Supreme Court Docket: Surveillance, Profanity and Thought Patents

The Supreme Court’s 2011-2012 term begins Oct. 3 with arguments on the docket concerning everything from television profanity to warrantless GPS surveillance.

Cases we are tracking also surround whether Congress may place public-domain works into copyright and whether “thought” can be patented.

The justices hear about six dozen cases annually, and four dozen have been chosen so far. A number of crucial cases from the appellate courts are vying to be added.

The Justice Department, for instance, is asking the nine justices to review the constitutionality of a law making it a crime to lie about being a decorated military veteran. And artists want the high court to decide whether they should get “performance” royalties when a consumer purchases a digital download from iTunes. Those two petitions are pending.

Here is a summary of important cases that have been granted a hearing by the Supreme Court:

United States v. Jones
Oral Argument Nov. 8

At the Obama administration’s urging, the Supreme Court will decide whether the government, without a court warrant, may affix GPS devices on suspects’ vehicles to track their every move. The Justice Department told the court that “a person has no reasonable expectation of privacy in his movements from one place to another.” The administration is demanding that the justices undo a lower court decision that reversed the conviction and life sentence of a cocaine dealer whose vehicle was tracked via GPS for a month without a court warrant.

The issue is arguably one of the biggest Fourth Amendment cases in a decade — one weighing the collision of privacy, technology and the Constitution.

In 2001, the justices said thermal-imaging devices used to detect marijuana-growing operations inside a house amounted to a search requiring a court warrant.

The justices accepted the government’s petition to clear conflicting lower-court rulings on when warrants are required for GPS tracking. The administration, in its petition to the justices, said the U.S. Court of Appeals for the District of Columbia Circuit was “wrong” in August when it reversed the drug dealer’s conviction, which was based on warrants to search and find drugs in the locations where defendant Antoine Jones had traveled.

The government told the justices that GPS devices have become a common tool in crime fighting. An officer shooting a dart can affix them to moving vehicles, and recently, a student in California found a tracking device attached to the underside of his car, which the FBI later demanded back.

Three other circuit courts of appeal have already said the authorities do not need a warrant for GPS vehicle tracking.

Golan v. Holder
Oral Argument Oct. 5

The top court has agreed to rule on a petition by a group of orchestra conductors, educators, performers, publishers and film archivists about whether Congress may take works out of the public domain and grant them copyright status. A federal appeals panel, reversing a lower court, ruled against the group, which has relied on artistic works in the public domain for their livelihoods. The 10th U.S. Circuit Court of Appeals set aside arguments that their First Amendment rights were breached because they could no longer exploit those works without paying royalties.

For a variety of reasons, the works at issue, which are foreign and were produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.

Some of the works at issue include:
*H.G. Wells’ Things to Come
*Fritz Lang’s Metropolis
*The musical compositions of Igor Fydorovich Stravinsky

The government argued in the long-running case that Congress adopted what was known as “Section 514″ for its “indisputable compliance” with the convention and to remedy “historic inequities of foreign authors who lost or never obtained copyrights in the United States.”

“In other words, the United States needed to impose the same burden on American reliance parties that it sought to impose on foreign reliance parties. Thus, the benefit that the government sought to provide to American authors is congruent with the burden that Section 514 imposes on reliance parties. The burdens on speech are therefore directly focused to the harms that the government sought to alleviate,” the appeals court wrote.

Eric Schwartz, an intellectual property attorney with Mitchell Silberberg & Knupp in Washington, D.C., said the case boils down to whether Congress has the power under the Copyright Act to do what it did, and whether it was consistent with the First Amendment rights of the plaintiffs.

“I think the answer is ‘yes’ to both questions,” said Schwartz, former acting general counsel for the U.S. Copyright Office, who helped draft the congressional legislation.

Anthony Falzone, executive director of the Fair Use Project at Stanford University and a plaintiff’s lawyer in the case, urged the justices to take the case.

“The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the public domain, it belongs to the public, and remains the property of the public — free for anyone to use for any purpose,” he wrote.

Federal Communications Commission v. Fox Television Stations
Oral argument not scheduled

The justices have agreed to hear the government’s appeal of a lower court ruling invalidating the Federal Communication Commission’s broadcast decency rules. The 2nd U.S. Circuit Court of Appeals ruled last year that the regulations were “unconstitutionally vague” and produced a “chilling effect” on First Amendment speech.

The facts concern FCC rulings that “fleeting expletives” uttered during the 2002 and 2003 Billboard Music Awards were indecent. First Cher then Nicole Richie cursed during the shows aired on Fox. In the other dispute, the FCC said ABC violated decency standards when the network aired a brief nude shot of Charlotte Ross’ buttocks in NYPD Blue.

The FCC’s decency regulations are not enforced between 10 p.m. and 6 a.m., and only affect broadcast networks, not cable or internet programming.

The broadcasters claim the rules, which the government announced in 2004 would be strictly enforced, are so broad and vague that it’s unclear what is allowed, a position the government said was ridiculous. The appeals court in the Fox issue ruled that the FCC’s policy was unconstitutionally vague because “broadcasters are left to guess whether an expletive will be deemed ‘integral’ to a program or whether the FCC will consider a particular broadcast a ‘bona fide news interview.’”

In the ABC case, in which the FCC fined its affiliates $27,500 each, the appeals court said there was no “significant distinction” between the ABC and Fox cases, despite the ABC case dealing with scripted nudity. That’s because the appellate court said the FCC rules were “impermissibly vague.”

The government on appeal argues that “the court of appeals never asked what should have been the dispositive question: Whether Fox and ABC had fair notice that the expletives and nudity in the broadcasts under review could violate the commission’s indecency standards.”

Dennis Wharton, a vice president for the National Association of Broadcasters, said the government should not regulate broadcasters’ content.

“Responsible programming decisions by network and local station executives, coupled with program-blocking technologies like the V-chip and proper guidance of children by parents and caregivers, are far preferable to government regulation of program content,” Wharton said in a statement.

Mayo Collaborative Services v. Prometheus Laboratories
Oral argument Dec. 7

A highly nuanced and technical dispute between Mayo and Prometheus begs the question of whether “thought” is patentable. The issue surrounds a Prometheus patent concerning, in part, doctors’ subjective observations on how patients react to synthetic drug dosages to treat auto-immune diseases.

Prometheus holds patents to methods that assist doctors in figuring out — through observation and testing — the effective dosage of synthetic drugs to administer. The method includes performing drug tests with a Prometheus-patented kit.

Prometheus sued Mayo, arguing its use of the kits was patent infringement. The U.S. Federal Circuit Court of Appeals sided with Prometheus, saying the patents were valid because they outlined methods of altering a patient’s body chemistry with specific drugs.

Mayo claims that the patents, ultimately, are an observation of naturally occurring phenomenon — the body’s reaction to dosing levels.

Mayo told the Supreme Court that the patents at issue should be nullified. “The Prometheus patents claim a monopoly over consideration of a naturally occurring correlation between metabolites of a drug and the toxicity or efficacy of that drug,” the clinic said.

Steven Shapiro, the legal director for the American Civil Liberties Union, said Mayo should prevail.

“What they’re claiming a patent on is how you think about whether or not a drug is working. You can’t patent thought,” he said.

The government weighed in, too, arguing “provisions of the Patent Act permit the nuanced, fact-intensive distinction necessary to separate patentable from un-patentable inventions.”

Here is a summary of important cases awaiting the high court’s decision on whether to grant review:

American Society of Composers v. United States

The court has been petitioned to decide whether downloading a song from iTunes, for example, is a public performance that requires that artists get paid additional royalties — just as the rock band Queen gets extra royalties each time We Are the Champions is blasted over the public-address system at a football stadium.

The American Society of Composers, Authors and Publishers, better known as ASCAP, is asking the justices to review lower court decisions that said downloading songs from iTunes, Amazon, eMusic or even music-sharing services do not count as a public performance, and hence artists are not entitled to additional royalties.

The 2nd U.S. Circuit Court of Appeals ruled against ASCAP more than two years ago. The group, with 400,000 members, maintains that the Copyright Act demanded the extra royalties, which could amount to tens of millions of dollars in revenue annually. The appeals court said that downloading a music file is more aptly characterized as “reproducing” that file, and not subject to performance rights.

The appeals court said “perform,” as outlined in Section 101 of the Copyright Act, means to “recite, render, play, dance or act it either directly or by means of any device or process.”

ASCAP licenses the right to perform publicly the musical works of its members to a diverse array of music users, including internet and network-based sites and services, television and radio stations, restaurants, hotels and sports arenas.

The artists told the justices in their petition that the case was of “vital importance.”

“If the Second Circuit’s decision stands, songwriters and music publishers across the nation will be denied their statutory right to receive royalties for public performances when their works are downloaded over the internet — which is already one of the most prevalent means for the dissemination of copyrighted musical works,” they wrote.

The government, backed by Solicitor General Donald Verrilli Jr., a former Recording Industry Association of America attorney, urged the justices to reject ASCAP’s petition.

“Because the download itself involves no dancing, acting, reciting, rendering, or playing of the musical work encoded in the digital transmission, it is not a performance of that work,” the government told the justices.

United States v. Alvarez

The Justice Department is asking the justices to decide the constitutionality of 2006 law making it a criminal offense to lie about being decorated for military service.

The Stolen Valor Act makes it unlawful to falsely represent, verbally or in writing, to have been “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item.”

A federal appeals court declared the law unconstitutional last year. The measure imposes penalties of up to a year in prison.

The issue before the justices comes from the 9th U.S. Circuit Court of Appeals, which ruled if it were to uphold the law, “then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway.”

The case concerns defendant Xavier Alvarez. In 2007, he claimed falsely that as a Marine he had won the Medal of Honor. He made that public statement during a local Los Angeles suburban water board meeting, in which he had just won a seat on its board of directors.

The government said Alvarez should be prosecuted because the speech fits into the “narrowly limited” classes of speech, such as defamation, that is historically unprotected by the First Amendment. In its petition, it told the justices that the act “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system.”

Congress, when adopting the law, said fraudulent claims about military honors “damage the reputation and meaning of such decorations and medals.”

Alvarez was the first person ever charged and convicted under the act, which has ensnared dozens of defendants. Alvarez pleaded guilty, was fined $5,000 and ordered to perform 416 hours of community service. He appealed his conviction to the 9th Circuit.

Special thanks to the crew at SCOTUSblog.