Ex-copyright troll lobbyist-turned-judge hands down troll-friendly verdict

Discuss

49 Responses to “Ex-copyright troll lobbyist-turned-judge hands down troll-friendly verdict”

  1. straponego says:

    It’s a shame that the entertainment cartels are taking over the US. It used to be such a beautiful place with such lovely people.

  2. smncameron says:

    @Ipo

    Most people hide the degree to which they disregard opposing evidence and arguments – you celebrate it… that’s cool I guess.

    On a more serious note, BoingBoing should really opt to follow Kottke.org’s lead and post a daily or weekly roundup of posts that have been updated. I don’t think the difference in dollar amounts is material in this case – but if it were, many would not realize that they had received inaccurate information.

    • kjulig says:

      I agree with your update idea (and hooray for Corey that he chose to correct this post, all too often incorrect BB posts are not amended), but:

      I don’t think the difference in dollar amounts is material in this case

      It’s an important and prominent part of this BB post. If it weren’t, Cory probably wouldn’t have included it. Odds are that Cory mentioned it because he perceived it to be an outrageously large sum of money. Therefore I feel that accuracy is indeed important and desirable.

  3. genre slur says:

    …tying the air into knots…

  4. jphilby says:

    The really interesting part about this is that corporations can now contribute willy-nilly to elections in the US, and judge-elections draw very, very little interest in the US.

    So expect to see more and more Corp-friendly judges in our Glave New World.

  5. Antinous / Moderator says:

    Nobody thinks it’s bad that Marshall sat on civil rights cases, or Ginsberg on sexual equality cases.

    Your inability or unwillingness to distinguish between intrinsic attributes such as race or gender and personal choices such as political opinions and employment suggests to me that you’re either oblivious or disingenuous. In either case, you’re a time-waster.

    • lmnop says:

      If you don’t think Ginsberg differs from O’Connor/Kagan/Sotomayor, or Marshall from Thomas, in terms of their pre-nomination legal (or political, as you might say) background/theories and prior involvement/employment in civil rights or sexual equality, then I would have to suggest that it’s you who are either disingenuous or ill-informed. It is perfectly possible to have an intrinsic attribute without being employed by the NAACP as a civil rights lawyer or ACLU on sexual equality. Marshall and Ginsberg have made (political) choices and have had “biased” employment in a way that O’Connor/Kagan/Sotomayor and Thomas never have. I don’t think this is a bad thing.

      And just say we take your questionable point, and ignore Marshall and Ginsberg and their past political and employment choices. Lets take clearly political/employment choices, such as any number of former prosecutors who sit on criminal cases. Or Taft sitting on separation-of-powers cases (or presumably any cases involving decisions made by Republican administrations, if not all executive decisions), or former Solicitors General sitting on cases involving the government. Or former agency employees sitting on cases involving their prior agency or agency power. Should they all be disqualified because they are also “biased?”

      Would you like to know how many member of the Federal Circuit Court of Appeals have prior experience as private-practice/in-house IP lawyers (which means that Cory would probably call them copyright trolls, or representatives thereof)? Should they all be prevented from hearing IP cases since they may be biased (bearing in mind that this is where federal IP appeals tend to be heard)? What about the judges from that circuit who once directly worked for the patent board, which is a direct party in many disputes?

      And I’m assuming I’m a time waster for providing opinions that go against the BB grain and are substantiated.

  6. Anonymous says:

    YAY!!!!!

  7. Zoman says:

    Apparently it wasn’t $415,000, and she isn’t a judge. She’s just a housewife from McCondy, Mississippi. She doesn’t know anything about copyright, and she just wishes people would stop bothering her.

  8. genre slur says:

    People seem to be conflating the value of a scientific or philosophical argument with that of a legal argument. Quite different values. One can assess the behaviour of the member of the species known as ‘Judge’ in this occasion quite easily without knowledge of any ‘Legal’ reality-model being presupposed. A legal reality-model may deny, discredit or otherwise attempt to devalue an ethological analysis of the scenario. Such an attempt may seem to be of consequence when employing a ‘Legal’ reality-model. However, this will not change the ethological findings.
    Some applications of language seem to be as real as tying air into knots…

  9. genre slur says:

    However, if the devil chooses to play with a two-valued logic system, Cory’s assertion may be an ad hominem fallacy. The assertion of the ‘Judge’ may be valid, regardless of any personal variables (IE Motivation, sex, substance use, former business relations, cognitive retardations).
    Gotta advocate all of it…

  10. Anonymous says:

    Rabble! Rabble rabble rabble!

  11. lmnop says:

    She was paid $415,000 for lobbying over a four-year period, not $415,000 per year. This is clear in both the article cited to as well as the records it links to.

    • Andrew W says:

      Ah, well, that makes it all okay, then. Clearly no conflict of interest there.

      Keep on oiling that revolving door between government and industry, American serfs!

  12. genre slur says:

    (Colour Commentary for the class)
    W/Re: Leary’s eight circuit model of consciousness.

    Note the emphasis on affirming territory. Circuit II (territory-emotion) has been threatened, so affirmation of imprint is recognized via strenuous application of Circuit III (semantic/time-binding). The intensity with which Circuit III is being employed to reaffirm Circuit II dominance seems to indicate: a) a weak-negative imprint on Circuit I (bio-survival), or b) a strong-negative imprint on Circuit IV (sex/morality). Being able to see which circuits need re-imprinting is important — frequently the circuit/s being immediately stimulated in a situation are not those which require re-imprinting in order to help develop a ‘responsive’ personality. In the continuing scenario we see a immediate reactive process between Circuits II and III. In order to attenuate such a retarded dynamic, re-imprinting on Circuits I or IV may be required.

    • Ito Kagehisa says:

      Ugh, I hate it when people misappropriate technical terminology from outside their discipline. Somebody should have grabbed Leary the instant he said “circuit” and held his head under water until he came up with his own term.

      In a related topic, nobody at Microsoft should ever be allowed to paste the word “domain” on anything ever again.

      • Anonymous says:

        Given that the sixth circuit is what causes telepathy, I can’t say his terminology is what bothers me.

      • genre slur says:

        *blush* I am glad to interact with a member of the species that presumes a prescriptive validity to language. The relationship between aggression and territory in your second sentence was a beautiful illustration of my earlier post — the class thanks you.
        As an exercise, you may appreciate:
        – Going for a hike in some nearby woods.
        – Listing the first 5 species of trees you can identify.
        – Going home and finding out their respective botanical nomenclatures.
        – Then finding out their local designations.
        – Once you have done this, go back to the woods, stand in front of a representative of each of the identified species, and understand that it is I) a priori it’s botanical designation, II) a priori it’s local designation, III) a priori what you seem to be perceiving with your senses.
        – Flash between all three ‘states’ as much as you wish.
        Don’t forget to have fun!

        • Ito Kagehisa says:

          That excercise does sound like fun!

          Unfortunately I live on a wooded property, and I’ve already learned both the linnean binomials and common names for the first ten trees I see when I open the door, and I agree with Edward Abbey’s reply to Plato, so I’m not sure that my mental state is manipulable in that particular fashion. I’ll try it anyway, though, and we’ll see.

          I don’t know what you mean by “a prescriptive validity to language” – in matters linguistic, I am a pragmatist. If one has the opportunity to name something, one should attempt to choose a distinctive name that will optimize the ability of other people to communicate; to do otherwise is to inflict some level of harm, unless the object of the name has no real utility at all.

          For example, if I discover a test for feline heartworm, and I decide to name it “Bordetella Pertussis test”, someone should hold my head underwater until I change my mind. Words are a vehicle of communication and using them in a way that actively subverts the clear expression of ideas is pragmatically undesirable.

          • genre slur says:

            Awesome. Honestly, I cannot stand the ‘Circuit’ choice also. This thread has me wondering up different names. The exercise was a hoot for me, as I knew no names when I did it. You are fortunate to live in a wooded area.

  13. lmnop says:

    And “just quit” apparently means “quit in 2009, and apparently stopped lobbying in 2008.”

  14. Mark Crummett says:

    “…Judge Howell previously worked as an RIAA lobbyist and as the Managing Director of a pirate-chasing outfit hints at a conflict of interest.”

    Hints?

  15. Ambiguity says:

    Ah, well, that makes it all okay, then.

    Don’t be silly — this doesn’t even rate as a strawman. There are two issues here:

    1) The judge

    2) The accuracy of the reporting on BB.

    These issues are orthogonal, but you seem to have conflated them a bit.

    • Andrew W says:

      I don’t think I was being silly. The amount of money paid per year is a minor mistake. The second point, regarding when she quit, is subjective.

      Why do you and Imnop believe that two points of error in the BB story mean that we can’t point out that this judge is using her position to advance the financial interests of an organisation that enriched her, to the detriment of the general public?

    • emmdeeaych says:

      If you want accuracy, start your own blog. The sole issue here is the judge.

      • Ambiguity says:

        If you want accuracy, start your own blog. The sole issue here is the judge.

        Yes, because in judging the judge, the facts of the matter are just a pesky nuisance!

        The Internet: where the opinion matters above all else…

  16. Anonymous says:

    She was a practicing attorney that was appointed as a Federal Judge. There is nothing wrong with that at all, and it is FAR different from a legislator leaving public office to work for a firm that his committee had oversight of.

    That being said, she definitely should have recused herself, since she was previously employed by an agency that is a party to the suit.

  17. lmnop says:

    Ah, well, conflicts of interest makes incorrect statements okay, then. Clearly no inaccuracies there.

    Alito and Sotomayor were prosecutors and Roberts had a long career for a firm. Should they recuse themselves from all criminal or cases on which the parties were prior clients? Taft had been president. Should he have recused himself from all separation-of-powers cases? Marshall made his name litigating civil rights cases. Should he have recused himself from all civil rights cases? Ginsberg similarly litigated a lot of sexual equality cases.

    • jaytkay says:

      Should they recuse themselves from all criminal or cases on which the parties were prior clients?

      Ummm, yeah, they should not be ruling on cases involving former clients.

      • lmnop says:

        @jaytkay
        Law firms have a lot of clients, and the litigation before the court is almost never related to prior representation. Many judges have previously worked for the government (who would be their client), and recusal from all cases where the government is a party would disqualify a lot of judges.

        We do see Kagan sitting out a lot of cases right now, but that’s only because she was Solicitor General before Stevens stepped down, and she was thus directly involved in the cases that her replacement as Solicitor General, Neal Katyal, is now litigating before the court.

    • Cory Doctorow says:

      There’s a difference between “litigating cases,” “prosecuting cases” and “being a highly paid lobbyist for an industry who goes on be a judge who reverses all precedent in favor of that industry.”

      • lmnop says:

        In the world of law partnerships, $415,000 over 4 years does not count as very much. Top partners regularly pull down multi-million salaries, and I’m not sure if they are any less beholden to the clients they represent than lobbyists are (try asking an IP lawyer what they think of generic drugs; you don’t have to be a lobbyist to have effectively been captured by industry or the subject matter of your practice).

        And I’m not sure that being a paid lobbyist somehow makes her beliefs on the issue more intense (or even less legitimate) than Thurgood Marshall’s beliefs about civil rights or Ginsberg’s beliefs on sexual equality (both of whom went on to vote against precedent).

        Howell’s views on copyright were known when she was nominated and confirmed. Her decision is subject to appellate review. If she has actually “reverse[d] all precedent in favor of that industry” her decision will almost certainly be overturned.

        • Ito Kagehisa says:

          In the world of law partnerships, $415,000 over 4 years does not count as very much.

          Every single one of your comments seems to have a theme of “it’s OK because all values are relative and somebody else is just as bad”.

          That is not a moral or ethical stance. Evil does not become good when a priest does it. Your arguments are unconvincing.

          $100,000 a year counts as “very much” everywhere in America. The fact that others make more means nothing, the only relative values that matter are the prices of bread and productive land. If you can’t see that, you are living in a fantasy world.

          • lmnop says:

            No, what I’m saying is that it’s not bad at all. Nobody thinks it’s bad that Marshall sat on civil rights cases, or Ginsberg on sexual equality cases. The point is that judges all enter service not as blank slates but with previously existing legal theories and beliefs (and that these concepts of the law may be exactly the reason they are nominated). To ask them not to act on those legal understandings is ridiculous. Absent a clear personal connection to one of the parties or controversies before them, it is unrealistic and wrong to require recusal simply because they may already have a legal theory regarding the subject matter before them.

            And if you think the only relative prices that matter are those of bread and productive land, I’m not sure I’m the one living in a fantasy land.

          • Anonymous says:

            Nobody thinks it’s bad that Marshall sat on civil rights cases, or Ginsberg on sexual equality cases.

            And of course, you should always give the same encomium to a person who tries to block rights as ones who promote them? This judge isn’t upsetting because she wasn’t a tabula rasa. She’s upsetting because she made a bad decision, and the suggestion that she may have done so because of industry ties makes it worse.

          • Ito Kagehisa says:

            No, what I’m saying is that it’s not bad at all.

            Ah, I appreciate the distinction. Thank you for the clarification.

            Nobody thinks it’s bad that Marshall sat on civil rights cases, or Ginsberg on sexual equality cases. The point is that judges all enter service not as blank slates but with previously existing legal theories and beliefs (and that these concepts of the law may be exactly the reason they are nominated). To ask them not to act on those legal understandings is ridiculous.

            There is a vast difference between having legal experience and personal opinions, and being on the payroll of a group that you are regulating in some fashion. This difference becomes extremely important when one believes the group in question has a destructive social agenda – I understand you may not share that belief, but you surely see it exists.

            Absent a clear personal connection to one of the parties or controversies before them, it is unrealistic and wrong to require recusal simply because they may already have a legal theory regarding the subject matter before them.

            Drawing income directly from an industry is a clear personal connection. Just like Halliburton and Cheney, the lack of a current financial position does not compensate for the obvious ongoing relationship. It would be ethical, and admirable, if this judge recused herself; that she has not done so is circumstantial evidence that she continues to work for the industry (with the taxpayer now paying her salary).

            And if you think the only relative prices that matter are those of bread and productive land, I’m not sure I’m the one living in a fantasy land.

            The costs of staying alive determine the costs of everything else. If you are wealthy enough, you can ignore this basic reality, and pretend nobody ever starves.

          • lmnop says:

            I have no idea how to quote here.

            “There is a vast difference between having legal experience and personal opinions, and being on the payroll of a group that you are regulating in some fashion. This difference becomes extremely important when one believes the group in question has a destructive social agenda – I understand you may not share that belief, but you surely see it exists.”

            Howell is not on the payroll of the group she is regulating. She was once employed to lobby, apparently for the RIAA (which is not a party here). In this sense she is not different (except for your subjective judgment of the moral value of their legal philosophy) than any of the instances I have identified, from Marshall and the NAACP, Ginsberg and the ACLU, Alito and prosecutors (note that many, including myself, would argue his stance on most criminal cases has a destructive social impact), Solicitors General and the government, agency employees and agency power, etc.

            These are all instances where judges are sitting on cases where they are regulating an industry/entity they were once employed by. In many instances (with agencies or the Executive), judges preside over cases involving not only the same general industry (as with the RIAA and the parties before Howell) but the exact same party they were once employed by, making the conflict logically greater. Do decisions favourable to prior employers mean that, for example, Alito is functionally still employed by the prosecutorial community, that Marshall was doing the NAACP’s work on the taxpayer’s dime, or that Kagan is shilling for the Executive while technically a member of the Judiciary?

            If your ultimate objection comes down to the morality of the positions espoused or the morality of their preexisting legal theories, then this political matter should be addressed through the political system of Executive nomination and eventual appointment with the advice and consent of the senate.

            “The costs of staying alive determine the costs of everything else. If you are wealthy enough, you can ignore this basic reality, and pretend nobody ever starves.”

            The costs of staying alive go far beyond the price of bread and productive land, and are of comparatively little relevance in an industrial economy with specialized labour. I suppose that everyone in the US should consider $700/year a lot of money since you can easily buy a loaf of bread a day for that much, and if Howell received that much per year for lobbying she would be equally beholden as if she received $415,000 per year.

          • Ito Kagehisa says:

            For writing formatted text on the web, you need to understand HTML. Try this Google search and see what suits you.

            http://www.google.com/search?q=html

            For understanding the interelations of law, economics, and morality, and the perversions of social structures necessarily caused by unregulated economies, I recommend the works of Adam Smith. Smith gives good explanations of how simple greed and enlightened self-interest differ, and why one must never allow business interests to dictate law, and why failure to carefully ward against attempts by business to dominate jurisprudence tends to destroy the ability of a nation to optimally allocate bread and productive land.

            If you won’t acknowledge the pertinent differences between the executive arm of the State, the NAACP, and the RIAAA, though, I’m afraid I will have to follow Antinous’ example and depart this discussion. Those entities are simply not equivalent in the way that you keep insisting they are.

          • lmnop says:

            Smith would agree that in the world as it exists, the relative prices of bread and productive land are not all that matters, and he recognised that individual actors will operate according to their own self-interest. If you would like to say that in your ideal socioeconomic/political system the prices of bread and productive land would be the most important determinants, that’s fine, but don’t expect it to carry any water given pre-existing legal entitlements (and I don’t exactly see how you would avoid rent-seeking on the most productive land, as opposed to marginally productive land… unless all land is to be collectively held). And it’s not like Smith would disagree that some people should be compensated in ways that bear scant direct resemblance to the cost of grain, and that for some people it is both individually and socially good for them to be compensated at those levels.

            Similarly, it would be helpful if you would identify the pertinent differences between: the RIAA; and the NAACP, the executive, former private-practice IP lawyers, the Patent & Trademark Office (PTO), and prosecutors. I suspect that you will continue to argue from a moral stance, and while I think this is questionable, the PTO and prosecutors are arguably just as immoral (in the sense of being liberty-minimising or having a “destructive social agenda,” whatever you interpret that to encompass [is the right to get an abortion socially destructive or not? how about the right to bear arms?]) as the RIAA. So is virtually all private IP practice, with the added benefit that they directly represent corporate, RIAA-like interests. Those who have served in the executive under an administration espousing extensive executive powers are also arguably just as immoral. (How would you like John Yoo, the author of the torture memos, to be nominated to the bench? There’s no way he would be confirmed, but if he were appointed I don’t think he’d have to recuse himself from separation-of-powers cases, and apparently you agree because the executive is somehow fundamentally different than the RIAA).

            And I think Antinous was never part of the discussion, but only dropped by to take an ill-aimed potshot before departing.

          • genre slur says:

            …and the ‘colour commentary’ is an attempt at a humourous para-thread (I try) — but what do you think of the imprint analysis on Imnop? Way out, or a close shave?

          • Ito Kagehisa says:

            I think I see what you are saying about the behavior pattern and how it is cycling back and forth. Clearly no resolution can be reached other than through attrition of willpower! I don’t understand why re-imprinting of the other “circuits” would necessarily have a positive effect, though. I find Leary pretty hard to follow.

        • jjsaul says:

          Lobbyist activities by attorneys are subject to attorney-client relationship rules covering work-product confidentiality and fiduciary relationship, in addition to conflict of interest.

          The standard for disqualification is whether “the judge’s impartiality might reasonably be questioned.”

          It’s not even a close case, it’s a clear conflict.

          US Code of Conduct for Judges:

          http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf

          C. Disqualification.
          (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

          (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

          (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;

          • Anonymouse says:

            Past employment necessarily indicate impartiality or bias.

            It matters more whether the judge has a current interest in allowing the suit to go forward.

            That said, the law on these reverse class-actions is far from settled and will likely need to be decided by the appellate courts and/or the Supreme Court.

          • lmnop says:

            Yes, the lobby clients have attorney-client confidentiality. So what? What privileged communications are potentially at risk of being disclosed here? What work product do you see being implicated?

            As for what you cite, Canon 3C(1)(b) does not apply because neither the judge nor her firm served on the controversy (i.e., case) before her. Under (a) she has no personal knowledge of disputed evidentiary facts concerning the proceeding, and she has no party-specific personal bias or prejudice. The “judge’s impartiality might reasonably be questioned” catchall is broad enough (indeed, the whole standard is) that if the judge feels that they are sufficiently impartial, they can easily decide not to recuse themselves. That a judge with an established record of being pro-copyright issues a bench-decision on a procedural matter in favor of the copyright-asserting plaintiff is no huge surprise.

            If you see this as being a clear case of recusal, please explain to me how Thurgood Marshall could sit on civil rights cases.

          • jjsaul says:

            I mentioned the confidentiality provision to illustrate that the attorney-client relationship established by lobbyists is one that they take great benefit from. So the conflict of interest isn’t an isolated burden, it is organic to the relationship. You take the good, you take the bad.

            Your apparent belief that the availability of procedural appeal eliminates the duty of ethical conduct on the part of the judge is obviously without merit.

            You mistake the standard for disqualification. It is not whether the judge feels she is impartial, it is whether her impartiality may be reasonably questioned. The duty is intended to go far beyond ensuring that cases are decided fairly. It is intended to protect the judicial system from deterioration of public faith risked by even the appearance of a conflict of interest.

            Thurgood Marshall recused himself from many cases. Indeed, he recused himself from 98 of the 171 cases decided during his first term.

          • lmnop says:

            Like Kagan, Thurgood Marshal was Solicitor General immediately before taking office. This, as with Kagan, explains the abundant recusals early in tenure. These recusals had nothing to do with civil rights cases or his prior experience as an civil rights advocate.

            I earlier mentioned appeal not as a recourse to alleged ethical problems but the substance of the law. I do not think she was required to recuse herself. But if, despite this, someone thinks she made bad law and overturned a long line of legal precedent, this will likely be corrected on appeal… just like they would if she had made the same “bad” decision and had never been a lobbyist.

            In the absence of a motion for disqualification, it is entirely within the judge’s own purview to determine whether or not she feels she is impartial and whether her impartiality can reasonably be questioned. The fact that judges are not necessarily disqualified (and thus that there is not a reasonable question of their impartiality) even when their spouses are connected to the controversy (such as through imputation via their firm) necessarily means that not every suspicion or appearance of impartiality is disqualifying. Indeed, here’s what the Court had to say in Liteky v. United States, 510 U.S. 540 (http://www.law.cornell.edu/supct/html/92-6921.ZC.html):

            “Section 455(a) provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” For present purposes, it should suffice to say that § 455(a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge’s rulings or findings. I think all would agree that a high threshold is required to satisfy this standard. Thus, under §455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair minded person could not set aside when judging the dispute.” (yes, this is text from Kennedy’s 4-vote concurrence, but it is actually presented as a milder alternative to Scalia’s opinion, which would have made it even more difficult to force recusal)

            If you want to argue that no fair minded judge could put aside their allegedly positive disposition to a party that is in the same industry as that which the judge once lobbied for, I don’t think you’re going to get very far.

            And I still have no idea for what purpose you are invoking confidentiality.

Leave a Reply