the understated quote: “It would’ve been nice to have something to benefit the public and artists instead of big media companies.”

Sigh. Dream on.

intellectual property, da? (image from Gizmodo)

The Congress and Net Neutrality

On Thursday, Matt Stoller at Open Left posted a chart revealing that “every major Senate Democratic challenger”  supports the free and open net.

This bodes well for Internet freedoms in an election year when Democrats are positioned to strengthen their control of Congress and possibly win the White House.

Perhaps we can finally begin to look forward to some legislation that increases the standards of openness, privacy, digital freedom, and data neutrality as opposed to the half-baked alternatives being peddled (and silently implemented!) by the telco’s.

As the FISA debacle illustrates, none of this is a done deal even in the hands of a Democratic majority or a Democratic president.

(H/T Lessig).

James Boyle: “A Czar for the Digital Peasants” (H.R. 4279)

James Boyle has an excellent editorial in the Financial Times today criticizing the efforts of members of the U.S. Congress to create an “IP Czar” through the so-called “PRO-IP” Act.

The bill, sponsored by representative John Conyers (D-MI) passed the house and is awaiting the creation of companion legislation in the senate. Sentors Orrin Hatch (R-UT) and Patrick Leahy (D-VT) have expressed interest.

Here’s my favorite quote from Boyle:

We create a czar when we think that something is so important that other values must be subordinated to it, other goals ignored, power centralised, restraints discarded.The great thing about czars is that they can act alone, maximizing a single set of values, without worrying about the troubling demands of bureaucracy but also sometimes without worrying about the demands of the separation of powers and the rule of law. That latter feature is worrying.

Earlier, I wrote about Conyers and H.R. 4279; the EFF’s response to the bill; and (more recently) about Senator Hatch’s efforts to get the PRO-IP Act efforts rolling in the senate.

Hat tip: Manon Ress

Telco Immunity Deal Complete

So much for the rule of law.

Here’s coverage from the Electronic Frontier Foundation, the BBC, and The Guardian.

Also, stories by KagroX and mcjoan over at Daily Kos.

(Note: I did not include a link to AP coverage of the story in protest against its ridiculous pay-per-word plot against bloggers)

Sen. Hatch Plans to Table Draconian IP Enforcement bill in Finance Committee (H.R.4279)

According to National Journal’s Congress Daily (subscription required) and the Entertainment Industry news site Content Agenda, Utah Senator Orrin Hatch (R) plans to table a bill in the finance committee that could become the companion legislation to John Conyers’ (D-MI) “PRO-IP” Act (H.R. 4279).

In Senate Judiciary Committee hearing statements yesterday, Senator Hatch, Senator Patrick Leahy (D-VT) and others trotted out the typical IP-maximization rhetoric that equates illegally reproduced DVD’s with poisonous imitation drugs. On the public knowledge policy blog, Ari Abramowitz breaks down the problems with these misleading statements in very concrete terms:

The occurrence of counterfeit pharmaceutical and health care items are a combined 2% of total counterfeit seizures (PDF), by value. By comparison, the bulk of seized counterfeit goods are shoes, clothes, and handbags, accounting for 43% of seizures. While these items may be trademark infringements, they are hardly worthy of health and safety alarm bells. The frequency of counterfeit pharmaceuticals and health care items are below one percent, according to WHO, and may be much lower than that, considering GAO’s data showing a 0.017% IP seizure rate in the US. The frequency of actual injuries due to such counterfeits are probably orders of magnitude lower.

Somebody needs to remind me again, what’s the rationale behind multiplying public spending and enforcement on trademarked goods if the government’s own stats suggest they’re already doing a pretty good job?

The sad truth is that the IP-extremists in the congress, the GAO, and the industry lobbies don’t give a sh*t about evidence. They’ve demonstrated time and again a total lack of concern as to whether or not public policies reflect peer-reviewed empirical data.

In fact, they don’t give a sh*t if the DOJ itself comes out against the PRO-IP ACT – and when was the last time you knew the DOJ to turn down an opportunity to expand its enforcement mandate? I’d wager that the DOJ leadership and its bureaucrats know an inefficient, wasteful project when they see one.

Furthermore, given the expansion of executive authority under the Bush administration, you have to wonder why anyone would want to place IP enforcement directly under the executive branch. Doing so opens the door to abuses of numerous forms, not the least of which might be the “extraordinary
rendition” of your iPod (which some members of the Canadian press believe could come about through ACTA anyway).

House introduces another Net Neutrality Bill (H.R.5994)

In the midst of all the talk about the so-called PRO-IP Act at the end of last week, it looks like I missed an odd development:

“Lawmakers Introduce New Net Neutrality Bill” (NYT)

Zoe Lofgren (D-CA) and John Conyers (D-MI) – yes, the same John Conyers who is so enamored of the PRO-IP Act – are the sponsors. They’re calling this thing “The Internet Freedom and Non-Discrimination Act.”

If the name sounds familiar that’s because…it is.

Compare the title of Lofgren and Conyers’ new bill with that of H.R.5353, sponsored by Edward Markey (D-MA): “The Internet Freedom Preservation Act.

How do the two bills differ? I’m not sure yet. It seems like Markey’s bill is not as detailed in its regulatory language and also includes a provision that would require the FCC to hold nation-wide hearings to discuss Internet governance. This democratized approach has induced the RIAA and the MPAA to throw  a public relations tantrum complaining that “the fight against piracy” could be threatened. Heaven forbid.

I think the more important question is why are Lofgren and Conyers introducing legislation that overlaps so closely with Markey’s?

From the soundbites included in the NYT article, it sounds like the big telecommunications and content industry folks don’t like Lofgren and Conyers’ proposal either. The story also includes a quote from the president of the digital rights advocacy group Public Knowledge, Gigi Sohn, who appears to approve of the bill (note: Public Knowledge reps are also on record supporting Markey’s bill).

Maybe the Democrats are lining up to score big points for digital democracy in the wake of the Comcast throttling debacle? Maybe there’s a more fine-grained legal distinction to be made between the two proposals? Time (and the analysis of a few good lawyers) will tell.

In the meantime, what we really need is a bill to prohibit jingoistic hyperbole in the titles of laws…

EFF takes on the PRO-IP Act – H.R.4279

I missed this when it first came out a couple of days ago: the Electronic Frontier Foundation’s Richard Esquerra offers another insightful critique of the so-called PRO-IP Act, also known as H.R.4279.

Here’s my favorite piece of Esquerra’s argument against the bill:

The most outrageous provisions would create new and unnecessary federal bureaucracies devoted to intellectual property enforcement. None seems more ridiculous than language creating a Cabinet-level “IP enforcement czar” that would report to the President and coordinate enforcement efforts across government, a proposal that has been loudly opposed by the Department of Justice. Why is Congress spending our tax dollars on a new layer of officialdom that the cops themselves don’t want or need?

Gee, that one’s easy: because the content industry lobby groups and big telecommunications firms pay the representatives (ahem, John Conyers) good money for their favors.

But I digress…here’s more from Esquerra (with a little emphasis added):

Moreover, the bill also includes provisions — such as expanded forfeiture penalties and language “clarifying” that copyright registration is not required for criminal enforcement of the copyright — that could be read to open the door to increased prosecution against individuals or innovators as well as large-scale commercial pirates.

Increased prosecution against individuals and innovators?! As if the courts weren’t already clogged with the specious arguments of record companies, software firms, etc.

Until someone adequately explains otherwise, I’m going to maintain that H.R.4279 is a digital pork fest thinly disguised as actual policy-making.

House passes “PRO-IP Act”

According to Grant Gross at PC World, the U.S. House of Representatives has just passed H.R. 4279, the so-called “PRO-IP Act” sponsored by John Conyers (D-MI) and funded by the copyright and telecommunications industries.

There are a number of big problems with H.R. 4279. Among other things, the bill mandates:

1. The creation of a cabinet-level “IP czar” position
2. 10 or so new IPR enforcement positions in the DOJ (think of them as corporate welfare cops)
3. Language that could justify the forfeiture of personal property used to commit copyright violations (h/t to Grant Gross’ article for pointing this out)

All of these provisions promise to be expensive, controversial, and intrusive for consumers and citizens.

As I have written earlier, the USHOR’s endorsement of this sort of pro-industry pap would appear to stem from campaign donations as opposed to sound legal reasoning and evidence-based policy-making

Another story on the bill includes the following quote:

“We applaud the members of the House of Representatives for passing the PRO-IP Act, H.R. 4279,” said Dan Glickman, president of the Motion Picture Association of America, in response to its passage. “It is a comprehensive, bipartisan measure that will strengthen our nation’s economy and generate more jobs for American workers by bolstering protections for intellectual property.”

He added, “Given the difficult economic times we face, the PRO-IP Act is welcome by both the business and labor communities because it can improve our nation’s economic outlook. I hope the Senate will move quickly to pass similar legislation.”

Excuse me Dan, but please clarify for me exactly how the PRO-IP Act will translate into an improved American economy? If the so-called mortgage crisis has taught me something it’s that the US Govt should not be propping up flawed business models through lenient legislation and friendly enforcement practices – that way lies economic perdition.

Hopefully, the Senate will have the sense to busy themselves with more important matters.