The Justices Are Not Writing On A Blank Slate

June 27, 2012 Leave a comment
Will the Justices really wipe the venerated "Commerce Clause" slate clean? Source of Photo: Shift at ja.Wikipedia,

In the final analysis, the Supreme Court did not erase the Obama Administration’s signature piece of legislation. The Court upheld it.  Source of Photo: Shift at ja.Wikipedia,

When legal scholars consider instances over the past 25 years in which the Supreme Court has struck down federal legislation as unconstitutional, two cases come up most frequently: United States v Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). I decided recently to take a second look at those cases – and was surprised at what I found.

In Lopez, the Supreme Court struck down the Gun-Free School Zones Act, which made it a federal crime to possess a gun within 1,000 feet of school property.  In Morrison, the Court invalidated the section of the Violence Against Women Act that gave victims of gender-motivated violence a federal cause of action.

In each case, the Court held that Congress had exceeded its authority under the Commerce Clause because what it was regulating wasn’t “commerce.”  It was “acts of violence” or noneconomic conduct of a criminal character, matters over which the states have traditionally had jurisdiction.  However, I also found reaffirmation of the general principle that where Congress’ goal is to regulate commercial transactions or control prices or stabilize markets, its legislation will be upheld. In other words, where the transactions or markets Congress is regulating are economic in nature, its enactments will be sustained.

I found a second thing when I revisited Lopez. I also found Justice Kennedy’s concurring Opinion.  It is inspiring.  Here are the highlights of this lengthy opinion. Justice Kennedy makes four basic points:

Point #1:  After reviewing the history of the Commerce Clause and the jurisprudence concerning it, Justice Kennedy concluded that the Court was and should be committed to a “practical conception of the commerce power.”

“Commerce” was not intended to be “a technical legal conception,” he said, “but a practical one, drawn from the course of business.”[1]  Consistent with this view, he eschewed the practice in which the Court had engaged for many years of drawing “content based or subject matter distinctions, thus defining by semantic or formalistic categories those activities that were commerce and those that were not.” For example, he specifically rejected the distinctions that had once been made between

  • ‘transportation’ on the one hand, and “manufacture” or “production” on the other;  and between
  •  activities ‘directly’ affecting commerce and those only ‘indirectly’ affecting it.

Point #2:  Congress is owed considerable deference in determining how its powers under the Commerce Clause are to be exercised.

The powers conferred on the government by the Commerce Clause have been vested in Congress, not the Courts.  As a consequence, the Court has long recognized that Congress is owed considerable deference in determining when and how that power is to be exercised and when the states alone are to be left to regulate a field.

While “the States and the National Government both have authority to regulate certain matters absent the congressional determination to displace local law,” it is Congress’ obligation, not the Court’s, “in the first and primary instance” to determine the federal-state balance.  Put another way, the Commerce Clause “grants Congress … ample discretion to determine its appropriate exercise.”

In order to give proper effect to this deference, the Court has adopted the “rational basis” test.  Under that test, it does not ask whether the subject matter of specific legislation sufficiently affected interstate commerce to justify its enactment.   It is, instead, limited to asking whether Congress had a “rational basis” for concluding that it did.  If Congress did have a rational basis for so concluding, then it is deemed to have acted within the scope of its Commerce Clause powers.  If it didn’t have a rational basis for so concluding, then it can be found to have exceeded its powers under the Commerce Clause and the legislation it has enacted can be stricken.

This is the test nearly all of the Court’s current members have embraced and the Lopez and Morrison majorities applied.  The history of its application “counsels great restraint” before the Court determines that the Clause is insufficient to support an enactment.

Point #3:  In addition to deferring to Congress, it is important for the Court to adhere to its already established Commerce Clause jurisprudence.

Given the history of its decisions in this area, Justice Kennedy concludes that “the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point.”  That means that judicial restraint counsels against calling into question “the essential principles now in place” regarding the commerce power, and against reverting to earlier “semantic or formalistic” artifices:

 “That fundamental restraint …forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy…; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.

In Justice Kennedy’s view, the holding in Lopez was a “limited” one that did not “call[ ] in question” the Court’s “practical conception of commercial regulation” or resurrect former obstacles to Congress’ exercise of its plenary power.

Point #4:  The Court should intervene to preserve the federal-state balance only where Congress has clearly exercised powers that are not its own but belong exclusively to the States.

While acknowledging that the duty to maintain the balance between national and state power is entrusted “in the first and primary instance” to Congress, Justice Kennedy perceives the courts as having a back-up role to play – in especially clear-cut and egregious cases.  Thus, “when one or the other level of Government has tipped the scales too far” and trespassed upon the other’s exclusive territory, the Court may be required to intervene to say which side of the Federal/State divide certain powers fall on.

That was the case in Lopez.  There, Congress sought to take over “an area of traditional state concern, … having nothing to do with the regulation of commercial activity” and, in so doing, it ““foreclose[d] the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise.”  The Court was, accordingly, obliged to intervene to vindicate federalism.

The same is not true of the Affordable Care Act for at least two reasons.  First, the Act’s nexus to commerce is incontrovertible.  Second, as I have already demonstrated, here , States have not in any event been foreclosed from experimenting in the creation and operation of insurance exchanges or otherwise attaining the Act’s goals.  Accordingly, short of a challenge to the Act “as applied,” the Court has neither cause nor occasion to intervene on these grounds.

* * *

UPDATE:  This morning the United States Supreme Court upheld all but one provision of the Affordable Care Act – 42 U. S. C. §1396c.  That provision would have permitted the Secretary of Health & Human Services to take away a State’s existing Medicaid funding if it did not agree to a proposed Medicaid expansion.  The provision was found to be severable and the remainder of the Act upheld. The upshot is that States have three options when it comes to the Medicaid Program: 1) They can choose to participate in the expansion and receive additional federal funding; 2) They can choose not to participate in the expansion and maintain their current level of funding; or 3) They can choose not to participate in the program at all and forego federal funding altogether.

As to the more sensational provisions of the Act, the line-up was as follows: Five members of the Court, including the Chief Justice, voted to uphold the so-called mandate as an exercise of Congress’ power to “lay and collect Taxes.”  Four members of the majority (Ginsburg, Breyer, Sotomayor & Kagan) believed that it could also be sustained under the Commerce Clause.  Justices Scalia, Kennedy, Thomas & Alito issued a joint dissent, arguing that the Act should have been stricken in its entirety.

[1]   All of the quotes in this blog post are from Lopez.  For reasons of time and readability, I am not including legal citations.  On request, I will glad to provide a version that does include them.


Health Care Reform: Has The Supreme Court Already Embraced The Individual Mandate?

May 30, 2012 Leave a comment

The United States Supreme Court

Is President Obama’s health-care law dead? Ever since the United States Supreme Court heard arguments about its constitutionality in late March, speculation has been rife that, at a minimum, the Justices will strike down the individual mandate.[1]  The predictions rest on a single assertion: that individuals have never before been required, under the authority of the Commerce Clause, to purchase a product or service from a private party.

The assertion is mistaken. There is not only clear precedent for the mandate, but conservative, centrist and liberal Justices alike have embraced the precedent in principle.  This includes nearly every member of the current Court, including the Chief Justice and, in order of seniority, Associate Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer and Alito. It also includes former Chief Justice Rehnquist and other eminent Justices from the past.  On the current Court, only Justices Sotomayor and Kagan have never had the opportunity to weigh in on the issue.

So, when has anyone ever previously been required to purchase a product or service from a private party? What have they been required to purchase?  And, from whom?  The answer: employees have been required to purchase services – i.e., negotiating, grievance-handling, dispute resolution and litigation services – from their collective bargaining agent or union.  Under agency shop principles, even those who choose not to become union members must pay an in lieu “fee.” This fee is known by one of three names: “agency fee,” “service fee” or “fair share fee.”  It is a per capita approximation of the costs the union incurs in performing its statutory duties.

Significantly, the Supreme Court has never said Congress lacks authority under the Commerce Clause to require employees to purchase such services.  On the contrary, it has repeatedly said the opposite.  Congress can require employees to purchase services from a union under the Commerce Clause without either depriving them of “liberty” or violating the First or Fifth Amendments.[2]

The Genesis Of Agency Fee Principles

The origin of agency fee principles can be traced back to Railway Employes’ Department v Hanson, 351 U.S. 225 (1956).  In Hanson, a group of non-union employees brought suit to challenge Section 152 (Eleventh) of the Railway Labor Act (“RLA”) and enjoin provisions of a collective bargaining agreement that required them to join or financially support a union.[3]  The Supreme Court upheld the negotiated and statutory provisions under authority of the Commerce Clause.  It found that Congress’ power “to regulate labor relations in interstate industries [wa]s … well-established,” 351 U.S. at 233, and that achieving “industrial peace along the arteries of commerce is a legitimate objective” of such regulation.  Id.

While it questioned the wisdom of requiring rather than persuading employees to pay union dues and fees, the Court held that the choice of means to achieve a proper legislative goal “rests with the policy makers, not with the judiciary.” 351 U.S. at 234.  “If …[Congress] acts unwisely, the electorate can make a change,” the Court observed.  Id.  It is not for the Court to sit as a supra-legislature. Rather, the Judiciary’s task “ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises.”  Id.  After that, Congress has “great latitude in choosing the methods” to be employed in achieving its legislative objectives. Id. at 233.  In fact, it has the “final say.” Id. at 234.  Accord, United States v. Comstock, 130 S.Ct. 1949, 1956-57 (2010)(it is within Congress’ authority to use any “means that is rationally related to the implementation of a constitutionally enumerated power,” which is not otherwise prohibited by the Constitution); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)(“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”)

Hanson only decided the facial validity of the RLA provision requiring the payment of dues and fees, however, not its constitutionality “as applied.”  It expressly left open the question of whether specific charges levied under authority of the statute might be unconstitutional.

Five years later, the Court revisited this question in Machinists v Street, 367 U.S. 740 (1961).  There, it concluded, as a matter of statutory construction, that the only costs nonmembers can be required to pay are those that are “germane” to the union’s activities as collective bargaining agent.  See also Communication Workers v. Beck, 487 U.S. 735 (1988); Abood v. Detroit Board of Education, 431 U.S. 209, 235-36 (1977). Objecting nonmembers cannot be required to pay costs that are not germane or that are associated with ideological or political activities.

Since first articulating this test, the Court has spent nearly fifty years deciding where costs fall on the “germaneness” spectrum and whether particular costs can or cannot be characterized as “germane.”  If they are germane, nonunion employees can be required to pay them.  If they are not germane, such employees cannot be charged.  The Court has considered this and related questions in four contexts – the railway labor context, maritime context, and private[4] and public sectors. Throughout these years, it has repeatedly reaffirmed Hanson’s validity and the constitutionality of agency fee principles. See, e.g., Machinists v. Street, 367 U.S. 470 (1961); Railway Clerks v. Allen, 373 U.S. 113, 115-121 (1963); NLRB v. General Motors, 373 US 734, 741-744 (1963); Oil Workers v. Mobil Oil Corp., 426 U.S. 407 (1976); Abood v Detroit Bd. Of Education, 431 U.S. 209, 217-232 (1977); Ellis v. Railway Clerks, 466 U.S. 435, 439 (1984); Chicago Teachers v. Hudson, 475 U.S. 292, 294 (1986); Communication Workers v. Beck, 487 U.S. 735, 738, 749-751 (1988);  Keller v. State Bar of California, 496 U.S. 1, 10-13 (1990); Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 511-512 (1991);  Air Line Pilots’ Ass’n v. Miller, 523 U.S. 866, 872-873 (1998);  Marquez v. Screen Actors Guild, 525 U.S. 33 (1998); Locke v. Karass, 555 U.S. 207 (2009).[5]

Although the precise formulation of the “germaneness” test has varied over the years, the rationale for requiring the costs that meet that test to be paid has never varied.  Justice Scalia has explained this rationale clearly and succinctly:

 Where the state imposes upon the union a duty to deliver services,  it may permit the union to demand reimbursement for them;   or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The “compelling state interest” that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the  benefit of “free-riding” nonmembers …  What is distinctive … about  the “free riders” [here] … is that, in some respects, they are  free riders whom the law requires the union to carry …  Thus,  the free ridership (if it were left to be that) would be not incidental, but calculated, not imposed by circumstances, but mandated by government decree.

Lehnert, 500 U.S. at 556 (Justice Scalia, concurring in the judgment in part and dissenting in part)(the word “here” added for clarity).  See also, Ellis v. Railway Clerks, supra, 466 U.S. at 436, 447, 453.

Under the aegis of both the NLRA and RLA, Congress has required unions to provide certain services.  Thus, by “prescribing collective bargaining as the method of settling … disputes … [and] conferring upon … unions the status of exclusive representatives … Congress has given … unions a clearly defined and delineated role to play in effectuating the basic congressional policy of stabilizing labor relations . . . “.  Machinists v. Street, supra, 367 U.S. at 760.   In performing that statutory role, it is incumbent upon them to afford representation to everyone in the bargaining unit, whether or not they are union members.  See Abood, supra, 431 U.S. at 220-221. See also, generally, Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 74-75 (1991); Karahalios v. Federal Employees, 489 U.S. 527, 531-532 (1989); Vaca v. Sipes, 386 U.S. 171, 177 (1967); Humphrey v. Moore, 375 U.S. 335, 342 (1964); Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 203 (1944).

The corollary of requiring unions to afford everyone representation is the requirement that those entitled to call on the union’s services share the costs incurred in their performance.  As both Congress and the Court have recognized, these costs can be considerable. Street, 367 U.S. at 760 (performance of the union’s statutory duties “entails the expenditure of considerable funds”).  This is so because, as a practical matter, the union must retain “[t]he services of lawyers, expert negotiators, economists, … a research staff, as well as general administrative personnel …”, Abood, 431 U.S. at 221.  Fairness requires that these costs be spread among those for whose benefit the experts are retained, whether or not they desire the services or in fact call on them.  Street, 367 U.S. at 762.  “This argument was decisive with Congress.”  Id.

Nothing in the Commerce Clause provides that Congress has greater power over employees than it has over non-employees, or that unions and no other service providers are to be compensated for their statutory services.  It necessarily follows that Congress can require individuals to purchase other products or services from other private parties.  Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 427 (1997),[6] confirms this conclusion is correct.

In sum, it is indisputably clear that Congress has some measure of authority under the Commerce Clause to require individuals to purchase a product or service from a private party.

Does Timing Matter?

Opponents of the individual mandate have a fallback position.  Even if they are wrong, they say, and Congress does have authority under the Commerce Clause to require the purchase of goods or services from a private party, they contend it only has that authority at the “point of sale,” not before.  This means, they say, in the case of health care insurance that the earliest point at which that authority can be exercised is the point at which a patient voluntarily contracts for health care services for which he or she will need to pay.  Put another way, they say that individuals cannot be compelled to purchase health care insurance in advance.

As with their principal argument, the “agency fee” cases demonstrate the fallacy in their fallback position.  Two cases are of particular interest:  Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) and Locke v. Karass, 555 U.S. 207 (2009).  There, as in many of the other “service fee” cases, the Court was confronted with the task of determining the germaneness of a long litany of charged costs.

Only two of the costs at issue in Lehnert concern us here:  the “affiliation fees” a local union paid to belong to its parent state and national bodies, and “extra-unit litigation costs” the national union had incurred in pursuing lawsuits on behalf of other locals.[7]

The Court treated these two sets of charges differently.  It held that the “affiliation fees” were properly charged to dissenting unit members, but could not reach agreement on how to dispose of the costs associated with “extra-unit litigation.”  In ruling that the affiliation fees were chargeable, the Court observed that “we have never interpreted … [the germaneness] test to require a direct relationship between the expense at issue and some tangible benefit to the dissenters’ bargaining unit.”  Lehnert, supra, 500 U.S. at 522 (material in brackets added for clarity).  To require such a direct relationship, it held, would be to ignore the fact that locals are part of a “unified-membership structure,” which affords each a right, when it needs them, to draw on pooled resources:

 The essence of the affiliation relationship is the notion that  the parent will bring to bear its often considerable conomic,  political, and informational resources when the local is in need of them. Consequently, that part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year.

Lehnert, supra, 500 U.S. at 523.

In an opinion concurring in part and dissenting in part, in which Justice Kennedy joined, Justice Scalia concurred in finding the affiliation fees chargeable.  In the course of explaining his reasons for doing so, Justice Scalia articulated several important principles:

Another item relating to affiliated organizations that the Court allows to be charged consists of a pro rata assessment of NEA’s[8] costs in providing collective bargaining services (such as negotiating advice, economic analysis, and informational assistance) to its affiliates nationwide, and in maintaining the support staff necessary for that purpose. It would obviously be appropriate to charge the cost of such services actually provided to Ferris itself, since they relate directly to performance of the union’s collective bargaining duty. It would also be appropriate to charge to nonunion members an annual fee charged by NEA in exchange for contractually promised availability of such services from NEA on demand. As Ferris conceded at argument, however, there is no such contractual commitment here. The Court nonetheless permits the charges to be made … I think that resolution is correct.  I see no reason to insist that, in order to be chargeable, on-call services for use in the bargaining process be committed by contract, rather than by practice and usage ….

Lehnert, 500 U.S. at 561 (Justice Scalia, joined by Justices Kennedy, O’Connor and Souter, concurring in part and dissenting in part)(italics in the original; highlighting added).

Perhaps even more importantly still, Justice Scalia lay the groundwork in his Lehnert Opinion for the following proposition: that individuals derive a tangible benefit from services that are available to them on demand or on call, even in the years when they are not used.  Lehnert, supra, 500 U.S. at 562 (Justice Scalia, concurring in part and dissenting in part) and 500 U.S. at 563 (Justice Kennedy, concurring in part and dissenting in part). Accord, Ellis, supra, 456 U.S. at 454-455 (nonmembers could not recover payments they had been forced to make into a death benefit plan because they had “enjoyed a form of insurance for which the union collected a premium”.)

Although the Lehnert majority could have applied the same rationale to “extra-litigation costs” as it had to “affiliation costs,” it did not do so.  Instead, a plurality of the Court likened the extra-unit litigation costs to lobbying costs, which were neither germane to bargaining nor chargeable.  Lehnert, 500 U.S. at 528.  Justice Kennedy took issue with this conclusion, pointing out the inconsistency in Justice Blackmun’s reasoning:

JUSTICE BLACKMUN removes litigation … from the scope of the Court’s holding that a local bargaining unit may charge employees for their pro rata share of the costs associated with “otherwise chargeable” expenses of affiliate unions.  This makes  little sense if we acknowledge, as JUSTICE SCALIA articulates, ante, at 560-561, that we permit charges for affiliate expenditures because such expenditures do provide a tangible benefit to the local bargaining unit, in the nature of a prepaid but noncontractual consulting or legal services plan.  Will a local bargaining unit now  be permitted to charge dissenters for collective bargaining-related litigation so long as the unit enters into a contractual arrangement or insurance policy with its affiliate?  If so, JUSTICE BLACKMUN’s distinction has little meaning.  If not, then why not …

Lehnert, supra, 500 U.S. at 563 (Justice Kennedy, concurring in part and dissenting in part).

As we have already noted, nearly twenty years later, the Court embraced Justices Scalia’s and Kennedy’s position that tangible benefits accrue from making advanced payments under a bona fide pooling arrangement. See Locke v. Karass, 555 U.S. 207 (2009). In a unanimous Opinion written by Justice Breyer, the Court held that a local union can charge nonmembers a “service fee” to cover “national litigation”[9] provided two conditions are satisfied: (i) the subject matter of the national litigation is of a kind that would be chargeable if the litigation were local, i.e., it relates to collective bargaining; and (ii) there is a “reciprocal relationship” between the local and its affiliates.

Without defining precisely what it meant by a reciprocal relationship, the Court observed that “a local non-member benefit[s] from national litigation aimed at helping other units if the national or those other units will similarly contribute to the cost of litigation on the local union’s behalf should the need arise. Locke v. Karass, supra, 555 U.S. at 217 (emphasis added).  They can be reasonably assured of that, the Government argued, in at least two circumstances: where there is a “bona fide pooling arrangement” or “an arrangement … akin to an insurance policy” between the entity disbursing funds from a pool and those contributing to it.  Id. at 222 (Justice Alito, joined by Chief Justice Roberts and Justice Scalia, concurring in the judgment).  Since the parties had conceded reciprocity in the case before it, 555 U.S. at 220, 221, the Court had no occasion to reach two further questions, either (i) whether the union’s pooling arrangement was in fact a “bona fide” one or (ii) whether any less formal arrangement than an insurance policy would suffice to establish reciprocity in a disputed case.

Nor need these questions detain us here because the payments the “individual mandate” requires be made are premium payments to purchase insurance policies.  In other words, reciprocity would be assured.  Because this is so, they come within the limited class of payments the Court has recognized that individuals can be forced to make in advance.

In sum, the government can require individuals to purchase services in advance of their need for them provided it does so through a bona fide pooled or reciprocal funding arrangement.  It is not restricted to requiring that they
make purchases “at the point of sale.”

Limiting Principles

One might think that would be the end of the matter and there would be nothing further to discuss.  After all, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), teaches us that, once it has been determined legislation serves a legitimate end, “all means” plainly adapted to accomplish that end are also constitutional, provided they are not themselves “prohibited” by the Constitution.  Id. at 421.  See also, United States v. Comstock, 130 S.Ct. 1949, 1956-57 (2010); Gonzalez v. Raich, 545 U.S. 1, 36 (2005)(Scalia, J., concurring in the judgment, quoting from United States v. Wrightwood Dairy Co., 315 U.S. 110, 118-19 (1942)(“[W]here Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make the regulation effective’”). Since it is conceded by everyone that ACA serves a legitimate end and we have just seen that the “individual mandate” is not prohibited by the Constitution, the mandate must be constitutional.

A nagging question remains, however.  In Justice Scalia’s inimitable words:  What about broccoli?

If Congress can require you to purchase insurance, is anything out of bounds?  Is everything fair game?  Can it require you to purchase broccoli or, indeed, eat broccoli or drink tea?

The question is a fair one and, thankfully, one that Justice Scalia himself has already answered in the collective bargaining context.  There, he said:

Once it is understood that the source of the state’s power …  to compel nonmembers to support the union financially, is elimination of the inequity that would otherwise arise from mandated free-ridership, the constitutional limits on that power naturally follow.  It does not go beyond the expenses incurred in discharge of the union’s “great responsibilities” in “negotiating and administering a collective bargaining agreement and repre- senting the interests of employees in settling disputes and processing grievances,” Abood, 431 U.S., at 221; the cost of performing the union’s “statutory functions,” Ellis, 466 U.S., at 447 …

Lehnert, id. at 556-557 (Justice Scalia).

One can easily extrapolate from this limiting principle to one that is applicable more broadly.[10]  It might be stated, very generally, as follows:

If Congress has found it reasonably necessary, in order to achieve a legitimate legislative goal, to require  the members of Group A to provide particular goods or services to the members of Group C, it follows it can require the members of Group C to pay the pro rata or proportional cost of the goods or services.

(For ease of reference, we shall refer to the first mandate – the mandate imposed on Group A – as the “Provision or Coverage Mandate” and the one imposed on Group C as the “Purchase or Payment Mandate.”)[11]

The Payment Mandate can only be imposed when two conditions are met: (1) the legislation Congress has passed serves a legitimate legislative goal,[12] and (2) Congress has determined that imposition of the Coverage Mandate is reasonably necessary to the accomplishment of that goal.  When both conditions are satisfied, imposition of the Payment Mandate follows as a matter of course.

Both conditions are satisfied in the “Agency Fee” and “Health Care” contexts.  In each, there is a proper legislative goal and determination by Congress that imposition of the Coverage Mandate is essential to its achievement.  In the collective bargaining context, the goal is nothing less than “industrial peace,” with Congress having determined that, in order to achieve that goal, it was necessary to adopt a collective bargaining model founded on the “principle of exclusivity.”[13]  Under that principle, there can  only be one labor organization designated to represent a “craft or class,”[14] and it provides all collective bargaining services.[15]  While a majority of the craft chooses the bargaining representative, once chosen, “it represents, as the Act by its terms makes plain, the craft or class, and not the majority.”  Steele v. Louisville & Nashville R. Co.,  322 U.S. 192, 202 (1944).  This means that “[s]o long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty, which is inseparable from the power of representation conferred upon it, to represent the entire membership of the craft.”  Id. at 204.  And, “entire” means entire.[16]   The representative cannot discriminate among employees based on whether or not they are union members.  Id. at 200.  Hence the Coverage Mandate: The union is obligated to perform its statutory functions and provide “collective bargaining” services to everyone in the designated unit.[17] See, e.g., Karahalios v. National Federation of Federal Employees,  Local 1263, 489 U.S. 527, 531-532 (1989)(federal sector); Vaca v. Sipes, 386 U.S. 171, 180-183 (1967)(private sector); Steele v. Louisville & Nashville R. Co.,  322 U.S. 192, 202-207 (1944)(railway labor sector).

The legislative goal in the case of the Affordable Care Act is no less weighty.   It is nothing less than addressing the health care crisis in this country by increasing access to health care insurance and, therefore, also medical services.  Towards this end, Congress has required that a series of health insurance “exchanges” be set up so that individuals and businesses can compare terms of coverage and prices, and purchase policies.  Even more critical to the accomplishment of its goals, it has required all insurance companies participating in these exchanges to “guarantee issuance” to all comers.  This means they must be prepared to sell a policy to any individual or employer seeking to purchase one through their exchange.  Hence, the Act’s Coverage Mandate:

… each health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage”.

42 U.S.C. §300gg-1(a).  And, once again, “every” means every.  Thus, a participating issuer cannot deny coverage based upon pre-existing conditions or “health status”-related factors, or charge higher premiums for a basic policy based upon such conditions or factors.[18]  42 U.S.C. §§300gg-3 and -4(a) and (b).  Nor once a policy has been issued can the issuer discontinue or rescind it or refuse to renew based upon those conditions or factors.  Rather, it is required to renew or continue the policy, provided the insurer continues to participate in the relevant exchange and the insured continues to pay his, her or its premiums.[19]  42 U.S.C. §300gg-2.

Just as in the collective bargaining context, therefore, the Coverage Mandate in the health care context is comprehensive – with private insurance companies being statutorily required to cover not only those they have traditionally covered, but also those that, absent the statutory mandate, they would not cover and did not cover in the past.  Indeed, they are not only being required to cover persons they would not otherwise cover, but to set premiums at rates that do not discriminate based on pre-existing conditions or “health-status.”

As a practical matter, this means that each of the “health benefits” exchanges[20] and the participants in each such exchange must collectively put themselves in a position to cover all of the residents of a state not otherwise covered by insurance and to insure against all risks.  In turn, this means not only readying themselves to handle insurance applications from everyone, but also referrals, quality assurance issues, claims adjustment issues, negotiations over health care costs, etc., and to pay out on legitimate claims.  Just as in the collective bargaining context, therefore, each exchange and those insurance companies participating in it will need to have an array of experts on hand, as well as administrative personnel, to fulfill their statutory duties.  “Just as Congress doubtless could have required workers to pay the cost of … bargaining had it chosen to have … [it] carried on by the Secretary of Labor …,” Lehnert, supra, 500 U.S. at 552,[21] here, Congress can doubtless require citizens to pay for services it has required insurers to provide.

As far as I am aware, no one contends that ACA’s objectives are improper or that the Coverage Mandate is unconstitutional.  On the contrary, those challenging the individual mandate appear to concede both the legitimacy of the statute’s goals and the propriety of the mandates imposed on the issuers.  Their sole claim is that the second mandate – i.e., the “individual mandate” or what we have here called the “Purchase or Payment Mandate” – is not a permissible means of achieving the other concededly legitimate goals.  As we have already demonstrated, of course, this characterization is mistaken.  The individual mandate is not only perfectly permissible, it is a necessary corollary of the first mandate.

This then is the key to understanding why there is no danger that upholding the individual mandate in the context of the ACA would lead to legislation requiring individuals to buy broccoli:  because there is a proper legislative purpose and sustainable primary mandate in the first instance, but not the second.  It is simply impossible to conceive there being a legitimate legislative goal the achievement of which would require everyone be provided broccoli.[22]  Absent such a goal, however, there is no basis either for enacting a valid Provision Mandate or imposing a dependent Payment Mandate.[23]

History also assures us that there is no cause for concern.  In the nearly eighty years since Congress first adopted legislation requiring employees pay union dues and fees, Congress has adopted similar requirements in only a handful of instances.  In each of these instances, its modus operandi has been the same:  Having concluded that some form of collective action or representation was essential to achieving its goals, it has created units, groups (or “exchanges”) that one or more private parties are required to serve.  It has then required those encompassed by each group to share in the costs the service-providers incur in performing their statutory duties.  At no point throughout this period has Congress employed this model to require individuals to purchase consumer goods or foodstuffs.  Nor has the Hanson-Street-Abood-Keller-Lehnert line of cases ever been employed to such an end or in such a context.

So, service fees?  Yes, without a doubt.  Broccoli?   Not a chance.

A Final Question:  Who Gets To Regulate?

Although there are obviously limits on Congress’ powers under the Commerce Clause, see e.g., United States v. Lopez, 514 U.S. 549, 558-559 (1995), not surprisingly, there are also substantial areas of overlap between commerce that is external and internal to a state, and intrastate activities often impact interstate commerce.  See generally Gonzalez v. Raich, 545 U.S. 1 (2005)(majority and concurring opinions); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942)(Stone, J.); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)(Hughes, J.); Kansas City Southern R. Co. v. Kaw Valley Drainage Dist., 233 U.S. 75, 79 (1914)(Holmes, J.).

Where there are genuine areas of overlap or substantial impact, Congress has a number of options.  See generally Retail Clerks Int’l Ass’n v. Schermerhorn (Schermerhorn “II”), 375 U.S. 96, 99 (1963) (“We start from the premise that … Congress could preempt as much or as little of this interstate field as it chose”). It can choose to “occupy the field” and preempt state law on a subject.  It can choose not to enter a field and leave it entirely to state regulation.  Or, it can choose a middle road that allows for both state and federal regulation.

Sometimes, it has adopted more than one of these regimes.  The “agency fee” is a case in point.  Thus, Congress has decreed “as a matter of federal law” that agency-fee arrangements are valid. Oil Workers, supra, 426 U.S. at 416.  It has then gone on in different sectors to take different positions on the interplay between state and federal law.  In the railway labor sector, it has “occupied the field,” effecting across-the-board preemption.[24]  45 U.S.C. §152 (Eleventh).  In the private sector, under the NLRA, it has done the opposite.  Rather than simply refrain from enacting a preemption provision, it has given affirmative “directions to give the right of way to state laws …”.  Schermerhorn II, 375 U.S. at 103. See 29 U.S.C. §164(b).[25]  Under this grant of Congressional authority, a state can ban the agency shop. Oil Workers, id. at 416-417; Schermerhorn II, id. (1963).[26]

The result of these different approaches is a patchwork of regulation: The “national policy” of recognizing agency-fee arrangements as valid is the law of the land in the railroad, airline and maritime sectors,[27] and 27 states that have not passed contrary legislation.  In 23 states that have passed so-called “right to work laws,” federal law defers to the state’s ban.

In the Affordable Care Act, Congress has adopted still another approach to reconciling federal and state regulation.  It permits states to seek “waivers” from the application of certain of the Act’s provisions. See 42 U.S.C. §18052.  This includes the individual mandate. To obtain a waiver, a state must satisfy the Secretaries of Health & Human Services and the Treasury that it has an alternative health care plan that

.       will cover at least as many residents as the ACA would have covered;

.       will provide coverage that is at least as comprehensive,

.       will make coverage at least as affordable,

.       but will not increase the federal deficit.

While in each of these two contexts Congress’ power is plenary, the degree to which it chooses to exercise its authority is a matter for its legislative judgment.  Its legislative judgment may change over time.  Its authority under the Constitution does not.


         Congress clearly has authority under the Commerce Clause to require individuals to pay for services it obligates others to provide.  The individual health care mandate is therefore constitutional.


[1]   The individual mandate is referred to in the Affordable Care Act as the “minimum essential coverage provision.”  26 U.S.C. §5000A(a).  Under it, an “applicable individual” is required “for each month beginning after 2013 [to] ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” 26 U.S.C. §5000A(a).  Minimum essential coverage is, in turn, defined as coverage under: (1) an employer plan, (2) government-sponsored plan, (3) policy purchased through an exchange, (4) a grandfathered plan or (4) policy approved under a waiver. 26 U.S.C. §5000A(f).

[2]   The only circumstances under which individuals’ liberty may be at stake is where they are charged more than their per capita “fair share” of the union’s statutory costs or are compelled to pay for services that are not germane to the union’s role as collective bargaining agent.

[3]   Although the wording of RLA Section 152 ( Eleventh) and NLRA Section 8(a)(3) would appear to require employees to actually become “members” of a union, the Court has always interpreted this language as only requiring employees to pay the union’s initiation fee and dues, not to become members.  See, e.g., Marquez v. Screen Actors Guild, 525 U.S. 33, 37 (1998); NLRB v. General Motors, 373 U.S. 734, 741-744 (1963); Hanson, supra, 351 U.S. at 235.  As Justice Scalia has noted, the reasons for this construction are clear: to avoid interpreting the statutes in a fashion that would leave their constitutionality in serious doubt.  See, e.g., Lehnert, 500 U.S. at 555 (Scalia, J., concurring in part and dissenting in part.).

[4] In other words, under the National Labor Relations Act or “NLRA.”

[5]  Although at first blush, public sector cases might be thought to raise distinct issues, the Court has repeatedly held that principles articulated in Hanson apply across the board.  See Locke v. Karass, No. -610 (2009) at *4 (“In Hanson, Street, and Abood, the Court set forth a general First Amendment principle: The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment”); Abood, supra, 431 U.S. at 224-226, 232.  See also Lehnert, supra at 555 (Justice Scalia, concurring in part and dissenting in part)(“Street, Ellis, and Beck were statutory cases, but there is good reason to treat them as merely reflecting the constitutional rule suggested in Hanson and later confirmed in Abood”.)   

[6]   In Glickman, supra, the Supreme Court confirmed that, under the Agricultural Marketing Agreement Act and marketing orders issued by the Secretary of Agriculture, fruitgrowers, handlers and processors were compelled to fund “generic advertising” programs a trade association undertook on their behalf.

[7]   “Extra-unit litigation” is litigation that is brought on behalf of other bargaining units, and not for the benefit of the unit to which the objector belongs.

[8]  “NEA” or the National Education Association was the parent body of the Local.

[9]  The “national litigation” the Karass Court refers to and the “extra-unit litigation” the Lehnert Court referred to are essentially the same.  Locke v. Karass, No. 70-610 at *3 (where the Court defines “national litigation” as litigation activities “which do not directly benefit Maine’s state employees’ local but rather directly benefit other locals or the national organization itself”).

[10]  The only “limiting principle” we examine here is the one that would be applicable were the individual mandate to be upheld on the same theory as the “agency fee.”  There are other grounds on which the mandate could be upheld, of course  – e.g., as an exercise of the taxing authority, under McCullough’s “all means” rationale or as an exercise of Congress’ powers under the “Necessary and Proper Clause.” See Raich, supra, 545 U.S. at 36 (Scalia, J., concurring).  The limiting principle would, of course, vary with the ground.

[11]  When we talk about the provision or purchase of “goods” being mandated, we shall refer to the mandates as the “Provision” and “Purchase” Mandates.  When we talk instead about “services,” it seems more appropriate to call them the “Coverage” and “Payment” Mandates.

[12]   A legislative measure or goal is legitimate if it is “relevant or appropriate to the constitutional power which Congress exercises.”  Hanson, supra, 351 U.S. at 234.

[13]   The Abood Court described Congress’ reasons for adopting an exclusive representation model this way:

The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collective-zation. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agree-ments and settlements that are not subject to attack from rival labor organizations.

Abood, supra, 431 U.S. at 220-221.

[14]   The RLA refers to a “craft or class;” the NLRA, to “bargaining units.”  Since for our purposes, they are the same, we shall use the terms interchangeably.

[15]   These include, among other things, ensuring that employees are covered by any already existing agreements, administering those agreements, negotiating new agreements, handling grievances and arbitrations and, more generally, representing employees in dispute resolution procedures.  As the Abood Court noted, these “tasks … are continuing and difficult ones.”  431 U.S. at 221.

[16]  This is always subject to the proviso that they pay the requisite fees or dues.

[17]  To the extent that agreements are already in place, this means ensuring everyone is covered by them. To the extent that new agreements are negotiated or administered, this means fairly representing everyone’s interests.

[18]  ACA permits participating issuers to sell several levels of coverage.  The mandate only requires purchase of the most basic or ‘minimum essential” coverage.  Even that level must include ten specified categories of services.  See 42 U.S.C. §18022(b)(1).

[19]  Even if one issuer withdrew from the exchange, its insureds would be able to obtain continued coverage because other insurers participating in that market would still be under the mandate to “guarantee issuance.”

 [20]  There are separate exchanges for individuals and small businesses.  The exchanges set up for individuals are commonly referred to as the “health benefits” or AHBE exchanges.

[21]  Justice Scalia, in his opinion concurring in part and dissenting in part, quoting from Justice Black’s dissent in Machinists v. Street, supra, 367 U.S. at 787.

[22]  There are two and only two products I can presently imagine ever legitimately being made the subject of a “Provision” Mandate: bottled water, and serum for innoculations – and then only in an emergency.  In that event, of course, it is more likely the Government would fund the purchases than enact a Purchase Mandate

[23]  If it could be sustained at all, the constitutionality of a payment mandate that is independent rather than dependent  – i.e., that does not arise as the result of Congress having imposed statutory duties on a private party – would have to be sustained on the basis of a theory other than the one discussed in this article.  It follows that a decision upholding the health care mandate on a “service fee” rationale would not open the floodgates or support upholding any such other mandates.

[24]  In other words, it has declared that the agency shop is valid “[n]otwithstanding any other provisions of this chapter or of any other statute or law of the United States, a Territory thereof, or of any State …”.  45 U.S.C. 152 (Eleventh).

[25]  Section 14(b) provides in relevant part:

Nothing in this Act shall be construed as authorizing … agreements requiring membership in a labor organization … in any State or Territory in which such execution or application is prohibited by State or Territorial law.

29 U.S.C. §164(b).

[26]   At least, it can ban certain forms of it.  See Retail Clerks Int’l Ass’n Local 1625 v. Schermerhorn (Schermerhorn “I”), 363 U.S. 746, 751-754 (1963)(in the case before it, the Court found that the service fee being charged was “the exact equal of membership initiation fees and monthly dues” and that the union could use the money it collected for a “variety of purposes, in addition to meeting the union’s costs of collective bargaining”).

[27]   In the maritime sector, the agency shop is valid as a matter of federal common law.  See Oil Chemical & Atomic Workers Int’l Union, AFL-CIO v. Mobil Oil Corp., 426 U.S. 407 (1976).

Tenenbaum: An Alternative View

March 30, 2011 Leave a comment

The Jury Trial Right Is A Right Cherished Worldwide

Many excellent commentaries have been written on SONY BMG Music Entertainment et al. v. Tenenbaum, 721 F. Supp. 2d 85 (D.Mass. 2010)(the “Tenenbaum case”).  E.g.,  Andrew Berger’s at  Most conclude that the District Court applied the wrong standard in determining whether the jury award in the case violated due process.  They suggest that if it had only applied the “Williams” standard, rather than the “BMW” or “Gore” standard, it would have recognized that the jury did not overstep its bounds.  While I agree and recommend the commentaries, I think the Tenenbaum Court made even graver errors. It mounted an “as-applied” challenge to the jury’s award that was not itself constitutionally permissible.


How can I say this? Very simply, because the Court had already confirmed three things:  It clearly found that the Copyright Act was applicable to the case. SONY BMG Music Entertainment v. Tenenbaum, 672 F. Supp. 2d 217 (D.Mass. 2009) (“Tenenbaum #2″); SONY BMG Music Entertainment v. Tenenbaum, 626 F. Supp. 2d 152, 155 (D.Mass. 2009) (“Tenenbaum #1″) It found the statute itself to be constitutional. Tenenbaum #1 at 152-154.[1] And, it found the jury had been properly instructed on awarding damages under its provisions.  Tenenbaum #3, 721 F. Supp. 2d at 92-93.

In my opinion, once it had found these three things, its constitutional inquiry was at an end.  It could not go on to undertake the analysis it did and unilaterally reduce the jury’s award without either 1) rewriting the statute (by substituting a different statutory damages range), thereby violating separation of powers or 2) substituting its own judgment – for the jury’s – of the amount that should be awarded within the original range, thereby violating the Seventh Amendment.  It wasn’t entitled to do either.[2]

It was the District Court, therefore, and not the jury that violated the Constitution.

The Proceedings Before The District Court:

Under section 504 of the Copyright Act, a plaintiff is entitled to elect his remedy.  He can either choose an “actual damage” remedy or a form of liquidated damages.  In 1999, the United States Congress increased the statutorily-prescribed range for the latter remedy.  As a consequence, a litigant that opts for statutory damages is entitled to recover between $ 750 and $ 30,000 per infringement.[3] Under the Seventh Amendment, the United States Supreme Court has been unequivocal in holding that the amount to be awarded within this range is a matter for a jury, rather than the court.  See Feltner v. Columbia Pictures Television Inc., 523 U.S. 340, 353 (1998)(the right to a jury trial includes “the right to have a jury determine the amount of statutory damages … awarded to the copyright owner” for an infringement).

Consistent with this constitutional imperative, in the Tenenbaum case, the United States District Court for the District of Massachusetts initially left it to a jury to decide how much Sony and RIAA were entitled to recover for the unlawful downloading and file-sharing of their music.  The jury awarded an amount within the range prescribed by the statute- or $ 22,500- for each infringement.[4] On July 9, 2010, the court set aside the jury’s award on the grounds that it allegedly violated defendant’s due process rights.  The District Court made its own assessment of the damages to which it believed plaintiffs were entitled and reduced the jury’s award accordingly.  Specifically, it reduced the per-infringement award from $ 22,500 to $ 2,250 and total award from $ 675,000 to $ 67,500. [5]

As suggested above, after reviewing the decision in detail, I have reluctantly come to the conclusion that it was not the jury, but the District Court that acted unconstitutionally.  It usurped Congress’ role, invaded the province of the jury, and deprived plaintiffs of a property right.  Each of these usurpations violated the Constitution.  The first violated separation of powers principles; the second, the Seventh Amendment; and the third, the Due Process and Just Compensation clauses.

I examine the first two violations briefly.

A.      A Court Cannot Alter A Statutorily-Prescribed Damages  Range Without Violating Separation Of Powers.

It is a fundamental precept of separation-of-powers principles that “the lawmaking function belongs to Congress, U.S. Const., Art. I, §, and may not be conveyed to another branch or entity.”  Loving v. United States, 517 U.S. 748, 758 (1996)(quoting Field v. Clark, 143 U.S. 649, 692 (1892)).  This principle does not mean that only Congress can promulgate rules; it can obviously delegate some of its authority.  Wayman v. Southard, 23 U.S. 1 (1825).

“‘The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.'”

Loving, supra, 517 U.S. at 759 (quoting Cincinnati, W. & Z.R.Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852)).

It follows that when Congress has specified the remedy or remedies that attach for the violation of a statute, the courts have no authority to rewrite the remedial scheme.  See, e.g., Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 20 (1979); National RR. Passenger Copr. V. National Ass’n of Railroad Passengers, 414 U.S. 453, 458 (1974)(when legislation specifies a particular remedy or remedies, that remedy is generally understood to be exclusive); Wilder Mfg. Co. v. Corn Products Refining, 236 U.S. 165, 174-75  (1915)(where a statute prescribes the penalty for an offense or remedy for a statutory violation, “the punishment or the remedy can be only that which the statute prescribes”); Barnet v. National Bank, 98 U.S. 555 (1878).   This is presumably as true where Congress has provided for a range of damages as where it has specified a precise amount.

A court cannot alter the upper or lower limits of the statutorily-prescribed range without usurping the legislative function.  And, while it could always, theoretically, have found the statute to have been unconstitutional on its face, it did not to do that here. (See Tenenbaum #1 at 152-154).  Quite to the contrary, it upheld the facial validity of the Act’s provisions and the instructions it gave regarding their application.  (See Tenenbaum #3 at 92-93). The only fault the District Court found was with the jury’s verdict. See Tenenbaum #3.  Specifically, it took issue with the per-infringement figure the jury chose from within the range prescribed by the statute to remedy the proven infringement.[6]

B.      The Supreme Court’s Punitive Damages Jurisprudence Wasn’t Applicable To The Tenenbaum Case And Did Not Authorize The Court’s Actions.

The Tenenbaum Court premised its right to review the amount of the jury’s award for excessiveness on the Supreme Court’s punitive damages jurisprudence.  Its reliance is misplaced.

In Cooper Industries v. Leatherman Tool, the United States Supreme Court held that a court is not precluded by the Seventh Amendment from reviewing an award of punitive damages because the amount of punitive damages a jury awards in a case is not a “fact” within the meaning of that Amendment.  The Seventh Amendment isn’t implicated, therefore, when a court substitutes its own judgment of what an appropriate punitive damages award would be for that of the jury.

The opposite is true when a court substitutes its judgment of the appropriate statutory damages award for that of the jury. Why the difference?  Because the United States Supreme Court has been unequivocal in holding that the Seventh Amendment affords a plaintiff the

“right to a jury trial on all issues pertinent to an award of statutory damages under 17 U.S. C. § 504(c), including the amount itself.”

Feltner, 523 U.S. at 355; see also page 353 (“The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner.”).  It follows that “if a party so demands, a jury must determine the actual amount of statutory damages under § 504(c) in order “to preserve ‘the substance of the common-law right of trial by jury.'” 523 U.S. at 355 (emphasis added).

By substituting its own judgment as to where within the statutory range the appropriate per-infringement award lay in this case, the Tenenbaum court usurped the decision-making function of the jury and violated the Seventh Amendment.

This conclusion is inescapable since a review of the District Court’s Opinion demonstrates that it engaged in virtually the same calculus it instructed the jury to undertake.  Thus, by its own account, the Court instructed the jury to arrive at a damage figure by considering the following factors:

(a) The nature of the infringement;

(b) The defendant’s purpose and intent;

(c) The profit that the defendant reaped, if any, and/or the expense that the defendant saved;

(d) The revenue lost by the plaintiff as a result of the infringement;

(e) The value of the copyright;

(f) The duration of the infringement;

(g) The defendant’s continuation of infringement after notice or knowledge of copyright claims;

(h) The need to deter this defendant and other potential infringers, and

(i)  The defendant’s “willfulness,” if the jury found the infringements to be willful.

(Tenenbaum #3 at 93, citing Jury Instructions 3, Case No. 03-cv-11661-NG, document #909.)

As Tenenbaum #3 then goes on to demonstrate, the District Court considered precisely these same factors.  Thus, it considered

  • the nature of the infringement in which the defendant had engaged, finding “file-sharing” to be “low on the totem pole of reprehensible conduct” (721 F. Supp. 2d at 116);
  • the defendant’s purpose and intent, noting that Tenenbaum acted “willfully,” although not for “commercial gain,” (see, e.g., 721 F. Supp. 2d at 112, 116 (“Tenenbaum   willfully engaged in thousands of acts of copyright infringement”);
  • the benefit Tenenbaum reaped and/or expense he saved by virtue of the infringement, finding that he saved at least $ 1,500 per year (i.e., the cost of subscribing to a music downloading service, see 721 F. Supp. 2d at 114);
  • the revenue plaintiff lost as a result of the infringements, calculating plaintiffs loss at either $ 1.00/per song or $1,500 per subscription license (see 721 F.Supp. 2d at 114-116);[7]
  • more generally, the value of the copyright, divining from its review of 50 other copyright infringement cases [see 721 F.Supp. 2d at 108-110 and footnote 14] that its value lay somewhere between $ X and $ Y;
  • the duration of Tenenbaum’s infringement, noting that it extended over eight years or 96 months (see 721 F.Supp. 2d at 114 and n. 16);
  • the fact that the infringement continued even after Tenenbaum was told to cease and desist and was put on notice of the claims;  (see at 721 F.Supp. 2d at 116, 119-20); and, finally,
  • defendant’s willfulness (see, again, 721 F.Supp. 2d at 116 (“Tenenbaum willfully engaged in thousands of acts of copyright infringement”).

Since it is the jury, and not the court, that is constitutionally tasked with these fact-finding functions, the Court usurped the jury’s function when it undertook its own analyses and evaluations.  See Feltner; City of Monterrey.

The real constitutional question in Tenenbaum is not whether the jury verdict violated due process, but whether the Judge violated the Seventh Amendment.

C.      The Court Violated The Seventh Amendment A Second Time When It Reduced The Award Sua Sponte.

The Seventh Amendment’s re-examination clause provides that

“in suits at common law, no fact tried by a jury shall be … re-examined … [other than] according  to the rules of the common law.”

U.S.Const., Seventh Amendment.  Because the “common law” this clause alludes to “is … the common law of England,” it only permits facts decided by a jury to be re-examined in the same circumstances they could have been re-examined in 1791Dimick v. Schiedt, 293 U.S. 474, 487 (1935)(Seventh Amendment “in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791”).

There were only three modes of re-examining such facts at common law:  A court could re-examine them in the context of: (1) granting a new trial, (2) offering the parties a consensual “remittitur,” or (3) in connection with issuing a venire facias de novo writ.[8]

The Seventh Amendment is “a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner.”[9] Parsons v. Bedford, 3 Pet. 433, 447-48 (1830)( Story, J).  See also Hetzel v. Prince William, 523 U.S. 208, 211 (1998); Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., supra; Kennon v. Gilmer, 131 U.S. 22, 29-30 (1889).

The Tenenbaum Court did not reexamine the jury’s facts in any of the three ways permitted by the Amendment.  In other words, it did not do so in the course of granting a new trial, as part of a common-law remittitur or in association with venire facias.

Instead, after conducting its own evaluation of the facts, it simply substituted its award for the jury’s.   It relied on three Court of Appeals’ decisions to justify the substitution:  Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16 (1st cir. 2006); Ross v. Kansas City Power & Light Company, 293 F.3d 1041 (8th Cir. 2002); and Johansen v. Combusion Engineering, Inc., 170 F.3d 1320 (11th Cir. 1999).  None of these cases involved the Copyright Act or, indeed, statutory damages.  Rather, in each, the District Court was reducing a punitive damages award to the maximum that was constitutionally permissible.

As the Eighth Circuit noted in responding to a claim that the District Court’s reduction constituted an improper and unilateral remittitur:

“While the traditional remedy of remittitur does require the plaintiff’s consent in order to comport with the Seventh Amendment right to a jury trial, Thorne, 197 F.3d at 1212, [fn4] the court’s mandatory review of a punitive damages award does not implicate the Seventh Amendment.  The plaintiff’s consent to a constitutional reduction of a punitive damages award is ‘irrelevant’ because the court must decide this issue as a matter of law.”

Ross, 293 F.3d at 1049-1050.

The Eleventh Amendment is in accord:

“… [W]here a portion of a verdict is for an identifiable amount that is not permitted by law, the court may simply modify the jury’s verdict to that extent and enter judgment for the correct amount. …The Seventh Amendment is not offended by this reduction because the issue is one of law and not fact. … No one would dispute that the court, not the jury, has the responsibility for determining this constitutional limit.  Courts decide questions of law, not juries.”

Johansen, 170 F.3d at 1330-1331.

The issue reduces, therefore, to a question of whether there is any reason to believe that the Supreme Court has retreated from its position that “the amount of statutory damages” to be awarded a copyright holder under § 504(c) is a question reserved to the jury.  If it hasn’t retreated from that position- and there is no reason to believe it has- then the Seventh Amendment is implicated by the actions the District Court took in this case and no amount of manipulating the “fact” and “law” labels can avoid that fact.

Indeed, the Seventh Amendment hasn’t simply been implicated, it has been violated in the most fundamental of ways.  In my opinion, there is only one outcome on appeal that would accord with the rule of law: reversal and a remand with directions to reinstate the jury verdict.

The fact that one may or may not personally applaud the outcome is irrelevant.  If one believes in upholding the rule of law, then no other outcome is possible. It is the only outcome that can be reconciled with the manner in which our Constitution has allocated power between Congress and the courts, and judge and jury.

So, even for P2P-ers and file-sharers, much more is at stake than simply money.  The right to have the representatives you elect make the laws in this country is at stake, as well as the right to trial by jury.  Both rights are in jeopardy in this case, even if they are not specifically addressed.[10]

[1] In St. Louis I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), the Supreme Court considered whether the range of penalties provided for by a particular statute (i.e., between $50 and $300, plus costs and attorneys’ fees) was “so severe and oppressive” and/or “obviously unreasonable” as to “amount to a denial of due process.”  It did not, as the Tenenbaum Court suggests, “squarely consider[ ] the issue of whether a jury’s award … violated the Due Process Clause.” 721 F. Supp. 2d at 95 (emphasis added).

The distinction is an important one for the following reason:  Separation of powers principles make the first type of inquiry appropriate.  The Seventh Amendment makes the second inappropriate, except in accordance with its terms.

While the Tenenbaum Court could always, of course, have undertaken the type of statutory inquiry the Williams case contemplated, it obviously didn’t think it worthwhile.

[2] It could, of course, have offered a remittitur or new trial.

[3] There are only two circumstances under which a statutory award can deviate from that range:  (1) where a defendant is found to have acted “willfully,” damages of up to $ 150,000 per infringement can be awarded, and (2) where a defendant is found to have been an “innocent infringer,” damages as low as $ 200 per infringement can be awarded.  17 U.S.C. §504(c)(2).

[4] Since there were thirty compensable (30) infringements, the jury’s award totaled $ 675,000.

[5] This was the maximum the District Court said was constitutionally allowable given the specific injury before it.

[6] Query whether the fact that the figure falls within the range prescribed by an admittedly constitutional statute immunizes it against a due process challenge, or, indeed, any challenge except in accordance with the Seventh Amendment.  See post at fnotes 8 and 9.

[7] The District Court’s calculation in this regard is totally unrealistic.  Tenenbaum did not simply download music for his own personal use, he electronically uploaded it to a file so it could be shared with ever greater numbers of other Kazaa users.  As anyone familiar with the workings of Kazaa knows, a song or tune so uploaded goes “viral”, and within a short period of time, it is being shared with untold numbers of other users.  Tenenbaum’s actions didn’t simply deprive plaintiffs of one license, therefore; it deprived them of myriad licenses- perhaps millions.

[8]Venire facias de novo (meaning “may you cause to come anew”) is a writ a court uses to summon new jurors when there is some irregularity or impropriety in the constitution of an already-existing jury, or where the verdict that jury has returned is so ambiguous or imperfect that no judgment can be entered upon it.

[9] There is nothing in either the Copyright Act or Feltner that precludes a court from exercising its discretion to propose a common-law remittitur, provided the remitted damages remain within the permitted statutory range and plaintiff is afforded the opportunity to elect between a remittitur (or reduction in damages) or a new jury trial.  Plalintiffs made it clear that they would not have agreed to a remittitur in this case, so a new jury trial would have been required.

[10] Since courts do not reach constitutional issues where they can be avoided, I would not expect the Seventh Amendment issue to be discussed.  There are myriad other grounds on which the First Circuit can reverse.  It is only if it might otherwise affirm the lower court that it might address the issue.  But, in my opinion, affirmance is unlikely.

To The Olympic Committee: Why Not A “Public Domain” Mascot?

February 28, 2011 Leave a comment

I tweeted this morning about the fact that the 2014 Winter Olympics just chose a polar bear as one of its three mascots.  No sooner did it do so than there was a copyright challenge.  The creator of an earlier mascot from the 1980 Olympics claimed his “teddy bear” has been infringed.

My tweet met with a reply – and very trenchant complaint.  Filemot tweeted back: “@bassesq if it is not fair use to show us the competing mascots its a really boring story.”

Wishing to oblige and thinking it should be fair use to illustrate my news flash by showing a side-by-side comparison of the two mascots, I searched for and found the images on Yahoo.  You can see them here.

Finding both images uninspiring,  however, I offer the following images in their place.   While they are not the images in contention, they have two advantages over those that are.  They are unquestionably cute and  can be reproduced in many circumstances without infringing copyright.  The first image is in the public domain.  The second, subject to a GNU or Creative Commons license.

It is unlikely, alas, that the Olympic Committee will ever adopt a “public domain” polar bear or Creative Commons “teddy.”   Why?  Because it makes considerable merchandising revenue  from licensing its mascots’ images.

Merchandising aside, however, perhaps we have an idea here:  How about it, Olympic Committee?  How about adding a 3-minute copyright challenge to the sports already featured at the Games?

Puede Decir “No” A La Utilización De Su Nombre En Los Anuncios De Facebook

February 8, 2011 Leave a comment

Clic El Buton "Me Gusta" No Es Hacer Un Respaldo ComercialPor lo tanto, fans de Facebook, que pensó que eran dando apoyo de una forma casual a algún evento, producto, cine, restaurante o establecimiento? Piense otra vez. Tú y tus amigos tal vez pronto encuentren sus nombres y su imagen utilizados en la publicidad del cine o del producto! Y, por si acaso te has preguntado, no, no será compensado por su “respaldo.”

Esta es la consecuencia de la nueva política de Facebook Social de Anuncios, los anuncios que pares anuncios escritos por sus anunciantes con información obtenida de los usuarios de FB.     (Por ejemplo, informacion indicando que “te gusta” una página o evento).

Se da el siguiente ejemplo del tipo de “anuncios sociales” que se crearán:

Supongamos que un establecimiento llamado “Denver Sushi” paga por un anuncio que aparezca en Facebook.  FB dice que puede “par” su anuncio con un rastreo banner o línea que crea que proclama “Nan Gao le gusta Denver Sushi.” Si se hace este apareamiento, cuando los “amigos” de Nan den realizar a una búsqueda que recupe el anuncio de Denver Sushi, es possible que van también activar al “respaldo”.  Resultado final: El pseudo-“respaldo” de Nan Gao aparece en algunas de las páginas de sus amigos de Facebook.

Aparte de ganar dinero para Facebook, parece haber dos objetivos:   Para convencerte de que, si su amigo le gusta a Denver Sushi, usted cavar sus rollos de California, también. Por otra parte, para convencer a los amigos y familiares de Nan tomarla a Denver Sushi para celebrar alguna ocasión.

¿Es este uso de la información de Nan adecuada?

En mi opinión, probablemente no. Por varias razones.

(1) Puede constituir una violación del “derecho a la intimidad” de Nan o de sus “derechos de publicidad”.

Quiero aprovechar la ley de Nueva York como un ejemplo. En virtud del artículo 50 de la Ley de Derechos Civiles de Nueva York, una empresa o corporación no puede usar el nombre de una persona, un retrato o una imagen para la publicidad sin el consentimiento expreso y por escrito de esa persona.

FB ha tratado de satisfacer este requisito mediante la modificación de sus “Términos de Uso” con el fin de asegurarse de que usted dé el consentimiento de forma predeterminada. En otras palabras, indica que usted ha autorizado a FB para utilizar su información como parte de las parejas de anuncios sociales que crea a menos que “opten” expresamente “por no” por el programa. [1] En mi opinion, eso no cortar la mostaza. Usted tiene que ser el que libremente y a sabiendas autoriza a FB a utilizar su información para fines publicitarios. FB no puede autorizar a si mismo. (Sería otra cosa, en mi opinión, si FB establezca al programa de “anuncios sociales” en una forma de “opt-in”, en vez del revés, y equiparó aceptación afirmativa con el consentimiento. Esto probablemente satisfaga el requisito legal.)

Antes de continuar, debo señalar, que FB “Términos de Uso” pretende incluir una clausula sobre “le eleccion de la ley” que indica que regule la ley de California. Dejo a los abogados con licencia en el Estado de California para opinar sobre si las prácticas de FB les va mejor bajo la ley de California. Me sorprendería si lo hicieran. En todo caso, California tiene la reputación de tener leyes de privacidad y “derecho de publicidad” más estrictas que en otros lugares. Después de todo, porque es el hogar de Hollywood, es sensible a la necesidad de proteger a los nombres y los imagines de persona contra la explotacion no autorizada.

(2) Violaciónes posibles de los derechos de autor: Si FB va más allá y añade foto de Nan, avatar o icono al “anuncio + respaldo,” es possible que puede acabar violar no sólo a los derechos de privacidad y publicidad, sino también a los derechos de autor.

Una vez más, FB ha intentado cubrirse. Por lo tanto, sus “Términos de Uso” salgan a decir que usted le da una licencia “no-exclusiva, transferible, sublicenciable, libre de regalías, a nivel mundial para utilizar cualquier contenido de IP que publiques.” Define “contenido de IP” en la moda trabuco como “el contenido protegido por derechos de propiedad intelectual, como fotos y vídeos”. FB “,” Declaración “, Párr. 10.

Una vez más, tengo varias preguntas. En primer lugar, si dicha cláusula puede efectuar una “transferencia” de los derechos en el sentido de la Ley de Derecho de Autor. Ver 17 USC § 201 (d) y 101 (definición del término “transferencia de la titularidad de derechos de autor”). En segundo lugar, aun suponiendo FB puede presumir de haber conseguido algunos derechos de sus usuarios, si alguno de estos derechos “no exclusivo” pueda ser “transferibles” y / o “sub-permisible.” Yo no lo creo.

(3) Publicidad Falsa y Prácticas Comerciales Engañosas: Por último, el uso de FB de nombre de usuario de Nan, la foto o avatar como parte de un anuncio puede dar lugar a una valida causa de accion de “publicidad falsa,” o “las prácticas comerciales engañosas”. Creo que sería una base de buena fe para seguir adelante bajo la ley de Nueva York. Dejo a los abogados admitidos en California para decir si el mismo podría decirse allí.

* * *

Aunque tengo serias dudas sobre la legalidad del programa de “anuncios sociales” del FB y el uso que pretende hacer de su información, ¿por qué esperar hasta que un tribunal decide la cuestion? Usted puede protegerse ahora mismo y decir a FB en términos claros y inequívocos que no puede utilizar a su información en sus “anuncios sociales”.

Esto es lo que debe hacer:

(1) Regístrate en Facebook. Ir a la parte superior y derecha de la página. Despliegue el menú llamado “Cuenta”.

(2) Haga clic en “Configuración de la Cuenta”.

(3) Haga clic en la pestaña a la derecha, llamado “los Anuncios de Facebook.”

(4) Cierre todas las ventanas emergentes, por ejemplo, “Descripción de Ayudas Sociales”.

(5) Entonces, donde dice:

“Permita que los anuncios en las páginas de plataforma muestran mi

información a”. . .

Hay que cambiar la selección de la opción predeterminada, “Sólo mis amigos,” a

* “Nadie”.

(6) Haga clic en “Guardar Cambios”, para registrar el cambio.

(7) Usted tendrá que repetir este proceso una segunda vez en la parte inferior de la página.

Allí, donde dice

“Mostrar mis acciones sociales en los anuncios de Facebook a”,

Otra vez, hay que cambiar la selección de la opción predeterminada, “Sólo mis amigos,” a

* “Nadie”.

(8) Y, otra vez, hay que hacer clic en “Guardar Cambios”.

A menos que usted opta por no dos veces, parece que FB va a interpretar sus acciones como haber dado su consentimiento al uso de su información.


Nota al pie:

[1] Por lo tanto, sus “Términos de Uso” se dispone lo siguiente:

Usted puede utilizar su configuración de privacidad para limitar su nombre y su foto de perfil puede estar asociada con contenido comercial, patrocinado, o relacionados (por ejemplo, una marca que te gusta) sirve o mejorados por nosotros. Usted nos da permiso para usar su nombre y su foto de perfil en relación con ese contenido, con sujeción a los límites que tú lugar.

FB ” Declaración de Derechos y Responsabilidades “, Párr. 10 (énfasis agregado)


February 3, 2011 Leave a comment
Casually “Like” Does Not Mean Formally Endorse

So, Facebook fan, you thought you were casually expressing a “like” for some event, product, film,  restaurant or establishment?  Think again.  You and your friends may soon find your names and likenesses being used to advertise that film or product!  And, just in case you wondered, no, you won’t be compensated for your “endorsement.”

This is the consequence of Facebook’s new Social Ads Policy, which pairs advertisements posted by its advertisers with information derived from FB users’ “social actions.”  FB seems to define social actions  as user-generated postings and indications of user-preferences (e.g., when you indicate that you “like” a page or posting).

It gives the following example of the kinds of “social ads” that will be created:

Assume that an establishment named “Denver Sushi” pays for advertising to appear on Facebook.  FB says it may “pair” that ad with a banner or crawl-line it creates that proclaims “Nan Gao likes Denver Sushi.”   If it makes that pairing, when Nan’s “friends” conduct a search that meta-triggers the Denver  Sushi ad, they may well also trigger the “endorsement.”  End result:  Nan Gao’s pseudo-“endorsement”  ends up being displayed  on some of her friends’ Facebook pages.

Aside from making money for Facebook, there would appear to be two objectives:  To convince you  that, if your friend Nan likes Denver Sushi, you will dig their California rolls, too.  Alternatively, to     persuade friends & family to take Nan to Denver Sushi to celebrate some occasion.

Is this use of Nan’s information proper?

In my view, probably not.  For several reasons.

(1) It may well violate Nan’s “right of privacy’ and/or “right of publicity.”

Let me take the law of New York as an example.  Under section 50 of the New York Civil Rights Law, a company or corporation cannot use a person’s name, portrait or picture for advertising without that person’s express written consent.

FB has attempted to satisfy this requirement by modifying its “Terms of Use” so as to ensure that you give that consent by default.  In other words, it states that you authorize FB to use your information as part of the social ad pairings it creates unless you expressly opt out of the program.[1] As far as I’m concerned, that doesn’t cut the mustard.  You have to be the one to freely, knowingly and expressly authorize FB to use your information for advertising purposes.  FB cannot authorize itself.  (It would be different, in my view, if FB set the “social ads” program up on an “opt-in” basis, and equated affirmatively “opting in” with consent.  That would probably satisfy the legal requirement.)

Lest we get ahead of ourselves, I should note, that FB’s “Terms of Use” purport to contain a choice-of-law provision to the effect that California law governs.  I leave it to lawyers licensed to practice in the State of California to opine on whether FB’s intended practices would fare any better under California law.  I would be surprised if they did.  If anything, California has the reputation for having stricter privacy and “right of publicity” laws than elsewhere.   After all, because it is home to Hollywood, it is sensitive to the need to protect individual’s names and likenesses against improper commercial use.

(2) Possible Copyright Violations: If FB goes further and adds Nan’s photo, avatar or icon to the ad+endorsement pairing, it may end up not only violating rights of privacy and publicity, but also the photo’s copyright.

Once again, FB has attempted to cover itself.   Thus, its “Terms of Use” go on to state that you give it a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post.”  It also goes on to define “IP content” in blunderbuss fashion as “content that is covered by intellectual property rights, like photos and videos”.   FB “”Statement,” Para. 10.

Again, I have several questions.  First, whether that clause can even effect a “transfer” of rights within the meaning of the Copyright Act.  See 17 U.S.C. §201(d) and 101 (definition of term “transfer of copyright ownership”).  Second, even assuming FB can claim to have gotten some rights from its users, whether any “non-exclusive” rights it can claim are themselves “transferable” and/or “sub-licensable.”  I do not believe so.

(3)  False Advertising & Deceptive Trade Practices: Finally, FB’s use of Nan’s username, photo or avatar in connection with or as part of a third-party advertisement may give rise to a valid “false advertising,” unfair or “deceptive trade practices” claim.   I think there would be a good faith basis for such a claim in New York.  I leave it to California lawyers to weigh in on the “deceptive trade practices” laws there.

* * *

Although I have serious doubts about the legality of FB’s “social ads” program and the use it intends to make of your information, why wait for a court to rule?  You can protect yourself  now by telling FB in no uncertain terms that it cannot use your information in its “social ads.”

This is what you do:

(1) Sign into Facebook. Go to the top Righthand part of the Page.  Pull down the “Account” Menu.

(2) Click on “Account Settings”.

(3) Click on the Tab at the top of the Page that is furthest to the right,  entitled “Facebook Ads.”

(4) Close any Pop-ups, e.g., “Understanding Social Aids”.

(5) Then, where it says,

Allow ads on platform pages to show my

information to . . .

Change your selection from the default,

  • “Only my Friends”   to
  • “No one.”

(6) Click on “Save Changes,” to record your change.

(7) You will have to REPEAT this process a SECOND Time at the bottom of the Page.

There, where it says

“Show my social actions in Facebook Ads to:”

Change your selection from the default,

  • “Only my Friends”   to
  • “No one.”

(8)  Again, click on “Save Changes.”

Unless you opt out twice, it would appear FB intends to interpret you as having “consented” to its use of your information in advertising.

[1] Thus, its “Terms of Use” provide as follows:

You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.

FB “”Statement of Rights and Responsibilities,” Para. 10 (emphasis added).

Los Humanos y Elfos Evadieron Una Bala de Derechos de Autor

December 20, 2010 Leave a comment

“]Un guerrero de "World of Warcraft" de época anterior? Imagen de da Vinci [de dominio público a través de Wikimedia Commons]Aquellos de ustedes que están interesados en la ley de copyright de los Estados Unidos debería leer la decisión de la semana pasada por el Tribunal del Noveno Circuito de Apelaciones en el caso que se llama “World of Warcraft” (o “WoW”),  No, no tiene nada que ver con Orson Welles o HG Wells. Se trata de un universo virtual que muchos de nosotros nunca entrará.


Los hechos básicos del caso se resume asi: La parte demandada Blizzard creó un juego en línea (“World of Warcraft”) que ha atraído a millones de jugadores. Al igual que muchos juegos, se trata de varios niveles de dificultad. A medida que avances de una fase a otra, el juego se vuelve más compleja:

…  los jugadores de WoW desempeňan diversas funciones, como los humanos, elfos y monstruos, con el objetivo central de avanzar en el carácter a través de 70 niveles, participando en misiones y participar en batallas con monstruos. Como jugador avanza, el personaje acumula premios como la moneda del juego, armas y armaduras.  El mundo virtual de WoW tiene su propia economía, en que los personajes usan su dinero virtual para comprar y vender artículos directamente el uno del otro, a través de vendedores, o el uso de casas de subastas. Algunos jugadores también utilizan WoW capacidades de chat para interactuar con los demás.

Decisión en la Parte I (A), página 5.

El demandante MDY creó un “bot” (“Glider”) que sustituyen a los jugadores de carne y hueso en las primeras rondas de juego. . . permitiendo a quienes usen el bot atender a otras cosas durante estas rondas y avanzar más rápidamente a niveles avanzados. Cuando Blizzard detectado el “bot”, creó un programa (“Warden”) para impedir a los que usen el “bot” conectir a su servidor. El demandante entonces se crea un programa para eludir Warden y permitir a los que usen Glider seguir jugando. MDY demandó en el tribunal que se declare que no se infrinjan los derechos de Blizzard y Blizzard reconvino.

El Tribunal de Distrito decidió que MDY ha cometido una serie de agravios o daňos. Decidió que era indirectamente responsable de infringir los derechos de autor directo. Decidió que se había violado dos de la DMCA “disposiciones contra la elusión”, diseñada para proteger contra el acceso no autorizado a las obras con derechos de autor. Y decidió que se había cometido la interferencia con las relaciones contractuales, un daňo bajo la ley estatal en véz de la ley federal. (Las relaciones con las cuales interfirieron fueron las que existen entre Blizzard y sus no-bot jugadores).

El Noveno Circuito revocó la sentencia del tribunal inferior en aspectos sustanciales. Tres aspectos de la decisión son más notables:

En primer lugar, el Noveno Circuito determinó que aunque el uso del robot (“Glider”) estaba en violación de los “Términos de Uso” de Blizzard, sólo se ha violado un “pacto contractual” y no un “estado de derecho de autor.” Eso significa que los jugadores que usen Glider no cometieron la infracción de derechos de autor directo, y MDY no podría ser indirectamente responsable de infringir. Este aspecto de la sentencia así puede tener repercusiones mucho más allá de los límites del caso, si sirve como modelo para la eliminación de los recursos (y sanciones) de derechos de autor cuando hay violaciónes de “Términos de Uso.”

En segundo lugar, el Noveno Circuito determinó que a pesar de que la elusión de las defensas de Warden no permiten que exista infracción de derechos de autor, el demandado Blizzard tuvo una causa de acción contra MDY por violar § 1201 (a) (2) de la DMCA. En este sentido, el Noveno Circuito no estuvo de acuerdo con el Circuito Federal, que ha declarado que no puede existir una violación de DMCA en ausencia de una infracción del derecho de autor. Ahora que hay una división entre los circuitos sobre esta cuestión, es posible que el Tribunal Supremo de los Estados Unidos decidirá considerar la cuestión.  En mi opinión, el Noveno Circuito tiene el mejor argumento jurídico sobre esta cuestión en particular.

En tercer lugar, el Noveno Circuito devolvió a la Corte de Distrito el reclamo que trata de la interferencia contractual, porque habia una auténtica cuestión de hecho material. Decidió que la ley federal no reemplaza a la ley estatal en cuanto a este reclamo. Este es un tema sobre el que ha habido un debate considerable en numerosos casos.

En el análisis final, ambos bandos utilizaron una gran cantidad de moneda del mundo real tratando de redefinir al mundo virtual. Ni terminó aniquilando al otro.

Todavia, puede ser que la Corte Suprema va a decidir si ambos puedan seguir jugando … o si uno va a reclamar el terreno de juego entero.

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