USS Clueless              Voyages of a restless mind

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Stardate 20011010.0344 (On Screen): The US Supreme Court is unique in many ways, but one way in particular: It can accomplish more by refusing to work on something than any other institution I've ever heard of. The Supreme Court decides for itself what cases it will examine, and that decision is final and need not be justified for any reason. While the Court was in recess, numerous appeals built up, and yesterday it started rejecting cases for review -- and made a great deal of law by doing so.

For instance, it refused to review a California case and thus established an important principle in "patient's rights". It refused to hear a case about lawsuits against gun manufacturers, ending a whole series of attempts to use product liability law to put gun manufacturers out of business. It refused to hear Microsoft's appeal of the Circuit Court's antitrust decision. It refused to hear a First Amendment case about nudism.

But the two most important refusals yesterday were about much more weighty subjects. It refused to hear a death penalty appeal which contended that the penalty should be changed based on the assumption that more competent defense could have prevented it -- and I think that was a valid decision. If it had been permitted, it would have led to endless second-guessing on appeals about whether a defendant's lawyers had done as good a job as they possibly could have -- even if it was competent. It would never be possible to settle anything in court.

And it established new copyright law by refusing to hear the National Geographic case. This will affect the web as we know it. National Geographic issued a CDROM collection which reprinted its entire run of magazines. One of the photographers whose pictures appeared in that collection sued on the basis of it being a new work, which wasn't authorized under the contract he had signed when he sold them his photographs. He claimed that they owed him new royalties. National Geographic claimed that current copyright law permitted them to sell old material in new forms. A circuit court disagreed, because the new collection had different advertising and was thus a "new work". By refusing to hear this case, the Court reaffirms an active decision made last June that authors do have rights to new payment for web publishing. Going forward, it means that contracts that writers and photographers sign will simply have more verbiage in them. But going backward, it means that a lot of older information available now may not be soon. (I'm still waiting for someone to sue Google for the Deja News archive, not to mention for all the cached web pages they serve up.) It's amazing how much work you can get done by sitting on your hands, isn't it? (discussion in progress)