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Two more decisions came out today. One was another smackdown on the 6th Circuit and it's habeas corpus philosophy. Nothing too spectacular. The other one dealt with compensation to a victim of child pornography from viewers of said child pornography. The answer is yes, the victim can receive some compensation. How much? The Court gives very little guidance. A very wide range of opinions. I'm still working through them.
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Apr 24, 2014 04:21
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Allaniis posted:The other one dealt with compensation to a victim of child pornography from viewers of said child pornography. The answer is yes, the victim can receive some compensation. How much? The Court gives very little guidance. A very wide range of opinions. I'm still working through them. That said, I'm certainly not disappointed with the majority's opinion from a results point of view.
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Apr 24, 2014 13:18
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Green Crayons posted:Roberts puts on his Good Writer cap for the dissent. And, although it sucks for child pornography victims (until Congress were to fix the statute), I think Roberts' dissent got it right. The Roberts dissent may make a bit of sense until you read the Sotomayor dissent dissent.
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Apr 24, 2014 14:52
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Kalman posted:Cable company has already paid the broadcaster a fee to retransmit their content. I think you're misusing the word "retransmit" here. DirecTV certainly pays the distribution fees to transmit the content, but I've never heard of them paying a fee to retransmit content later. Like, there's a line item on your DirecTV bill, "Fee For Streaming DVR Recordings"? Or DirecTV pays such a fee in aggregate separate from the initial license for the content? Can you provide evidence for this claim? quote:And? The rebroadcaster doesn't rebroadcast when it's turned off either, but you aren't going to argue that doesn't make it a rebroadcaster, right? The problem is that when a user is connected it retransmits, and the law doesn't really care that when a user isn't connected it doesn't. Your other examples don't fall into retransmission for a variety of reasons. Maybe you should go into more detail, because I'm not really grasping this portion of your argument and it seems like you're seriously misusing some of these terms. A point-to-point transmission commanded by a user is not a "broadcast" in the legal sense under the FCC's definition. I do hold an FCC license (not that it's hard) and this is an important distinction. Broadcasts are things like TV stations, where the transmission does not have a specific destination or recipient and are intended for reception by the general public. We were talking about retransmission which is different to me. Obviously you could not legally take your Aereo DVR and stream the content to the general public on Twitch.tv or something like that. No question there. But again I don't think it's possible to segregate off "cloud" services like Dropbox or Amazon S3 from Aereo with the definitions given. If they rule against Aereo, the definition will also effectively criminalize someone playing their recording of a radio set from the cloud ("retransmission in a different format"). Recording cassettes off the radio has been accepted since the 60s, and the only novel thing here is the fact that it's stored digitally on a computer instead of a cassette and you don't have sole ownership of the computer in question (you do own the recording, but not the hardware it's stored on). Furthermore the distinction of "retransmit in a different medium", used in such a way, is fundamentally problematic to me. The initial format is radio waves, no question. If you stream the content to your mobile phone, the signal will travel over wires in a different encoding (data packets over internet) at some point, agreed. But if that's the standard, then does your TV not "retransmit" the signal when it converts FM modulated radio waves in air to component video signals in a wire to drive the picture tube? Why is transmitting across the internet (one stream to a personal device) fundamentally different, other than the wire to the "picture tube" being really long and using a different encoding? quote:Also, personal streaming is not obviously a public performance under the law - see Columbia v Redd Horne, 749 F2d 154, in which private "streaming" of videocassette into private booths was a public performance. Still good law in the 3rd as far as I know! Also note that YouTube videos are public performances, despite being streamed to a single entity in any one location and likely a different ephemeral copy for each entity given the realities of caching and CDNs. Your cited case is about a company who tried to take videotapes licensed for private performances and use them to do public performances without paying for the license for the public performance. That's irrelevant here because there's no question that a license was paid for a public performance. The TV station paid the licensing fee to broadcast the content. This is a question of whether additional fees must be paid to play back your private recording of the public performance. Betamax settled this firmly in the negative, but now they're trying to draw a distinction based on whether you own the VCR yourself or merely have rented it. That's a really awful distinction that has pretty well been shot down already, but it's now novel again because it's "on a computer". If Aereo was letting you stream recordings from other people's DVRs then this case would be relevant, because you would definitely be publically performing using a copy licensed for private use. Or letting you stream recordings onto publicly-accessible streams like Twitch or something, which would be rebroadcasting. Paul MaudDib fucked around with this message at 19:18 on Apr 24, 2014 |
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Apr 24, 2014 18:27
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Paul MaudDib posted:I think you're misusing the word "retransmit" here. DirecTV certainly pays the distribution fees to transmit the content, but I've never heard of them paying a fee to retransmit content later. Like, there's a line item on your DirecTV bill, "Fee For Streaming DVR Recordings"? Or DirecTV pays such a fee in aggregate separate from the initial license for the content? Can you provide evidence for this claim? DirecTV pays television broadcasters a fee to retransmit their OTA content. Not to transmit it. They pay a transmission. ( technically public performance) fee to direct content providers like Comedy Central or CNN who don't broadcast, but retransmission of OTA content is under a separate statutory regime. Go google "retransmission consent". It's an enormous political/regulatory issue in the broadcast industry and the core of what's at stake in Aereo, so you should probably understand it before making assertions about how the whole regulatory apparatus works.
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Apr 24, 2014 20:40
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Kinda a broad question, but I'm curious: When Obama was elected/re-elected, I remember a lot of talk about how Obama's appointments would shift the Court to far left. But we haven't seen that. I suppose this is a bit  , since I suppose I could look it up, but what happened that such an expectation didn't come true? Was it Obama mis-guessing what would happen? Too many conservative judges not retiring yet?
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Apr 25, 2014 07:49
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MisterBibs posted:Kinda a broad question, but I'm curious: It's just this. The two retirements he had were liberals. If any of the conservatives had resigned, we would be getting a whole different kind of 5-4 ruling.
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Apr 25, 2014 08:01
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MisterBibs posted:Kinda a broad question, but I'm curious: Badger of Basra posted:It's just this. The two retirements he had were liberals. If any of the conservatives had resigned, we would be getting a whole different kind of 5-4 ruling. Or, to put it differently, if it had been McCain we'd be seeing a bunch of 7-2s.
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Apr 25, 2014 08:24
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Yeah, Stevens was a Ford appointee but was pretty liberal. Souter was HW Bush, and kind of middle-of-the-road. George W got to appoint Roberts and Alito so there's two conservatives locked in for a while. Until Scalia, Thomas, or Kennedy bows out, we're basically going to see 5-4 to overturn as much of the civil rights movement as possible, and 5-4 to protect gays since Kennedy has noticed that gay people can also be white. Kalman posted:Or, to put it differently, if it had been McCain we'd be seeing a bunch of 7-2s. Oh my God I am never voting 3rd party for President ever again.
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Apr 25, 2014 08:27
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Sotomayor is easily the best justice in the history of the country already, so Obama done good.
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Apr 25, 2014 12:21
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With the recent abolition of the judicial filibuster you'll see appeals courts move left as Obama fills vacancies (the DC Circuit in particular), but with a conservative Supreme Court there's not really much to do except hope that Hillary wins in 2016 and one of the conservative justices croaks. However Breyer and Ginsburg are both getting up there as well so there's no guarantee that the next vacancy is one of the conservatives. That said replacing Stevens and Souter (though he could have lasted decades longer) with younger liberals is a significant win: it keeps it possible that the next President can erase the conservative majority. Had Obama not been elected you'd have been looking at decades of Republican dominance on the Supreme Court. Chait had a good column where he argued that if the Democrats lose the Senate in 2014 and a Republican justice dies (low chance of this: 16% or so by actuarial tables but you've gotta assume as they're wealthy they live longer than average since they get much better medical care), he expects Republicans will simply refuse to confirm anyone at all. They might even if a liberal justice dies, but that's less likely because there won't be the terror that they'll have lost the Supreme Court. So that'll be interesting, low chance of it actually happening though.
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Apr 25, 2014 13:30
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Unless actuarial tables take into account the chances of someone discovering a phylactery and learning the arcane rituals to destroy it, they won't be much use in estimating Scalia's life expectancy.
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Apr 25, 2014 13:39
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WhiskeyJuvenile posted:Sotomayor is easily the best justice in the history of the country already, so Obama done good. Yeah, but she likes the Yankees.
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Apr 25, 2014 14:04
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VitalSigns posted:Unless actuarial tables take into account the chances of someone discovering a phylactery and learning the arcane rituals to destroy it, they won't be much use in estimating Scalia's life expectancy. Plenty of rich people do just fine into their early 80s, so I'm betting both Scalia and Kennedy will hold on through the 2016 winner until at least 2020. And by "hold on," I mean grip tightly to their seat of power through sheer force of will -- despite any medical woes -- because I would imagine that for any Justice, ego, party politics, and identity/self-worth is wrapped up into their job. Snoggle posted:Yeah, but she likes the Yankees.
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Apr 25, 2014 14:31
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evilweasel posted:Chait had a good column where he argued that if the Democrats lose the Senate in 2014 and a Republican justice dies (low chance of this: 16% or so by actuarial tables but you've gotta assume as they're wealthy they live longer than average since they get much better medical care), he expects Republicans will simply refuse to confirm anyone at all. They might even if a liberal justice dies, but that's less likely because there won't be the terror that they'll have lost the Supreme Court. Pardon my ignorance, but is this something written into the constitution that X amount of the Senate must confirm the appointment or is it one more part of the filibuster that'll eventually be strung up?
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Apr 25, 2014 14:50
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The latter.
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Apr 25, 2014 15:01
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The president is given power by Article II section 2 to appoint supreme court justices, ambassadors, etc with the "advice and consent of the senate." It goes no further to specify how that consent is to proceed. The houses have the ability to set their own rules with some restrictions, and the filibuster is just one of those rules. The filibuster is not at all a part of the constitution. It's merely a senate procedural rule.
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Apr 25, 2014 15:03
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Chokes McGee posted:Pardon my ignorance, but is this something written into the constitution that X amount of the Senate must confirm the appointment or is it one more part of the filibuster that'll eventually be strung up? If the Reps control the Senate, it won't matter if there is a filibuster or not. They'll have the 51 votes needed to deny anyone.
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Apr 25, 2014 15:03
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Snoggle posted:Yeah, but she likes the Yankees. One more thing she is unquestionably right on. (Also, go check who the judge was during the players' strike.) The Warszawa fucked around with this message at 15:17 on Apr 25, 2014 |
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Apr 25, 2014 15:13
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I have to think Ginsberg, with her health issues, is probably the next to leave. Unfortunately O'Connor retiring very early is what gave the Roberts court so much influence, since before that the court leaned slightly more liberal.
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Apr 25, 2014 15:14
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What happens if they don't confirm a replacement and there is a 4-4 tie in a ruling?
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Apr 25, 2014 15:15
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Radish posted:What happens if they don't confirm a replacement and there is a 4-4 tie in a ruling? I think when a Justice recuses themselves and there's a tie it just goes back to the last appellate court's ruling, but it doesn't apply outside of that circuit. So probably something like that.
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Apr 25, 2014 15:17
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Ok cool, thanks for the mini-civics lesson.
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Apr 25, 2014 15:27
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computer parts posted:I think when a Justice recuses themselves and there's a tie it just goes back to the last appellate court's ruling, but it doesn't apply outside of that circuit. Yes. "Affirmed by an equally divided court." Not precedential at all, so only applies to the litigants. Happened a fair amount when Justice Powell was getting cancer treatment, apparently: http://www.scotusblog.com/2008/03/how-often-does-a-recusal-result-in-an-equally-divided-court/
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Apr 25, 2014 15:44
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Chokes McGee posted:Pardon my ignorance, but is this something written into the constitution that X amount of the Senate must confirm the appointment or is it one more part of the filibuster that'll eventually be strung up? If the Republicans hold the Senate, they can just vote down anyone (or refuse to hold a vote on them). The Constitution does require the consent of the Senate and so it's not like the filibuster issue where you can argue you're violating the spirit of the Constitution: the Senate absolutely has the right to vote down a nominee. The more interesting part is there's no requirement for nine justices. It used to be standard that Congress monkeyed with the amount of justices on the bench when they hated or loved the President: that basically ended with the collapse of FDR's court-packing scheme but it could always return. Of course, the issue is there's very obvious practical problems with a 8 person Supreme Court split 4-4  Green Crayons posted:Kennedy is probably the best person to have replaced by a Democrat president, if we're selecting between Scalia (78 years old), Kennedy (77 years old), and Thomas (65 years old). Scalia is absolutely the best person to have replaced by a Democrat: Kennedy leans conservative, but he's not a sure conservative vote. Scalia is. You get much more milage out of replacing Scalia: you have a solid 6-3 majority for abortion rights and gay rights, for example.
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Apr 25, 2014 16:04
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Green Crayons posted:Kennedy is probably the best person to have replaced by a Democrat president, if we're selecting between Scalia (78 years old), Kennedy (77 years old), and Thomas (65 years old). Yeah, Kennedy is the person I'd like to see go (in one way or another), in part because I think he's become more right-wing/lolbertarian and less swingy the last years, except on a few specific issues. And paradoxically, because he's got this perceived swing-vote rep, there might be a bit less uproar/protest than with a straight hard-right-to-left replacement, say Scalia to Pam Karlan. Yeah, I know, I'm dreaming... Also, I was reading this post from Dahlia Lithwick: http://www.slate.com/articles/news_...how.single.html. And it got me to thinking about several different things. But one of them was that, as outrageous as some of the things coming out of the court since 2006 have been, perhaps the single biggest crime in recent SCOTUS history was replacing Thurgood Marshall with Clarence Thomas. Still makes my blood boil. I know some people say Bush the elder wasn't as bad as his awful son, but that decision and its consequences makes them both horrible AFAIC.
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Apr 25, 2014 16:05
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evilweasel posted:Scalia is absolutely the best person to have replaced by a Democrat: Kennedy leans conservative, but he's not a sure conservative vote. Scalia is. You get much more milage out of replacing Scalia: you have a solid 6-3 majority for abortion rights and gay rights, for example. Thomas would be better. The ideal scenario would be for him to retire and reveal that his supreme court philosophy has been some sort of tolberone triangular deep troll or something because jfc.
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Apr 25, 2014 16:09
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Yes Kennedy supports civil liberties regardless of politics, generally.
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Apr 25, 2014 16:10
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evilweasel posted:Scalia is absolutely the best person to have replaced by a Democrat: Kennedy leans conservative, but he's not a sure conservative vote. Scalia is. You get much more milage out of replacing Scalia: you have a solid 6-3 majority for abortion rights and gay rights, for example. I'd actually prefer to replace every other conservative justice by a liberal before Scalia. Let him be the lone reactionary on the bench. The impotent rage bursting forth from every word of the sweat-and-tear-soaked pages of his dissents, shrieking with inconsolable agony against 8-1 majority after 8-1 majority would be awesome and glorious to behold 
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Apr 25, 2014 16:13
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hobbesmaster posted:Thomas would be better. I mean you'd ideally want Thomas because he's the youngest so you're getting a replacement ahead of schedule, but I'd rather get rid of Scalia because Thomas actually has a legal philosophy, just one I profoundly disagree with. Scalia has a political philosophy, and the right legal answer is always what is in line with that legal philosophy. Thomas will bite the bullet and vote for something he politically disagrees with: Scalia will not. The best example is where Scalia suddenly realized although the commerce clause is the devil, when it comes to the Devil's Weed then it's suddenly ok for the Federal Government to regulate it - but not anything Scalia doesn't want regulated. Also, Thomas's lone dissents, while occasionally nutty, are sometimes useful for pointing out stagnant areas of the law that have just been the way they are because they're old but really should be rethought (like his crusade to resurrect the privileges and immunities clause).
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Apr 25, 2014 16:17
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I think we have to consider the possibility that whenever the One True Gay Case comes before SCOTUS, during opinion delivery Scalia might actually pop something loose in his head. Among the bits that haven't already popped loose, that is. Edit: vvv I still can hardly believe he wrote what he did in Lawrence. vvv mdemone fucked around with this message at 16:35 on Apr 25, 2014 |
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Apr 25, 2014 16:31
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mdemone posted:I think we have to consider the possibility that whenever the One True Gay Case comes before SCOTUS, during opinion delivery Scalia might actually pop something loose in his head. Among the bits that haven't already popped loose, that is. That already happened in his Lawrence dissent, when the nationwide gay marriage legalization case comes up his opinion will just be a bitter "told you all they were lying in the prop 8 case and in windsor that they weren't making a decision on gay marriage yet".
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Apr 25, 2014 16:32
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I hear this repeatedly that Scalia has a political rather than judicial philosophy. While I this something along those lines is clearly at play in his Raich concurrence (the drug exception to states rights), I don't see how you can square that with his 4th amendment / crim. proc. cases along the lines of Jardines, Kyllo, or Jones. While I do frequently despise Scalia's positions, he surprises me more often than Thomas does.
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Apr 25, 2014 16:36
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KernelSlanders posted:While I do frequently despise Scalia's positions, he surprises me more often than Thomas does. Isn't that sort of the point? One should in principle be able to divine what a justice's opinion will be (in the broadest of strokes) for the large majority of case-types, given their past jurisprudence on similar subjects. Easy to do with Thomas, not so easy with Scalia because his jurisprudence changes depending on the political locus of the case, since he is a nasty, brutish little gently caress. Of course I may be wrong or misguided in claiming that justices should be predictable. vvv Ha! there it is! vvv mdemone fucked around with this message at 16:41 on Apr 25, 2014 |
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Apr 25, 2014 16:38
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KernelSlanders posted:I hear this repeatedly that Scalia has a political rather than judicial philosophy. While I this something along those lines is clearly at play in his Raich concurrence (the drug exception to states rights), I don't see how you can square that with his 4th amendment / crim. proc. cases along the lines of Jardines, Kyllo, or Jones. While I do frequently despise Scalia's positions, he surprises me more often than Thomas does. quote:Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct...One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
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Apr 25, 2014 16:40
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evilweasel posted:That already happened in his Lawrence dissent, when the nationwide gay marriage legalization case comes up his opinion will just be a bitter "told you all they were lying in the prop 8 case and in windsor that they weren't making a decision on gay marriage yet". I was kind of wondering if he'd have a stroke when all these state courts were quoting his dissent in Windsor and noting the acuity of his reasoning that regardless of what the majority claimed, the logic of the Windsor decision made gay marriage an inevitability in every state, taking his dissent as support to go ahead and overturn the marriage bans  It was marvelous.
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Apr 25, 2014 16:44
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WhiskeyJuvenile posted:Sotomayor is easily the best justice in the history of the country already, so Obama done good. Second best, but yeah. 
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Apr 25, 2014 16:47
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A Winner is Jew posted:Second best, but yeah. Yeah, have to stick up for the Notorious R.B.G. here, though Sotomayor is very good too.
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Apr 25, 2014 16:55
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A Winner is Jew posted:Second best, but yeah. I dearly hope that's real and I need to know the context.
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Apr 25, 2014 16:56
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evilweasel posted:Scalia is absolutely the best person to have replaced by a Democrat: Kennedy leans conservative, but he's not a sure conservative vote. Scalia is. You get much more milage out of replacing Scalia: you have a solid 6-3 majority for abortion rights and gay rights, for example. - A 5-4 win on gay rights (status quo) - Probably a stronger/more consistent 5-4 win on abortion rights (Kennedy is a milquetoast supporter whose support has only gotten weaker over time, so this result would be consistent with replacing either Kennedy or Scalia) - Something replacing Scalia doesn't: flipping the conservative majority on 4th Amendment rights to a 5-4 win (Kennedy replacement, Scalia, Ginsburg, Sotomayor, and Kagan). I don't see the benefit of keeping Kennedy over Scalia from a strategy standpoint.
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Apr 25, 2014 17:02
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