Federal Rule of Criminal Procedure 11 governs guilty pleas. Rule 11(c)(1) instructs that "[t]he court must not participate in [plea] discussions," and Rule 11(h) states that a "variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights." Rule 52(a), which covers trial court errors generally, similarly prescribes: "Any error . . . that does not affect substantial rights must be disregarded."
Respondent Davila, while under indictment on multiple tax fraud charges, wrote to the District Court, expressing dissatisfaction with his court-appointed attorney. Complaining that his attorney offered no defensive strategy, but simply advised him to plead guilty, Davila requested new counsel. A Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the hearing, the Magistrate Judge told Davila that he would not get another court-appointed attorney and that his best course, given the strength of the Government's case, was to plead guilty. More than three months later, Davila pleaded guilty to a conspiracy charge in exchange for dismissal of 33 other charges. He stated under oath before a U. S. District Judge that he had not been forced or pressured to enter the plea, and he did not mention the in camera hearing before the Magistrate Judge. Prior to sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea for a "strategic" reason, i.e., to force the Government to acknowledge errors in the indictment. Finding that Davila's plea had been knowing and voluntary, the District Judge denied the motion. Again, Davila said nothing of the in camera hearing conducted by the Magistrate Judge. On appeal, the Eleventh Circuit, following Circuit precedent, held that the Magistrate Judge's violation of Rule 11(c)(1) required automatic vacatur of Davila's guilty plea, obviating any need to inquire whether the error was prejudicial.
Held: Under Rule 11(h), vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty. Pp. 7-14.
(a) Rule 11(c)(1)'s prohibition of judicial involvement in plea discussions was included in the 1974 Amendment to the Rule out of concern that a defendant might be induced to plead guilty rather than risk antagonizing the judge who would preside at trial. Rule 11(h) was added in the 1983 Amendment to make clear that Rule 11 errors are not excepted from Rule 52(a)'s harmless-error inquiry. Rule 52 also states, in subsection (b), that a "plain error that affects substantial rights may be considered even though it was not brought to the [trial] court's attention." When Rule 52(a) governs, the prosecution has the burden of showing harmlessness, but when Rule 52(b) controls, the defendant must show that the error affects substantial rights. See United States v. Vonn, 535 U. S. 55, 62.
As clarified in Vonn and United States v. Dominguez Benitez, 542 U. S. 74, Rule 11 error may be of the Rule 52(a) type or the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11(c)(3), that he would have "the right to the assistance of counsel" if he proceeded to trial. The defendant first objected to the omission on appeal. This Court held that "a silent defendant has the burden to satisfy [Rule 52(b)'s] plain-error rule." 535 U. S., at 59. In Dominguez Benitez, the error first raised on appeal was failure to warn the defendant, as Rule 11(c)(3)(B) instructs, that a plea could not be withdrawn even if the sentence imposed was higher than the plea-bargained sentence recommendation. The Court again held that Rule 52(b) controlled, and prescribed the standard a defendant silent until appeal must meet to show "plain error," namely, "a reasonable probability that, but for the [Rule 11] error, he would not have entered the plea." 542 U. S., at 83. Pp. 7-9.
(b) Here, the Magistrate Judge plainly violated Rule 11(c)(1) by exhorting Davila to plead guilty. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from pre-plea exhortations to admit guilt. The former come into play after a defendant has decided to plead guilty, the latter, before a defendant has decided to plead guilty or to stand trial. Nothing in Rule 11's text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur without regard to case-specific circumstances. Nor does the Advisory Committee commentary single out any Rule 11 instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule).
Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement. Thus, violation of the Rule does not belong in the highly exceptional category of structural errors--e.g., denial of counsel of choice or denial of a public trial--that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. United States v. Marcus, 560 U. S. 258, ___. Instead, in assessing Rule 11 errors, a reviewing court must take account of all that transpired in the trial court. Had Davila's guilty plea followed soon after the Magistrate Judge's comments, the automatic-vacatur rule would have remained erroneous. The Court of Appeals' mistake in that regard, however, might have been inconsequential, for the Magistrate Judge's exhortations, if they immediately elicited a plea, would likely have qualified as prejudicial. Here, however, three months distanced the in camera meeting conducted by the Magistrate Judge from Davila's appearance before the District Judge who examined and accepted his guilty plea after an exemplary Rule 11 colloquy, at which Davila had the opportunity to raise any questions he might have about matters relating to his plea. The Court of Appeals, therefore, should not have assessed the Magistrate Judge's comments in isolation. Instead, it should have considered, in light of the full record, whether it was reasonably probable that, but for the Magistrate Judge's comments, Davila would have exercised his right to go to trial. Pp. 10-14.
(c) The Court of Appeals, having concluded that the Magistrate Judge's comments violated Rule 11(c)(1), cut off further consideration. It did not engage in a full-record assessment of the particular facts of Davila's case or the case-specific arguments raised by the parties, including the Government's assertion that Davila was not prejudiced by the Magistrate Judge's comments, and Davila's contention that the extraordinary circumstances his case presents should allow his claim to be judged under Rule 52(a)'s harmless-error standard rather than Rule 52(b)'s plain-error standard. The Court decides only that the automatic-vacatur rule is incompatible with Rule 11(h) and leaves all remaining issues to be addressed on remand. P. 14.
664 F. 3d 1355, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.
This case concerns Rule 11 of the Federal Rules of Criminal Procedure, which governs guilty pleas. Two provisions of that rule are key here. The first, Rule 11(c)(1), instructs that "[t]he court must not participate in [plea] discussions." The second, Rule 11(h), states: "A variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights." Rule 52(a), which covers trial court errors generally, similarly prescribes: "Any error . . . that does not affect substantial rights must be disregarded."
Anthony Davila, respondent here, entered a guilty plea to conspiracy to defraud the United States by filing false income tax returns. He maintains that he did so because a U. S. Magistrate Judge, at a pre-plea in camera hearing and in flagrant violation of Rule 11(c)(1), told him his best course, given the strength of the Government's case, was to plead guilty. Three months later, Davila entered a plea on advice of counsel. The hearing on Davila's plea, conducted by a U. S. District Judge, complied in all respects with Rule 11.
The question presented is whether, as the Court of Appeals for the Eleventh Circuit held, the violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila's guilty plea. We hold that Rule 11(h) controls. Under the inquiry that Rule instructs, vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty.
In May 2009, a federal grand jury in the Southern District of Georgia returned a 34-count indictment against respondent Anthony Davila. The indictment charged that Davila filed over 120 falsified tax returns, receiving over $423,000 from the United States Treasury as a result of his fraudulent scheme.
In January 2010, Davila sent a letter to the District Court expressing dissatisfaction with his court-appointed attorney and requesting new counsel. His attorney, Davila complained, offered no defensive strategy, " 'never mentioned a defense at all,' " but simply advised that he plead guilty.1 In response to Davila's letter, a U. S. Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the start of the hearing, the Magistrate Judge told Davila that he was free to represent himself, but would not get another court-appointed attorney. See App. 148.
"it might be a good idea for the Defendant to accept responsibility for his criminal conduct[,] to plead guilty[,] and go to sentencing with the best arguments . . . still available [without] wasting the Court's time, [and] causing the Government to have to spend a bunch of money empanelling a jury to try an open and shut case." Ibid.
"the Government, they have all of the marbles in this situation and they can file that . . . motion for [a] downward departure from the guidelines if they want to, you know, and the rules are constructed so that nobody can force them to file that [motion] for you. The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you've got to go to the cross. You've got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance." Id., at 159-160.
"[T]hat two- or three-level reduction for acceptance is something that you have the key to and you can ensure that you get that reduction in sentence simply by virtue of being forthcoming and not trying to make yourself look like you really didn't know what was going on. . . . You've got to go [to the cross] and you've got to tell it all, Brother, and convince that probation officer that you are being as open and honest with him as you can possibly be because then he will go to the [D]istrict [J]udge and he will say, you know, that Davila guy, he's got a long criminal history but when we were in there talking about this case he gave it all up so give him the two-level, give him the three-level reduction." Id., at 160-161.
Nearly a month after the in camera hearing, Davila filed a motion demanding a speedy trial. The District Court set a trial date for April 2010, which was continued at the Government's request.
In May 2010, more than three months after the hearing before the Magistrate Judge, Davila agreed to plead guilty to the conspiracy charge in exchange for dismissal of the other 33 counts charged in the indictment. Davila entered his guilty plea before a U. S. District Judge six days later. Under oath, Davila stated that he had not been forced or pressured to plead guilty. Id., at 122. Davila did not mention the in camera hearing before the Magistrate Judge, and the record does not indicate whether the District Judge was aware that the pre-plea hearing had taken place. See id., at 82-99, 115-125.
Before he was sentenced, Davila moved to vacate his plea and to dismiss the indictment. The reason for his plea, Davila asserted, was "strategic." Id., at 58. Aware that the prosecutor had a duty to disclose all information relevant to the court's determination whether to accept the plea bargain, he stated that his purpose in entering the plea was to force the Government to acknowledge timeframe errors made in the indictment. Id., at 58-59. By pleading guilty, Davila said, he would make the court aware that the prosecution was "vindictive." Id., at 59.
The District Judge denied Davila's motion. In so ruling, the court observed that, at the plea hearing, Davila had affirmed that he was under no "pressure, threats, or promises, other than promises [made] by the government in the plea agreement." Id., at 70. Furthermore, he had been fully advised of his rights and the consequences of his plea. Id., at 71. It was therefore clear to the District Judge, who had himself presided at the plea hearing, that Davila's guilty plea "was knowing and voluntary." Id., at 72. In view of Davila's extensive criminal history, the court sentenced him to a prison term of 115 months. Id., at 75-77. Again, neither Davila nor the court mentioned the in camera hearing conducted by the Magistrate Judge. Id., at 55-80.
On appeal, Davila's court-appointed attorney sought leave to withdraw from the case, asserting, in a brief filed pursuant to Anders v. California, 386 U. S. 738 (1967), that there were no issues of arguable merit to be raised on Davila's behalf. The Eleventh Circuit denied counsel's motion without prejudice to renewal. App. to Pet. for Cert. 6a-8a. It did so based on a discovery the appeals court made upon "independent review" of the record. That review "revealed an irregularity in the statements of a magistrate judge, made during a hearing prior to Davila's plea, which appeared to urge [him] to cooperate and be candid about his criminal conduct to obtain favorable sentencing consequences." Id., at 7a. The court requested counsel to address whether the "irregularity" constituted reversible error under Federal Rule of Criminal Procedure 11(c)(1). Id., at 7a-8a.
Following the court's instruction, counsel filed a brief arguing that Davila's plea should be set aside due to the Magistrate Judge's comments. In response, the Government conceded that those comments violated Rule 11(c)(1). Even so, the Government urged, given the three-month gap between the comments and the plea, and the fact that a different judge presided over Davila's plea and sentencing hearings, no adverse effect on Davila's substantial rights could be demonstrated. Pursuant to Circuit precedent, the appeals court held that the Rule 11(c)(1) violation required automatic vacatur of Davila's guilty plea. Under the Circuit's "bright line rule," the court explained, there was no need to inquire whether the error was, in fact, prejudicial. 664 F. 3d 1355, 1359 (CA11 2011) (per curiam).
Rule 11(c)(1)'s prohibition of judicial involvement in plea discussions was introduced as part of the 1974 Amendment to the Rule. See Advisory Committee's 1974 Note on Subd. (e)(1) of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1420 (1976 ed.) (hereinafter Advisory Committee's 1974 Note).3 As the Advisory Committee's note explains, commentators had observed, prior to the amendment, that judicial participation in plea negotiations was "common practice." Id., at 1420 (citing D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 32-52, 78-104 (1966); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865, 891, 905 (1964)). Nonetheless, the prohibition was included out of concern that a defendant might be induced to plead guilty rather than risk displeasing the judge who would preside at trial. Advisory Committee's 1974 Note 1420. Moreover, the Advisory Committee anticipated, barring judicial involvement in plea discussions would facilitate objective assessments of the voluntariness of a defendant's plea. Ibid.
Added as a part of the 1983 Amendment, Rule 11(h) provides that "a variance from the requirements of [Rule 11] is harmless error if it does not affect substantial rights." Subsection (h), the Advisory Committee's note informs, "rejects the extreme sanction of automatic reversal" for Rule 11 violations and clarifies that Rule 52(a)'s harmlessness inquiry applies to plea errors. Advisory Committee's 1983 Note on Subd. (h) of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., pp. 749, 751 (1988 ed.) (hereinafter Advisory Committee's 1983 Note).
The addition of subsection (h) was prompted by lower court over-readings of McCarthy v. United States, 394 U. S. 459 (1969). That decision called for vacatur of a guilty plea accepted by the trial court without any inquiry into the defendant's understanding of the nature of the charge. The Advisory Committee explained that subsection (h) would deter reading McCarthy "as meaning that the general harmless error provision in Rule 52(a) cannot be utilized with respect to Rule 11 proceedings." Advisory Committee's 1983 Note 751. Substantial compliance with Rule 11 would remain the requirement, but the new subsection would guard against exalting "ceremony . . . over substance." Id., at 749.
For trial court errors generally, Rule 52(a) states that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Rule 11(h), as just noted, was designed to make it clear that Rule 11 errors are not excepted from that general Rule. Advisory Committee's 1983 Note 749. Rule 52, in addition to stating the "harmless-error rule" in subsection (a), also states, in subsection (b), the "plain-error rule," applicable when a defendant fails to object to the error in the trial court. Rule 52(b) states: "A plain error that affects substantial rights may be considered even though it was not brought to the [trial] court's attention." When Rule 52(a)'s "harmless-error rule" governs, the prosecution bears the burden of showing harmlessness. See United States v. Vonn, 535 U. S. 55, 62 (2002). When Rule 52(b) controls, the defendant must show that the error affects substantial rights. Ibid.
In two cases, United States v. Vonn, 535 U. S. 55, and United States v. Dominguez Benitez, 542 U. S. 74 (2004), this Court clarified that a Rule 11 error may be of the Rule 52(a) type, or it may be of the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11, that he would have "the right to the assistance of counsel" if he proceeded to trial. See Fed. Rule Crim. Proc. 11(c)(3) (2000).4 The defendant first objected to the omission on appeal. We addressed the question "whether a defendant who lets Rule 11 error pass without objection in the trial court must carry the burdens of Rule 52(b) or whether even the silent defendant can put the Government to the burden of proving the Rule 11 error harmless." 535 U. S., at 58.
The Defendant in Vonn had urged that "importation of [Rule 52(a)'s] harmless-error standard into Rule 11(h) without its companion plain-error rule was meant to eliminate a silent defendant's burdens under . . . Rule 52(b)." Id., at 63. This Court rejected the defendant's argument and held that "a silent defendant has the burden to satisfy the plain-error rule." Id., at 59.
In Dominguez Benitez, the Court addressed what the silent defendant's burden entailed. The judge presiding at the plea hearing in that case failed to warn the defendant, as Rule 11(c)(3)(B) directs, that he would not be permitted to withdraw his guilty plea even if the court did not accept the plea-bargained sentencing recommendation. 542 U. S., at 79. As in Vonn, the error was first raised on appeal. 542 U. S., at 79. This Court again held that Rule 52(b) was controlling. Id., at 82. Stressing "the particular importance of the finality of guilty pleas," ibid., the Court prescribed the standard a defendant complaining of a Rule 11 violation must meet to show "plain error": "[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea." Id., at 83.
In Davila's case, the Government acknowledged in this Court, as it did before the Eleventh Circuit, that the Magistrate Judge violated Rule 11(c)(1) by improperly participating in plea discussions. As the excerpts from the in camera hearing, set out supra, at 2-4, show, there is no room for doubt on that score. The Magistrate Judge's repeated exhortations to Davila to "tell it all" in order to obtain a more favorable sentence, see App. 157-160, were indeed beyond the pale.
Did that misconduct in itself demand vacatur of Davila's plea, as the Eleventh Circuit held, or, as the Government urges, must a reviewing court consider all that transpired in the trial court in order to assess the impact of the error on the defendant's decision to plead guilty? We hold that the latter inquiry is the one the Rules and our precedent require.
Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from pre-plea exhortations to admit guilt. Plea-colloquy requirements come into play after a defendant has agreed to plead guilty. The advice and questions now specified in Rules 11(b) and 11(c)(3)(B), Davila observes, are designed to ensure that a defendant's plea is fully informed and intelligently made. Errors or omissions in following Rule 11's plea-colloquy instructions, Davila recognizes, are properly typed procedural, and are therefore properly assessed under the harmless-error instruction of Rule 11(h).
Rule 11(c)(1)'s prohibition on judicial participation in plea discussions, in contrast, becomes operative before a defendant has decided whether to plead guilty or to stand trial. The Rule serves a more basic purpose, Davila urges, one "central to the proper functioning of the criminal process." Brief for Respondent 18. Therefore, "the remedial analysis that applies to violations of . . . procedural provisions does not and should not apply to th[is] distinct class of error." Id., at 16. Violations of Rule 11(c)(1), Davila elaborates, heighten the risk that a defendant's plea will be coerced or pressured, and not genuinely an exercise of free will. When a judge conveys his belief that pleading guilty would be to a defendant's advantage, Davila adds, the judge becomes, in effect, a second prosecutor, depriving the defendant of the impartial arbiter to which he is entitled. "Rule 11(c)(1)'s bright-line prohibition on judicial exhortations to plead guilty," Davila concludes, is "no mere procedural technicality," id., at 21, for such exhortations inevitably and incurably infect the ensuing pretrial process. Id., at 43.
Nothing in Rule 11's text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur of the plea without regard to case-specific circumstances. The prohibition appears in subsection (c), headed "Plea Agreement Procedure." See Fed. Rule Crim. Proc. 11(c). That subsection affirms that the prosecution and defense attorney (or the defendant when proceeding pro se) "may discuss and reach a plea agreement." Rule 11(c)(1). Further, Rule 11(c) describes permissible types of plea agreements, see Rule 11(c)(1)(A)-(C), and addresses the court's consideration, acceptance, or rejection of a proffered agreement, see Rule 11(c)(3)-(5).
In recommending the disallowance of judicial participation in plea negotiations now contained in subsection (c)(1), the Advisory Committee stressed that a defendant might be induced to plead guilty to avoid antagonizing the judge who would preside at trial. See Advisory Committee's 1974 Note 1420. But the Committee nowhere suggested that violation of Rule 11(c)(1) is necessarily an error graver than, for example, the error in Dominguez Benitez, i.e., the failure to tell a defendant that the plea would bind him even if the sentence imposed significantly exceeded in length the term of years stated in the plea bargain. As earlier noted, see supra, at 7, the Committee pointed to commentary describing judicial engagement in plea bargaining as a once "common practice,"5 and it observed that, in particular cases, questions may arise "[a]s to what . . . constitute[s] 'participation.' " Advisory Committee's 1974 Note 1420.
In short, neither Rule 11 itself, nor the Advisory Committee's commentary on the Rule singles out any instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule). See supra, at 7-8.
Rule 11(c)(1) was adopted as a prophylactic measure, see supra, at 7, not one impelled by the Due Process Clause or any other constitutional requirement. See 664 F. 3d, at 1359 (recognizing that Rule 11(c)(1) is part of a "prophylactic scheme"). We have characterized as "structural" "a very limited class of errors" that trigger automatic reversal because they undermine the fairness of a criminal proceeding as a whole. United States v. Marcus, 560 U. S. 258, ___ (2010) (slip op., at 4-5) (internal quotation marks omitted). Errors of this kind include denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt. See, e.g., United States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (ranking "deprivation of the right to counsel of choice" as " 'structural error' "). Rule 11(c)(1) error does not belong in that highly exceptional category. See Neder v. United States, 527 U. S. 1, 7 (1999) (structural errors are "fundamental constitutional errors that 'defy analysis by "harmless error" standards' " (quoting Arizona v. Fulminante, 499 U. S. 279, 309 (1991)).
Had Davila's guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be "the best advice" a lawyer could give him, see App. 152, this case may not have warranted our attention. The automatic-vacatur rule would have remained erroneous, but the Court of Appeals' mistake might have been inconsequential. See Tr. of Oral Arg. 47 (Counsel for the Government acknowledged that if there is a "serious [Rule 11(c)(1)] error," and the defendant pleads guilty "right after that," the error would likely qualify as prejudicial). Our essential point is that particular facts and circumstances matter. Three months distanced the in camera meeting with the Magistrate Judge from Davila's appearance before the District Judge who examined and accepted his guilty plea and later sentenced him. Nothing in the record shows that the District Judge knew of the in camera hearing. After conducting an exemplary Rule 11 colloquy, the judge inquired: "Mr. Davila, has anyone forced or pressured you to plead guilty today?," to which Davila responded: "No, sir." App. 122. At the time of the plea hearing, there was no blending of judicial and prosecutorial functions.
Given the opportunity to raise any questions he might have about matters relating to his plea, Davila simply affirmed that he wished to plead guilty to the conspiracy count. When he later explained why he elected to plead guilty, he said nothing of the Magistrate Judge's exhortations. Instead, he called the decision "strategic," designed to get the prosecutor to correct misinformation about the conspiracy count. Id., at 58-59, 61. Rather than automatically vacating Davila's guilty plea because of the Rule 11(c)(1) violation, the Court of Appeals should have considered whether it was reasonably probable that, but for the Magistrate Judge's exhortations, Davila would have exercised his right to go to trial. In answering that question, the Magistrate Judge's comments should be assessed, not in isolation, but in light of the full record.
The Court of Appeals did not engage in that full-record assessment here. Rather, the court cut off consideration of the particular facts of Davila's case upon concluding that the Magistrate Judge's comments violated Rule 11(c)(1). That pretermission kept the court from reaching case-specific arguments raised by the parties, including the Government's assertion that Davila was not prejudiced by the Magistrate Judge's comments, and Davila's contention that the extraordinary circumstances his case presents should allow his claim to be judged under the harmless-error standard of Rule 52(a) rather than the plain-error standard of Rule 52(b), the rule that ordinarily attends a defendant's failure to object to a Rule 11 violation. See supra, at 8; 664 F. 3d, at 1358 (citing United States v. Moriarty, 429 F. 3d 1012, 1019 (CA11 2005) (per curiam)). Having explained why automatic vacatur of a guilty plea is incompatible with Rule 11(h), see supra, at 11-13 and this page, we leave all remaining issues to be addressed by the Court of Appeals on remand.
Justice Scalia, with whom Justice Thomas joins, con-curring in part and concurring in the judgment.
I agree with the Court that a defendant must be prej-udiced by a Rule 11(c)(1) error to obtain relief. That is because the text of Federal Rule of Criminal Procedure 11(h) says exactly that, in words whose meaning is crystal clear: "Harmless error. A variance from the requirements of this rule is harmless error if it does not affect sub-stantial rights." (Emphasis added.) As the Court recognizes, this rule "calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule)." Ante, at 12. That is the beginning and the end of this case. We should not rely on the notes of the Advisory Committee to unearth Rule 11's alleged design, for "[t]he Committee's view is not authoritative" and the text of the Rule conclusively resolves the question before us. See Black v. United States, 561 U. S. ___, ___ (2010) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 1).
See Brief for Appellee in No. 10-15319-I (CA11), p. 3 (quoting Record (Exh. B)).
Compare United States v. Bradley, 455 F. 3d 453, 461 (CA4 2006) (Rule 11(c) errors are not structural and are subject to plain-error review); United States v. Pagan-Ortega, 372 F. 3d 22, 27-28 (CA1 2004) ("[A] facially appealing claim of improper judicial participation in a plea proceeding prior to its solemnization in writing did not, on close analysis, demonstrate a basic unfairness and lack of integrity in the proceeding."); United States v. Ebel, 299 F. 3d 187, 191 (CA3 2002) ("[W]hen Rule 11 error has been committed in the taking of a guilty plea, we can consider the record as a whole to determine whether, under Rule 11(h), [the defendant's] substantial rights were affected."); United States v. Kraus, 137 F. 3d 447, 457-458 (CA7 1998) (applying harmless-error review); and United States v. Miles, 10 F. 3d 1135, 1140-1141 (CA5 1993) ("Rule 11(h) . . . compel[s] harmless error review."), with 664 F. 3d 1355 (CA11 2011) (this case); United States v. Anderson, 993 F. 2d 1435, 1438-1439 (CA9 1993) ("Rule 11's ban [on judicial involvement in plea negotiations is] an absolute command which admits of no exceptions." (internal quotation marks omitted)); and United States v. Barrett, 982 F. 2d 193, 196 (CA6 1992) ("This court's role is not to weigh the judge's statements to determine whether they were so oppressive as to abrogate the voluntariness of the plea.").
As originally enacted, the prohibition of court participation in plea discussions was found in Rule 11(e)(1). See Fed. Rule Crim. Proc. 11(e)(1) (1976).
The requirement that the judge inform the defendant that he has "the right to be represented by counsel" is currently found in Rule 11(b)(1)(D).
For state provisions permitting at least some judicial participation in plea bargaining, see, e.g., N. C. Gen. Stat. Ann. §15A-1021(a) (Lexis 2011); Idaho Crim. Rule 11(f) (2012); Vt. Rule Crim. Proc. 11 Reporter's Notes (2003 and Supp. 2012).


text:
Russia said good buy to B. Yelcin, the first democratically elected president and an undoubtedly contradictory state leader. What really surprised was a positive attitude of the majority of the Russian politicians and political analysts towards the late president.
On the other hand, it would be hard to deny the merits of B. Yelcin, i.e. destruction of the USSR, reforms in Russia and contribution to consolidation of democracy in Central and Eastern Europe.
Everybody remembers the moment in Duma, when the Russian communists refused to stand up and to pay a tribute to the late President. By doing that they have simply demonstrated their primitivism and open hostility to democracy.
V. Putin was far more subtle and his position towards the death of the former leader of the country was more acceptable to ordinary Russian people. The grand funeral and attention of the current and former world leaders were impressive. However far more impressive was the address of the president to the nation: there was not a single hint of criticism towards B. Yelcin (what could be understandable in terms of the situation) and many nice words to the current democratic, free and full of happy citizens Russia.
Knowing what democracy values were propagated by the first Russian president, to call the current situation “democratic” would probably more insult the memory of B. Yelcin than the slap of communists in Duma. Last year, when B. Yelcin celebrated his 75th birthday, he said in one of TV films that his key achievement in the post of president was freedom of media (despite the criticism directed towards him).
What has V. Putin done with B. Yelcin’s Russia? Independent TV channels disappeared; courageous journalists are either poisoned in planes, or simply shot. At best, journalists seek sanctuary in Great Britain. Annual conversations of V. Putin with the Russian nation remind of the reports of general secretaries of the communist party of the USSR. Today the secretaries have been replaced by journalists who are frightfully listening to V. Putin.
Certainly, B. Yelcin might be reproached for oligarchs and the first war in Chechnya. However, V. Putin, having promised to destroy oligarchs, has successfully done this by in principle despising the institute of private ownership. Whereas the second military campaign in Chechnya has been initiated by the current president and coincided with the beginning of his electoral campaign.
Today V. Putin is proud of the stable country. However, what could happen if the current Russian president ruled the country back in the last decade? And what would be worse: to dismiss the parliament for breaches of constitution by attracting military forces or to make it an obedient toy of the regime through political manipulations and hidden political power?
Finally, nearly the worst grimace is that the current regime has managed to take advantage (in silence and with considerable tolerance) of the death of the former leader.

matches: V. V. V. V. V. V.


text:
In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments.
The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.
For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.
The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248).
Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260).
This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.
This element of the Grand Chamber’s decision distinguishes it from prior jurisprudence of the Court, namely the decisions of the Third Section in Weber and Saravia v. Germany (2006) and of the Fourth Section in Liberty and Ors v. United Kingdom (2008). In both cases, the Court considered legislative frameworks which enable bulk interception of communications. (In the German case, the Court used the term “strategic monitoring,” while it referred to “more general programmes of surveillance” in Liberty.) In the latter case, the Fourth Section sought to depart from earlier European Commission of Human Rights — the court of first instance until 1998 — decisions which developed the requirements of the law in the context of surveillance measures targeted at specific individuals or addresses. It took note of the Weber decision which “was itself concerned with generalized ‘strategic monitoring’, rather than the monitoring of individuals” and concluded that there was no “ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other” (para. 63). The Court in Liberty made no mention of any need for any prior or reasonable suspicion at all.
When you compare the language from these three cases, it would appear that the Grand Chamber in Zakharov is reasserting the requirement for individualized reasonable suspicion, including in national security cases, with full knowledge of the nature of surveillance considered by the Court in its two recent bulk interception cases.
The requirement of reasonable suspicion is bolstered by the Grand Chamber’s subsequent finding in Zakharov that the interception authorization (e.g., the court order or warrant) “must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information” (para. 264). In making this finding, it references paragraphs from Liberty describing the broad nature of the bulk interception warrants under British law. In that case, it was this description that led the Court to find the British legislation possessed insufficient clarity on the scope or manner of exercise of the State’s discretion to intercept communications.
In one sense, therefore, the Grand Chamber seems to be retroactively annotating the Fourth Section’s Liberty decision so that it might become consistent with its decision in Zakharov. Without this revision, the Court would otherwise appear to depart to some extent — arguably, purposefully — from both Liberty and Weber.
Finally, the Grand Chamber took issue with the direct nature of the access enjoyed by Russian intelligence under the SORM system. The Court noted that this contributed to rendering oversight ineffective, despite the existence of a requirement for prior judicial authorization. Absent an obligation to demonstrate such prior authorization to the communications service provider, the likelihood that the system would be abused through “improper action by a dishonest, negligent or overly zealous official” was quite high (para. 270). Accordingly, “the requirement to show an interception authorisation to the communications service provider before obtaining access to a person’s communications is one of the important safeguards against abuse by the law-enforcement authorities” (para. 269).
Again, this requirement arguably creates an unconquerable barrier for a number of modern bulk interception systems, which rely on the use of broad warrants to authorize the installation of, for example, fiber optic cable taps that facilitate the interception of all communications that cross those cables. In the United Kingdom, the Independent Reviewer of Terrorism Legislation David Anderson revealed in his essential inquiry into British surveillance in 2015, there are only 20 such warrants in existence at any time. Even if these 20 warrants are served on the relevant communications service providers upon the installation of cable taps, the nature of bulk interception deprives this of any genuine meaning, making the safeguard an empty one. Once a tap is installed for the purposes of bulk interception, the provider is cut out of the equation and can no longer play the role the Court found so crucial in Zakharov.
The Zakharov case not only levels a serious blow at bulk, untargeted surveillance regimes, it suggests the Grand Chamber’s intention to actively craft European Court of Human Rights jurisprudence in a manner that curtails such regimes.
The full implications of the Zakharov decision remain to be seen. However, it is likely we will not have to wait long to know whether the Grand Chamber intends to see the demise of bulk collection schemes; the three UK cases (Big Brother Watch & Ors v. United Kingdom, Bureau of Investigative Journalism & Alice Ross v. United Kingdom, and 10 Human Rights Organisations v. United Kingdom) pending before the Court have been fast-tracked, indicating the Court’s willingness to continue to confront the compliance of bulk collection schemes with human rights law. It is my hope that the approach in Zakharov hints at the Court’s conviction that bulk collection schemes lie beyond the bounds of permissible State surveillance.

matches: v. v. v. v. v. v.


Appeal From Beaufort County; Thomas Kemmerlin, Jr., Master-In-Equity.
A. Camden Lewis and Pete Kulmala, both of Lewis, Babcock Hawkins, Columbia, for appellant.
Mary D. Shahid, of South Carolina Coastal Council, Charleston, for respondent.
This is an appeal from an order granting a motion to dismiss appellant Shickrey Anton's complaint for failure to state a cause of action We affirm in part and reverse in part.
Appellant applied for a permit to place earth fill on his property located on Hilton Head Island. Appellant's property is under the jurisdiction of the Army Corps of Engineers (Corps) because part of his land has been declared jurisdictional wetlands. As a result, appellant is required to obtain a permit under Section 404 of the Federal Clean Water Act, 33 U.S.C. § 1344, for the placement of fill material. Additionally, since the property is located on the coast, it is regulated by the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451-1464. Before the Corps can issue a permit, a Certification of Consistency must be obtained from the South Carolina Coastal Council certifying that the proposed project is consistent with the State's federally approved Coastal Management Plan. 16 U.S.C. § 1456(c)(3)(A).
Coastal Council's Management Committee initially considered appellant's application and certified the project as being consistent with the state plan. On the following day at a meeting of the full Coastal Council, a member of the management committee stated that after the committee's vote he had acquired some new information which might have affected his vote. The certification was then returned from the full Coastal Council to the Management Committee for reconsideration. At a subsequent meeting the committee voted to deny certification. Coastal Council adopted the committee's decision. Coastal Council notified the Corps of its objection to the certification. The Corps denied appellant's Section 404 permit application. Appellant filed a petition with the U.S. Secretary of Commerce to override the denial. The Secretary of Commerce issued an order refusing to override the Coastal Council's objection.
Appellant brought suit against Coastal Council seeking mandamus and asserting ultra vires and inverse condemnation causes of action. Coastal Council filed a motion to dismiss pursuant to Rule 12(b), SCRCP. The special circuit judge issued an order dismissing the action. Appellant sought reconsideration and in response, the trial judge withdrew his initial order and substituted an order which reached the same result but based on a different analysis.
The order withdrawn by the judge held the U.S. Army Corps of Engineers was an indispensable party without which relief could not be granted. Since the substituted order is before us on appeal, we do not address the indispensable party finding because it is not discussed in the final order.
As an initial matter, appellant claims the order issued is null because the special circuit judge was not validly in office. Appellant asserts there must be a commission from the Governor to make Master-In-Equity Thomas Kemmerlin's appointment valid. He contends a special circuit judge can be commissioned only according to the provisions of S.C. Code Ann. §§ 14-5-170 and 180 (1977) pertaining to filling a vacancy or relieving an overcrowded docket. We disagree.
Section 14-5-170 provides that if a disengaged circuit judge is unavailable, the Governor shall immediately commission a special judge to hold the courts of the circuit.
The South Carolina Constitution gives the Chief Justice of the Supreme Court the power to "assign any judge to sit in any court within the unified judicial system." S.C. Const. art. V, § 5. Furthermore, where there is a conflict between the statute and the State Constitution, the Constitution overrides the statute. State v. Whitener, 225 S.C. 244, 81 S.E.2d 784 (1954) (legislature may not take away powers specifically granted to the Supreme Court by the Constitution). The Chief Justice has inherent power to assign judges within the unified judicial system. Accordingly, Judge Kemmerlin was lawfully presiding as special circuit judge and his order was validly issued.
On the merits, the trial judge concluded that while Coastal Council was the decision maker as to consistency certification, any loss suffered by appellant resulted from the Corps' decision to deny appellant's application for a Clean Water Act permit. The trial judge found that the loss, if any, must be pursued by suing the U.S. Corps of Engineers. Accordingly, the trial court dismissed the action finding appellant failed to state a cause of action as the relief sought could not be granted in circuit court. We agree that to the extent appellant alleges inverse condemnation, relief from any loss should be pursued in federal court, but find appellant stated other causes of action for which relief could be granted.
Appellant alleges inverse condemnation as a direct and proximate result of the acts of Coastal Council. We disagree and find that is a question for the federal courts since a taking does not occur until a permit is denied. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) the Supreme Court stated that "[a] requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself `take' the property in any sense . . . Only when a permit is denied and the effect of the denial is to prevent `economically viable' use of the land in question can it be said that a taking has occurred." Appellant claims the value destroying event is the denial of the consistency statement, however the value destroying event does not occur until after the permit is denied and there is a loss of economic viability of land use. Id.
Appellant asserts his due process rights were violated by the actions of Coastal Council when it rescinded the consistency certification. Appellant claims Coastal Council's actions were arbitrary, capricious and without authority. Appellant sought to have respondent directed to reinstate the certification granted July 20, 1989. Such relief could be granted in circuit court. Further, the only avenue for meaningful review of the State's denial of consistency certification is through the state court. A reviewing court has the duty to examine the procedural methods employed at an administrative hearing to ensure that a fair and impartial procedure was used. Ross v. Medical University of South Carolina, ___ S.C. ___, 453 S.E.2d 880 (1994). Accordingly, we reverse and remand for an examination of the procedure whereby the initial granting of certification by the Management Committee was reconsidered and rescinded.
MOORE, WALLER, JJ., and A. LEE CHANDLER, Acting Associate Justice, concur.


text:
On 26th March 2019, the Plenary sitting of the European Parliament adopted in a final vote the consolidated text (with most Articles renumbered) of the Directive on Copyright in the Digital Single Market including the revisions and compromisesthat had been agreed by the Parliament, Council and Commission negotiators in trilogue talks and subsequently adopted by the Legal Affairs Committee (JURI).
It was an unhappy day for the internet because despite huge opposition from outside the EU institutions, Article 11 introduces a new two-year neighbouring right for news publishers, and Article 13 in effect brings in de facto copyright enforcement by algorithms on uploads by users of for-profit publicly accessible internet platforms. These Articles, now renumbered Articles 15 & 17 respectively, were adopted, albeit somewhat changed from the Commission’s original proposals. The outcome of the other Articles though, was pretty good for libraries and research institutions.
As librarians and information professionals, our professional ethics require us to uphold the human rights of freedom of access to information and freedom of expression. EBLIDA and its pan-European and international partners were thus quite concerned about these two very controversial Articles and had campaigned with others for them to be dropped from the Directive. Our concerns were that Article 11 (now 15) may adversely affect the future of circulation and re-use of recent online news information by and within organisations of all types, including libraries and other non-profit information services and that Article 13 (now 17) risks curtailing freedom of expression on the internet due to automated surveillance of platform user uploads.
Strong opposition to both Articles came also from 169 intellectual property academics and from 240 European small internet businesses as well as a great many European and international digital rights NGOs. Additionally, Article 13 (now 17) was criticised by David Kaye, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and 70 internet luminaries including Sir Tim Berners-Lee, inventor of the World Wide Web.
Article 13 (now 17) - the exclusion of “not-for-profit educational and scientific repositories” from the Article 2 definition of “online content-sharing service provider”.
The impact of measures introduced by these two Articles will therefore continue to be monitored by digital rights and library organisations.
NB. All Articles need to be read together with any accompanying Recitals which set the context in which the Articles are intended to operate. The initial Recitals 1-7 also set out the rationale for the Directive including a discussion on exceptions and limitations.
Article 2 formally defines six terms: “research organisation”, “text and data mining”, “cultural heritage institution”, “press publication”, “information society service” and “online content-sharing service provider”.
NB.These definitions are extremely important and some are elaborated further in the relevant Recitals.
Article 5 (was 4) provides a mandatory exception intended to harmonise and facilitate the use of digital materials for digital and cross-border teaching by recognised educational establishments. Ordinarily, it does not apply to libraries, archives and museums, but it may be possible for them to obtain this status or to benefit when they offer education in partnership with schools, colleges or universities. Member States have the option to provide for fair compensation to be paid to rightholders for this use.
However, there are also optional self-defeating provisions that will do away with harmonisation and limit the benefits for educators. Member States may provide that the exception falls if the rightholder should offer an easily available suitable licence covering the needs of educational establishments, or they may dis-apply the exception from certain types of materials, such as materials “primarily intended for the educational market or sheet music”. Additionally, the accompanying Recital 21 permits Member States to impose limitations on the proportion of a work or other subject matter that can be utilised under this exception.
As far as the direct public interest missions and function of libraries, cultural and research institutions are concerned, over the last 2½ years the libraries coordination and negotiating team has done quite well, though everything in legislation is the result of compromise.
Article 3 introduces a mandatory copyright exception for TDM for the purposes of scientific research, but only where it is done by a research organisation or cultural heritage institution for the purposes of scientific research. This exception is protected from contract override.
Article 4 (was 3a) permits an additional mandatory exception allowing all other users to carry out TDM where they have lawful access to the work and the rightholder has not specifically objected to it in an “appropriate manner”. However, this exception is subject to contractual override as it is not covered by Art. 7.1, and so the rightholder could continue to control or prevent TDM and also could choose to price TDM activities into subscription fees for “lawful access”. However, Art. 7.2 does apply to Art. 4 in relation to Technological Protection Measures (TPMs) (see Article 7 below).
Article 6 (was 5) creates a mandatory exception for the digital preservation of copyright works held in permanent collections by libraries, archives and museums including (by Recitals 26 & 28) the use of digital preservation networks within a member state or cross-border.
Articles 8-12 (were 7, 8, 8a, 9, 9a) make provisions for licensing for mass digitisation. and the making available to the public on non-commercial websites of out-of-commerce copyright works (these include orphan works) held in European cultural heritage institutions (defined in Article 2), including libraries, archives and museums. Certain conditions apply, including limitations concerning third country authors and materials.
The measures permit cross-border uses between Member States and provide for necessary publicity measures and stakeholder dialogue. Additionally, a mandatory copyright exception comes into play where there is no collecting society that can offer suitable licences, so this exception is not protected from contract override. Member States also are given the option to introduce Extended Collective Licensing (ECL) schemes under certain conditions.
Article 14 (was 10b) means that copyright does not subsist in unoriginal facsimile reproductions of out-of-copyright “visual art” (not defined), harmonising across the EU the re-use of most photographs of public domain visual art, such as those produced for catalogues, postcards, posters, prints and most art books. This measure does not apply to photographs or other reproduction copies (e.g., drawings or paintings) of public domain visual art that are original “in the sense that it is the author's own intellectual creation”.
Article 7 (was 6) importantly provides in Para 1 that Articles 3, 5 & 6 above are protected from contract override. Para 2’s effect is to ensure that with regard to the exceptions provided in Articles 3,4,5 & 6 above, it will now also be possible to use the national procedures set up under the Information Society Directive Art. 6(4) in cases where TPMs placed on works subject to negotiated licences prevent enjoyment of the exceptions these Articles provide.
Article 15 (was 11) is now much changed from the original. It creates a new neighbouring right for “publishers of press publications established in a Member State” for the use of extracts from news articles, excepting only individual words or very short extracts (not defined but note that the 2009 CJEU ruling in Infopaq determined that as few as eleven sequential words could be copyright protected).
NB. Academic journals also known as “scientific journals” are excluded from the Article 2 definition of “press publication”.
The new right does not apply to private non-commercial uses by individuals or hyperlinking. The new right lasts for 2 years from 1st January of the year following publication and it is not retrospective, only applying going forward from the date by which the Directive must be implemented. Organisations are likely to need a licence to use longer extracts from online news platforms and may be charged.
How the new right will fit with the important Quotation exception, established by the Berne Convention 1886 and subsequent international treaties, remains to be seen. There is a risk that in time, the ancillary right concept in this Article could resurface in further legislation concerning other types of online information sources, eroding the Quotation exception.
Article 17 (was 13) has also changed considerably during its passage, but it still introduces new obligations on “online content-sharing service providers” (defined in Article 2) to prevent copyright infringement on platforms where users upload content themselves, by making the platform providers legally liable for any infringements. Platform providers are required to check the copyright status of all user uploaded content and take steps to prevent the appearance of infringing content. Given the vast quantity of user information uploads to the internet, automated filtering bots, still inefficient and blunt instruments, will de facto be the only way platforms could comply.
NB. “not-for-profit educational and scientific repositories” are excluded from the Article 2 definition of “online content-sharing service provider”.
Sharing and reuse of content and individual freedom of expression risks being curtailed by this Article and not just on profit-making public social media platforms. For example, for-profit online public access teaching and learning platforms also may be ensnared by the Article 2 definition of “online content-sharing service providers”.
Article 13 (was 10) is a mandatory requirement for Member States to set up or designate an impartial mediation body to assist parties in the negotiation of the licensing of rights in the course of concluding agreements for the purpose of making available audiovisual works on video-on-demand services.
Article 16 (was 12) gives Member States the option to provide that “where an author has transferred or licensed a right to a publisher, such a transfer or licence constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation for the use of the work made under an exception or limitation to the transferred or licensed right.” This measure “shall be without prejudice to existing and future arrangements in Member States concerning public lending rights”.
Articles 18-23 provide mandatory requirements for authors and performers to receive appropriate and proportionate remuneration when licensing or transferring their rights for the exploitation of their works or performances including, in certain conditions, the ability to subsequently adjust certain types of contract where the original payments turn out to be too low. There are also a mandatory requirements for transparency of reporting to authors and performers by the parties, successors in title (and by request sub-licensees) to whom they had licensed or transferred their rights.
Member States are also mandated to put alternative dispute resolution procedures in place in relation to disputes concerning the transparency obligations and the contract adjustment mechanism. Within certain parameters, authors and performers shall also be able to revoke exclusive licences in whole or in part in cases of lack of exploitation of the work or performance.
The rights granted by Articles 18-22 do not apply to authors of computer programs within the meaning of Article 2 of Directive 2009/24/EC on the legal protection of computer programs.
Database Directive 96/9/EC Art. 6(2)(b) (use for illustration for teaching or scientific research) & Art. 9(b) (extraction for the purposes of illustration for teaching or scientific research) to ensure these exceptions continue to operate without prejudice to the exceptions and limitations provided for in this new Directive.
Information Society Directive 2001/29/EC Art. 5(2)(c) (reproductions made by publicly accessible libraries, educational establishments, museums or archives) & Art. 5(3)(a) (illustration for teaching or scientific research) to ensure that these exceptions operate without prejudice to the exceptions and limitations provided for in this new Directive.
Information Society Directive 2001/29/EC Art. 12(4) concerning additional tasks in respect of this new Directive for the Member States’ Contact Committee set up by this Article.
This is not quite the end of the road for the Directive. It now awaits adoption by the Council of Ministers and publication in the Official Journal, but no further textual changes are expected. On publication in the Official Journal, Member States will have two years in which to implement the Directive in their national laws.
There will be considerable scope for EBLIDA member organisations to advocate strongly for library and user friendly national implementations in their countries, but that means that library associations and institutions will need to be very active and, where not already in that position, start work now to gain recognition from their government copyright office and legislators of their status as vital copyright stakeholders in the digital environment. EBLIDA intends to take steps to support members in their task.
A big shout-out for the core libraries team who worked on the Directive for the last 2½ years, many also spending a lot of time advocating for libraries and building relationships with Commission, Council and Parliament legislators face to face in Brussels.
SPARC Europe - Vanessa Proudman assisted in succession by Dan Pescod, Ásta Helgadóttir, and Brigitte Vézina.
The core team’s work was supported by colleagues from Electronic Information for Libraries (EIFL), the European University Association (EUA), Public Libraries 2030, the Coalition of Academic Repositories (COAR) and Science Europe.We are also grateful for the information and advice received from Copyright for Creativity (C4C).
Together we saw off several potential disasters and successfully persuaded legislators to insert a number of very good changes to the original draft proposed by the Commission.
The library team could not have achieved as much as it did without the advice and active support of a number of MEPs, too numerous to name here, but six merit especial mention and thanks: former MEP Catherine Stihler, now CEO of Open Knowledge International and MEPs Julia Reda, Marietje Schaake, Lidia Geringer de Oedenberg, Heidi Hautala and Jiří Maštálka.
Our supporters in the Parliament not only understand the internet and the digital environment, but also appreciate the value and importance of libraries for access to knowledge and the delivery of culture, education and research. Together with their assistants and colleagues, they made it possible for important amendments to get through that much more positively shaped the Directive so that it works for the benefit of library users, whether they be researchers, educators and students or the general public.

matches:
Art. 7
Art. 7
Art. 4
Art. 6
CJEU
Art. 6
Art. 9
Art. 5
Art. 5
Art. 12


§ 38a-836. - Short title: Connecticut Insurance Guaranty Association Act.
§ 38a-837. - Application of chapter.
§ 38a-839. - Connecticut Insurance Guaranty Association created. Membership. Function. Accounts.
§ 38a-840. - Board of directors. Selection. Reimbursement for expenses.
§ 38a-841. - Obligations and rights of association. Limitations. Assessments. Investigation of claims. Right to intervene in court proceedings.
§ 38a-842. - Plan of operation.
§ 38a-843. - Insolvent insurers. Penalty. Petition to show cause.
§ 38a-844. - Assignment of rights under policy. Receiver or liquidator bound by settlements. Preservation of rights of association. Right of recovery.
§ 38a-845. - Exhaustion of rights under policy prior to claim against association. Claims recoverable from more than one association. Persons required to exhaust rights under governmental insurance or guaranty program.
§ 38a-846. - Detection and prevention of insurer insolvencies.
§ 38a-847. - Association subject to examination and regulation by commissioner. Annual financial report.
§ 38a-848. - Exemption from fees and taxes. Exception.
§ 38a-849. - Rates and premiums to include recoupment of assessments.
§ 38a-850. - No liability for action taken in performance of powers and duties. No liability for failure to act.
§ 38a-851. - Association rights in proceedings to which insolvent insurer is party. Access to insolvent insurer`s records.
§ 38a-852. - Prohibited unfair trade practice.
§ 38a-854 to 38a-857 - Reserved.
Sections 38a-836 to 38a-853, inclusive, shall be known and may be cited as the "Connecticut Insurance Guaranty Association Act."
10) Flood insurance pursuant to the federal Flood Disaster Protection Act of 1973, as amended, 42 USC. § 4001, et seq.
(5) (A) "Covered claim" means an unpaid claim, including, but not limited to, one for unearned premiums, that arises out of and is within the coverage and subject to the applicable limits of an insurance policy to which sections 38a-836 to 38a-853, inclusive, apply, if such insurer becomes an insolvent insurer or such claim was assumed as a direct obligation by an insurer that becomes an insolvent insurer, where such obligation was assumed through a merger or an acquisition, pursuant to an acquisition of assets and assumption of liabilities or pursuant to an assumption reinsurance transaction, and (i) the claimant or insured is a resident of this state at the time of the insured event, or (ii) the claim is a first party claim for damage to property with a permanent location in this state. �For the purposes of this subparagraph, the residence of a claimant or an insured that is not an individual shall be the state in which such claimant''s or insured''s principal place of business is located at the time of the insured event.
11) "United States" has the meaning assigned to it by section 38a-1.
3) an account for all other insurance to which sections 38a-836 to 38a-853, inclusive, apply.
A) The board of directors of said association shall consist of not less than five nor more than nine persons serving terms as established in the plan of operation under section 38a-842. The members of the board of directors shall be selected by member insurers subject to the approval of the commissioner. Vacancies on the board shall be filled for the remaining period of the term by a majority vote of the remaining members, subject to the approval of the commissioner. If no members are selected within sixty days after October 1, 1971, the commissioner may appoint the initial members of the board of directors.
B) In approving selections to said board, the commissioner shall consider among other things whether all member insurers are fairly represented.
C) Members of said board shall receive no compensation as such but shall be reimbursed from the assets of said association for actual and necessary expenses incurred by them in carrying out their official duties as members of the board of directors.
(7) Reimburse each such servicing facility for obligations of said association paid by such facility and for expenses incurred by such facility while handling claims on behalf of said association and shall pay such other expenses of said association as are authorized by sections 38a-836 to 38a-853, inclusive.
7) refund to the member insurers in proportion to the contribution of each such member insurer to that account, that amount by which the assets of the account exceed the liabilities, if, at the end of any calendar year, the board of directors finds that the assets of said association in any account exceed the liabilities of that account as estimated by the board of directors for the coming year.
C) 1) Each insurer paying an assessment under sections 38a-836 to 38a-853, inclusive, may offset one hundred per cent of the amount of such assessment against its premium tax liability to this state under chapter 207. Such offset shall be taken over a period of the five successive tax years following the year of payment of the assessment, at the rate of twenty per cent per year of the assessment paid to the association. Each insurer to which has been refunded by the association, pursuant to subsection (B) of this section, all or a portion of an assessment previously paid to the association by the insurer shall be required to pay to the Department of Revenue Services an amount equal to the total amount that has been claimed as an offset against the premiums tax liability on the premiums tax return or returns, as the case may be, filed by such insurer and that is attributable to such refunded assessment, provided the amount required to be paid to said department shall not exceed the amount of the refunded assessment. If the amount of the refunded assessment exceeds the total amount that has been claimed as an offset against the premiums tax liability on the premiums tax return or returns filed by such insurer and that is attributable to such refunded assessment, such excess may not be claimed as an offset against the premiums tax liability on a premiums tax return or returns filed by such insurer or, if the offset has been transferred to another person pursuant to subdivision (2) of this subsection, by such other person. For purposes of this subsection, if the offset has been transferred to another person pursuant to subdivision (2) of this subsection, the total amount that has been claimed as an offset against the premiums tax liability on the premiums tax return or returns filed by such insurer includes the total amount that has been claimed as an offset against the premiums tax liability on the premiums tax return or returns filed by such other person. The association shall promptly notify the Commissioner of Revenue Services of the name and address of the insurers to which such refunds have been made, the amount of such refunds and the date on which such refunds were mailed to such insurer. If the amount that an insurer is required to pay to the Department of Revenue Services has not been so paid on or before the forty-fifth day after the date of mailing of such refunds, the insurer shall be liable for interest on such amount at the rate of one per cent per month or fraction thereof from such forty-fifth day to the date of payment.
2) An insurer, in this subparagraph called "the transferor", may transfer any offset provided under subdivision (1) of this subsection to an affiliate, as defined in section 38a-1, of the transferor. Any such transfer of the offset by the transferor and any subsequent transfer or transfers of the same offset shall not affect the obligation of the transferor to pay to the Department of Revenue Services any sums which are acquired by refund from the association pursuant to subsection (B) of this section and which are required to be paid to the Department of Revenue Services pursuant to subdivision (1) of this subsection. Such offset may be taken by any transferee only against the transferee''s premium tax liability to this state under chapter 207. The Commissioner of Revenue Services shall not allow such offset to a transferee against its premium tax liability unless the transferor, the affiliate to which the offset was originally transferred, each subsequent transferor and each subsequent transferee have filed such information as may be required on forms provided by said commissioner with respect to any such transfer or transfers on or before the due date of the premium tax return on which such offset would have been taken by the transferor if no transfer had been made by the transferor.
a) 1) Said association shall submit to the commissioner a plan of operation and any amendments thereto necessary or suitable to assure the fair, reasonable, and equitable administration of said association. The plan of operation and any amendments thereto shall become effective upon approval in writing by the commissioner.
2) If said association fails to submit a suitable plan of operation within ninety days following October 1, 1971, or if at any time thereafter said association fails to submit suitable amendments to the plan, the commissioner shall, after notice and hearing, adopt and promulgate such reasonable regulations as are necessary or advisable to effectuate the provisions of sections 38a-836 to 38a-853, inclusive. Such regulations shall continue in force until modified by the commissioner or superseded by a plan submitted by said association and approved by the commissioner.
9) contain such additional provisions as may be necessary or proper for the execution of the powers and duties of said association under sections 38a-836 to 38a-853, inclusive.
D) The plan of operation may delegate any or all powers and duties of said association, except those under subdivision (3) of subsection (A) of section 38a-841 and subdivision (2) of subsection (b) of section 38a-841, to a corporation, association, or other organization which performs or will perform functions similar to those of said association, or its equivalent having a like function to that of said association, in two or more states. Such a corporation, association or organization shall be reimbursed by said association as a servicing facility would be reimbursed and shall be paid by said association for its performance of any other functions of said association. Any delegation under this subsection shall take effect only with the approval of both the board of directors and the commissioner, and may be made only to a corporation, association, or organization which extends protection not substantially less favorable and effective than that provided by sections 38a-836 to 38a-853, inclusive.
(a) The commissioner shall: (1) Notify said association of the existence of an insolvent insurer, and notify the chairman of the Workers' Compensation Commission and the State Treasurer of the existence of an insolvent workers' compensation insurer, not later than three days after the commissioner receives notice of any such insolvency; (2) upon request of the board of directors, provide said association with a statement of the net direct written premiums of each member insurer.
(b) The commissioner may: (1) Require that said association notify those persons insured by the insolvent insurer, and any other interested parties, of the entry of a final order of liquidation with a finding of insolvency and of their rights under sections 38a-836 to 38a-853, inclusive. Such notification shall be by mail sent to their last known address, where available, provided if sufficient information for such notification by mail is not available, notice by publication in a newspaper of general circulation shall be sufficient to satisfy the requirements of this subsection; (2) suspend or revoke, after notice and hearing, the certificate of authority to transact insurance in this state of any member insurer that fails to pay an assessment when due or which fails to comply with said plan of operation. In lieu of such suspension or revocation, the commissioner may levy a fine on any member insurer that fails to pay an assessment when due, provided no such fine shall exceed five per cent of the unpaid assessment per month, and provided no fine shall be less than five hundred dollars per month; (3) revoke the designation of any servicing facility if the commissioner finds claims are being handled unsatisfactorily.
c) Any person aggrieved by any final action or order of the commissioner under sections 38a-836 to 38a-853, inclusive, may, not later than thirty days from the date of such action or order, petition the superior court for the judicial district of Hartford to require the commissioner to show cause why said action or order should not be reversed or eliminated, and, if said court finds that the action or order of the commissioner was arbitrary and unjustified it shall take such action in the premises as may seem equitable. The pendency of any such petitions to show cause shall act as a stay of execution of any such order. Petitions under this section shall be privileged in respect of trial assignment.
A) Any person recovering any moneys under sections 38a-836 to 38a-853, inclusive, shall be deemed to have assigned his rights under the policy to said association to the extent of his recovery from said association. Every insured or claimant seeking the protection of said sections shall cooperate with said association to the same extent as such person would have been required to cooperate with the insolvent insurer. Said association shall have no cause of action against any insured of the insolvent insurer for any sums it has paid out to such insured except such causes of action as the insolvent insurer would have had if such sums had been paid by the insolvent insurer. In the case of an insolvent insurer operating on a plan with assessment liability, payments of claims of said association shall not operate to reduce the liability of insured's to the receiver, liquidator, or statutory successor for unpaid assessments.
B) The receiver, liquidator, or statutory successor of an insolvent insurer shall be bound by determinations of covered claim eligibility under sections 38a-836 to 38a-853, inclusive, and by settlements of claims made by said association or any similar organization having a like function to that of said association in another state. The court having jurisdiction shall grant such claims priority equal to that to which the claimant would have been entitled in the absence of said sections 38a-836 to 38a-853, inclusive, against the assets of the insolvent insurer. The expenses of said association or any similar organization having a like function to that of said association in handling claims shall be accorded the same priority as the receiver's or liquidator's expenses.
C) Said association shall periodically file with the receiver or Liquidator of the insolvent insurer statements of the covered claims paid by said association, the expenses paid for the processing of covered claims paid or contested and estimates of anticipated claims on said association, and expenses of processing such claims which shall preserve the rights of said association against the assets of the insolvent insurer.
D) 1) Except as provided in subdivision (2) of this subsection, the association shall have the right to recover from the following persons the amount of any covered claim paid on behalf of such person pursuant to sections 38a-836 to 38a-853, inclusive: (A) Any person who is an affiliate of the insolvent insurer and whose liability obligations to other persons are satisfied in whole or in part by payments made under this chapter; and (B) any insured whose net worth on December thirty-first of the year next preceding the date the insurer becomes an insolvent insurer exceeds fifty million dollars and whose liability obligations to other persons are satisfied in whole or in part by payments made under said sections. For purposes of this subdivision, "insured" does not include a municipality, as defined in section 7-148, or the Second Injury Fund, established in section 31-354.
2) The association shall have no right to recover pursuant to subdivision (1) of this subsection from any nonprofit corporation organized to deliver health services and social services to meet the needs of the elderly, that is incorporated in this state and qualified as a Section 501(c)(3) organization under the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as amended from time to time, for any amount of covered claims paid on behalf of such corporation on or after December 1, 2001, provided the insolvent insurer was declared insolvent prior to May 27, 2008. Any amounts recovered by the association prior to May 27, 2008 from any such nonprofit corporation or affiliate of such nonprofit corporation shall not be required to be reimbursed to such nonprofit corporation or affiliate of such nonprofit corporation.
A) Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under sections 38a-836 to 38a-853, inclusive, shall exhaust first his rights under such policy. Any amount payable on a covered claim under said sections shall be reduced by the amount recoverable under the claimant's insurance policy or chapter 568.
C) Any person having a claim under any governmental insurance or guaranty program which such claim is also a covered claim shall be required to first exhaust his rights under such program. Any amount payable on a covered claim under sections 38a-836 to 38a-853, inclusive, shall be reduced by any amount recoverable under such program.
1) The board of directors, upon majority vote, shall notify the commissioner of any information which it may have indicating any member insurer may be insolvent or in a financial condition hazardous to its policyholders or the public.
2) The board of directors may, upon majority vote, request that the commissioner order an examination of any member insurer which the board in good faith believes may be in a financial condition hazardous to its policyholders or the public. Within thirty days of the receipt of such request, the commissioner shall begin such examination. The examination may be conducted as a National Association of Insurance Commissioners examination or may be conducted by the commissioner or by such persons as the commissioner may designate. The cost of such examination shall be paid by said association. In no event shall such examination report be released to the board of directors prior to its release to the public, provided this shall not preclude the commissioner from complying with subdivision (3) of this section. The commissioner shall notify the board of directors when the examination is completed. The request for an examination shall be kept on file by the commissioner but it shall not be open to public inspection prior to the release of the examination report to the public.
3) The commissioner shall report to the board of directors when he has reasonable cause to believe that any member insurer examined or being examined at the request of the board of directors may be insolvent or in a financial condition hazardous to its policyholders or the public.
4) The board of directors may, upon majority vote, make reports and recommendations to the commissioner and the chief insurance regulatory official in any jurisdiction upon any matter germane to the solvency, liquidation, rehabilitation or conservation of any member insurer. Such reports and recommendations shall not be considered public documents.
5) The board of directors may, upon majority vote, make recommendations to the commissioner and any other public official in any jurisdiction for the detection and prevention of insurer insolvencies.
6) At the request of the commissioner, the board of directors shall, at the conclusion of any insurer insolvency in which said association was obligated to pay any covered claim, prepare a report on the history and causes of such insolvency, based on the information available to said association, and submit such report to the commissioner.
Said association shall be subject to examination and regulation by the commissioner. The board of directors shall submit, not later than March thirtieth of each year, a financial report for the preceding calendar year in a form approved by the commissioner.
Said association shall be exempt from payment of all fees and all taxes levied by the state or any of its subdivisions provided it shall not be exempt from the payment of real or personal property taxes.
a) All proceedings in which an insolvent insurer is a party or is obligated to defend an insured as a party in any court in this state shall be stayed for up to six months and for such additional time thereafter as may be determined by the court from the date of declaration of insolvency or from the time an ancillary proceeding is instituted in the state, whichever is later, to permit proper defense by said association of all pending causes of action in the case. Whenever any covered claims arise from a judgment under any decision, verdict or finding based on the default of an insolvent insurer or based on such insolvent insurer's failure to defend an insured, said association, either on its own behalf or on behalf of such insured, may apply to have such judgment, order, decision, verdict or finding set aside by the same court or administrator that made such judgment, order, decision, verdict or finding and said association may defend against any such claim on the merits of the case.
b) The liquidator, receiver or statutory successor of an insolvent insurer covered by sections 38a-836 to 38a-853, inclusive, shall permit access by the board or its authorized representative to such insolvent insurer's records which the board determines are necessary for the board to carry out its functions under said sections 38a-836 to 38a853, inclusive, with regard to covered claims. The liquidator, receiver or statutory successor shall provide the board or its representative with copies of such records upon the request of the board.
It shall be a prohibited unfair trade practice and a violation of section 38a-815 for any person to make use in any manner of the protection afforded by sections 38a-836 to 38a853, inclusive, in the solicitation, negotiation, procurement or effectuation of insurance provided, this section shall not apply to the distribution of any publication approved by the commissioner and describing the general purposes and current limitations of sections 38a-836 to 38a-853, inclusive. Violations of this section shall be subject to the provisions of section 38a-817.
The commissioner may promulgate such reasonable regulations as he deems necessary to carry out the intent of sections 38a-836 to 38a-853, inclusive. Such regulations may include definitions of the kinds of insurance specified in section 38a-837.