text: COLLATERAL QUESTIONS RESPECTING WATERCOURSES 89 injury.348 This limitation has been recognized, as a principle of equity, without reference to any statutory limitation;349 but it applies only with respect to a material injury.350 Rights of Use Under certain circumstances, riparian proprietors in States having dual systems of water rights (riparian and appropriative) have claimed and have obtained sanction of rights to the use of high flood overflows for the purpose of natural irrigation of their riparian lands, where the overflows substantially benefited the land. In the case arising in Oregon, a Federal court held that a riparian owner was entitled to the ordinary and usual flow of the stream of any beneficial use to him including, under certain circumstances, flood or overflow waters reason- ably to be anticipated in ordinary seasons.351 Here about 300 acres of low-lying land adjacent to a creek was rendered productive of wild grass and other hay crops by the natural overflow of the creek, thus adding measurably to the value of the land. The owner was entitled to have this right protected against a proposed diversion that would cause sub- stantial injury. The Washington Supreme Court held that the riparian proprietor is entitled to the use of the natural flow of stream waters in their natural and accustomed channels, including floods or freshets that occur annually with practical regularity, where the riparian owner is accustomed to spreading of the water over his land to its enrichment and would be substantially injured by deprivation of the overflows by reason of upstream storage.352 In the Longmire case, the court acknowledged that it "may be" that the rule would not apply if the floodwaters were unprecedented and extraordinary. That question, however, was moot in the Still case, where the high waters were of practically regular annual occurrence. Although the California courts have not distinguished between ordinary and extraordinary floodflows in streams with respect to rights of landowners to embank against them, they formerly did make some distinction insofar as rights of riparian owners to use the overflows were involved. Thus, in several cases, it was held that riparian landowners were not entitled to enjoin hostile diversions of flood or freshet flows that did not injure their lands or impair 348 Jackson v. Knight, 268 S. W. (2d) 773, 775 (Tex. Civ. App. 1925, error dismissed). 349 Bass v. Taylor, 126 Tex. 522, 527-528, 90 S. W. (2d) 811 (1936). 350 Knight v. Durham, 136 S. W. 591, 593-594 (Tex. Civ. App. 1911). 351 Eastern Oregon Land Co. v. Willow River Land & In. Co., 201 Fed. 203, 213-214 (9th Or. 1912). 352Still v. Palouse In. & Power Co., 64 Wash. 606, 608-610, 117 Pac. 466 (1911); Longmire v. Yakima Highlands In. & Land Co., 95 Wash. 302, 305-307,163 Pac. 782 (1917).

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Makarov N. A., Engovatova A. V, Koval V Yu.
Abstract. The paper summarizes preliminary results of archaeological excavations conducted on the site where building 14 of the Moscow Kremlin had been located before it was pulled down. these were the first large-scale excavations in the eastern part of the Kremlin hill conducted on the site where the Chudov monastery, the resurrection monastery and the small nikolaevsky Palace had stood before they were torn down in 1929–1930. the 2014–2016 excavations revealed foundation pits of several Chudov monastery and Small Nikolaevsky Palace buildings dated to the 15th–17th centuries, graves of the monastery necropolis and stratified sections of the occupation layer, with the earliest strata dated to the pre-mongol period, which survived despite substantial demolition works carried out on this spot in the soviet times. the paper provides a brief description of the stratigraphic conditions of the excavated sections, remains of the buildings, some of which are now museified at two ‘archaeological windows’ in Ivanovskaya square; burial assemblages of the 14th–17th centuries and medieval cultural deposits including the deposits associated with the earliest period of this part of the Kremlin hill occupation.
Keywords: Moscow Kremlin, medieval cities, Muscovy, monasteries, town mansions, medieval necropolises, Chudov monastery, Small Nikolaevsky Palace.
Mastykova A. V., Dobrovolskaya M. V., Yuganov K. L.
Abstract. The paper explores materials from Shlakalken-5, which is a ground cemetery of the Sambian-Natangian culture, discovered in the course of reconnaissance works on the Sambian Peninsula (Zelenograd district, Kaliningrad Region). The cemetery yielded artifacts from the Late Roman period – the early Migration Period. Comparison of the dates obtained through the radiocarbon analysis and the studies of the funeral offerings help date the whole cemetery to the Late Roman phases C1-D1, i. e. ca. 160/180-400/410 AD in terms of chronology of European Barbaricum. Radiocarbon analysis dates burial 3 within the chronological range from 250-440 AD (90,8 % probability by two sigma), or to the more limited range from 330 to 430 AD (64,9 % probability by one sigma). The artifacts discovered at Shlakalken-5 occupy an intermediary chronological position between Roman period antiquities from the heydays of the Sambian-Natangian culture represented by urn graves with rich funeral offerings and urnless graves with scarce funeral offerings of the Merovingian period; they all provide evidence of gradual impoverishment of the culture that can be observed at other sites as well, and, probably, reflect some crisis events associated with the Marcomannic Wars and overall decline of the Roman Empire.
Keywords: Roman period, Merovingian period, Sambian-Natangia, Sambian Peninsula, ground cemetery, cremations, anthropological expertise, radiocarbon analysis.
Abstract. The paper reports on the footings of the north portal of the Cathedral of the Nativity of the Mother of God in Bogolyubovo discovered recently during excavations. The construction of the cathedral was commissioned by the Prince Andrei the God- Loving in the middle of the 12th century. This portal as well as the footings of the walls and lesenes was constructed by Western European builders in the Romanesque style. Sculptural working of the portal footings and one of the pilasters demonstrates high- class workmanship of the stone carvers who apparently had come from Northern Italy. The paper offers a new reconstruction of the cathedral plan.
Keywords: Vladimir-SuzdaT principality, North-Eastern Rus, princely residence, medieval Russian architecture, sculpture, Romanesque architecture, architectural archaeology, reconstruction.
Abstract. This paper discusses importance of experimental research methods in the studies of bone industries. It contains a brief review of the areas where the employment of such methods has proven to be the most effective in recent years. It is important to be aware of the fact that a modern person is not always able to understand actual processes used in making and application of many bone items from the Paleolithic period. Therefore, it is not possible to rely on empiric concepts of a modern person based on his or her life experience. At the current stage of scientific development the application of experimental and edge-wear research methods is now not only possible but is also mandatory. The morphology analysis of Paleolithic bone items without linkage to their production technology and functionality inevitably leads to controversial and sometimes erroneous results.
Keywords: Paleolithic of Eastern Europe, bone industries, experimental and edge-wear research methods.
Abstract. A single aim underlies the transformation of osseous material: the production of an object. But this produced object is only of interest because it enables a given activity to be carried out, in accordance with specific social, economic and cultural needs. The technical and conceptual components of the work of osseous materials denote these close links and thus, have a certain chronocultural value. In order to decipher these components, it is essential to be able to identify them and to prioritize them on a coherent framework. This paper presents it briefly (with definitions of technique, process, method, scheme) before giving a rapid overview of the predominant transformation schemes during the Upper Palaeolithic in Western Europe summarizes our current knowledge of the subject.
Keywords: osseous technology, Upper Palaeolithic, transformation schemes, Western Europe.
Distinctive Features of Bone, Teeth and Tusk Use by Kostenki 4 Inhabitants: strategy or Conditions of the source?
Abstract. The Kostenki-Borschevo area represents distinct variants of Gravettian industries from the so called Eastern Gravettian to the so called ‘biryuchien’ (derived from the name of the site known as Biryuchya Balka), which includes a group of sites with absolutely different traditions. Similarity between these sites is reflected in the typological features of lithic implements and tools, while their differences make them almost incomparable in many other respects. That is why, the analysis of bone industry is so important not only from the typological point of view but also from the point of view of the strategy for using bones by the earliest inhabitants of the sites, their preservation conditions and spatial distribution. It is this line of thought that is proposed to be used in review of the artifacts uncovered at the Aleksandrovskaya site, which is the largest in terms of the area and the number of finds, and which has been excavated almost in full.
Keywords: Upper Paleolithic, bone industry, Gravettian, spatial analysis, ornamentation of artifacts, strategy for using raw materials, preservation conditions of the bone, faunal remains.
Abstract. Imitations reflected in jewelry pieces and minor arts items appeared at the sites in Europe and Siberia in the Initial upper Paleolithic and spread during the early upper Paleolithic. The aim of such imitations was not only to reproduce the form of some natural features but also the material from which jewelry pieces were made. In this case copying of the form of natural features and the look (color, texture) of raw materials is not always explained by a shortage or absence of originals to be imitated. Jewelry made from amber, canine teeth of the deer, polar fox, etc. imitating some features have been found on the Russian Plain. despite regional specifics in selecting animal species, whose teeth were used to make jewelry or which were imitated by jewelry pieces, a general European tendency of using predominantly canine teeth of the deer and polar fox/fox to make jewelry is traced down quite easily at the sites dated to the Initial upper Paleolithic and the early and the middle periods of the upper Paleolithic of the Russian Plain.
Keywords: Initial upper Paleolithic, early upper Paleolithic, Gravettian, Kostenki- Avdeevo culture, Kostenki XVII/2, sunghir, Kapova Cave, jewelry, raw material.
Abstract. The subject of the present paper is technology of manufacturing ivory beads from the collections of the open-air Upper Paleolithic Sungir’ site. Working with the Sungir’ collection, the author identified seven ivory flakes of similar morphology and size. All these flakes are small, subrectangular in profile fragments of mammoth tusk. In scientific literature such items are known as truncated flakes. These linear preforms are associated with the production of personal ornaments from mammoth task such as beads and diadems. In addition to the truncated flakes, the collection also contains baguettes used to separate bead preforms; the collection also comprises bead preforms in various production stages. The study demonstrated that a similar technology of making beads from mammoth tusk was used across a large area extending from Western Europe to arctic siberia in the early upper Paleolithic.
Keywords: Early Upper Paleolithic, Sungir’ site, ivory industry, techno-typological analysis, personal ornaments of mammoth tusk.
Abstract. Working of mammoth tusk to produce various tools and implements became widespread and reached its technological peak shortly before the Last Glacial Maximum, with the relevant evidence traceable up to the turn of the Pleistocene- Holocene boundary across all regions of Eurasia populated by both mammoths and humans. Production of items from mammoth tusk, especially projectiles and spears may be considered the most important innovation of the Upper Palaeolithic. The Yana site materials that date to ~ 28 000 years BP (uncal.) are important for understanding methods and technologies used in production of tools and implements from mammoth tusk. The studies of the Yana artifacts demonstrate that all these processes are convincingly documented by the archaeological finds. Several sequences of technological operational processes, including production of long preform ivory shafts by lateral exfoliation with wedging have been reconstructed.
Keywords: Arctic Siberia, Upper Palaeolithic, Yana site, ivory technologies, longitudinal exfoliation.
Volkov P. V., Lbova L. V.
Abstract. A new stage in the studies of the Malta Paleolithic ’classical’ collection of items made from mammoth ivory is linked to an issue of probable cultural differentiation, distinctive features of materials in the Siberian and Eurasian contexts as well as opportunities for more detailed microscopic analysis of technological assemblages. The technological analysis made it possible to systemize techniques of working with ivory, methods applied to give a specific shape to items and ornament portable art items; correlate morphological types, technological processes and sets of stone implements employed. The characteristics of technological traces on ivory tusks helped identify a consistent set of tools and techniques, which implies the use of a standard technology and mass-production of ivory items for various purposes. In some cases, elements of more advanced tusk working technologies have been reported, which is taken to mean the presence of (chronologically and culturally) a different component.
Keywords: Upper Paleolithic, working with ivory, technology, tools, portable art, Malta, siberia.
Abstract. This paper is an overview of bone industries during the middle and upper Paleolithic periods in the Caucasus. It tentatively outlines some trends in development of bone carving technologies and innovations that can be identified today and describes bone artifact assemblages typical for different periods.
Keywords: bone industries, techniques, Caucasus, middle and upper Paleolithic periods.
Simonenko A. A., Khaikunova N. A.
Abstract. The paper describes and introduces into scientific discourse bone/antler artefacts from the Upper Palaeolithic site known as Tretiy mys, reviews issues related to preservation of the tools and implements made from bone/antler as well as spatial distribution of the items attributed to this group. It also raises an issue of the reasons explaining scarcity of bone tools and implements at this site.
Keywords: Tretiy mys, Palaeolithic, spatial analysis, tools and implements made from bone/antler.
Abstract. The study conducted has demonstrated that the Mesolithic layers at the Gorbunovo Peat-Bog sites have yielded diverse bone arrowheads, some of which have clear traces of use. The nature of the damage pattern, polish from use and linear traces demonstrate that the arrowheads were used in hunting, primarily, large animals. It is quite consistent with the predominance of elk bones among faunal remains recovered from these layers.
Keywords: arrowheads, bone, Mesolithic, Gorbunovo Peat-Bog, Trans-Urals, edge- wear analysis.
Abstract. The excavations of multi-layer Mesolithic sites of the Gorbunovo peat-bog that yielded assemblages of items made from bones and antler dated to various stages of the Mesolithic were of immense significance to our understanding of the Urals Mesolithic period. The artifacts retrieved helped identify distinctive features and trace down the evolution of bone industry in this microregion and the entire middle Transurals region. the analysis of the artifacts revealed that the Gorbunovo peat-bog sites are attributed to the middle Transurals mesolithic culture as well as identified a lot of similarities between the bone industry at the Gorbunovo peat-bog sites, the bone industry of the middle Transurals mesolithic culture and mesolithic artifacts from Eastern Europe both in terms of morphological characteristics and in terms of production technologies. This fact helped bring forward an issue that the middle Transurals mesolithic culture and a number of east European mesolithic cultures belonged to the same cultural community.
Keywords: mesolithic, bone industry, urals, Gorbunovo peat-bog sites, east European analogues.
Lozovskaya O. V., Lozovski V. M.
Abstract. Projectile points reflect the result of prehistoric population adaptation to paleoecological conditions of the social and cultural environment. In case of ancient societies with a stable economy, a standard set of game animals and birds and a high percentage share of fishing, a diversity of bone points of hunting weapons poses an issue of their functions in the subsistence system. Artifacts from Zamostje 2, a Mesolithic site in the Volga-Oka interfluve, are used to review morphological patterns and discuss interpretations of one of the least studied groups of ranged weapons, i.e. large points of spears or leisters. Despite strong similarity of proportions and techniques used in shaping some components, the points show substantial differences, which influence key performance characteristics of this type of weaponry, such as presence or absence of side prongs and presence or absence of a hole for attaching a line. Interpretation of these typological features is directly linked with a need to reconstruct methods of hunting (on land and on water) and determine huntable species. In the absence of direct archaeological evidence, it is not easy to find an answer to this question.
Keywords: mesolithic, Neolithic, Russian Plain, bone industry, hunting weapons, spear/leister points, Zamostje 2.
Skochina S. N., En’shin D. N.
Abstract. The paper analyzes artifacts from a grave discovered near a dwelling of the Kozlovo culture at the Neolithic settlement of Mergen’ 7. The use-and-wear analysis was performed to determine functions of the grave offerings consisting of bone tools and implements. This analysis provided additional data on ideological concepts of the Neolithic population inhabiting the forest-steppe Ishim River region.
Keywords: forest-steppe Ishim River region, Neolithic, Mergen’ 7 settlement, bone tools and implements, use-and-wear analysis.
Gudimenko I. V., Faifert A. V.
Abstract. A ground cemetery dating to the Eneolithic-Early Bronze Age was excavated in the course of the examination of a Srubnaya (timber-Srubnaya grave) culture near the village of Starocherkasskaya in the Aksay district, Rostov Oblast. The discovered graves revealed the deceased placed in extended or contracted position and accompanied by funeral offerings, namely, three vessels, flint implements and pendants made from animal teeth. One case of stratigraphy of the graves was established. The funeral offerings and distinctive features of the burial rite provide an opportunity to compare the site with the Koysug kurgan burial ground explored in 1966-1972. There are analogies among other kurgan sites located in the Left bank of the Lower Don and the Middle Don Regions.
Keywords: kurgan, Eneolithic, Bronze Age, Yamnaya culture, grave.
Shuteleva I. A., Shcherbakov N. B., Golyeva A. A., Lun’kov V. Yu., Lun’kova Yu. V, Leonova T. A., Orlovskaya L. B., Radivojevic M.
Abstract. The publication summarizes the results of complex interdisciplinary research of monuments of the Late Bronze Age of Srubnaya-Alakul culture in Kazburun archaeological district. Given the chronological framework of the existence of a cultural community in the Bashkir Transurals revealed its characteristic features in the anthropological and paleogenetics form, as probable construction methods and features of settlements and burial ground sites.
Keywords: the Late Bronze Age, Bashkir Transurals, Srubnaya-Alakul type of monuments, interdisciplinary studies, radiocarbon AMS-dating, ADNA-analyzes (paleogenetics).
Skakov A. Yu., Chshiev V. T.
Abstract. This paper introduces into scientific discourse a new assemblage of the Koban culture, i. e. grave 45 from the Elkhotovo cemetery (North Ossetia), which, along with a rather diverse set of funeral offerings, has yielded a bronze ornamented axe decorated in the traditions of the Koban-Cholchis graphic style. Over the past years this axe has been the fourth find of this type in the context of funeral assemblages discovered in the North Caucasus. The axe depicts a stylized beast (Group 7 after A. Yu. Skakov); taking distinctive features of ornamentation into account, it may be linked to a ’South Ossetian’ variant of the graphic style and the dating of the axe and the funeral assemblage as a whole may fall within the middle – the second half of the 8th century BC.
Keywords: Koban culture, Early Iron Age, bronze ornamented axes, Koban-Colchis art.
Berezutskiy V. D., Zolotarev P. M.
Abstract. Sarmatian bronze cauldrons in the Middle and Upper Don regions are of great rarity, and each find of this kind makes a substantial contribution to the studies of Sarmatian archaeology. The paper explores a Sarmatian cauldron discovered in a destroyed kurgan near the village of Sredny Ikorets of the Liski district, Voronezh Oblast (the Don Left Bank Region). On the basis of the cauldron shape and its ornamentation elements, this find may be linked to the Middle Sarmatian culture and dated to the 1st- 2nd centuries AD.
Keywords: Middle Don, Sarmatians, Middle Sarmatian culture, bronze cauldron.
Abstract. The paper examines bronze parts of a bridle set from a male cremation grave made in the last quarter of the 10th century in Shekshovo (Suzdal Opolye). The set included four strap-dividers: two leaf-shaped plaques used as jingle bells; a pear-shaped jingle bell with an aperture in the form of a cross; at least eight identical strap-ends; at least 23 (24?) mounts of three types; and a small iron buckle. The composition of the set and some of its components have analogies found among artifacts of nomadic graves from the Lower Volga region. The Shekshovo find emphasizes once more a syncretic nature of culture of the Medieval Russia military elite of that time, which combined elements of different origins and styles ranging from Scandinavian to nomadic.
Keywords: Medieval Russia, funeral ritual, metal parts of the bridle set.
Tropin N. A., Lukin S. V.
Abstract. Remains of a wooden casket with an internal deadlock, a lid hinge and iron plates (four corner plates and six flat plates) were found lying on the floor of a household structure at a medieval homestead located in the suburbs of Yelets. It is a rare find. The preservation of the recorded components in situ and wood remains in the form of a humus layer enabled the researchers to make conclusions about its design, size and position after the basement was filled up with soil. To reconstruct the casket, a high-precision 3D model was created. The photogrammetry method was used for this purpose. The modeling results provided an opportunity to establish characteristics of the casket: its size was 270 x 420 x 210 mm, the thickness of the walls and the lid was 20 mm. It has been established that its size is consistent with Russian measures of length. Further finds of similar plates in situ will make it possible to forecast new possible finds of medieval caskets.
Keywords: Tselykovka 2 settlement, casket, metal plates, internal deadlock, lid hinge, modeling.
Abstract. The paper reports on the materials from the excavations of sarai, which was the capital of the Golden horde, conducted in 2015. The excavations yielded a jug made of white-burnt clay with green glaze (fig. 1). The body of the vessel is ornamented with two impressed decorative rows made by round figural stamps, with each row featuring a different figural composition. The figural pattern of the stamps is of two types, namely, the so called “ferocious animal” and “archangel”, or ‘Alexander of Macedon” The analysis of the technology, the jug shape and ornamentation allows the archaeologists to date it to the end of the 14th – early 15th centuries. Besides, given the characteristics of the figural stamp impressions on the vessel found in the Golden Horde capital, it may be argued that the jug belongs to a group of prestigious ceramics. This fact, in its turn, can help link this find to the arrival of an embassy of either the Prince Mikhail Alexandrovich or the Prince Ivan Mikhailovich of Tver’ in the Golden Horde to obtain a jarlyq (a Mongol Empire decree authorizing the rule of the prince).
Keywords: Golden Horde, Sarai, Tver’, glazed ceramics, “ferocious animal”, “archangel”.
Abstract. The study addresses the cases of non-caries pathology of teeth related to premature dental attrition and enamel erosion. The studied cases were identified in anthropological series from the excavations in Velikiy Novgorod (2015-2016) carried out within the compound of the St. George’s (Yuryev) Monastery. Local loss of dentum was identified in the upper molars from the palatine side and in the mandible from the lingual side as well as in the lingual surface of the upper maxilla incisors and the canine teeth and the facial surface of the mandible incisors. In stomatology similar dentum changes are detected in diagnosis of the gastroesophageal reflux disease (GERD) (Imfeld, 1996; Rabine, Nostrant, 2009; Ranjitkar et al., 2012). The detected cases of teeth erosion from the paleoanthropological series offered an opportunity to look at the loss of dentum as a pathology, reconstruct ways of its development and take into account this attribute in establishing the biological age.
Keywords: paleoanthropology, archaeology, Velikiy Novgorod, dental erosion, gastro¬esophageal reflux disease (GERD), bruxism triad.
Voronin K. V., Matskovskiy V. V.
Abstract. When medieval icons are studied by applying a dendrochronological method, it is important to understand to what extent the dendrochronological dates of the icon boards reflect accurately the historical date of the icon painting. This issue can be addressed correctly only by dating a series of icons containing the dates when they were painted using a dendrochronological method. these are icons with dedicatory inscriptions containing the dates left by icon-painters in their autographs. one of such icons, which depicts the Great Martyr Demetrius of Thessaloniki and his life, comes from the Russian North; as is indicated in the dedicatory inscription, it was painted in 1595–1596. The dendrochronological date obtained for this icon is 1587. the dendrochronological date of the last preserved tree-ring of the icon board turned out to be nine years older than the date of the icon. In case of the icon in question, this chronological interval is the sum of two intervals, namely, the first interval corresponding to the number of the external tree-rings lost, and the second period, which is the period from the timber harvesting to the icon painting.
Keywords: Great Martyr Demetrius of Thessaloniki, medieval period, fine art, inscribed icon, donated icon, historically dated icon, dendrochronological dating, european north of Russia.

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There has been much debate on Article 50 TEU. More specifically, there have been thoughtful arguments about who or what has legal authority to trigger Article 50 and begin the Brexit process. Some have said it’s the Government acting under the Royal Prerogative whilst others have said it is for Parliament to start. My own view is that it is to be done pursuant to the Royal Prerogative, and therefore the Government has legal jurisdiction to begin the Article 50 process. However, the point is clear arguable either way.
This debate has led to calls for a judicial review of a decision to invoke Article 50 by the Prime Minister (if and when such a decision is made) and anonymous parties are now backing such a challenge. This piece addresses issues regarding such a judicial challenge to a decision by the Executive to start the Brexit process. More specifically, it examines the concerns surrounding the justiciability of any such decision.
In the comments on Barber, Hickman, and King’s well argued piece concerns were raised that, even if they are correct and it is for Parliament, not the Executive under the Royal Prerogative, to trigger Article 50 the issue would be non-justiciable and the High Court would likely refuse to hear such a challenge to the Prime Minister’s decision. Therefore, failing a challenge in the CJEU (the prospects of which I make no comment on here) the decision would stand.
Traditionally, separation of powers led the courts to generally decline to interfere with matters of policy. Hence, in R (oao Hooper) v SSWP  EWCA Civ 813;  1 WLR 2623 at - Lord Justice Laws stated that “a very considerable margin of discretion must be accorded….[where] questions of economic and social policy [are] involved”. More specifically, Lord Bingham noted in R (oao Gentle) v Prime Minister  UKHL 20;  1 AC 1356 at  there is “restraint traditionally shown by the courts in ruling on what has been called high policy- peace and war, the making of treaties, the conduct of foreign affairs”.
The argument for the Government, in relation to the rejiggering of Article 50, would undoubtedly be that this is a quintessential area where the courts should be slow to tread. It is completely and clearly axiomatic to say that the decision to begin the process of leaving the European Union is one of the most polycentric (socially, politically and economically) decisions a Government can make. Once that decision was made it any interference by the High Court be fraught with difficulties and therefore improper. The Government lawyers would, I am sure, make these arguments at permission stage to try to avert a full hearing on the issue.
The argument that the Government would undoubtedly make in the event of a judicial review is, at first blush, relatively strong. It does seem, at least initially, that an Executive decision to leave the European Union is one of the utmost “high policy” and, therefore, it would be wrong for the High Court to intervene. I think, however, that this argument, whilst initially convincing, is perhaps too simplistic to survive rigorous testing (and therefore survive a sufficiently robust Justice in the High Court).
The claimant in such a judicial review would possibly be able to make the following argument to alleviate (at least temporarily) any justiciability point. The concerns relating to justiciability, which mainly revolve around the constitutional status and institutional capability of the High Court, do not apply in a case where you are simply seeking to determine the legal basis of an Executive act. Generally, arguments around justiciability focus on the impropriety of substituting the Government’s view with the court’s on a substantive review (that is, the normal Wednesbury standard is weakened to such an extent that it barely applies anymore).
However, in such a judicial review the claimants would, hopefully, not be challenging the decision (at least initially) on its merits or process. Instead, they would focus on jurisdiction in the first place. It is clear from Attorney General v De Keyser’s Royal Hotel Ltd.  AC 508 that the courts have the ability to determine whether a Royal Prerogative power exists and, if it does, its scope and the extent to which it has been superseded by statute (as both Tucker and Barber, Hickman, and King argue it has been for present purposes.). Likewise, in the GCHQ case Lord Fraser stated “the courts will inquire into whether a particular prerogative power exists or not and, if it does exist, into its extent.”.
This would, presumably, be the first line of argument in any prospective judicial review: the initial question for the court would not be whether the Prime Minister used his or her power substantively correctly, or followed a lawful process, but rather whether he or she had power to act at all. The applicants would not be asking the court to rule on the decision or its process (where justiciability bites) but rather on the legal basis of that (purported) decision, which is inherently within the court’s role in our constitution. If, as others have argued, the European Communities Act 1972 displaces the Royal Prerogative power in relation to the EU and Article 50 then the High Court could potentially rule on this without any justiciability issues.
But what if the court decided, in line with Elliott’s and my own view, that the ECA did not supersede the Royal Prerogative in this area? This is, I suspect, where justiciability concerns would bite. Whilst in GCHQ the majority of the House of Lords said it was no longer appropriate to refuse to hear a case because the legal basis of a decision was the prerogative, they were still of the opinion that the subject matter of any decision may render it non-justiciable. Lord Roskill, somewhat tentatively, listed examples of areas where the courts would not lightly tread such as “such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers”.
Whilst the courts have somewhat loosened this staunch and binary approach they will still question “whether the nature and subject matter of the decision is amenable to the judicial process” (see Watkins LJ in R v. SSHD Ex p. Bentley  QB 394, 453). It is still the case, I argue, that acts at “the top of the scale of executive functions under the prerogative” involving “high policy” (see R v Secretary of State for Foreign and Commonwealth Affairs Ex p. Everett  QB 811) are generally not susceptible to judicial review unless something has gone catastrophically wrong in the decision making process (Watkins LJ makes a not dissimilar point in Bentley at p 453). Short of any Prime Minister, in starting the Article 50 process, acting completely irrationally (within the furthest reaches of Wednesbury) I find it difficult to envisage a court quashing his or her decision.
The debate as to whether the Prime Minister or the legislature has legal authority to decide when to start the Article 50 process remains unresolved. This piece does not take sides on that though, as stated above, my own view is that, pursuant to the Royal Prerogative, it is for the Prime Minister to decide under the current settlement. The aim of this piece is simply to look at the prospects of a judicial review of a decision by the Prime Minister to trigger Article 50. Despite some commentators’ reservations, I believe justiciability, at least at the initial stage, would not prove a barrier to such a judicial review. All the applicants in such a case would be doing is asking the court to determine whether the Prime Minister has such a power, not whether he or she exercised it fairly or was substantively correct. If the High Court decides for the prospective applicants, and says that the Prime Minister did not have the power to act, then, legally, the case is over (I leave aside whether the High Court, pursuant to its powers of discretionary relief, would quash an Article 50 notification after it has been received by the European Council).
However, if the High Court decides that the ECA does not preclude the Prime Minister, under the Royal Prerogative, from starting the Article 50 process then justiciability concerns would come to the fore. It is, in my opinion, nearly impossible to envisage a situation in which the High Court decides that the Prime Minister had the power to trigger Article 50 but holds, on either procedural or substantive grounds, he or she acted illegally in doing so.
Thomas Fairclough, AHRC PhD Candidate at Gonville and Caius College, Cambridge and Teaching Fellow in Public Law and Jurisprudence at University College London. I would like to Mark Elliott for his comments on this piece. Any mistakes are my own.
The point is that a PM invoking Article 50 is likely acting irrationally.
We know a lot about Groupthink (qv Janis and others) and how it leads to deficient decision making (e.g. Bay of Pigs, Cuban missile crisis). Groupthink appears to be at work here. For instance, calls that the next PM be a bexiteer, dismissing the likelihood that the referendum results are not binding, and the rush to bypass the referendum’s advisory nature to the conclusion that it is in some respect binding (this is the fact that the PM, prehaps acting illegally(?) said when he resigned that the people’s decision must be respected, but as any decision analysis will show, the result of the vote isn’t a decision until it is given force.
Irrationality is characteristic more generally of situations when someone does not change their mind when presented with evidence to the contrary. Owen, in his book “In Sickness and In Power” deals with amongst other factors, hubris, defined as the inability of leaders to change their mind. The book is notable for the analysis of Blair/Bush in this respect and 6 July’s release of the Chilcot report will no doubt help clarify the impact of hubris. No politician appears able to challenge the possibility that the referendum result could be a mistake (for instance that voters were misled, or themselves irrational when presented with evidence).
It would be irrational for a PM to act under circumstances where there is uncertainty about the consequences of the decision (we broadly call this evidence-based policy making), or where the referendum itself may suffer from technical deficiencies (e.g. randomness), or where there is evidence of overarching psychological forces constraining rational judgement.
But would it be so irrational that no authority acting in good faith could arrive at the decision to invoke it?
“Irrationality” for the purposes of public law has a very loaded history behind it, rooted in the idea that it’s not normally the role of judicial review to assess the merits of a decision, only its legality. In particular if it is decided that a royal prerogative is involved a Court will attach a very high bar to trying to argue that an exercise of that prerogative is irrational.
I’ll leave it to more learned people than me to go into detail on this if they wish (in fact, the article already mentions the most well known cases on this topic anyway). I’m just noting that you should be very careful about assuming a decision of any public public body will be seen as irrational by a court.
Fair point. The Chilcot enquiry can be seen as a search for the rational underpinnings of decisions make about Iraq. The point made in the report about decisions being based on evidence that lacked the robustness to underpin the certainty of the decisions being made is an assessment of rationality.
The parallel today is whether the evidence (collapsing country in the words of the Dutch PM Rutte) supports the decision that Parliament has to make about the EU. I suspect in a few years, there will be an enquiry looking at what went on in 2016, and a conclusion will be drawn that the decision lacked the requisite certainty. Indeed, things are actually becoming quite certain that e.g. the UK will not have access to the single market without free movement, and perhaps more important, to get that access will cost a lot more than the UK now pays (and there will be no rebate). Of course as the country empties and people make rational choices, immigration will cease to be an issue.
Dani Rodrik [The Globalisation Paradox, 2012 and http://rodrik.typepad.com/dani_rodriks_weblog/2016/06/brexit-and-the-globalization-trilemma.html%5D says you can have only two of these three: national sovereignty, hyper-globalisation and democracy.
What choice is the referendum implicate? What choice does Parliament have? What would be a rational choice?
The point not entered into here is what would happen if a group of businessmen seek an Act of Parliament before Art 50 can be triggered. If such a case brought would be heard at all by a court, and the court were to express its lack of interest in involving itself in matters of high policy, it would be mischevious but entirely legitimate for the litigants to invoke Article 267 and have the CJEU take as much time as it likes over hearing a question clarifying any point pertinent to the application of the exit process from the EU. For as long as the 1972 legislation is unrepealed, much mischeif can legitimately be caused in the courts which are ALL duty bound to refer to CJEU any and all matters which are questioned as to their legitimate application in the UK. It remains to be seen whether any bold QC will take this route.
The entire premise is false anyway, because all Conservative MPs are now (at least as of Monday, June 27th) obliged under a three-line-whip to vote for anything which would eventually lead to a Brexit in the House … Brexit is not abortion, and it is not subject to a free vote based upon conscience. A few Conservative MPs might decide to rebel (but I can’t think of a single one, because almost all of the Tory Remainers have now rallied behind Theresa May, and she is probably more hardline on the manner of Brexit than even Andrea Leadsom or even Michael Gove), but I don’t think that Westminster party-politics are strictly-speaking within the scope of this blog.
Some very bizarre comments here. I have never actually properly read law in a University, so all I would say is that a court in England and Wales is, I think, generally very reluctant to accept an application for a judicial review against the Government involving any the use or any proposed use of the royal prerogative of any kind. In any case, the barristers acting for the Treasury solicitors would probably throw everything at it in order to have the case thrown out. No solicitor or barrister would possibly be able to take on such a case, potentially costing millions if not tens of millions of pounds, pro bono, and I think we can safely say that legal aid is probably also unavailable.
This entry was posted on July 6, 2016 by Constitutional Law Group in Europe, European Union, Judicial review, UK government, UK Parliament and tagged Article 50 TEU, Brexit, justiciability, prerogative power, UK EU Referendum.

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The U.S. District Court for the District of Columbia ruled decidedly in favor of PhRMA and against the government earlier this week in PhRMA v. HHS, No. 14-1685 (Oct. 14, 2015), potentially concluding a protracted fight between the Health Resources and Services Administration (“HRSA”) and PhRMA over the meaning of the so-called “orphan drug exclusion,” a provision of the Affordable Care Act (“ACA”) that excludes orphan drugs from the definition of a covered outpatient drug for certain categories of 340B Covered Entities under the 340B drug discount program (42 U.S.C. § 256b).
We have followed this dispute as it proceeded before the District Court – not once, but twice (see our previous blog posts here, here, and here) – so we will not belabor the background here. In brief, the Public Health Service Act (“PHSA”) was amended in 2010 pursuant to the ACA to (1) add additional categories of health care facilities to the categories of 340B Covered Entities eligible to purchase drugs at discounted prices pursuant to the 340B program, and (2) exclude “drug[s] designated . . . for a rare disease or condition” from the 340B program with respect to those new categories (with the exception of free-standing children’s hospitals) (the “orphan drug exclusion”).
the Agency’s interpretation of the orphan drug exclusion conflicted with the plain language of the statute.
The Court focused a great deal of attention on the question of finality, and its extensive discussion of the Circuit case law on pre-enforcement review of agency interpretations would merit reading the opinion in full even apart from the underlying substance of the case. The most salient facts (among the “constellation of factors”) weighing in favor of finality in this case were the significant practical and legal ramifications stemming from HRSA’s interpretive rule, even prior to any actual enforcement action by the Agency. Slip. Op. at 21-27.
The Court also took the relatively unusual step of stating that the Agency’s interpretation deserved no deference, because HRSA lacks authority to issue regulations carrying the force of law in this context (see our discussion of the Court’s prior ruling on that point). This statement, while consistent with the Court’s previous opinion, is nevertheless surprising because the Court arguably did not need to reach the issue of deference in light of its finding that the statutory language clearly and unambiguously forecloses the HRSA interpretation.
Specifically, the Court found that, while HRSA’s interpretation appears “plausible at first glance” when confined to the orphan drug exclusion provision alone, it “runs counter to the way Congress has used the phrase ‘a drug designated . . . for a rare disease or condition’” elsewhere throughout the U.S. Code. Slip. Op. at 30. The Court noted repeated instances in which Congress had used that phrase, or something similar, and then had gone on to specify that it only intended to include (or exclude, as the case may be) the particular orphan-designated indications of an orphan drug, rather than the orphan drug in general. See Slip. Op. at 30-33 (citing 42 U.S.C. § 1395l(t)(6)(A)(i); 21 U.S.C. § 379h(a)(1)(F); 26 U.S.C. § 45C(b)(2)(B)). According to the Court, if the phrase “a drug designated . . . for a rare disease or condition” had the narrow meaning ascribed to it by the HRSA interpretive rule, all these specifying phrases elsewhere in the Code would be rendered superfluous, contrary to basic principles of statutory construction.
Addressing policy concerns raised by the government and amici, the Court was dismissive. It recognized the fact that excluding orphan drugs altogether from application of the 340B program could make the program less attractive for the newly covered 340B Covered Entities, but noted that “it is simply ‘not for [this Court] to rewrite the statute.’” Slip. Op. at 37 (quoting Hall v. United States, 132 S. Ct. 1882, 1893 (2012)). The Court addressed in a footnote the government’s argument that a broad reading of the orphan drug exclusion could create perverse incentives for pharmaceutical manufacturers to seek orphan drug designations for their best-selling drugs, but dismissed it as an unfounded fear. Slip. Op. at 37 n. 20.
The government has 60 days to notice an appeal of the District Court’s ruling. Given the history of this case and the importance of the issue, we would be surprised if the government does not pursue an appeal.


§ 252-1 Tax on the furnishing of utility services.
§ 252-3 Records of utility.
§ 252-4 Filing by utility.
§ 252-5 Payment of tax.
§ 252-6 Sufficiency of return.
§ 252-8 Failure to file.
§ 252-10 Tax not to be added to bill.
§ 252-11 Failure to pay tax.
§ 252-12 Rules and regulations; powers of Controller.
§ 252-13 Disclosure by Controller.
§ 252-14 Disposition of taxes and penalties.
§ 252-16 Maximum income level.
§ 252-17 Elimination of statutory exemptions.
§ 252-18 Exemption for persons who are physically handicapped.
§ 252-19 Procedure to obtain exemption.
§ 252-20 Termination of exemption.
§ 252-23 Amount of tax abatement.
§ 252-26 Penalties for offenses.
§ 252-27 Adoption of provisions.
§ 252-29 Partial exemption granted for reconstruction, alteration or improvement.
§ 252-35 Adjustments based on changed assessments.
§ 252-36 When effective; applicability.
§ 252-37 Increase in maximum exemption.
§ 252-38 When effective; applicability.
§ 252-39 Cold War veterans exemption enacted.
§ 252-40 Definitions; implementation and adoption; eligibility; other provisions; applicability.


February 21, 1984. Rehearing Denied March 28, 1984.
APPEAL FROM SECOND JUDICIAL DISTRICT COURT, PARISH OF JACKSON, STATE OF LOUISIANA, HONORABLE DAVID T. CALDWELL, J.
Fred L. Jackson, Homer, for appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., Walter E. May, Jr., Asst. Dist. Atty., Jonesboro, for appellee.
Before PRICE, MARVIN and SEXTON, JJ.
This defendant appeals his conviction for the offense of manslaughter in the death of Lynn Derrick Nash, age nineteen months.
Subsequent to being found guilty as charged of the offense of manslaughter, the defendant was sentenced to twelve years imprisonment at hard labor. An out-of-time appeal was granted herein by the Louisiana Supreme Court and the defendant now appeals asserting as error that there was insufficient evidence in this largely circumstantial case to sustain a conviction under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Dorothy Nash, the mother of the victim, left home at about 6:45 p.m. on March 14, 1982 to attend her job at Spivey's Fried Chicken which was nearby. She had been home all day and testified that she left the child in good physical condition in the custody of the defendant, who was babysitting the victim and his six year old brother.
While the defendant, the mother of the victim, and Betty Nash, who notified the mother of the tragedy, all have the same last name, the record is not clear as to what the relationship between these parties is. However, Betty Nash was apparently staying at the premises in question.
At about 2:45 a.m., Betty Nash, the defendant's sister, came to the mother's place of employment and told her that she needed to "come quick" as her baby was dead or dying. The mother, Dorothy Nash, and others at the establishment ran to Ms. Nash's home where Ms. Nash found the baby in the arms of the defendant. She grabbed the child, whom she described as limp, and hurried to the Jackson Parish Hospital. There the child was seen almost immediately by Dr. Haik, who was on duty for the weekend. Dr. Haik found the child cold and unresponsive and began revival procedures immediately. However, upon determining that the child's EKG registered no sign of life and that the child also had a depressed body temperature, the doctor ordered a cessation of medical efforts.
During the revival efforts, the mother called the defendant at the instruction of hospital personnel in an effort to determine a cause for the child's condition. The defendant told the child's mother that the child had consumed some Pert shampoo. Subsequently, when the mother returned home, the defendant reiterated the story about the Pert shampoo, and also advised the mother that upon his discovery that something was wrong with the child he had attempted to revive the child with CPR. He also stated that the child had fallen out of a chair and "might" have hit the stereo nearby.
The following day, Jackson Parish sheriff deputies, as well as the parish coroner, Richard Johnson, went to the mother's home to conduct an investigation. While there, the defendant again related that the baby had consumed some Pert shampoo and he also demonstrated the CPR technique which he had used on the child. He told the coroner that after seeing the child drink the shampoo, he had put him to bed. He later went to check on him and while he had his hand on the child's chest he noticed that the child's heart skipped a beat. He stated he then attempted CPR consisting of two sharp blows in the chest with a closed fist. The defendant stated that he then turned the child over and "a lot of mucus came out" of his nose on to the bed, and showed the investigators where this had occurred. However, the officers and the coroner were emphatic that they found no stains on the sheet. The coroner also testified that the defendant told him of the child's alleged fall from a chair which had occurred before the child had swallowed the Pert shampoo.
The coroner, who is not a physician, referred the victim's body to Dr. George McCormick, then coroner of Bossier Parish and noted forensic pathologist. Dr. McCormick testified that he found no external evidence of traumatic injury in his autopsy. In conducting the autopsy, he found that the sixth and seventh ribs were broken on the left side at a line down from the center of the arm pit. He further found bruises on both sides of the diaphragm and hemorrhaging to the pancreas and duodenum. He found that the liver was torn and had hemorrhaged extensively into the abdominal cavity. He also found hemorrhaging beneath the spleen. In retracting the scalp, he found two large bruises on each side of the head and also found hemorrhaging on both sides of the brain, one on the lining and one on the brain itself.
The doctor testified that the brain injuries were at least one-half hour old at the time of death, were not over ten hours old and were probably under six hours old. He stated that the head had been struck at least two times while it was at rest.
Dr. McCormick further testified that it was only remotely possible for two sharp blows to the body to do all of the damage that occurred there. He went on to note that the bones of small children are very flexible and do not break easily. He was further absolutely positive that the ingestion of Pert shampoo not only would not bring about the child's death, but would cause only minor side effects such as intestinal gas and perhaps some nausea.
Dr. McCormick testified that he found no evidence of any green material being in the child's stomach — green being the color of Pert shampoo. He did state that the child's blood alcohol content was approximately .043, meaning that this small victim had consumed an amount of alcohol approximately equivalent to that contained in half a can of beer. The doctor testified that Pert shampoo did contain probably more alcohol per unit of volume than a bottle of beer, but also noted that a medication which the child was taking also contained a significant level of alcohol.
The doctor concluded that the child's injuries to the head were inconsistent with an alleged fall from a chair, that the abdominal injuries were probably caused by more than two blows, and that no significant harm could have occurred from the drinking of Pert shampoo. He opined that he had been presented with a case of battered child syndrome, and that the child's death resulted from a combination of abdominal and head injuries.
It should be noted that the child had some orthopedic problem with his legs which required the use of braces. The mother testified that the child had great difficulty in getting about in the braces and found them uncomfortable, and would often cry when wearing them. She stated that in order to prevent the child's crying, she often removed the braces. The child was thus more mobile although he did have a tendency to fall when walking.
The next door neighbor, Ernestine Knox, testified she heard nothing unusual the night of the child's death. She said she was home but was only awake for a short period of time. However, she noted that a loud noise had awakened her, and when she made an inquiry, the defendant told her nothing was going on. The defendant's sister, Betty, stated she was at the house most of the time between about 8:00 p.m. and 3:00 a.m., except for about an hour. She apparently lived on the premises. She stated she never saw the defendant hit the child and did not see or hear the child fall. She also never saw the defendant perform CPR. She stated the defendant and the child were in the back room when the defendant called her and told her the baby had drunk some shampoo and showed her the child. The defendant told her to get the baby's mother and an ambulance. She stated she could tell that the child was in a bad condition. She also testified that when the mother returned, the defendant resisted the mother's efforts to take the child to the doctor, stating that the child was already dead.
In his testimony at the trial, the defendant's version of events was essentially identical to what he had previously told the officers with respect to a fall from a chair, the ingestion of the shampoo, the attempted CPR after the discovery of the skipped heart beat, and the mucus discharge from the child's nose subsequent to the CPR. He also testified that the victim was never out of his presence that evening nor was the child released in any one else's custody. Furthermore, he stated that he saw no one else hit the victim.
Jackson v. Virginia, supra, holds that due process requires that the evidence, when viewed in the light most favorable to the prosecution must be sufficient for a rational trier of fact to conclude that the essential elements of the crime were established beyond a reasonable doubt. Since the evidence in this case is largely circumstantial, we are required to consider the standards of Jackson v. Virginia in the light of LSA-R.S. 15:438.
LSA-R.S. 15:438 reads as follows: " § 438. Circumstantial evidence The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."
After a period of vacillation, the Louisiana Supreme Court has now firmly established the standard for review of cases involving substantial circumstantial evidence in light of LSA-R.S. 15:438 and Jackson v. Virginia, supra.
See State v. Shapiro, 431 So.2d 372 (La. 1982); State v. Williams, 423 So.2d 1048 (La. 1982); State v. Graham, 422 So.2d 123 (La. 1982).
"Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror's reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence." Chism, supra, at page 470.
"Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence." Chism at page 469.
We are satisfied from our review of the evidence that the evidence is sufficient to exclude every reasonable hypothesis of innocence when viewed in the light most favorable to the prosecution, even when carefully evaluated according to State v. Chism, supra. From that standpoint, the evidence clearly establishes that the child was in good health when the mother left even though he had suffered some minor falls earlier as a result of his problem with his legs. It was furthermore conceded by the defendant that he was the only party with sufficient access to the child to cause the injuries incurred. The medical evidence is overwhelming that the child was badly battered and precludes the reasonable possibility that the injuries resulted from efforts by the defendant at CPR. The defendant's statements concerning ingestion of Pert shampoo are refuted by the autopsy, as is the implication that the child struck his head on the stereo when falling. There was strong medical evidence that the head injuries occurred while the head was not moving. Moreover, the medical evidence also showed that the child should have suffered few, if any, ill effects from the Pert shampoo. Thus the defendant's statement asserting concern over the child which he contended led to his CPR efforts is also discredited. Succinctly stated, the defendant had the only opportunity to harm the child, and his explanations of the manner in which the child was injured were shown to be false.
We therefore have no difficulty in determining that there is sufficient evidence in the record from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt under the due process standards of Jackson v. Virginia, supra, even when the largely circumstantial evidence in the case is viewed carefully according to the admonition of State v. Chism, supra.
For the foregoing reasons, the conviction appealed is affirmed.


LOVELL BURTON, Plaintiff, v. ZERO WASTE SOLUTIONS, Defendant.
Plaintiff is proceeding pro se and in forma pauperis in this employment discrimination and retaliation action filed on October 14, 2015.
On February 23, 2016, Plaintiff's first amended complaint was dismissed for failure to state a claim. (ECF No. 9.) Plaintiff was granted until March 28, 2016, to file a second amended complaint. That deadline has now passed, and Plaintiff has not responded to the Court's order.
Local Rule 110 provides that "failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of the Court." District courts have the inherent power to control their dockets and "in the exercise of that power, they may impose sanctions including, where appropriate, default or dismissal." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party's failure to prosecute, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the Court must consider several factors: (1) the public's interest in expeditious resolution of litigation, (2) the Court's need to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their merits, and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423.
In the instant case, the public's interest in expeditiously resolving this litigation and the Court's interest in managing its docket weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor - public policy favoring disposition of cases on their merits - is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this stage in the proceedings there is little available which would constitute a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing fees in this action and likely is unable to pay, making monetary sanctions of little use.
Based on the foregoing, it is HEREBY RECOMMENDED that the action be dismissed, without prejudice, for failure to obey a court order and failure to prosecute.
These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.


GERRIT BENSON, FREDERICK LOWE, LESLIE LILLY, MITCHELL BROUDY, and PETER IMBROGNO, Defendants.
This pro se case is before the court on the application [DE #1] by Plaintiff Robert A. Magary, Sr. to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable James C. Dever III, Chief United States District Judge. For the reasons set forth below, Plaintiff's application to proceed in forma pauperis is allowed, and it is recommended that Plaintiff's claims against Defendants be dismissed.
Plaintiff seeks money damages from certain Commonwealth of Virginia judges and guardians ad litem involved in his divorce and child custody cases from 2001 through 2009. (Compl. [DE #1-1] at 2-6.) He invokes federal question jurisdiction via allegations that Defendants violated his Fourteenth Amendment rights to due process and equal protection and his rights under the Civil Rights Act of 1964. (Id. at 2.) The undersigned construes Plaintiff's claim for money damages based on violation of the Fourteenth Amendment as a claim made pursuant to 42 U.S.C. § 1983, the statute which permits a person to sue state actors for money damages for deprivation of his civil rights.
The standard for determining in forma pauperis status is whether “one cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the information contained in Plaintiff's affidavit, the court finds that Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs. Thus, Plaintiff's application to proceed in forma pauperis is allowed.
Notwithstanding the determination that Plaintiff is entitled to in forma pauperis status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327.
Plaintiff asserts claims against Judges Gerrit Benson, Leslie Lilly, and Frederick Lowe for various actions taken in the course of Plaintiff's child custody proceedings in state court. (Compl. at 3-5.) “It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.” Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). “[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he acted in the clear absence of all jurisdiction.” Id.; see also McCray v. Maryland, 456 F.2d 1, 3 (4th Cir. 1972) (“The absolute immunity from suit for alleged deprivation of rights enjoyed by judges is matchless in its protection of judicial power. It shields judges even against allegations of malice or corruption.”), abrogated on other grounds by Pink v. Lester, 52 F.3d 73, 77 (4th Cir. 1995).
Here, Plaintiff's claims against Judges Benson, Lilly, and Lowe arise from judicial actions taken in court proceedings regarding child custody determinations between Plaintiff and his former wife. Plaintiff has alleged no facts, even construed liberally, to indicate these judges acted in the clear absence of all jurisdiction. Therefore, these Defendants are immune from the money damages Plaintiff seeks.
Plaintiff also asserts claims against Defendants Broudy and Imbrogno for actions they took as guardians ad litem in the same child custody proceedings. (Compl. at 3, 5.) The Fourth Circuit has recognized absolute immunity for guardians ad litem for actions “occur[ing] within the judicial process.” Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir. 1994). This immunity applies even in circumstances where a guardian ad litem has “lied to the judge in open court.” Id.


text:
Update provisions of the Pacific Salmon Treaty and the Columbia River Fish Management Plan based on the latest survival rate and catch level information.
The two harvest management processes affecting Columbia River treaty Indian fisheries occur under the U.S. v. Oregon Columbia River Management Plans and the Pacific Salmon Treaty between the governments of Canada and the United States.
Since the mid-1990s, the parties to U.S. v. Oregon struggled to reach agreement on fisheries and production actions. In many years, litigation occurred and annual or interim agreements were only reached through court-ordered negotiation, settlement orders or court rulings. The parties to U.S. v. Oregon negotiated a successor agreement to the 1988 Columbia River Fish Management Plan from 1997-2008. After many years of negotiation, the 2008-2017 U.S. v. Oregon Management Agreement was concluded in May 2008. The 2008-2017 agreement is a stipulated court order in U.S. v. Oregon and will guide management decisions for mainstem Columbia River fisheries and Columbia Basin production programs until 2017 but will not be used to set precedent or prejudice future allocation or production actions.
Each tribe is responsible for planning, coordinating and managing tributary fisheries on those fish species that return to areas within their respective treaty territories. Thus, some runs and stocks of fish are subjected to treaty harvest in the mainstem Columbia River and again in local tributary fisheries as fish are migrating to their rivers of origin to spawn. Other tributary fisheries are not covered under the current management agreement. Tributary fisheries in places like the Snake River Basin are managed consistent with tribal harvest plans and harvest management frameworks for salmon (including steelhead) in that basin.
In May 2008 the Pacific Salmon Commission recommended a new bilateral agreement (in particular, see Chapter 3) for the conservation and harvest sharing of Pacific salmon to the governments of Canada and the United States. The product of nearly 18 months of negotiations, the agreement represents a major step forward in science-based conservation and sustainable harvest sharing of the salmon resource between Canada and the United States. Approved in December 2008 by the respective governments, the new fishing regimes are in force from the beginning of 2009 through the end of 2018.
The new 2008 treaty agreement calls for reducing the catch off Southeast Alaska by 15% and Canada cutting its harvest off the West Coast by 30%. The changes send an estimated one million more chinook to Puget Sound and the Columbia River. Chinook are the target, but the 10-year agreement also covers coho, chum, pink and sockeye salmon. The agreement’s aim is to achieve one of the original goals of the treaty: halt the decline and rebuild chinook stocks coastwide.
The 2008-2017 U.S. v. Oregon Management Agreement contains the fundamental elements the tribes identified at the start of the negotiations. Fishery opportunity is enhanced as compared to previous agreements; and treaty harvest will again be protected by federal court order.
Many of the harvest provisions of the 2008 agreement build on the harvest rate schedules as described in previous agreements (notably, the 2001 and 2005-2007 Interim Agreements), and for others the parties agreed to new abundance-based harvest rate schedules. The abundance-based harvest regime addresses conservation concerns and provides greater flexibility in shaping mainstem fisheries and enabling access to harvestable fish. Mainstem and certain tributary treaty fisheries are to be managed according to these harvest guidelines.
The 2008 agreement expires by its terms in 2017. For the remaining period of the agreement, key outcomes include: mainstem fisheries that comport with its conservation and allocation commitments; adherence to framework commitments and procedures; implementation of the agreement’s production programs; and development of regulatory coordination mechanisms that provide for tribal enforcement. Also see the updated Columbia River Fish Management Plan recommendation.
Interception of Pacific salmon bound for rivers of one country in fisheries of the other has been the subject of discussion between the governments of Canada and the United States since the early part of the last century. In 1985, after many years of negotiation, the Pacific Salmon Treaty was signed, setting long-term goals for the benefit of the salmon and the two countries.
Prevent over-fishing and provide for optimum production.
The desirability in most cases of reducing interceptions.
The desirability in most cases of avoiding undue disruption of existing fisheries.
Since the Spirit of the Salmon Plan was released, significant revisions to the Pacific Salmon Treaty have been made: The arrangements and institutions established in 1985 proved effective in the early years of the salmon treaty but became outmoded after 1992, when the original fishing arrangements expired. From 1992 to 1998, the two countries were not able to reach agreement on comprehensive, coastwide fisheries arrangements. In 1999 government-to-government negotiations culminated in the successful renewal of long-term fishing arrangements under the Pacific Salmon Treaty.
In December 2008, the governments of Canada and the United States approved the new fishing regimes, described above and in force from the beginning of 2009 through the end of 2018. The agreement represents a major step forward in science-based conservation and sustainable harvest sharing of the salmon resource between the two countries.
Improve tribes’ ability to meet their First Food ceremonial needs for salmon and clean water.
Continue to see that all tribal members have opportunities to fish for subsistence in the mainstem and tributaries.
Gain full access for tribal fisheries to harvestable hatchery and wild fish.
Appropriately allocate harvest among different (tribal and non-tribal) fisheries.
Continue improving technical information and tools. See the updated Harvest Management (In-river) recommendation.
Expand funding for harvest monitoring.
Integrate new technical results into harvest management decisions.
Continue to implement abundance-based management provisions of the treaty for ocean fisheries and move away from aggregate abundance-based management.
Address mark-selective fishing proposals of the United States and Canada. See the new Mark Selective Fisheries recommendation.
Administer the enhancement funds established in the 1999 agreement to increase returns of naturally spawning chinook.
Meet annually with Canadian First Nations.
Implement recommendations from the performance review, as appropriate.
Advocate for funding to implement fishing regimes and maintain information base.
Review and implement recommendations of habitat technical committee, as appropriate.
Reggie Grace (Yakama) and a chinook salmon he harvested from the Columbia River.
We are fortunate to have a growing number of young tribal members. Many of them want to make salmon fishing part of their livelihood. One of the goals of the Spirit of the Salmon Plan is to reclaim anadromous fish resources for future generations. We must have our fish!


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We are seeking your support for our amicus brief in the Court of Appeals in Authors Guild v. Hathitrust. We believe that this case will have a dramatic effect on research in computer science to linguistics, history, literature and the digital humanities.
In 2005, the Authors Guild, a lobby group with about 8,500 members including published authors, literary agents and lawyers, filed a class-action lawsuit claiming that Google’s library digitization project was a “massive copyright infringement”. A settlement was proposed in that case in 2008, modified after strenuous objections from academics, other author groups and several foreign governments in 2009 and rejected by the court in 2011.In September 2011, in a separate case, the Authors Guild sued several universities and the HathiTrust for participating in Google’s book-scanning project. On July 7, 2012 the Association for Computers and the Humanities and more than 60 scholars from disciplines ranging from law and computer science to linguistics, history and literature, filed an amicus curiae brief in Authors Guild v HathiTrust on behalf of the digital humanities.
On October 10, 2012, Judge Baer (Southern District of New York) ruled against the Authors Guild and their fellow plaintiffs and held that the library digitization for uses such as text-mining are “transformative” as that term of art is used in copyright law and, on balance, fair use (i.e., not copyright infringement). Judge Baer’s opinion cites our amicus brief, adopts one of our examples and appears to follow the basic structure of our legal argument.
The Authors Guild is now appealing Judge Baer’s decision (on this and other grounds) and we would like your support in drafting a new brief for the U.S. Court of Appeals for the Second Circuit.
Email matthewsag@gmail.com for a full draft, or download our previous effort (in related district court litigation) here. The final brief will be very similar to this.
(1) You can let us know that you would like to join our brief (we need your name and affiliation e.g. Associate Professor, Jane Doe, Springfield University). We would also like to add a one line description of any aspect of your work that is relevant to the brief, e.g. ___ Grant to study ___ in ____ literary corpus or a relevant publication.
Please note that ours is not the only amicus brief being filed in this case. Jennifer Urban (U.C. Berkeley) will also be filing a brief on arguing that the plaintiffs do not represent the interests of academic authors who comprise a large proportion of the class. YOU CAN’T SIGN BOTH. Please consider endorsing whichever brief speaks most closely to your concerns as an academic.
We need your name etc., by June 3, 2013. Please email matthewsag@gmail.com or enter your details directly via this online tool.
(2) You can point us toward easy to understand and compelling examples of the kind of research enabled by mass-digitization (we can’t include all your wonderful work, but we would like to understand it better).
(3) You can send this link to other academics and Phd students.
This the last of a series of posts commenting on the Authors Guild Appeal Brief (February 25, 2013) in Authors Guild v. Hathitrust. The views expressed on this site are purely my own.
Has the Authors Guild Discovered a new fair use factor?
In their Appeal Brief to the Second Circuit the plaintiffs have focused on a different line of argument, they now contend that the district court erred in failing to consider the express limitations of section 108 in its evaluation of fair use. In other words, because “library copying – is specifically addressed by another statute, Section 108, which therefore should guide the fair use analysis” (Authors Guild Ap. Br. Page 30).
Cute. So every time Congress creates a public interest exception to copyright, that exception becomes a limitation on the balancing function of the fair use doctrine and thus, in effect, an expansion of the rights of copyright owners. I don’t buy it and I am pretty sure the court of appeals won’t either.
Courts should consider a defendant’s substantial compliance with a specific exception in Title 17 when applying the fair use privilege. As the court assesses the first fair use factor, the purpose and character of the use, the court should give great weight to the defendant’s substantial compliance with the exception. The court should recognize that Congress determined that uses of similar purpose and character did not constitute infringement.
See, Jonathan Band, The Impact of Substantial Compliance with Copyright Exceptions on Fair Use.
The phantom tollbooth — Are workable markets for library digitization licenses just around the corner?
This one of a series of posts concerning the Authors Guild v. Hathitrust case, specifically these posts take the form of commentary on the Authors Guild Appeal Brief (February 25, 2013). The views expressed on this site are purely my own.
What if? … One of the interesting questions arising out of the Authors Guild suit against the HathiTrust is, what happens if the Authors Guild wins? Is there any way that library digitization programs could continue if the court ruled that any kind of digitization for any reason at all required permission from the copyright in advance?
Naturally the plaintiffs and the defendants see this issue differently. The plaintiffs argue that copying without permission is wrong and that they will find a way to sell permission to people like the defendants so that digitization can continue. The defendants argue that copying without permission is permitted for specific reasons and that in this case there is no practical way to obtain the permissions the plaintiffs insist are required.
Whether a market for digitization licenses (either in general or for educational access to orphan works in particular) would work in practice goes to the heart of the fourth fair use factor under Section 107 of the Copyright Act.
The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” The Authors Guild argues that “the District Court erred in failing to recognize the actual and potential harm to the Authors caused by the Libraries’ unlicensed mass digitization.” (Authors Guild Ap. Br. page 38). My guess is that the defendants will argue the exact opposite – that the district court was right to conclude that copyright owners were not likely to suffer any harm from the defendants library digitization project. The district court never got to the issue of the defendants’ orphan works project for reasons covered in previous posts, so the best the plaintiffs could hope for on that issue is a favorable remand from the Second Circuit.
The question of market effect risks collapsing into tautology because every use by a defendant represents something that could, in theory, be licensed to the defendant if the court rules that it is not fair use. Courts try to avoid trap of circular reasoning by limiting market effect to effects that are (a) that are cognizable under copyright and (b) not too remote or speculative.
“transformatively different from their original expressive purpose. In a case such as this, a copyright holder cannot prevent others from entering fair use markets merely by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work.” (citations and quotations omitted).
In the Turnitin.com case the Fourth Circuit addressed claims of copyright infringement by students who objected to their papers being put through an automated plagiarism detection system.
Before deciding whether an alleged commercial injury has or is likely to occur, a court has to figure out whether it is the kind of injury that copyright is supposed to prevent. Copyright law is not meant to prevent the harm of critical review or mockery, nor is it meant to prevent competition based on interoperable technology, nor is it meant to prevent computerized analysis of text.
So, it is hard to see a copyright injury in this case if the only harm the plaintiffs can point to is that the defendants can now generate valuable data about library book (this is what you get of text-mining, computational analysis of text and search engines in general).
Even if a court were to decide that in an ideal world digitization for non-expressive use should be an exclusive right of the copyright owner, that same court might still think that in the real world library digitization qualifies as a fair use because there is no functioning market for such rights.
What do the plaintiffs need to show in terms of future harm?
As I have already noted in a previous post, you can only take the photocopying cases so far in relation to library digitization. The court in Texaco was not dealing with an orphan works problem, nor was it dealing with a situation where literally millions of permissions would be required.
What exactly is the Plaintiff’s evidence of “existing and emerging licensing opportunities”?
No one can doubt that Professor Gervais believes this, but the evidence is far from indisputable. In the American context, Gervais points to two sets of voluntary organizations where the copyright owner has to opt in to collective management – performing rights organizations like ASCAP, BMI and SESAC and also the Copyright Clearance Center. These are opt-in organizations and it is hard to see how anything like the ASCAP model would work to address the orphan works issue.
But that is really beside the point; neither of these examples shows that collective licensing schemes spontaneously emerge! All they show that collective licensing schemes can emerge when Congress deliberately creates them—in both cases as the quid pro quo for extending a new right to copyright holders.
Likewise, the fact that a handful of Nordic countries have legislated for extended collective licensing for mass-digitization or that serious British academics have recommended the same does not prove much either. It might suggest that the U.S. government should consider this option, but it in no way shows that market based solutions to the transaction costs problems associated with library digitization will spring forth without direct action by Congress.
“The ASA [Amended Settlement Agreement] exemplifies how a mass digitization licensing system could operate …” (Authors Guild Ap. Br. page 43).
The ASA would have turned the Google Book search engine into the world’s largest book store – the orphan works problem was solved by making virtually everything for sale by default. The court rejected this settlement as going beyond the scope of a permissible class action, so it seems a bit perverse to argue that the defeat of the ASA offers any hope for a solution to the transaction costs problems inherent in digitizing old library books.
How would a market for library digitization licenses actually work?
This might work in some limited fashion for new works, but there is nothing in the Gervais report that explains how the CCC or some equivalent organization would be able to deal with the unclear allocation of digital rights between authors and publishers or address the orphan works issues that plague older out of print works.
If library digitization for non-expressive uses or to meet the needs of the print-disabled requires a license, that is not a license most publishers will have the authority to give. We know from the Georgia State Copyright case (Cambridge University Press et al. v. Becker et al. 863 F. Supp. 2d 1190 – Dist. Court, ND Georgia, 2012) that only a small percentage of the works that are available through the CCC’s academic permission system are currently licensed for electronic distribution. In general the figure is about 12%, in the GSU case specifically digital licenses were available in only 44 of the 75 claimed instances of infringement – those 75 claims were hand-picked by publishers as their best evidence of infringement.
In 2001 a federal court in the Southern District of New York ruled that a widely used publishing contract between authors and publishers which granted publisher the rights to publish a work “in book form” did not include electronic rights to the book. Random House, Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2001). Publishers now write better contracts (better for them), but for all but relatively recent works, publishers do not typically own the rights to most books in digital formats – those rights typically belong to individual authors. It is curious that Professor Gervais’ expert report does not address this most salient of facts.
The fact the CCC licenses some books (which is what they mean by “the same general type of copyrighted content) for some uses does nothing to show that the CCC could license the millions of books at issue here for the purpose of library digitization.
“The CCC has existing licenses with academic institutions like the Libraries that allow for the rights of thousands of works to be collectively negotiated.” (Authors Guild Ap. Br. page 42).
“…there are existing mechanisms that would allow the Libraries to obtain licenses for thousands of works at once.’ (page 43).
This is hardly persuasive when the problem of library digitization relates to millions, not thousands.
Was there any other evidence to which the Authors Guild could have cited?
In one of their submissions to the district court the plaintiffs stated that “defendants also permit the Infringed Books to be used for non-consumptive research, an emerging field that represents another potential licensing stream for orphans.” (Memorandum Of Law In Support Of Plaintiffs’ Motion For Summary Judgment, June 29, 2012, Page 28).
“Question. You said you’re interested in licensing your book for non-consumptive research; is that correct?
Question. Why have you not done that so far?
Answer. Not all markets are as mature as others. And not every market is determined by the — in this case the owner of an intellectual property going out and seeking to create that market.
Wishful thinking is a far cry from evidence.
It seems to me, the plaintiffs in Authors Guild v. HathiTrust are asking the court to create a new and unprecedented right—to give copyright holders the right to control intermediate non-expressive uses—and to simply assume that an efficient market to allocate these new rights will spontaneously appear. It would be just as wrong to allow copyright holders to license non-expressive uses of copyrighted works as it would be to allow them to license quotation for the purpose of criticism and transformative copying for the purpose of parody.
You can’t just wish a new legal right into existence by establishing a set of tollbooths to collect on it. And in this case the tollbooths are just props from a Potemkin village. The ‘injury’ the plaintiffs assert strikes me as both speculative and beyond the scope of their statutory entitlements.
They must be, the Authors Guild keeps saying it.
The first thing to notice about the above quote is that the grounding assertion about the “authors’ property” is a little off base. The actual physical books were purchased by the defendants at a cost of hundreds of millions of dollars. It is convenient for the Authors Guild to overlook this fact, but in the most literal (but not the literary) sense, the books are the property of the libraries.
Assuming, as I believe and the district court held, the defendants are entitled to scan their paper collections to enable disabled access, text-mining, computational analysis, and full-text searching, then there is no sense in which the copies so made are the property of the copyright owners. Of course, other uses of the digitized corpus might be infringing, but no more so than placing a book on a library shelf exposes it to certain acts of piracy.
The ‘digital is dangerous’ argument exposes a tension in the Authors Guild’s legal argument. The Guild argues that plaintiff approved digitization will indeed take place following the spontaneous appearance of collective licensing organizations to manage these new rights (more on this in a future post); and yet, the Guild also argues that digitization will lead inexorably to massive piracy, which suggests that they would not approve digitization under any terms. Can these both be true?
The inherent dangers of digitized collections have been massively over-hyped. (See, I said it twice, so it must be true.) Yes, as e-book readers become more and more widely used, there is a risk that pirate copies will substitute for legitimate sales. But this risk is entirely independent of library digitization. It is not just that it is usually bad policy to restrict A’s freedom because based on the hypothetical illegal acts by B later down the track. The real issue is that library digitization is totally irrelevant to e-book piracy – works of commercial value for which sales could be lost are already available in digital form on scofflaw file sharing websites. Run a search for “bittorrent harry potter book” on Google and you will see what I mean.
Prohibiting universities from digitizing library books to advance the state of human knowledge will do nothing to stem the problem of online piracy, except perhaps giving people one more reason to reject the legitimacy of copyright law altogether.
The Authors Guild argues even if the defendants’ security practices are in fact adequate, that a fair use ruling in favor of the universities would “encourage far less sophisticated providers to digitize, copy, store and make similar uses of books.” (Authors Guild Ap. Br. Page 40) This appears to fall well short of establishing the likelihood of any harm cognizable under copyright law. Mass digitization is a resource intensive undertaking, the public and private institutions that undertake it will no doubt be mindful of their tort liability for any failure to take standard precautions.
The Authors Guild Appeal Brief contains an interesting argument that is hard to summarize with perfect fidelity because it appears in so many places throughout the document (illustrations to follow). Essentially the plaintiffs now appear to argue that even if some copying would be allowed for certain library digitization purposes, the defendants created a too many copies and that these copies, or their retention, exceed the parameters of any fair use claim.
However it also appears on pages 8, 9-10, 12, 18, 30, 31, 32, 33, 36, 37 and 38.
It entirely plausible that a plaintiff might look at a defendant who has made lots and lots of copies and argue that the very multiplicity of the copying is evidence that the real purpose was not the transformative use claimed, but some other use. For example, if Borders (1971-2011) had scanned its whole inventory and made 60,000 copies of the collection in dvd bundles, we might have begun to suspect they were planning on selling them.
However, in the context of the library digitization being litigated in Authors Guild v. HathiTrust, there is no similar mystery about the extent of copying. The libraries maintain the original scan images because those images are needed to quality-check the OCR (optical character recognition) text versions. Those versions are also needed so that the collection can be re-digitizes when, inevitably, someone invents a smarter OCR program that is less prone to error. A biologist would not throw out an original specimen after taking their initial notes; a social scientist would not delete her original data after running her initial set of regressions. It would be somewhere between reckless and crazy to throw out the original scans.
The same applies to the OCR-text files. It might be true that once you create a search index you don’t need the original text files to actually implement search. But as anyone with any experience in software development or working with data will tell you, there are always new and better ways to process information. It would be hubris, almost a crime against knowledge, to pretend that search indexing or optical character recognition in 2013 are a good as they will ever be.
The Authors Guild Appeal Brief appears (to me) to be deliberately obtuse when it says “… even if this Court were to hold that HathiTrust in its current configuration satisfies these criteria, the Libraries still have not demonstrated their need to retain the digital image files in order to facilitate access to the print-disabled, as the assistive technology uses text files to convert the text from the book into speech.” (Authors Guild Ap. Br. page 38). Does the Authors Guild seriously intend that the print-disabled should be held hostage to state of the art in OCR and text-to-speech as of 2013?
Any library digitization exercise should generate a handful of copies per book – you have to keep the original image and OCR files safe; you have to duplicate them so people can examine them; you have to store everything in multiple locations in case of flood, fire, terrorist attack or simple human error, and if scientists are regularly testing new equations against the original data you might need to mirror some of that data to increase the speed of the network. There is no reason why the universities should treat these digitized files any more cavalierly than Facebook treats the 267 photos of my dog I have posted to the social network.

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