The Power of Citizen Activists to Make Constitutional Law

Tonight I went to a talk by David Cole to promote his new book Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law and I left feeling empowered and optimistic (which is not a given when it comes to events hosted by lawyers). The author used three issues—marriage equality, the right to bear arms, and human rights in the war on terror—to examine how Constitutional law has evolved incrementally over time.

While Scalia saw any changes in Constitutional law as five justices imposing their personal views on the rest of the country, Cole takes issue with this criticism. When justices make new Constitutional law, they are not unilaterally imposing their views on the people, but rather responding to changes in the views held by society at large. When people who care deeply about a certain issue unite and organize, they have been able to win small victories that have ultimately led to a SCOTUS decision enshrining their right in the Constitution. It is actually a quite democratic process.

The marriage equality movement began by bringing family law and anti-discrimination lawsuits in states more sympathetic to their cause (like progressive Vermont), before bringing cases in federal court about the right to marry. Although they would never admit it, the NRA and gay rights groups used very similar strategies. The NRA started filing lawsuits in states sympathetic to its cause (like Florida, the gunshine state), gradually building up favorable precedent, before it got SCOTUS to recognize the individual right to bear arms in DC v. Heller in 2008. This legal strategy, combined with efforts to shape public opinion and the consensus of the legal academy, helped ensure that justices would be receptive to their arguments when the case was before them.

These examples serve as a good reminder to public interest lawyers that change is possible, it is just slow and incremental. It made me reflect on how proud I am to be interning at EFF this summer, and contribute my small part to work that will ultimately culminate in major victories for Constitutional rights.

Talk to Me: Conversation in the Digital Age

Thursday I went to a lecture by Sherry Turkle entitled “Talk to Me: Conversation in the Digital Age” which was promoting her new book. I didn’t notice it when I first took my seat, but when the lights came back on for Q&A it became clear that I was bringing down the average age of the audience quite considerably. Turkle raised some interesting ideas, but the whole event was tinged with the anxiety always felt by the older generation about the latest technology. There was a lot of talk about people always looking at their phones instead of each other and parents not being engaged with their kids because they are constantly distracted. This narrative doesn’t resonate with me, but a lot of the audience seemed to feel differently.

One point Turkle raised, which I had never considered, was that 9/11 caused the widespread adoption of cell phones, largely because it made parents want to be instantly in touch with their children. She said that when she speaks to parents about why they are giving their young children cell phones, the word that always comes up is “emergency.” According to Turkle, the average child gets their first cell phone at eight years old. This is pretty surprising, but it’s unsurprising that people respond with fear about hurting children’s development and turning their brains to mush. I’m not persuaded by this sort of fear-mongering because past generations had the same concerns about TV, radio, and even novels. Turkle said that she disagreed with pediatricians who advise parents to limit their children’s “screen time,” because the quality of technology use is much more important than the quantity of time spent using technology. Her advice to parents is to limit children’s solo use of technology, and help them use technology to engage with other people.

 

She argued that if we want change in the tech industry, it needs to come from a grassroots consumer-based approach rather than a top down approach. She used the food industry as an example, saying how growing up her mother used to serve her “fruit salad” which was little bits of mixed fruit in a cup of syrup with maraschino cherries on top, but once people started demanding more healthy options from the food industry, they listened. I like the idea of a grassroots movement, but I do find it problematic to entrust completely our privacy to large corporations and the free market.

I found this argument to be a bit at odds with her discussion of texting while driving. She said that someone needs to create an invention that prevents a driver from texting while driving. The audience broke into applause, and she said she was grateful because sometimes people disagree with her, citing user autonomy. I don’t see why this invention is necessary. Texting while driving is very dangerous, but I think that laws and public health campaigns are more appropriate responses. An invention that would block involuntarily users from their own devices seems like it would cause more problems than it would solve.

I enjoyed the event overall, but think many of the concerns Turkle and the audience members raised have been exaggerated.

Klingon, Code, and Copyright

Public Domain
Klingon Alphabet

Are languages protected by copyright? Anyone with a rudimentary understanding of copyright law would answer this question in the negative, but Paramount is claiming copyright ownership in the Klingon language. Anaxar Productions created a short film entitled Prelude to Axanar and has an Indiegogo campaign to crowdfund a feature length Star Trek film. Paramount filed a complaint for copyright infringement and listed various elements of the defendant’s film that are allegedly infringing. The “fictional language” (referred to in paragraphs 20 and 56 of the complaint) is listed as one of the infringing “Star Trek Copyrighted Works.”

A language is a system of communication; grammar and syntax are the rules that allow it to function. Language is used to express ideas but it itself is not protectable expression. In Baker v. Selden, the book about bookkeeping was protected but the system of bookkeeping itself was not; a Klingon dictionary may receive copyright protection, but the Klingon language is not. Therefore, languages are clearly ineligible for copyright protection under 17 U.S.C. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The Klingon Hamlet
Fair Use: https://en.wikipedia.org/wiki/File:TheKlingonHamlet.jpg

Should it matter that Klingon is a synthetic language? Paramount thinks so, although their reasoning is questionable. They argued that “a language is only useful if it can be used to communication with people, and there are no Klingons with whom to communicate” but as the Language Creation Society pointed out in its amicus brief, Paramount’s “logic would seem to dictate that French is not ‘useful’ if spoken by a native German.”

Public Knowledge’s Charles Duan wrote an article last year, before this litigation began, arguing that the Oracle v. Google decision (see EFF for case docs) could impact Klingon-speakers. Now it has been suggested that the reverse could be true: this Klingon case could affect programmers. Unfortunately the Federal Circuit reversed the N.D. Cal decision-even though badass Judge William Alsup learned Java for the case and clearly understood the technology better-and held in no uncertain terms that APIs can be protected by copyright. Now the case is being decided on fair use grounds. A finding of fair use for

Sample of Java API from Oracle v. Google N.D. Cal decision
Sample of Java API from Oracle v. Google N.D. Cal decision

Google would be a victory, but a broad holding categorically eliminating APIs from copyright protection would have been much better. While it looks like Anaxar might have infringed some copyright-protected elements of the Star Trek franchise, hopefully the C.D. Cal. court will hold categorically that synthetic languages cannot receive copyright protection, rather than reaching a vague fair use finding that could have a chilling effect on programmers.

But it’s more likely that the court will dodge this question, as Paramount asked it to in its opposition to the Language Creation Society’s amicus brief. But, I don’t think courts can avoid addressing this question for much longer- HBO is bound to bring a Game of Thrones lawsuit involving Dothraki at some point, right? Axanar just filed its response to Paramount’s Opposition last week, so it will be interesting to see how this case progresses.

Update: The court denied Axanar’s motion to dismiss for reasons that do not rely on the Klingon language issue. It therefore denied the Language Creation Society motion for leave to file an amicus brief about the Klingon language without prejudice. See conlang.org.