01 September 2012

Remote Biometrics

'Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age' by Laura Donohue in Minnesota Law Review (2012) comments that -
 Federal interest in using facial recognition technology (FRT) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy. 
These technologies constitute what can be termed Remote Biometric Identification (RBI). That is, they give the government the ability to ascertain the identity (1) of multiple people, (2) at a distance, (3) in public space, (4) absent notice and consent, and (5) in a continuous and on-going manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (IBI) - i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual, (2) close-up, (3) in relation either to custodial detention or in the context of a specific physical area related to government activity, (4) in a manner often involving notice and often consent, and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI. 
In the absence of a statutory framework, we are driven to Constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for Congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies.

e-Dumpster Diving

'Against Employer Dumpster Diving for E-Mail' by Michael Green of Texas Wesleyan comments that 
Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations. 
As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the fa├žade of assuming employees have no expectation of privacy due to employer policies. 
Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.
Green concludes
... he current legal paradigm allows an employer to remove any expectation of privacy or create an assumption that employees have consented to any intrusion by an employer who has established a clear policy notifying the employee that the employer may review the information. Unfortunately, that paradigm does not support the realities of the increasingly digital workplace. Instead of getting bogged down by the stilted and unrealistic assumption that employees have no expectation of privacy even in an e-mail communication to their own attorneys, the analysis should focus on whether employers in a particular situation had a legitimate reason to access the e-mail information. Attorney-client ethics analysis can suggest a new paradigm where after the employer and its attorney recognize that an e-mail communication is intended as a private and confidential communication such as a communication to the employee’s attorney, the employer should not be able to use the communication unless a court determined the communication was not privileged and confidential. 
Most cases, from a constitutional analysis of the Fourth Amendment to an analysis of statutes and common law invasion of privacy torts, provide for an employer to access its own digital equipment without liability when acting reasonably. Accordingly, reasonable employer intrusions are always protected even if the circumstances suggest an employee clearly had a reasonable expectation of privacy in information stored on an employer’s electronic device. The law should not encourage an employer to dumpster dive for electronic communications obviously intended to be confidential and private communications under the guise of asserting that employee privacy rights have been subsumed by the mandates of employer policies. Given the realities of the digital workplace, expansion of ethics law to place obligations on employers and their attorneys to not consider these communications and return them immediately to employees absent a court finding to the contrary should also become the new paradigm. 
Using the development of attorney-client privilege analysis as a tool to address the growing merger of private and work-related communications on employer- provided devices supports the approach of assuming that employees still have reasonable expectations of privacy regarding information left on these devices. Applying this approach broadly will remove the current paradigm and the resulting sham being asserted that employees have actually consented when an employer imposes on an employee as a condition of employment the obligation to let an employer search digital devices and acknowledge the employer owns all information on that device. 
Instead, the analysis of privacy protections in the workplace should focus on the reasonable intent and expectations of the employee as occurs with attorney- client privilege analysis. This analysis assumes as a matter of law that employees would not leave private communications on their employer-provided electronic devices without having some expectation of privacy. Then the focus of the analysis would shift to whether the employer’s actions in accessing and reviewing private, non-work-related information left by an employee on an employer-provided device was reasonable and necessary under the circumstances. The assumption would be that such an intrusion would not be reasonable and an employer would not be encouraged to dumpster dive for confidential employee communications embedded on employer-provided devices just because they have employed a computer use policy which grants the employer the authority to do so. The expansive demands of technology innovations and the increasing expectation that an employee be available to communicate through these employer-provided devices as a job duty supports the general expectation that employees will also use those devices to make personal and private communications. 
Furthermore, incorporating attorney client privilege analysis only helps to support the expansive nature of employee communications made through these devices. Recent ABA ethics opinions represent a new privacy hurdle to be overcome. These opinions place more burdens on an employee’s attorney to protect against employer mining of the data while making it more advantageous for the employer and the employer’s counsel to dumpster dive for this data. As a result, states and their attorney ethics committees must adopt a new paradigm that recognizes an expectation of privacy and confidentiality in e-mails to attorneys even when found on or made with employer-provided devices. 
In concluding, it is helpful to return to the scenario discussed at the beginning of the Article where Bobbi has made e-mail communications to an attorney who represents her in an arbitration involving sexual harassment charges against her supervisor. In Holmes, the California appellate court suggested an employee’s e- mail communications to an attorney on the employer’s computer were analogous to an employee meeting with her attorney in one of the employer’s conference rooms.  That part of the Holmes analogy works well for Bobbi who is quite likely to use her employer’s conference room to meet with her attorney as she is still employed there and her attorney is representing her in an arbitration proceeding where her employer might even be providing for her attorney’s fees. 
Unlike the hyperbole used in applying the conference room analogy in Holmes, which suggested the employee had opened the door to the employer’s conference room and yelled out loud when communicating via e-mail on the employer’s computer, a more realistic application of the conference room analogy should be employed. When an employee must constantly be available to communicate via e-mail through employer-provided computers and other digital devices, as if at work, and an employee uses the employer’s conference room (analogous to the employer-provided digital device) for both work-related and private communications, the conference room could be viewed as having a glass window where the employer can certainly see into the conference room. In looking through that conference room window, the employer can clearly see that the employee is communicating with her attorney. Similarly, when you are analogizing the electronic device with the conference room, upon viewing titles and an overview of electronic file information, the employer can clearly see what information is not work-related and involves private, personal, and even attorney- client privileged communications. 
Also, if desired, the employer could attempt to listen to what the employee is communicating to her attorney inside the conference room whether it is yelled out or not. But when the employer sees through the window (the title of messages, who the messages are addressed to, an attorney is involved in the communication, or a privilege is identified) that the employee is meeting with her own attorney in that conference room, the employer will know that those communications are private, confidential and privileged. The law should not encourage the employer to spy or dumpster dive electronically to mine for e-mail information that the employer should not be able to use because it is clearly intended to be private and confidential. Further, the employer will know that although it might be able to stand near the door of the conference room and listen to those communications, the employer’s attorney has an ethical obligation to not listen to those communications when it knows they are privileged and protected. Bobbi is not opening the door to that conference room; nor is she yelling out loud. She is merely using the employer’s conference room to have her private communication with her attorney. The realities of the current digital workplace provide Bobbi with little opportunity to communicate with her lawyer or have any sufficient private communications off the employer’s premises, i.e., without using the employer-provided digital device. 
By applying the conference room analogy in this way, the analysis of Bobbi’s issue at the beginning of this Article will shift to a focus on whether it was reasonable for the employer to extract the communications to her attorney from the employer-provided laptop. The question of whether Bobbi had a reasonable expectation of privacy will not arise because that expectation is presumed within the analytical paradigm asserted in this Article. By accomplishing this shift in the analysis, the dispute will center on the realities of the digital workplace and not on an employer-induced removal of any expectation of privacy through an Internet communication or employer-provided device usage policy. 
Consequently, employers will be limited from insisting that employees use employer-provided devices to communicate at all times while also mandating successfully that none of the employees’ communications can be protected as private. Under this analysis, employers will no longer be encouraged to dumpster dive for confidential and private employee e-mail communications on an employer-provided device once a dispute arises. As soon as the employer can clearly see the communications were intended to be private and confidential such as e-mails to an attorney, and there is no reasonable justification to intrude upon the privacy of the employee or to assert the employee waived any privacy expectations, the employer must refrain from using an employee’s private e-mail communications.

30 August 2012

Civil Death

'The New Civil Death: Rethinking Punishment in the Era of Mass Conviction' by Gabriel Chin in 160 University of Pennsylvania Law Review (2012) 1789-1833 comments
Most people convicted of felonies are not sentenced to prison; a majority receive straight probation, or probation with a jail term. However, this hardly means that the conviction is inconsequential. Tens of thousands of federal, state, and local laws, regulations, and ordinances restrict the civil rights, employment, eligibility for public benefits, residence and other aspects of the status of convicted persons. 
Accordingly, for many, the most serious and long-lasting effects of conviction flow from the status of being convicted and the concomitant lifetime subjection to collateral consequences. However, courts generally treat collateral consequences as non-punitive civil regulations, and therefore not subject to constitutional limitations on criminal punishment. 
This treatment of collateral consequences is surprising. In cases like Weems v. United States and Trop v. Dulles, the Supreme Court understood systematic loss of status not only to be punishment, but to be cruel and unusual punishment. 
Further, collateral consequences have practically revived the traditional punishment of civil death. Civil death deprived offenders of civil rights, such as the right to sue, and other aspects of legal status. Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences. Instead of losing rights immediately, convicted people now hold their rights at sufferance, subject to limitation and restriction at the discretion of the government. 
The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment. In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades. The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.
Chin notes that
In Weems v. United States and Trop v. Dulles the Court found total destruction of a person’s legal status in society to be cruel and unusual punishment under the Eighth Amendment. 
Weems originated in the Philippines which was a U.S. territory at the time. The Court in Weems invalidated the cadena temporal, a punishment where, for a period of years, the person sentenced would be imprisoned and perform hard labor for the State. In addition to the hard labor, those sentenced to cadena temporal would thereafter suffer “accessory penalties,” namely, “civil interdiction,” “perpetual absolute disqualification,” and “subjection to surveillance during life.” The Court regarded these penalties, clearly recognizable as versions of modern collateral consequences, as harsh:
His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the “authority immediately in charge of his surveillance,” and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty.
The Court was also concerned about the portion of the sentence involving painful labor, and it is difficult to identify precisely what about the nature and degree of cadena temporal made it unconstitutional. Nevertheless, the “accessory penalties” were a basis, perhaps the most important basis, for the Court’s ruling. A half-century later in Trop v. Dulles, five Justices found another “accessory penalty”— expatriation or denationalization of a United States citizen — to be cruel and unusual because it destroyed legal personality. They ruled that Congress had no power to punish a U.S. citizen with denationalization for desertion in time of war. The citizen could be executed, they explained, but deprivation of citizenship was cruel and unusual. 
The plurality opinion suggested that denationalization is substantially similar to civil death. By imposing denationalization as punishment, they explained,
There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. ... In short, the expatriate has lost the right to have rights.
Uncertainty based on the possibility of future discrimination was the key feature making “[t]his punishment ... offensive to cardinal principles for which the Constitution stands.” Justice Brennan’s opinion, providing the necessary fifth vote, also found the uncertainty created by the status to be critical.


In Prendergast v Roberts [2012] QSC 144 the Queensland Supreme Court has awarded $50,000 damages in defamation over a building dispute.

Builder Trevor Prendergast sued Shane Roberts, who had entered into a building contract with Prendergast in late 2008 and early 2009 for construction of a workshop. The job was not finished in early 2009 when Prendergast gave Roberts the keys to the defendant for the place. The defendant moved his business there in February 2009. Later that month Roberts wrote a letter of complaint to the plaintiff about the building works (eg that the concrete was breaking inside and there were cracks in the workshop floor). In May 2009 the pair had an acrimonious meeting at the site, with both parties then engaging lawyers about the quality of the building works. In August 2009 the plaintiff gained an adjudication certificate on the works under the Building and Construction Industry Payments Act 2004 (Qld), followed by the defendant’s company initiating proceedings in December to stop the certificate being enforced and then suing Prendergast for damages in the Supreme Court.

Roberts meanwhile made several separate statements about the plaintiff to various people in the building industry in Queensland, which Prendergast considered were defamatory. Roberts denied making the statements. On to the Supreme Court for separate defamation action!

After a three day trial the jury found that the statements were made. It also found that the statements were defamatory, with Roberts having defamed the plaintiff by telling people that Prendergast was an incompetent builder, was a dishonest builder and had a reputation so bad that any person doing business with him was ruining their own reputation.

Roberts did not rely on a defence of truth or fair comment. The trial centred on the effect of the statements on the plaintiff’s reputation, with Roberts arguing that although Prendergast had been defamed, the effect was so trivial that damages should be only $50. That argument reflected evidence that the statements were not in writing and that the statements did not alter the positive view that the recipients of the statements had of Prendergast.

Prendergast gave evidence of depression and counselling. The Court referred to Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 in noting that "It is common ground that an award of general damages for defamation serves three purposes which overlap, being to compensate the plaintiff for the harm to his reputation, to compensate for the hurt and distress caused by the publication, and to vindicate his reputation".

The Court considered that there had been injury, with Mullins J commenting that
I have no hesitation in accepting that the defamatory statements were a significant cause of the emotional problems that resulted in the plaintiff obtaining medical assistance. This was supported by the evidence of Mrs Prendergast who observed the plaintiff at this time becoming increasingly uncommunicative and unsociable and increasing his frequency of drinking alcohol. The plaintiff’s distress on becoming aware of the defamatory statements was compounded by his concern for those whose work had depended on him, including Mr Simpson and Mr Shore. It was apparent from the plaintiff’s embarrassment whilst giving evidence and the emotion that was still evident that he has been hurt and distressed significantly by the making of the defamatory statements. 
It awarded $50,000 rather than $50 damages.

In the earlier McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 the same Court struck out convicted murderer Michael McGrane's claim of 7 April 2011 and amended statement of claim filed 9 December 2011 (with prisoner McGrane seeking $95 million damages), ordering that the plaintiff pay the broadcaster's costs. The Court referred to the comment by Martin J in McGrane v BTQ Channel 7 [2011] QSC 290 that
This is a ludicrous claim and one which merely highlights the grossly unsatisfactory nature of the claim itself. The claims for damages for loss of income and loss of a right to a fair trial are, in the circumstances of Mr McGrane serving a life sentence, nonsensical.
It went on to conclude that
The plaintiff appears not to have taken his Honour’s hint. The amount claimed now exceeds $95,000,000. The articulation of such a ridiculous claim bespeaks complete disconnection from reality. It would be an insult to our system of justice to permit such nonsensical claims to stand. ....
This plaintiff has had numerous opportunities to present an intelligible case. He has failed to do so. Indeed, his claim has gone from being ludicrous to ridiculous. 
In my opinion, the plaintiff has squandered his opportunities to present a proper, comprehensible claim. I see no reason why the defendant should be put to further cost or why the Court should be expected to devote further resources to this matter.

29 August 2012


Two copyright items in the Federal Court of Australia.

In Granger v Murdoch Books Pty Ltd [2012] FCA 909 the Court notes that
 The first applicant, Bill Granger, is a well-known Australian chef and restaurateur and the author of several cookbooks. Murdoch Books Pty Ltd is a company with whom the three applicants have publishing agreements. 
On 30 May 2012 the applicants filed proceedings in this Court against Murdoch Books alleging infringement of copyright, misleading or deceptive conduct and infringement of moral rights arising out of the publication by Murdoch Books of a number of cookbooks in hard copy and electronic form. They claimed damages and, with respect to the infringements of copyright, an account of profits. They also sought declaratory and injunctive relief, orders for the delivery up of all copies of the cookbooks in the company’s possession, custody or power and their destruction, certain public acknowledgments of its misleading conduct and a public apology.
After a preliminary skirmish about whether the proceedings should be referred to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW), which was ultimately not pursued, Murdoch Books filed a defence denying any wrongdoing. The defence was filed on 18 July 2012. Two days later Murdoch Books served a notice of offer to compromise under r 25.01 of the Federal Court Rules 2011 and on 6 August 2012, after an exchange of correspondence designed to clarify the meaning of its terms, the applicants accepted the offer by serving a notice of acceptance pursuant to r 25.08(3). The notice was accompanied by a letter addressed to the solicitors for Murdoch Books advising of the applicants’ intention to have the matter relisted so that appropriate declarations, injunctions and orders could be made by the Court to give effect to the offer of compromise. There then followed correspondence attaching draft orders. There was some disagreement about the terms of the draft orders. Most of the disagreement fell away. On 22 August 2012 I made a number of declarations and other orders by consent. There were minor disagreements about two matters upon which I ruled at the time. The remaining issue relates to one proposed order.
Katzmann J goes on to note the agreement between the parties that the respondent pay to the applicants
(a) a sum in relation to the exploitation by the respondent of the compilation cookbooks entitled ‘Best of Bill’ and ‘Bill Cooks for Kids’, both in paper and electronic form (together, the Compilation Cookbooks), which is to be paid to the applicants by 4 September 2012 and otherwise in accordance with the payment terms contained in clause 14(a) of the agreement between the first and second applicants and the respondent dated 14 December 2005, and calculated in the following manner:
i) 18.5% of all sums received by the respondent (excluding any GST) up to and including 3 September 2012 in relation to its exploitation of the Compilation Cookbooks in paper form; and 
ii) 25% of all sums received by the respondent (excluding any GST) up to and including 3 September 2012 in relation to its exploitation of the Compilation Cookbooks in electronic form; less the sum of $60,363.24 (which has already been paid to the Applicants by the Respondent); and 
(b) such further sums on an ongoing basis in relation to the exploitation by the Respondent of the Compilation Cookbooks, which sums are to be paid to the Applicants and otherwise in accordance with the payment terms contained in clause 14(a) of the agreement between the First and Second Applicants and the Respondent dated 14 December 2005, and calculated in the following manner:
i) 18.5% of all sums received by the Respondent (excluding any GST) on and from 4 September 2012 in relation to its exploitation of the Compilation Cookbooks in paper form; and 
ii) 25% of all sums received by the Respondent (excluding any GST) on and from 4 September 2012 in relation to its exploitation of the Compilation Cookbooks in electronic form.
In Insight SRC IP Holdings Pty Ltd v The Australian Council for Educational Research Limited [2012] FCA 779 Besanko J has awarded nominal damages of $10 and additional damages of $32,500 for copyright infringement. The Court notes that -
 This is a claim for damages for infringement of copyright by the applicants against the respondent under subs 115(2) of the Copyright Act 1968 (Cth). The applicants claim that the respondent infringed their copyright in a questionnaire known as the School Organisational Health Questionnaire (SOHQ). At the trial the applicants made an election for damages rather than an account of profits. The applicants also claim from the respondent additional damages under subs 115(4) of the Act. Finally, the applicants claim a declaration of ownership of the SOHQ and an injunction restraining various acts by the respondent. 
Insight SRC IP Holdings Pty Ltd is the first applicant and it is said by the applicants to be the owner of the copyright in the SOHQ. The company was incorporated on 30 April 2009, and Dr Peter Michael Hart is the director and major shareholder of the company. Dr Hart holds his shareholding through Hart Cultural Lodges Pty Ltd. Hart Cultural Lodges was incorporated on 22 May 2006 and is the trustee of Dr Hart’s family trust. That family trust is called the Hartski Holdings Trust. One of the witnesses at the trial was Dr Peter Cotton and he owns 4 of the 80 shares in Insight SRC IP Holdings. In evidence he said that he owned four units in the Insight SRC IP Holdings Unit Trust. 
Insight SRC Pty Ltd is the second applicant and it is said by the applicants to be the exclusive licensee of the copyright in the SOHQ. The exclusive licensee has the same rights of action as the owner of copyright as if the licence had been an assignment (paragraph 119(a) of the Act). Insight SRC was incorporated on 6 November 1997 as Social Research Consultants Pty Ltd and, on 3 April 2000, changed its name to Insight SRC Pty Ltd. The director and major shareholder – either directly or with associated entities – is Dr Hart. Dr Cotton owns the 12 A class shares in the company and 5 of the 100 ordinary shares. 
The respondent is the Australian Council for Education Research Limited (ACER). It is a not-for-profit company. 
When the applicants commenced their proceeding they also made a claim against Independent Schools Victoria Inc (ISV), which, on their case, also infringed the copyright in the SOHQ. They settled their claim against ISV on 4 August 2011. Nevertheless, because of the way in which the applicants formulated their claim for damages against ACER, ISV featured prominently in the evidence. The terms of settlement between the applicants and ISV were put in evidence. For reasons I will give, the applicants are not entitled to an award of general damages against ACER. Therefore, the amount ISV agreed to pay the applicants under the terms of settlement with them is not relevant to the relief I will grant to the applicants. In any event, the amount ISV agreed to pay the applicants suggests to me that it agreed to pay the applicants an amount for their costs. 
The SOHQ is a questionnaire which consists of 57 questions arranged under 12 headings or, as they were referred to in the evidence, modules. Other words used in the evidence or documents for questions were items or measures. The applicants’ case is that the SOHQ was part of an article entitled “Development of the School Organisational Health Questionnaire: A measure for assessing morale and school organisational climate” which was published in the British Journal of Educational Psychology (2000), 70:211-228. Three studies were said to have been carried out for the purpose of developing the questionnaire. The applicants accept that these studies were carried out between 1990 and 1992 while Dr Hart was employed by the Ministry of Education in Victoria. 
Between early 2006 and October 2009, ACER reproduced the SOHQ as part of a project with ISV called the Building Educational Effectiveness project or, as it was referred to in the evidence, the BEE project. Not all of the questions in the SOHQ were reproduced and provided to ISV; only 25 questions and 5 modules were reproduced. Nevertheless, it is not suggested by ACER that that did not amount to infringement of the copyright in the SOHQ.

Sport and copyright

The cogent 'This Sporting Life: Copyright Law and Consumer Rights' by Matthew Rimmer comments that
Sport occupies an anomalous position under Australian copyright law. A footballer like Gary Ablett Junior is not an author under copyright law. A sporting spectacle like the AFL Grand Final or the State of Origin is not a dramatic work. Sporting events are protected somewhat peripherally as television broadcasts under Australian copyright law. Nonetheless, sports organizations have engaged in special pleading in respect of intellectual property law. This has been particularly evident in the litigation between Optus, the National Rugby League, and the Australian Football League.
He notes that -
It would appear that, in the case of sporting television broadcasts, the Gillard Government is willing to wind back such copyright exceptions. Such a decision reflects the close relationship that exists between the Gillard Government and the elite sporting codes. Sadly, the over-protection of sporting organisations under Australian copyright law may well have inadvertent impacts upon consumers, cloud computing, and technology developers. Unfortunately, the interests of consumers have been forgotten in this corporatist clash over copyright law. 
It is striking Australian consumers do not enjoy the same freedoms and liberties as their counterparts in the United States and Singapore. A number of cloud computing companies – including Beem and MyTVR - have closed down their operations because of concerns about the precedent of the Full Court of the Federal Court of Australia.  Technology developers – with products and services related to time-shifting, space-shifting, and place- shifting – will be anxious about liability for authorizing copyright infringement in Australia.

Inherent Jurisdiction

In Re H, AE [2012] SASC 146 the Supreme Court of South Australia has released its reasons for granting a woman an order authorising the removal of tissue and sperm from her husband who was killed in a motor vehicle accident in March 2011.

Gray J  held that it was in the Court's inherent jurisdiction to make an order permitting the woman to remove and use any viable sperm from her husband.

Gray J states that
This is an application for an order to remove and preserve spermatozoa from the body of the applicant’s deceased husband. On 21 March 2011, I heard the urgent ex parte oral application. On that occasion, I granted the application and made orders in the following terms: 
− that the Court is prepared to make orders sought by the applicant pursuant to the Court’s inherent jurisdiction; 
− that spermatozoa be removed from the late H, AE deceased; 
− that the process be undertaken at the Forensic Science Centre, Adelaide or such other place as the Coroner directs; 
− that an appropriately qualified medical practitioner perform the procedure; 
− that any spermatozoa or tissue removed from the deceased be stored at an appropriate locator at the direction of the Coroner; 
− that any spermatozoa or tissue removed not be used for any purpose at all without an order of this Court; − that the Coroner take steps to appropriately store any removed spermatozoa or tissue. 
My reasons for making these orders follow. 
Important issues arise for consideration regarding the jurisdiction of this Court. Applications like this, and applications as to the use to be made of the spermatozoa removed from a deceased or nearly deceased person’s body, are charged with ethical, legal and other issues, and have been the subject of substantial commentary. This would appear to be the first application of its kind in this State. However courts across Australia have been called on to consider similar issues to those the subject of these reasons, with differing results.
In discussing inherent jurisdiction Gray J comments that -
The Supreme Courts of several of the Australian States have addressed the jurisdiction of the Court seeking access by a widow to the body of a deceased person in order to obtain a semen sample so that an attempt could be made to conceive a child. In the majority of cases orders have been made.
In MAW v Western Sydney Area Health Service, O’Keefe J of the New South Wales Supreme Court considered the inherent jurisdiction of the Court, and in particular the parens patriae jurisdiction:
... Subject to the Commonwealth Constitution, the Supreme Court is a court of unlimited jurisdiction and as such has an inherent jurisdiction which is sufficiently wide to meet the requirements of the administration of justice. Such a jurisdiction includes a parens patriae jurisdiction: Secretary Department of Health and Community Services v B (Marion's case) [1992] HCA 15; (1992) 175 CLR 218; see also Halsbury’s Laws of England, 4th ed, par 901.
... The parens patriae jurisdiction of the Court is essentially protective in nature (Marion’s case (at 280)) and although broad, is to be exercised cautiously: J v C [1969] UKHL 4; [1970] AC 668 at 695; Marion’s case (at 280). Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising its parens patriae jurisdiction the paramount consideration is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others: Re Eve (1987) 31 DLR (4th) 1 at 34. Furthermore, it has limits. O’Keefe J concluded that the parens patriae jurisdiction did not extend to the Court giving a consent to the surgical procedure proposed in the summons:
For the foregoing reasons I am of the opinion that within its limits as presently defined the parens patriae jurisdiction of the Court does not extend to authorising a non-therapeutic surgical procedure of the kind contemplated by the present application. It is not a procedure that is necessary to preserve the life of the patient. It is not a procedure which will safeguard, secure or promote, or prevent the deterioration in, the physical or mental health of the patient. It is not a procedure which will promote the well-being of the patient. In these circumstances it could only be authorised by the Court under its parens patriae jurisdiction if yet another special category or case is recognised in respect of the surgical procedure in question in the present case. 
In Queensland, two members of the Supreme Court have declined to make orders on the basis of a want of jurisdiction. In Re Gray, Chesterman J refused Mrs Gray’s application to access the body of her deceased husband in order to obtain a semen sample so that she could attempt to conceive a child. Much like the application before me, the application before Chesterman J sought only the removal and storage of the semen, with any order as to its use to be the subject of further application. The application was made in circumstances attended with some urgency. 
Mrs Gray’s husband died in his sleep. This was a sudden occurrence. The couple had one child and intended to have another in the near future. The deceased died intestate and his wife, it was considered, would almost certainly be entitled to a grant of administration over his estate. The deceased’s father gave his consent by affidavit for the removal of the testicular sample for the purposes of freezing and subsequent insemination. The deceased had given his consent for the removal of organs – recorded on his drivers licence. The Court was informed that the deceased and Mrs Gray had never discussed the possibility of her conceiving by semen taken after death. 
Mrs Gray contended that the Court had the power to make the order either pursuant to section 8 of the Supreme Court Act 1991 (Qld), or the inherent jurisdiction of the Court – specifically of the type described as the parens patriae jurisdiction. On the first of these submissions, his Honour concluded:
The applicant submitted that the court had power to make the order by reason of s 8 of the Supreme Court Act 1991 (Qld) and/or its inherent jurisdiction of the type described as parens patriae. Section 8 provides that the court has all jurisdiction that is necessary for the administration of justice in Queensland and, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise. I apprehend that the section does not confer power on the judges of the court to do whatever accords with their own, perhaps idiosyncratic, views of justice. The jurisdiction is to afford justice to litigants according to law, that is, established legal principle. The difficulty in the present case is identifying any principle which would justify making the order. The application is itself an implicit acceptance that neither the widow nor next of kin has a right to interfere with the body. Nothing I have found suggests that the court can create or regulate such a power. 
His Honour further considered that the parens patriae jurisdiction did not remedy the deficiency and determined that it was impossible to invoke the parens patriae jurisdiction of the Court “in the case of a body from which life has departed”.
Drawing on settled authority, his Honour considered that there was no right to interfere with the body:
It appears that the underlying principles of law are that those entitled to possession of a body have no right other than the mere right of possession for the purpose of ensuring prompt and decent disposal. The prohibition on interfering with a body sanctioned by the possibility of criminal prosecution indicates that to remove part of the body for whatever reason or motive is unlawful. ...
Chesterman J concluded that a deceased’s personal representative, or where there is none, the parents or spouse, has “a right to possession of the body only for the purposes of ensuring prompt and decent disposal”.
His Honour considered that a corollary of this is to be found in the duty not to interfere with or violate the body. Ultimately, Chesterman J considered that the Court did not have any power to make the orders sought but that if it did “the power should not be exercised in the manner sought by [Mrs Gray]”.
Accordingly, Chesterman J refused the application. Some three years later in the Supreme Court of Queensland, in the case of Baker v State of Queensland, Muir J adopted a similar approach to that of Chesterman J. In In the Matter of Denman,Atkinson J in the Supreme Court of Queensland considered an application for removal of spermatozoa of the applicant’s deceased husband. Atkinson J set out the authorities which had both granted and refused such an application, but noted that there was “no authority binding on [her] requiring [her] to accede to or refuse the application.” 
Her Honour observed that the question to be considered was similar to that to be decided on an interlocutory injunction: is there a serious question to be tried and, if so, what does the balance of convenience require should be done? Her Honour approached it on that basis. 
Atkinson J concluded that, there being no express statutory prohibition on the granting of the application, there was a serious question to be tried as to whether or not spermatozoa can or should be removed from a deceased person and used for the purpose of posthumous reproduction. Referring to the Queensland decisions of Gray and Baker v State of Queensland, her Honour observed:
Both of the judges who decided the cases I have referred to in Queensland referred to what they regarded as strong public policy arguments against such a course. Those arguments are valid, but there are also valid public policy arguments in the other direction.
It is certainly the case that any child born, if that were to happen as a result of successful posthumous reproduction, would be born without a father, but children have been born without fathers for a very long time. After impregnation, a father may leave the mother permanently or he may die before the birth of the child. If the father dies before the birth of the child, that child has no father when it is born and yet, from the reading I have been able to do before hearing this case, there does not appear to be any research which suggests that the outcomes for such a child are any worse.
No doubt it is preferable for a child to have not one but two parents, both of whom fulfil their parental responsibilities, but many children do not have that, and there are many children who do extremely well in one parent families. It cannot be thought that because the child will only have one living parent that will necessarily not be in its best interests, particularly when the alternative is for the child not to exist at all. 
There is room for much debate as to the public policy issues involved in such a case and it may be that the law needs to develop to keep up with scientific advances and the opportunities that those scientific advances have given for children who might not otherwise have been able to be conceived to be born.
Atkinson J concluded that the Court has the inherent jurisdiction to allow behaviour which is not unlawful. Her Honour considered that where there is no express statutory prohibition, the harvesting of the deceased’s spermatozoa ought to be permitted in the absence of any suggestion of harm to others. Atkinson J made the following observations about the jurisdiction of the Supreme Court:
The Supreme Court, as McPherson J observed in Boyd v. Halstead, ex parte Halstead [1985] 2 QdR 249 at.255, is the “heir to the jurisdiction of the common law courts at Westminster” and “has in its favour the presumption that nothing is outside its jurisdiction unless expressed to be so intended”.
As to the balance of convenience, Atkinson J concluded that that balance clearly required that the spermatozoa be harvested so that its use could be determined. If it was not harvested then there was no relief that could be sought by the applicant. Atkinson J in Re Floyd adopted the same approach. 
In S v Minister for Health (WA), Simmonds J made an order on the ex parte application of a widow for removal and storage of spermatozoa from the body of a man who had recently died. His Honour followed an earlier Western Australian decision of Sanderson M who had made an order in similar circumstances. Sanderson M had founded his jurisdiction on a rule of court which authorised the taking of samples of property. The tissue was considered to be within the definition of property. Simmonds J took a similar approach to jurisdiction. 
In Fields v Attorney-General of Victoria, an application was brought in the Victorian Supreme Court by the parents of the deceased for an order from the Court for the removal of spermatozoa and associated tissue from their son who died as a result of a car accident. The deceased was aged 23 years. The deceased’s wife was also involved in the accident and, at the time of the application, was in intensive care and was not in a position to make the application herself. Prior to the accident the couple had been attending a fertility treatment program. Again, the matter was urgent. Coldrey J referred to an order that he had made in a previous case and to the order made by Gillard J in AB v Attorney-General of Victoria and said that he therefore assumed “that there is an inherent power for the making of such an order, although no precise legislative warrant can necessarily be pointed out”. Coldrey J ordered that the spermatozoa be removed and stored. Although his Honour alluded to possible legal impediments to the ultimate fertilisation of the deceased’s wife with any spermatozoa or tissue removed, he described that as “an issue for another day”. 
In Y v Austin Health, the plaintiff, Ms Y, brought an application seeking, in part, an order that permission be given to a legally qualified medical practitioner to remove spermatozoa and associated tissue from the body of her husband and that such spermatozoa and tissue be stored in accordance with the Infertility Treatment Act 1995 (Vic). Further, Ms Y sought an order that the spermatozoa and associated issue so removed and stored not be used for any purpose without an order of that Court. 
Ms Y’s husband had collapsed unexpectedly and his consciousness became impaired, him being only intermittently aware and interactive. There was real doubt about his competency. He was not aware of the application and had not consented to any of the orders sought. He was registered as an organ donor. The couple had always intended to have children and at the time that the applicant’s husband collapsed, they had been attempting to achieve pregnancy for about 18 months.  
Habersberger J considered in some detail the relevant Victorian legislation, however he observed that he was satisfied that the Court had the inherent jurisdiction to make the orders sought, at least on the basis of treating the application as akin to an interlocutory injunction and considering whether it raised a serious question to be tried.


'Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family' by Matthew O'Brien of Villanova University in 1(2) The British Journal of American Legal Studies (2012) argues - in my view unpersuasively - that Rawls would oppose same-sex marriage. It's an example - along with John Tomasi's Free Market Fairness (Princeton University Press, 2012) of the appropriation or misreading of Rawls by the US Right.

O'Brien comments that -
John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same-sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s ideal of “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown). But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law. ... 
Liberals cannot reasonably expect everyone to endorse their personal views about sexual morality and the value of some intimate relationships, even when those views are accompanied by intense feelings of moral certainty. Therefore, liberals must limit their arguments for statutory and constitutional legislation about these matters by the specifically political values that “belong to the most reasonable understanding of the public political conception and its political values of justice and public reason.” The reasonable understanding of marriage by this standard is the understanding that happens to be the traditional one: between a man and a woman.


The Australian Institute of Criminology has released a Tipsheet on assault statistics.

Tipsheet No. 29 - Male and female assault offending in Australia - comments -
Assault is by far the most common type of violent crime in Australia. In 2010, there were 171,083 assaults compared with 17,757 sexual assaults, 14,582 robberies and 260 homicides (AIC 2011). [C]ompared with the rate of offending recorded in 1996–97, assault offending has increased substantially. 
Media commentary has recently focused on the increasing rate of female offending. [B]oth male and female assault offending increased between 1996–97 and 2009–10; the rate of female assault increased by 49 percent from 125 to 186 per 100,000 over this period. Despite male assault offending only increasing by 18 percent, it is important to note that males are still committing the majority of assaults and at more than four times the rate of females. 
In 2009–10, males also experienced a higher rate of assault victimisation compared with females. Males were victimised at a rate of 837 per 100,000 compared with 675 per 100,000 for females (AIC 2011). Regardless, assault victimisation was highest for both genders in the 15 to 24 year age group (1,760 per 100,000 for males and 1,559 per 100,000 for females; AIC 2011). However, the statistics indicate some differences in the profiles of male and female victims of assault. For example, males are more likely to be assaulted by a peer or a stranger, while women are more likely to be victimised by a family member in a domestic violence situation (AIC 2011).

28 August 2012


Transhumanists - especially transhumanist academics - say the strangest things.

'Transcendent Engineering' by Giulio Prisco in 6(2) Journal of Personal Cyberconsciousness (2011) is promoted thus -
 Giulio applies his insightful transhumanist and engineering vision to the crossroad of science and religion in that future technologies may create a pathway to resurrecting the dead. 
 Resurrecting the dead? At least that's an advance on the Ervin Laszlo claim that the dead aren't really dead - they're just not "in a familiar form".

Prisco's article begins -
 In “Engineering Transcendence” I argued that science may someday develop the capability to resurrect the dead and build (and/or become) God(s), and proposed to base a “transhumanist religion” on this idea. 
I also argued that the ultra-rationalist, aseptic engineering language dear to most transhumanists does not seem able to have an emotional impact on the majority of other people. This means that “traditional” transhumanist ideas will remain confined to a very small minority of technically oriented nerds, and never make a difference to the rest of humanity. 
This is a pity as I think our ideas are beautiful and could give happiness, hope, a sense of wonder, purpose and peace of mind to a multitude of seekers. To do this, we must develop formulations and interpretations of transhumanism more emotionally appealing to persons with artistic and spiritual inclinations. 
The “transhumanist religion” is addressed to persons with spiritual sensibilities and needs. It is designed to appeal to their sensibilities, and fulfill their needs, while at the same time remaining firmly grounded in the scientific worldview. Instead of “their”, I should of course say “our”: I am a person with spiritual sensibilities and needs. At the same time I am a physicist and an engineer by training and by inclination (and my worldview is strictly materialist), with no room for the supernatural. 
I have been a member of the Extropy mailing list since the late 90s. Ever since, the Extropy list has been one of my main sources of intellectual stimulation and enjoyment. I was also interpreting transhumanism in a spiritual sense at that time, and remember thinking of Extropy as a beautiful and powerful new religion for the new millennium. I also remember my very first post to the Extropy list, it was about the possibility of a technological resurrection of the dead; it received some encouraging replies. 
He goes on to indicate the "cornerstones of the transcendent engineering 'religion'" -
  • Mind uploading --- someday it will be possible to transfer entire personalities from their original biological brain to more durable and powerful engineered substrates.   
  • Time-scanning --- someday it will be possible to acquire very detailed information from the past. Once time-scanning is available, we will be able to resurrect people from the past by “copying them to the future” via mind uploading. Note: time-scanning is not time travel, and it is free from the “paradoxes” of time travel. Time-scanning is just a form of archaeology --- uncovering the past by means of available evidence and records. Of course the very high definition form of time-scanning proposed here is orders of magnitude more powerful and sophisticated than archeology as we know it, but the concept is the same.  
  • Synthetic realities --- someday it will be possible to build artificial realities inhabited by sentient life. Perhaps future humans will live in synthetic realities. Perhaps we will wake up in a synthetic reality after having been copied to the future. Or … perhaps we are already there. 
  • Transcendent engineering offers not one, but two possibilities of resurrection: We may be copied to the future by our descendants by using time-scanning and mind uploading; or, we may already be living in a synthetic reality and the system admins may make a backup copy of interesting patterns every now and then. Hope in resurrection is, I believe, a necessary component of any effective alternative to traditional religions. 
  • If we live in a synthetic reality, then in a certain sense, we cannot even rule out the supernatural, or miracles. The simulators, the system admins, cannot violate their laws of physics, but they can violate our laws of physics if they want. It seems that the supernatural, which we have kicked out of the back door of superstition, may come back through the main door of science. 

Alphabet Soup

'The Alphabet Soup of Transborder Intellectual Property Enforcement' by Peter Yu in Drake Law Review Discourse (2012) 16-33 comments that
 In the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the "alphabet soup" of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN. 
Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and mid-sized firms. It then explores the ongoing negotiation of the Trans-Pacific Partnership Agreement (TPP) and explains why TPP is likely to be more dangerous than ACTA from a public interest standpoint. The essay concludes by highlighting the challenges recently raised by two new pieces of legislation, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).
Yu argues that -
In its current form, SOPA has at least five shortcomings. First, some of the proposed correction measures are highly disproportional to the wrong. As noted constitutional law scholar Laurence Tribe observes:
[Under SOPA, c]onceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials. 
Indeed, it is hard to explain why legitimate industries and Internet users should pay the price—economically or technologically—when the online community has some inevitable bad apples. 
Second, U.S. Customs has already actively seized piratical and counterfeiting websites, including those providing live streams of sporting events. The U.S. government has also initiated extradition proceedings against massive infringers from abroad, including most recently Kim Dotcom, the owner of Megaupload. Successful, past extradition efforts have even sent the Australian leader of the warez group DrinkOrDie, Hew Raymond Griffiths, to jail in Virginia for fifteen months. 
Third, SOPA fails to take into consideration the many new technological and business models that have become popular among Internet users. Consider YouTube, for example. Displaying billions of videos a day in more than fifty languages, his service is exciting not because it facilitates copyright infringement, but because it provides an attractive platform for Internet users to locate legitimate content unavailable on the market. 
Unfortunately, SOPA does not appreciate the social benefits brought about by these new websites and services. As the Center for Democracy and Technology acknowledges, “The new de facto duty to track and control user behavior [as required by the proposed legislation] would significantly chill innovation in social media and undermine social websites’ central role in fostering free expression.” 
Fourth, while SOPA would not “break the Internet” — as some have claimed in exaggeration — it does inflict some serious collateral damage. From erosion of free speech91 to creation of cybersecurity concerns, the statute’s benefits do not always compensate for its unintended harms. As the U.S. Public Policy Council of the Association for Computing Machinery points out in its analysis of SOPA:
[W]e do not believe that attempts to block or alter DNS [domain name system] or DNSSEC [DNS Security Extensions] look-ups will be particularly effective in stopping individuals who wish to connect to criminal sites outside the U.S., and will be less effective over time for all users. However, the costs and overhead associated with maintaining blocks and responding to orders will remain. 
Finally, like ACTA, SOPA could provide repressive governments with an internationally acceptable blueprint for developing Internet censorship regulations. The legislation “would... set the dangerous international precedent that governments seeking to block online content that violates domestic law should look to online communications platforms as points of control.” Should SOPA be adopted, it would indeed be hypocritical for the U.S. government to complain about similar laws enacted abroad. 
Given the bill’s many shortcomings, and the political complications massive Internet protests will create in an election year, it is no surprise that the Obama Administration was willing to distance itself from the controversial legislation. The weekend before the massive Internet service blackout in January 2012, the Administration released a carefully drafted statement declaring that “it will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” 
Immediately following the blackout, several congressional members also quickly withdrew their support for SOPA and PIPA. More importantly, Representative Lamar Smith and Senator Harry Reid announced the postponement of consideration of these bills, bowing to pressure from Internet companies and the user community. In retrospect, the developments concerning SOPA and PIPA may have shown us how to mobilize individuals and communities to protest against international agreements such as ACTA and TPP.
Yu concludes that -
For the past few years, policymakers, with strong support from the entertainment and pharmaceutical lobbies, have been cooking alphabet soup in the legislative cauldron. Large and small, homemade or otherwise, time-tested or experimental, a wide variety of alphabet pasta has been added to this soup. While the pasta may look fun and attractive, and it could even fill up one’s stomach, strong evidence suggests that the fully cooked soup will unlikely nourish society. 
Although it is undeniably important to address intellectual property piracy and counterfeiting, most of the proposed initiatives are badly designed. The development of ACTA, TPP, SOPA, and PIPA is unlikely to provide private rights holders with much-needed protection. Even worse, such development may harm the public interest by violating due process while at the same time stifling free speech, free press, and other civil liberties. 
It is high time policymakers start inquiring about what they are really cooking in that legislative cauldron. It is also important that they explore whether alternative ingredients can be used to prepare better enforcement soup. After all, legislators have made election promises to carefully deliberate over what gets served at our table. It is only fair that we hold them accountable for what they cook