• Copyrights Win Out Over Aereo

    Like the case I discussed last week, the Supreme Court case American Broadcasting Companies, Inc. v. Aereo, Inc. somewhat went under the radar. However, this one is notable in its implications for new technologies and copyright law.

    A little background on the case: Aereo, founded in 2012, is a subscription service that provided a device to pick up broadcast television signals. Subscribers could watch these broadcasts on any digital device and record them in a personal DVR. Aereo contended this was simply the equivalent to picking up broadcast signals like a TV antenna, but broadcasters argued it was rebroadcasting their content, and therefore copyright infringement.

    Aereo survived a few lower court battles, but the Supreme Court ruled 6-3 that the company’s business model was, in fact, infringing on broadcasters’ copyrights. Several tech and political writers decried the ruling. One article even described it as equivalent to if the Supreme Court had ruled against the constitutionality of the VCR in 1984.

    I don’t think the Court made a bad decision.

    Let’s examine the comparison to that landmark VCR case (Sony Corp. of America v. Universal City Studios, Inc.). In That decision, the Court ruled that recording programs for private home use was fair use. To record any program to sell or screen publicly is still very much illegal (remember those FBI warnings on DVDs and VHS tapes before them?).

    Aereo wasn’t simply picking up the broadcasts, but in effect rebroadcasting them for a price, which, without permission, is clearly copyright infringement. While it might sound lame to side with big corporate broadcasters, I understand that their livelihood depends on creating programming for monetary gain.

    The effect of this decision on the tech world, I think, is that it might make it more difficult for small startup services to get off the ground, as the fees to rebroadcast programming are inhibitively expensive. As for consumers, they’re in no danger of missing out on their favorite shows. There are plenty of other streaming service providers like Netflix or Hulu. Some networks even broadcast their shows for free on their websites. And those are just the legal options available on the web.


  • Deconstructing the Governor's ACA response

    Last week, I discussed how things could get bad for Indiana residents should the Supreme Court rule against federal subsidies in the Affordable Care Act (or “Obamacare”). Well, scratch that.

    I had planned to talk about what state residents could do next in such a scenario. But since that didn’t come to pass, let’s instead just have some fun at our Governor’s expense, shall we?

    Here is Governor Mike Pence’s statement reacting to the Court’s decision, along with a few paragraph-by-paragraph thoughts:

    Governor Pence: “The Supreme Court's ruling in King v. Burwell is profoundly disappointing to me and every Hoosier who had hoped this ruling would give our nation the opportunity to start over on health care reform.”

    The ACA’s exchanges have been up and running for less than two years, and the law isn’t fully implemented. But the parts that have taken effect have reduced the uninsured rate, and are only gaining in popularity. It’d be one thing to scrap the whole thing if it were an utter failure, but only someone who wants the ACA to fail would call this a disappointment.

    GP: “Today's display of judicial activism by the Supreme Court upholds this deeply flawed law to the detriment of millions of Hoosiers who will continue to be subject to the mandates and taxes in Obamacare.”

    What the Governor does not state is, had the Supreme Court ruled against the subsidies, Hoosiers still would be subject to those same mandates and taxes. What would have changed is that they would get no federal aid and have to pay even more. And if he’s against the average citizen having to pay into an insurance program, why did he create the state’s Healthy Indiana plan that requires users to pay into it instead of simply taking the ACA’s no-strings-attached Medicaid expansion to which every state is entitled?

    As for the claims of judicial activism, the Court’s ruling reflected those of most of the lower courts who heard the same case. Also, Justices John Roberts and Anthony Kennedy have ruled on the side of conservatism on many other cases (despite being branded a traitor by conservatives in this case, Roberts dissented in the Court’s decision on same-sex marriage the very next day).

    GP: “ObamaCare must be repealed and states must be given the flexibility to craft market-based solutions focused on lowering the cost of health care rather than growing the size of government.”

    “Repeal and replace” has been the Republican soundbite for a while, but they never offer any solid info on a replacement, just conservative platitudes and buzzwords. Something tells me that if they really repealed it, they wouldn’t replace it and just wait and hope the public forgets about it in the news cycle. That might have worked a few years ago before the law started to take effect, but since people are now using it and would notice if it’s gone, that window’s probably closed.

    GP: “It now falls to the American people to elect new leadership in Washington, D.C. so we can repeal ObamaCare and start over with health care reform based on personal responsibility and consumer choice rather than government mandates and taxes. Indiana will continue to be a leading voice in advancing those principles in the national debate.”

    Considering Indiana’s last moment on the national stage under Pence was the RFRA, I very much doubt the country will be quick to look to our state for anything for a little while. But he is right that it’s up to the people to vote on new leadership. Unfortunately for him, it appears that Indiana’s desire for new leadership pertains specifically to his office.

    His statement suggests that my speculation last week about the Governor's potential actions to fix things if the subsidies were eliminated was probably wrong. I figured as much, but fortunately for the state’s ACA enrollees, their health insurance isn’t in his hands.

  • Despite SCOTUS ruling, bell might be tolling for death penalty

    The Supreme Court recently finished an eventful term, upholding the Affordable Care Act and legalizing same-sex marriage nationwide. But one of the lesser-publicized cases is likelier to ignite much more debate in the years to come.

    One might recall the case of Oklahoma death row inmate Clayton Lockett, whose execution by lethal injection last year was stopped when the drugs he was administered (an experimental new mix of substances) failed to render him unconscious. He allegedly was in great pain for close to an hour before succumbing to a heart attack from the ordeal.

    In the case Glossip v. Gross, a group of death row inmates argued that this method constitutes cruel and unusual punishment (which is banned by the Eight Amendment) because the administered sedative midazolam fails to render the condemned unconscious, causing them to feel tortuous pain throughout their execution. The Court disagreed, however, ruling 5-4 that they couldn’t prove the drug’s use was cruel and unusual.

    Well, it certainly sounds like cruel and unusual punishment in this case. But a few of the dissenting justices went even further, suggesting that capital punishment itself violates the Eighth Amendment.

    At the legislative level, the death penalty is withering away, but slowly. It's been outlawed in seven states within the last decade, and not strictly along partisan or ideological lines. The most recent state was Republican-leaning Nebraska, whose state legislature voted to outlaw capital punishment and voted to override their Governor’s veto of the measure.

    In other states, both red and blue, it’s still business as usual. Right here in Indiana, a bill making murder by decapitation or attempted decapitation grounds for the death penalty was passed almost unanimously by the state legislature and became law at the start of the month.

    So it’s very significant that the school of thought which considers capital punishment a violation of criminals' constitutional rights made it into the legal conversation of the highest court. Even though it lost before Court this time, it’s probably not going away. If it gains momentum in jurisprudence, we might one day mark this as the beginning of the end of capital punishment in the U.S.

    Should that happen, it would be a good day for human rights. More than any other factor in the argument against capital punishment—its inconclusive effect as a deterrent, the cost of executions, the fact that innocents can sometimes be executed—it all comes down to the fact that no government, federal or state-level, should have the right to dictate who lives or dies.

    Lockett was convicted of some horrible things, no question. It’s admittedly hard to sympathize with him. Or Dzhokhar Tsarnaev, or Timothy McVeigh, or anyone who would mutilate another human being as described by Indiana’s new law. But for comparison, if we truly value free speech, we must also defend and tolerate speech with which we disagree or find offensive or vile. Similarly, if the right to live is truly inalienable, then it must also apply to the worst among us.

  • Search and seizure heads to IN Supreme Court

    The Indiana Supreme Court decided to hear a notable case last week. Unlike the case I already discussed in my last post, this one’s outcome is sure to have further-reaching effects than just our corner of the state.

    Garcia v. State centers on Antonio Garcia, who was pulled over and arrested on the misdemeanor charge of driving without a license in 2012. While being searched during his arrest, the police found a small container, which they opened to find a hydrocodone/acetaminophen pill. This painkiller is considered a controlled substance, possession of which without a prescription is a felony.

    Garcia testified that he had found the pill among a recently deceased family member’s effects, and carried it with him so his child wouldn’t find it. Though he was able to produce prescription records indicating the family member did, in fact, have a prescription for the drug, he was still convicted of felony possession.

    The Indiana Court of Appeals overturned that conviction on the grounds that it violated the Indiana Constitution’s stipulation against search and seizure. Specifically, the ruling stated that the container aroused no reasonable suspicion or threat to the arresting officers, therefore searching it violated Garcia’s Constitutional rights.

    The Indiana Supreme Court will have the final say, though a decision probably won’t come until next year.

    Before trying to tie this case in to high-profile police and civil liberties controversies of recent years, one should take a closer look at the facts. While Garcia contends that regular search and seizure protocol went too far, he isn’t contesting his misdemeanor charge or alleging grave officer misconduct. The arresting officers also testified that Garcia was cooperative. And in fairness to the police, similar medicine containers frequently are used as containers for illegal drugs. So this case occupies a grey area.

    Personally, I’m leaning toward the side of Garcia, not due to any personal biases, but because if I have to choose a side, I always choose the one of civil liberties.