Intellectual Property – Slinkard Law Offices

February 25, 2016

Apple (and Friends) Consider 5th Amendment Defense in Encryption Case

Over at Ars Technica, David Kravets writes that in addition to a First Amendment defense against the federal government’s efforts to gain access to the data on an encrypted iPhone, the tech company will use a Fifth Amendment defense. See, Forget the 1st Amendment, Apple to plead the 5th in iPhone crypto flap.

The First Amendment defense is straightforward:

Apple will also argue in its legal papers to be filed by Friday that computer code and its cryptographic autograph are protected speech under the First Amendment and that the government cannot compel speech by Apple. Bloomberg reported:

Apple is expected to argue in federal court that code should be protected as speech. The company is fighting a government order requiring it to write software to help the Federal Bureau of Investigation unlock an iPhone used by one of the San Bernardino shooters. Apple views that as a violation of its philosophy. Just as the government can’t make a journalist write a story on its behalf, according to this view, it can’t force Apple to write an operating system with weaker security.

Here’s a sketch of the Fifth Amendment claim:

….the Fifth Amendment goes beyond the well-known right against compelled self-incrimination. The relevant part for the Apple analysis is: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The idea here is that the government is conscripting Apple to build something that it doesn’t want to do. That allegedly is a breach of its “substantive due process.” The government is “conscripting a company’s employees to become agents for the government,” as one source familiar with Apple’s legal strategy told Ars. The doctrine of substantive due process, according to Cornell University School of Law, holds “that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.”

(One small nitpick, about my alma mater’s name: it’s the Cornell Law School (no one calls it anything else).

Kravets writes that the ACLU “is to file a friend-of-the-court brief in the dispute that cites the Fifth Amendment in Apple’s defense. “If this legal argument sounds novel, it’s because the government’s claim is unprecedented,” [ACLU staff attorney Alex] Abdo said in a telephone interview.”

The next court hearing is 3.22.16.

February 23, 2016

Stephen Witt’s ‘How Music Got Free’

There’s really no American who hasn’t felt the effects of digital technology. The last generation has transformed media, and the law has been – and still is – racing to catch up.

What, however, do we remember accurately even of changes that have swept all around us?

Above, I’ve embedded a Reason.tv interview with Stephen Witt, author of How Music Got Free: The End of an Industry, the Turn of the Century, and the Patient Zero of Piracy.

His book is a recounting of a tale we may know only in part, and only imperfectly.

The interview is well worth watching, and Witt’s book well worth reading.

February 17, 2016February 20, 2016

Is Intellectual Property Really Property?

At the Cato Institute, there was a forum last week on the topic of whether intellectual property is property in a hard or soft sense:

Conservatives and libertarians are sometimes divided on the question of whether intellectual property is really property, and how much protection it deserves. On one hand, intellectual property is a product of mixing labor with material in the public domain, and it’s freely alienable, able to be bought, sold, licensed, or used as the owner sees fit. On this view, intellectual property is a bedrock natural right, central to economic and personal freedom, which the United States Constitution empowers Congress to protect. The contrary position, taken by some libertarians, views intellectual property as a government-conferred right that encourages political rent-seeking, restricts liberty, and thwarts innovation. Please join us as our panel of experts debates who has the better of the argument.

Here’s a recording of the forum:

Via Intellectual Property and First Principles @ Cato Institute’s Center for Constitutional Studies and the Federalist Society for Law & Public Policy Studies.

August 28, 2015

The Big Picture on IP

David Post, writing at the Volokh Conspiracy, recommends a recent paper from Mark Lemley (“IP in a World Without Scarcity“) that summarizes the state of intellectual property law.

It’s a sound recommendation, and well worth following to Prof. Lemley’s paper.

Here’s Post’s assessment:

If I were still teaching a class on IP law, or Law and the Internet, I think I’d start with Lemley’s paper, in its entirety. Much — maybe even most or all – of what he talks about has been said before; but like all really effective summary pieces, it imposes order on some otherwise very chaotic disconnected threads, so that the Big Picture comes very, very clearly into focus. Most highly recommended.

See, from David Post, What everyone needs to know about intellectual property law @ Volokh Conspiracy.

Mark Lemley’s paper is available at the SSRN, to read online or download.