12 May 2012

Innovation and Copyright

'The Copyright-Innovation Trade-Off: Property Rules, Liability Rules, and Intentional Infliction of Harm' by Dotan Oliar in 64 Stanford Law Review (2012) 951-1019 asks -
Should the law secure to copyright owners control over new technological uses of their works? Or should the law leave technological innovators free to explore and exploit such uses? The greater control afforded to copyright owners, the greater the incentive to produce content, but also the greater the disincentive to produce better technologies to enjoy it. This Article studies the degree to which protecting copyright owners or technological innovators by property rules or liability rules over new technological uses of content would drive members of each group to invest desirably in their respective creations and in reducing the interference between their activities.
The Article offers three major contributions: (1) it assesses the degree to which different entitlements promote authorship and innovation as well as investments to minimize the interference between them, (2) it shows that a property rule in technological innovators might drive them to harm copyright owners intentionally, and (3) it suggests a way of modifying legal entitlements that can improve copyright owners and innovators’ incentives to invest.
Oliar comments that
Should copyright law impose liability on innovators of technologies used to copy, manipulate, or disseminate protected content? Intellectual property law’s goal, and constitutional mandate, is to promote both authorship and invention. Often, each of these goals can be pursued independently. Sometimes, however, they conflict. New technologies — such as record players, radio, motion pictures, photocopiers, VCRs, MP3 players, and file-sharing networks — often weaken copyright owners’ control over content. As the Supreme Court observed, imposing copyright liability on technology companies would promote authorship but chill innovation, while immunizing innovators from liability would promote innovation but chill authorship. How should the law balance these two interests? 
This question has been asked respecting each of the technologies above and many others. Each time, however, courts and Congress have struck the balance differently. The law has alternated over time between protecting copyright owners and innovators by either property rules or liability rules. The copyright- innovation conflict is one of the most important and recurring themes in copyright law’s evolution, and it has been studied extensively. Unfortunately, despite much congressional, judicial, and scholarly attention, the law has not treated content-technology conflicts coherently.
This Article takes a first-principles approach to content-technology conflicts. It views authorship and innovation as two economic activities that interfere. It conducts a systematic analysis of how allocating property rules and liability rules to copyright owners and innovators would induce each group toinvest both in pursuing its own trade and in minimizing the copyright- innovation interference.
For example, a property rule in innovators — an entitlement allowing them to manufacture any technology regardless of harm to copyright owners — may drive some of them to produce harmful technologies and to actively promote their use for infringement. Such inefficient investments in technology creation and harm generation may allow some innovators to extract value from copyright owners in return for shutting down. Imagine, for instance, an innovator contemplating a technology — such as an online file-sharing network — that creates a small value of 10 but that also harms copyright owners by 100. Backed by a right to market this technology, an innovator would produce it. The innovator and copyright owners would quickly realize that all can be made better off by shutting down the technology. In negotiations, the innovator would not accept anything less than 10 to shut down while copyright owners would pay 100 at most. Under equal bargaining power, the innovator would shut down in return for 55. Assume, however, that when the innovator creates the new tech- nology, he can invest an extra 5 to increase the technology’s harmful effect to 200. While a net loss in social welfare, this investment in harm exacerbation would pay off for the innovator, because it would increase the copyright owners’ maximal willingness to pay to 200, thus increasing the innovator’s settle- ment amount to 105. This is just one effect of one legal rule — this Article provides a comprehensive analysis of the incentives generated by each of the four classic entitlements. 
Charting the incentive effects of alternative legal rules can explain observed phenomena and predict future ones. For instance, before the rise of file-sharing networks over the past decade, the relevant Supreme Court precedent,  Sony Corp. of America v. Universal City Studios, Inc. was largely understood as vesting a property rule in innovators. Several courts found that file-sharing networks actively induced infringement by end users, a behavior consistent with the predicted behavior of the similarly protected innovator in the numeri- cal example in the preceding paragraph. Also consistent with that example were the negotiations between Napster, the file-sharing network, and music labels, pursuant to which Napster would shut down its harmful technology in return for value. 
A major cost of legal rules is that they may drive protected parties to make clearly inefficient investments. For instance, the innovator in the numerical ex-ample above found it privately profitable to invest in a socially harmful technology. When it comes to technological change, lawmakers often cannot predict the nature of future technologies before they are invented. Their choice is often limited to allocating background entitlements under limited information regarding the future. Although lawmakers cannot observe the nature of the par- ties’ investments in real time, they might still be able to verify their type (socially beneficial or harmful) once a content-technology conflict occurs. A legal system that, upon observing a protected party who invested inefficiently, re-allocates the entitlement to its counterpart, will provide the parties with improved incentives to invest. Contrary to conventional wisdom regarding content-technology conflicts, this prescription holds true even if the parties can transact costlessly at the time a conflict occurs. The purpose of this prescription is not to overcome transaction costs after the parties’ activities already conflict. In such a case, under costless bargaining, the efficient result will happen regard- less of the applicable entitlement, as the example above shows. Rather, this prescription seeks to make the parties invest efficiently at an earlier time when they cannot yet transact, a time when improved incentives to invest may pre-vent a future conflict from arising. 
The Supreme Court’s decision in MGM Studios Inc. v. Grokster, Ltd. suggests that the legal system is at times capable of verifying the nature of the parties’ earlier investments during a conflict, and of reallocating entitlements accordingly. In Grokster, the Ninth Circuit allowed the technology company to rely on the background entitlement from Sony to manufacture its harmful technology. The Supreme Court likely believed that the technology was harmful (i.e., it was of little or no independent value yet created great harm to copyright owners) and so the Court reallocated the entitlement to copyright owners. Doctrinally, it did so by crafting a new theory of liability — intentional inducement — that led to a reversal of the outcome below. Providing improved investment incentives therefore requires mechanisms to reallocate entitlements from innovators to copyright owners in certain cases (such as by way of the Court’s doctrinal innovation in Grokster), but also from copyright owners to innovators in other appropriate cases. The fair use doctrine is one major way in which the latter reallocation can be done, and indeed Sony can be read as having used the doctrine in this way. 
This Article proceeds as follows. Part I reviews the historical cycle of technological disruption of copyright owners’ business models, ensuing copy- right litigation, and systemic doctrinal uncertainty and unpredictability. Part II presents a framework modeling how different property rules and liability rules affect copyright owners’ and innovators’ incentives to invest in their respective economic activities and in reducing the interference between them. Part III discusses cases that are consistent with the framework’s predictions and additional descriptive and prescriptive implications. It presents the concept of modifiable property and liability rules, argues that they can improve copyright owners and innovators’ incentives to invest, and suggests that several cases can be read as consistent with a de facto allocation of modifiable entitlements. Part IV discusses the extent to which the analysis applies once some of its assumptions are relaxed and the optimal timing of modification.


I'm reading Out of Hours ... e-Teaching leadership: planning and implementing a benefits-oriented costs model for technology enhanced learning [PDF], a report by Belinda Tynan, Yoni Ryan, Leone Hinton & Andrea Lamont Mills for the ALTC (now defunct as a result of short-sighted cost-cutting in tertiary education).

The authors question the notion of e-learning or e-teaching as a quick fix for the contemporary enterprise university, commenting that
Our main conclusion is, unsurprisingly, that workload associated with online and blended teaching is ill-defined and poorly understood. As more new technologies impact on the sector more generally, it is timely to reconsider and audit practices to ensure future innovation and sustainability of work practices.
The report provides several propositions and recommendations, as follows, on the basis that
If teaching online is to become sustainable, attention needs to be paid urgently to how staff workloads are constructed. It is no longer possible to work in ways that belong to a transmission era of university teaching. As access and connectivity penetrate deeply into our personal, transactional, work and learning lives, interactivity and constructivist pedagogies must be considered routine, not ‘add-ons’ in teaching, and must therefore be reflected in prospective workload models which recognise the higher quantum of teaching tasks associated with e-teaching, and students’ needs for a teacher to ‘be there’. ...
Our research has investigated a topic that is of concern to numerous stakeholders. The approach taken in this project is robust and the conclusions and recommendations fairly represent the voices of staff across four institutions who experience online learning as a key aspect of their work. While some may argue that these universities are not representative of the sector, the findings will no doubt ring true to many. As the higher education sector moves toward an increasingly competitive market place, the inclusion of more diverse students and the increasing use of technology to serve student learning, online workload needs to be reconsidered.
Proposition: Teaching online and in blended modes creates different types and numbers of work activities that require consideration when developing workload models.
Recommendation: Acknowledge that ‘flexibility’ costs, and will impact fixed, variable and opportunity costs.
Proposition: Staff are generally supportive, even enthusiastic, about teaching online. They have concerns about appropriate feedback to students, changing technologies, adequate infrastructure, professional development, access to support staff, large classes and assessment. At times they are not sure if what they do ‘online’, in the time that they allocate or over-allocate, is good enough to support quality learning outcomes. Some academics do not have the time to update materials, develop innovative approaches to learning, take up professional development opportunities, or attend to research demands.
Recommendation: Staff should be enabled to participate actively in their professional development and have their work recognised and valued within performance assessment, development and review. Institutions should ensure business processes and infrastructure are adequately resourced.
Proposition: Workload models are not well-understood by staff teaching online and not adequately broken into specific components, nor implemented transparently and consistently across school areas. Workload models do not reflect what staff perceive they do. Many staff do more than is required and are not prepared to compromise quality of materials or interaction.
Recommendation: Institutional management perceptions of teaching online should be more closely aligned with the reality of the workload as perceived by teaching staff within current workload models. Staff require more transparent participation and negotiation about appropriate workload models.
Proposition: Staff perceptions are that EFTSL is not a clear measure for allocating workload when teaching online. These workload formulas fail to take into account variable costs, for example, multimedia delivery formats; other support such as educational development, IT equipment (software and hardware); additional staff; staff development; opportunity costs (early adopters and innovation); diverse student cohorts; the advent of Work Integrated Learning; committee work; the plethora of additional ‘coordinator tasks’ such as ‘Study Abroad Convenor’.
Recommendation: DEEWR in tandem with Universities Australia and other agencies should initiate a multi-level audit of teaching time and WAMs. This would accurately identify the roles and responsibilities of teachers, and their actual time using various applications and their perceived cost-benefit, in order for universities to develop more appropriate yet efficient workload models.
Proposition: The appropriation and use of technology into curriculum requires a recasting of the role of academics within universities.
Recommendation: Since almost all staff are involved in teaching online, appropriate selection criteria, probation criteria, performance indicators and a commitment to professional development in e-teaching by institutions and their staff are imperative.
Proposition: Teaching online has numerous definitions and perceived understandings. There is an inconsistent terminology and staff cannot articulate or communicate the multitude of issues involved in their teaching.
Recommendation: Define clearly what it means in each program to teach online for staff, learn online for students and manage staff allocation within higher education institutions so that all stakeholders as well as Finance Officers can participate in workload model development.
Proposition: 2011 has seen a surge of concern about the impact of online purchasing (especially from overseas) on the Australian economy, with bricks and mortar businesses being threatened. Many see this as a precursor to online services supplanting physical service industries, including higher education; among these are some Vice Chancellors (Campus Review, 27 June 2011) and the majority of IT executives, including Bill Gates. Others are more sanguine, envisaging a future where the campus still attracts school leavers seeking a vestigial ‘university experience’, through a blended education of independent learning online plus some face-to-face interactions, but where the majority of adults transact their learning ‘at a distance’. For the moment at least, the blended model remains the predominant ‘delivery’ mode in higher education, despite an increasing number of fully online programs.
Recommendation: Develop Workload Allocation Models (WAMs) which acknowledge the greater number of tasks associated with a blended pedagogy, as indicated in table 1 in Part 2, reproduced below.
If and until a wholly disaggregated model of academic work (separating the discrete tasks of content expert, educational developer, multimedia designer, graphic designer, tutor and marker) is adopted (as is suggested by successful models such as in the OUUK), institutions must acknowledge in their workload models the greater number of tasks associated with online and blended development and delivery. Teaching workloads need to be adjusted to acknowledge the greater number of tasks associated with new technologies being incorporated into education systems.

Greater use should be made of multimedia resources which have already demonstrated their efficacy for teaching complex/threshold/key concepts, so that individual teachers do not have to develop resources on core concepts in their discipline. However, the work involved in locating these resources, and then contextualising them to particular professional and institutional programs should not be under-estimated. A one size unit on Statistics 101 does not fit all programs. For example, of the universities involved in this study, ACU subjects must contain a specific community engagement or social justice component, so any ‘core unit’ curriculum must be adapted.

11 May 2012

Compulsory licensing

'India's first compulsory licence over Bayer's patent' by Betsy Vinolia Rajasingh in Journal of Intellectual Property Law & Practice (2012) discusses Natco Pharma Ltd v Bayer Corporation—Compulsory Licence Application No 1 of 2011, the first grant by India's Controller of Patents of a compulsory licence under s 84(1) of the Indian Patents Act 1970.

The compulsory licence decision [PDF] in Natco allows generic drug manufacturer Natco Pharma Limited to use Bayer's Sorafenib pharma patent on grounds of 'non-fulfilment of reasonable requirements of public with respect to the patented invention, non-availability of the drug at a reasonably affordable price, and non-working of the invention in India'.

Rajasingh comments that -
Section 84(1) encompasses the law relating to compulsory licensing. Provisions on compulsory licensing, including section 84(1), were enacted by the Patent (Amendment) Act 2002, which replaced earlier compulsory licensing provisions, in order to facilitate Indian patent law's compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization to which India is a signatory. 
Section 84(1)(a), (b), and (c), on which the issues contested in Natco are based, authorizes any interested person to make an application to the Controller of Patents following the expiry of 3 years from the date of grant of patent alleging that the patentee has not satisfied the reasonable requirement of the public with respect to the patented invention;  made available the patented drug at a reasonably affordable price; or worked the patented invention in India.
Sorafenib potentially extends the life of kidney cancer patients by 4 to 5 years and liver cancer patients by 6 to 8 months. Bayer's US patent application dates from 1999, with an Indian application in 2001 and grant in 2008.  Two years later Natco sought a voluntary licence from Bayer,  proposing to market the drug at a huge discount on Bayer's price. Bayer rejected the voluntary licence proposal, with Natco waiting on the statutory three years and applying for a compulsory licence.

The Controller of Patents considered Bayer's non-fulfilment of requirements under s 84(1)(a), (b) and (c). Rajasingh notes that the Controller concluded that the size of the Indian market was significantly higher than Bayer's estimated 8,842 patients and that the quantity of drugs imported by Bayer imported would have only catered to the therapeutic needs of 2% of the assumed 8,842 patients. Bayer's importation had been in negligible quantities following the grant and failure to manufacture in India  indicated Bayer's default in fulfilling the ‘reasonable requirement of the public’ under section 84(1)(a). Demand for Sorafenib had not been met to an adequate extent or on reasonable terms.

Rajasingh comments that
Bayer asserted that a ‘reasonably affordable price to the public’ under section 84(1)(b) of the Act implied reasonableness with reference to the general public and the patentee: Bayer, as patentee, had invested substantial capital in research, development, and manufacture of the drug. Rejecting Bayer's claim, the Controller endorsed Natco's view that reasonableness contemplated under the Act refers solely to the public and not to the patentee as well 
.... the mere importation of a patented invention does not entail forfeiture of the patent but something of lesser import such as the issuance of a compulsory licence. Moreover, Article 5(A)(2) of the Paris Convention states that the abuse of patent rights, for instance by failure to work the invention, might be prevented by enacting laws on compulsory licensing. Article 5(A)(2), via Article 2(1) of TRIPS which underpins the requirement that member countries comply with provisions of the Paris Convention, is therefore the foundation for compulsory licensing provisions under the Act. 
The Controller also relied on section 83 of the Act to decipher the overriding legislative policy behind the provisions relating to compulsory licensing found in section 84. Section 83, in view of preventing abuse of patent rights, mandates restraint on gaining a monopoly by importation, since it can be an impediment to trade and international technology transfer. Applying this rationale in section 83, the Controller established that working in India, as mentioned in section 84(1)(c), essentially means manufacturing in India and not mere importation into India. Further, referring sections 84(6) and 90(2), which disallows a licensor from importing the patented invention but requires manufacturing the same within India in order to work the invention, he emphasized that the same logic must apply to a patentee as well. 
Considering that Bayer had manufacturing units in India for drugs, including cancer drugs, yet refrained from neither worked nor even intended to work the invention in India for 4 years following the patent grant, the Controller held that Bayer had failed to comply with section 84(1)(c).


In O'Connell v State of Western Australia [2012] WASCA 96 the WA Supreme Court has dismissed an appeal by Brendan Lee O'Connell against his conviction and three years sentence for offences contrary to Criminal Code 1913 (WA) ss 77 and 80B.

O'Connell had posted video of a confrontation with Stanley Keyser, president of the WA branch of Australasian Union of Jewish Union. He accused Keyser of being "a racist homicidal maniac" and commented "You are anti-goy ... it is in your religion and race". O'Connell also posted video of himself describing the confrontation with Keyser and making statements that most people would consider to be expressions of antisemitism, including "We've had enough of you and those bells toll for you. Your days are numbered". At one point he threatened to put Jews "in camps", characterising them as "vampires" and describing a Jewish day school as a place "where little judaicas learn how to be racist, homicidal maniacs". O'Connell indicated that it is "Time to get out there" and "Time to get angry".

The State decided, reasonably, that it was "time" to put a stop to such hate-speech.

In response to his statements O'Connell faced several charges under the WA Criminal Code, rather than under the Racial Discrimination Act 1975 (Cth) -
(1) ... conduct, otherwise than in private, that was likely to harass Stanley Elliot Keyser as a member of a racial group namely pursuing Keyser and making a series of statements to Keyser.

(2) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(3) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(4) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

(5) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.

6) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the intemet a series of statements concerning the Jewish people. 
7) ...with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.
O'Connell was self-represented in that trial. It featured his description of the court as a "kangaroo court" ("To emphasise the point, he sang the theme song to the well-known children's television program Skippy"), reference to the judge as "Captain Pugwash", telling the judge "Shut up, you old fool", asking the judge "Were you paid or do they have something on you?" and telling the judge "I wish to get your neck size so we can go straight to the gallows for treason".  Like some self-represented defendants noted elsewhere in this blog he appears to have contested the constitutionality of the WA statute and state court.

He was the first person to be convicted under ss 77 and 80B of the Code. (O'Connell received pro bono representation in his appeal.)

On appeal the Court found that O'Connell's expression has the potential to provoke violence and promote disharmony towards Jewish people and their property. The Court also found that while the sentence imposed was high, it was not unjust or unreasonable. The Court referred to the second reading speech regarding inclusion of ss 77 and 80B in the Code in 2004, noting that the then WA Premier stated -
Racial vilification is an insidious crime. It is a most serious offence that can and does cause great harm and damage - physical, psychological and emotional - to members of our diverse community and consequently, to our society as a whole. It is intended to incite, or has the effect of inciting, hatred and similar emotions by one group against another - usually the dominant against one or more minorities - and affects community relations generally. It causes or is intended to cause fear in those who are targets. ...
The desire to allow people the right to express themselves freely must be balanced with the recognition that racism can destroy people's sense of safety and wellbeing and their ability to participate in community life. This can marginalise them from the community, thereby damaging the quality of our democratic society and our ability to live together peacefully, respecting our differences. Every person has the right to a dignified and peaceful existence, free from racial vilification and harassment.

10 May 2012


Use by Australian law enforcement bodies of sniffer dogs at rave parties and other events remains controversial, with questions about privacy and about the accuracy of results.

The NSW Ombudsman for example in a 2006 report regarding the Review of the Police Powers (Drug Detection Dogs) Act 2001 criticised NSW Police use of dogs as inefficient, discriminatory and ineffective.
Our review found that despite the best efforts of police officers, the use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers. Overwhelmingly, the use of drug detection dogs has led to public searches of individuals in which no drugs were found, or to the detection of (mostly young) adults in possession of very small amounts of cannabis for personal use.These findings have led us to question whether the Drug Dogs Act will ever provide a fair, efficacious and cost effective tool to target drug supply. Given this, we have recommended that the starting point, when considering this report, is to review whether the Drug Dogs Act should be retained at all.
'How the War on Drugs Distorts Privacy Law' by Jane Bambauer in Stanford Law Review (2012) comments that -
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.[Bambauer notes that Justice Souter in dissent criticized his colleagues for building a dangerous myth of the infallible police dog.]

Curiously missing from any Supreme Court opinion is a reflection on how contraband-detecting dogs fundamentally change law enforcement. Police dogs are old technology, but their widespread use ushers in a new model of policing. Like pattern-based data mining, dog sniffs produce tradeoffs inherent in dragnet-style law enforcement. They redistribute the burden of unproductive searches from the few-but-stereotypically “suspicious” to the entire population.

This Essay presents new qualitative research based on the facts of Florida v. Jardines. The results suggest that Americans are more resistant to new police tools and new models of investigation when we are skeptical about the underlying substantive criminal laws. Intuitive reactions to the “war on drugs” put scholars and courts at risk of overlooking the value of new investigatory tools. Emerging technologies can simultaneously improve crime detection and reduce law enforcement discretion (and, hence, potential abuse). If used properly, these tools can lead to more equitable enforcement of criminal laws without significantly burdening privacy.

The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.


'Does Living by the Sword Mean Dying by the Sword?" by Charles Jalloh in 117(1) Penn State Law Review (2012) considers the right to self-representation in international criminal law and unsurprisingly concludes that self-represented litigants end badly.

Jalloh comments -
What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milošević have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milošević died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia.  
This article examines the right to self-representation in international criminal law. Using a comparative law methodology, it demonstrates how the interpretation of that right in international penal courts initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international criminal law, I argue that it is the type of right that is better in theory than in practice. Since no self-representing defendant in international criminal law has ever succeeded in securing an acquittal, by choosing to represent themselves, accused persons who lack the distance, ability and experience raising a reasonable doubt in a complex criminal trial help pave the way to their own convictions.
He concludes that -
The international criminal law has come quite a long way in the last few decades. In a recent open session at the ICTY on 4 July 2011, the Trial Chamber in the Karadzic case, within just an hour in court, denied a request to give the defendant more time to review the indictment and supporting evidence before entering a plea, denied a request by counsel to withdraw due to a lack of communication with the accused, denied a request by the defendant to delay the trial until his counsel of choice could be assigned, removed the defendant from court for disruptive behavior, and continued entering pleas for the defendant after he was removed.All this occurred without the court-appointed duty counsel, filling in until permanent defense counsel could be assigned, raising a single word of either protest or caution regarding the court’s actions.
This is a remarkable transformation from the decisions discussed in this chapter granting extensive delays to ensure that all of the defendant’s rights were respected. The Šešelj court, for example, allowed the defendant to direct their rulings regarding the assignment of counsel rather than attempting to continue the trial without him being present. The approach in that case is reflective of a common recent trend in decisions issued at international tribunals. Since the heavily criticized handling of the Milošević trial, international courts have steadily become stricter in dealing with attempts by defendants to upset the continuity of the trial. 
Earlier in the days of the international tribunals, fairness trumped expediency in nearly every decision the court issued. With trials at the ICTY and ICTR wrapping up, however, courts have learned how to deal with frivolous attempts by the accused to cause delays while at the same time acknowledging and permitting legitimate exercise of their statutory rights.A much higher importance is now being placed on finishing the mission of the tribunals and completing the administration of justice for the crimes committed almost two decades ago.
There is more to the paradigm shift than simply wanting to complete the proceedings. After Milošević embarrassed the tribunal with his antics, and his death which meant that no formal judgment could be pronounced on his guilt or innocence, there was a definite backlash against the freedom he was granted by the ICTY. The results of this backlash may be reflected in the provisions in the statute of the STL, which allows for the trial of accused in absentia. These types of changes perhaps reflect lessons learned from learning by doing and the belief that stricter controls may be necessary during court proceedings as more and more international criminal trials are held. At the same time, the said changes also raise new concerns about the need to maintain the integrity and fairness of trials for those accused of serious international crimes. The more stringent controls, and especially the in absentia provisions of the STL Statute, are indicative of a steady rise of civil law principles within international law. This gravitational pull is perhaps also reflective of global changes in common and civil law systems. There has been scholarly documentation of the steady convergence of the two types of systems recently. Many of the distinguishing features of each particular system have been slowly adopted by countries of the opposing system as a set of agreed upon best practices has emerged. These developments may lead one to believe that systems of criminal justice at both the national and international level are finally “getting it right,” but there is still much to learn, and future international tribunals would do well not to forget about upholding the interests of justice in each decision.
One important element that has yet to be incorporated into international justice is the principles from alternative legal systems. Both the civil and common law traditions have a largely “western” background that excludes traditional African, Chinese, Indian, Islamic, and many other legal traditions and beliefs. How the major criminal justice belief systems can better adapt to situations where non-western notions of justice predominate is a question yet to be resolved. This question, like all those facing ad hoc criminal tribunals now and yet to exist requires a careful balancing of rights and interests.
If nothing else, this discussion of how courts handle the role of counsel should have illuminated how many different perspectives each decision at the international court can be seen through. Courts have to consider the fundamental rights of the defendant guaranteed by the rules of the court, the interests of the victims looking for the court to quench their thirst for justice, the larger interests, including the finding of truth, fair and expeditious justice, as well as an evidence-based trial, and possibly, even contributions to national healing reconciliation. 
When considering what lessons the international courts should draw from common law systems, civil law systems, and their own unique experiences that aim to balance rights may well be the key. As the international criminal law continues its pursuit to “end impunity”, it is unlikely that any single provision, such as allowing trials in absentia, will determine the success or failure of the provision of international justice. Provided that international tribunals apply such provisions, keeping in mind the interests of justice and the balancing of rights required, international justice will likely come out farther ahead than behind.
As evidence of this truth, consider the cases discussed in this chapter. Despite alleged gaffes in judgment at the Milošević, Šešelj, and Barayagwiza trials, the ICTY and ICTR have been largely successful in fairly prosecuting those responsible for persons accused some of the most gruesome crimes in the world’s recent history, and the legitimacy of those convictions is not substantially contested. It is too soon to judge how history will ultimately measure the success of the ICTR, ICTY, SCSL and the STL. What is clear is that the international community has tasked these tribunals with an exceedingly difficult task, one that requires a careful balancing of rights that no amount of rulemaking or statutory provisions will easily solve.

06 May 2012

Genetic Discrimination

'GINA, Privacy, and Antisubordination' by Bradley Areheart in 46 Georgia Law Review (2012) 705-718 considers the US Genetic Information Nondiscrimination Act (GINA).

Arehart comments that -
This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed  is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees.
GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.
He goes on to argue that -
Disclosure of private information may be preferable to silent subordination. The best example of this is found in the ADA’s doctrine of reasonable accommodation. A disabled employee whose illness or condition is exacerbated by current working conditions has two choices: to stay quiet about her disability (and, thus, preserve privacy if her employer has no knowledge of the condition) or to voluntarily approach the employer, disclose the condition, and suggest a reasonable accommodation that would allow her to remain able to perform the essential functions of the job. In such a situation a tension exists between privacy and the need to ameliorate one’s subordinating situation. Yet, the ADA’s emphasis on reasonable accommodation implies that self- disclosure of one’s disability is worth the loss of privacy. There is no obvious reason why we ought to treat genetic information differently — even though the information pertains to a health condition that has not yet manifested itself. GINA, in this context, has both the potential to fight genetic discrimination and to prevent some disabilities. 
GINA should encourage the voluntary self-disclosure of genetic conditions under certain circumstances. As with the ADA, people should be able to choose to disclose their health-related (genetic) information — permitting an employer to consider that information — when it would benefit them. Requiring employers to consider voluntarily-disclosed genetic information in certain contexts would allow individuals to benefit from genetic testing and not fear discrimination. For example, providing the right to a genetic-based reasonable accommodation would encourage applicants and employees to undergo genetic testing and think carefully about what they can do to protect their future health— which may well include seeking a reasonable accommodation. 
Additionally, encouraging openness about genetic information may spur solidarity among those who are predisposed to dire physical conditions. This point ties into the earlier suggestion regarding genetic diversity initiatives. Keeping genetic information private could lead those who have certain “negative” genes to feel stigmatized and cause the public to underappreciate the commonality of having a predisposition to one or more debilitating conditions. Much like it is important for people to realize that disability exists on a continuum and that we will all be disabled if we live long enough, the public must understand that everyone has genes — some good and some bad — and society must insist on nondiscrimination for all. 
One might question whether GINA should facilitate disclosure of genetic information for antisubordination ends at a time when genetic discrimination is not yet common. This same question might be asked of the statute generally: Why provide protection from genetic discrimination before it is widespread? One answer is found in GINA’s legislative findings. Given this country’s history of eugenic-based immigration and sterilization laws in the 1920s and the influx of mandatory testing for sickle cell anemia in the 1970s—and given that knowledge of genetics is rapidly expanding—being preemptive instead of reactionary makes sense. 
A second answer is that laws have symbolic value, which transcends any immediate practical consequences. In particular, antidiscrimination laws have an expressive function, which has historically, and gradually, helped change private parties’ attitudes about particular identity traits. In the expressive context, GINA’s enactment signals both a particular valuation of genetic information as well as a general emphasis on protecting immutable traits as part of the antidiscrimination project. Accordingly, augmenting the statute to give greater protections — even at the expense of privacy — has both future instrumental value and current expressive value. If the political will exists to secure “negative” (or anticlassificationist) rights for genetic information, why not also now provide “positive” (or antisubordination-based) rights? 
One might also question whether permitting the use of genetic information for the specified purposes is too injurious to privacy. While this short Essay is only intended to be exploratory and cannot possibly weigh the competing normative considerations that inhere in privacy and antisubordination, it is worth noting that a handful of de jure exceptions already exist that allow an employer to legally discover genetic information, such as when a company includes genetic tests in a company-sponsored wellness program or genetically monitors the biological effects of toxic substances in the workplace. Such exceptions suggest that any genetic privacy secured through GINA was not intended to be absolute, but instead, balanced against other considerations. 
The most notable exception to GINA’s proscription of employer acquisition of genetic information, however, is a de facto one. Under the ADA, employers may lawfully require individuals to release all of their health records once a conditional offer of employment has been made. The purpose of this provision is to allow the employer to ensure the individual can perform the essential functions of the job with or without reasonable accommodation. If the records were to indicate that the individual is likely to be unable to perform the essential functions of the job, the offer could be withdrawn. Even if an employer were to request only nongenetic health information, it is commonplace for custodians to release all of an individual’s health records. Any injury to privacy furthered by this Essay’s recommendations would thus only be incremental. Moreover, the recommendations herein contemplate only voluntary disclosure. An employer could not compel the information that would, for example, constitute the basis for a reasonable accommodation.