Archive for the ‘civil procedure’ Category

The AP has a nice little story about the CIA’s kidnap and torture squad, re-posted here at Talking Points Memo:

Four of the nation’s most highly valued terrorist prisoners were secretly moved to Guantanamo Bay, Cuba, in 2003, years earlier than has been disclosed, then whisked back into overseas prisons before the Supreme Court could give them access to lawyers, The Associated Press has learned.

It amazes me that someone can write an entire article about an illegal secret government program that was designed to kidnap and torture people while hiding them from the courts and the public … without using the words “illegal,” “kidnap,” or “torture.”

But holy hell, what is this next bit about?

Worse for the CIA, if the Supreme Court granted detainees rights, the entire covert program was at risk. Zubaydah and al-Nashiri could tell their lawyers about being waterboarded in Thailand. Al-Nashiri might discuss having a drill and an unloaded gun put to his head at a CIA prison in Poland.

“Anything that could expose these detainees to individuals outside the government was a nonstarter,” one U.S. official familiar with the program said, speaking on condition of anonymity to discuss the government’s legal analysis.

Let me unpack that logic a bit.  Individuals in the Bush CIA had to hide these imprisoned men from the courts and anyone else outside the government … because … if the prisoners were allowed to talk to anyone, they might complain about being tortured … by the CIA?  Which would, you know, look bad on their annual GS-14 performance reviews.  Or something.  It’s not like they could have been worried about being charged with crimes.  John Yoo and Jay Bybee told them it was all OK! (Guess which one of those two names is missing from the article.)

So instead, everyone in the Bush administration who learned about the illegal secret torture and kidnapping program just… went along with the conspiracy to cover it all up, because hey, why rock the boat?  And the AP is granting anonymity to a source who is “familiar” with “the program” because … if we knew the source’s name, presumably he could be charged with a crime, either in the US or somewhere else.

Glad we’ve cleared that up.

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From kgw.com :

PORTLAND, Ore. — Immigration officials have revealed a plan to create holding cells in Portland’s slowly up-and-coming dying South Waterfront neighborhood.

fixed that for you.  A brand new ICE jail for transient prisoners is just what the John Ross condobacle needs to sell those last few units (at 60% below original list price).

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Everyone in patent law (and in software, and in pension management) is waiting breathlessly for the Supreme Court to issue an opinion in Bilski.  Everyone agrees that it’s probably Justice Stevens (who is regarded as a patent minimalist) authoring the opinion.  Likewise everyone agrees that the decision, when it comes,  will be bad for business-method patents.  People with idiot business-method patents, like Jeff Bezos and his infamous Amazon 1-click patent, are sad about this.  On the other hand, most people who actually create and invent stuff are genuinely happy.  The only real controversy at this point is how far the court will go: will it strike only business method patents, or will it rule that no software should be included in the list of patentable subject matter.  But the thing is, it’s (at least nominally) Bilski bringing this fight, trying to keep his ridiculous business method patent alive!  If it seems so clear that he’s going to lose, why not just give up now and avoid setting precedent?

I make no bones about my position- I’m anti-patent in general, and anti-biz-method / software patent in particular.

So when I saw this post from George Washington Law Prof John Duffy at Patently-O, I was afraid at first that he was giving Bilski to escape being hoist on his own flawed petard.  But when you get to the end of the article you find this gem:

I had previously thought that “irrational exuberance” provided the best answer—that the Bilski petitioners were likely to remain unrealistically optimistic about their chances for success right up to the end. But the presence of a multibillion-dollar corporation controlling the litigation decreases the chances that the strategy is due to simple inventor over-optimism.

It seems that Bilski sold the patent at issue … to a corporation that apparently wants to have business method patents killed off entirely.


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“Federal attorneys this week gave the first indication of how the government might plan to defend the Florida state-led lawsuit challenging the health care reform law.”

via Legal defense forms against Florida health care lawsuit – Jacksonville Business Journal.

Since the suit is entirely frivolous, I suppose the answer could simply say “Go fuck yourself.” and they could just wait for the district court to dismiss sua sponte.  I mean, seriously, why waste the court’s time by making the clerks read 30 pages of answer, check cites, and write a brief to the judge?  The complaint is wrong on the law and wrong on the facts.
So I guess a better answer would be, “GFY.  And rule 11 sanctions and recommend disbarrment for plaintiffs’ counsel, because they could not have a reasonable belief this lawsuit would succeed– so either they have betrayed their oath to the court, or they are too stupid to be allowed to continue practicing law. “

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This kind of double-speak is exactly what we saw from SCOX in 2003 and 2004.  And look how well that worked out for them.  Note to observers: when the lies that a company is telling reporters are different from the lies it’s telling to the court, that might be a signal the business is in trouble.

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There is an article up at the NYT today about the RIAA lawsuit that is currently pending against 17 John Doe defendants at the University of Oregon.  The article is relatively even-handed as these things go, hitting the typical applause lines for each side: college students don’t respect copyright, stealing music is bad, settlement offers from the record companies are extortion, etc etc etc.  Adam Liptak also does a fair job of pointing out that this suit is interesting primarily because the state attorney general’s office is involved, and the same point gets a plug over at the NYT Law blog.

But while the article contains several quotes sourced to RIAA capo Cary Sherman, he doesn’t bother to quote anyone who is, you know, actually FROM Oregon.  (more…)

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This is the endgame for the record industry. No more “making available.” No more “downloading is de facto infringement.” As one of my law school profs notably said, “if you have to say it in latin, your argument is a bunch of bullshit.” The EFF is getting on board a growing trend: as Ray Beckerman has clearly documented, the RIAA lawsuit scheme only worked so long as nobody bothered to fight back. Now that college studens are teaming up to file motions to quash, and banding together using lessons learned from other successful defenses to oppose the record industry’s abusive litigation, the labels don’t have a leg to stand on.

The Free Software Foundation has announced that it has established an Expert Witness Defense Fund to assist defendants in RIAA cases, in order “to help provide computer expert witnesses to combat RIAA’s ongoing lawsuits, and to defend against the RIAA’s attempt to redefine copyright law.”

And, it’s worth noting, none of the defenses which have been successful so far even get to the format-shifting analysis from Diamond Multimedia, or the Fair-Use analysis as it was set forth in Title 17. The RIAA lawsuits are procedurally defective, and college students have learned to challenge them on procedural grounds.  The success of the RIAA’s litigation strategy has peaked, and is on its way to an early grave; hopefully the EFF’s expert witnesses will provide additional nails for the coffin.

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