The right to kidnap

In Declaration of Independence (1776) the americans wrote "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Well, apparently the Bush administration thinks that the right not to be kidnapped is not an unalienable right, is not self-evident.
All men might be created equal, but when they grow up they can be put in 3 different groups:
1 US citizens (human beings with human rights)
2 Foreigners (human beings with some human rights, not all of them)
3 Enemy combatants (they are not human beings, obviously they have no rights)

From Sunday Times:

December 2, 2007
US says it has right to kidnap British citizens
David Leppard

AMERICA has told Britain that it can “kidnap” British citizens if they are wanted for crimes in the United States.

A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.

The admission will alarm the British business community after the case of the so-called NatWest Three, bankers who were extradited to America on fraud charges. More than a dozen other British executives, including senior managers at British Airways and BAE Systems, are under investigation by the US authorities and could face criminal charges in America.

Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects.

The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.

Legal experts confirmed this weekend that America viewed extradition as just one way of getting foreign suspects back to face trial. Rendition, or kidnapping, dates back to 19th-century bounty hunting and Washington believes it is still legitimate.

The US government’s view emerged during a hearing involving Stanley Tollman, a former director of Chelsea football club and a friend of Baroness Thatcher, and his wife Beatrice.

The Tollmans, who control the Red Carnation hotel group and are resident in London, are wanted in America for bank fraud and tax evasion. They have been fighting extradition through the British courts.

During a hearing last month Lord Justice Moses, one of the Court of Appeal judges, asked Alun Jones QC, representing the US government, about its treatment of Gavin, Tollman’s nephew. Gavin Tollman was the subject of an attempted abduction during a visit to Canada in 2005.

Jones replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.

He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s.”

Mr Justice Ouseley, a second judge, challenged Jones to be “honest about [his] position”.

Jones replied: “That is United States law.”

He cited the case of Humberto Alvarez Machain, a suspect who was abducted by the US government at his medical office in Guadalajara, Mexico, in 1990. He was flown by Drug Enforcement Administration agents to Texas for criminal prosecution.

Although there was an extradition treaty in place between America and Mexico at the time — as there currently is between the United States and Britain — the Supreme Court ruled in 1992 that the Mexican had no legal remedy because of his abduction.

In 2005, Gavin Tollman, the head of Trafalgar Tours, a holiday company, had arrived in Toronto by plane when he was arrested by Canadian immigration authorities.

An American prosecutor, who had tried and failed to extradite him from Britain, persuaded Canadian officials to detain him. He wanted the Canadians to drive Tollman to the border to be handed over. Tollman was escorted in handcuffs from the aircraft in Toronto, taken to prison and held for 10 days.

A Canadian judge ordered his release, ruling that the US Justice Department had set a “sinister trap” and wrongly bypassed extradition rules. Tollman returned to Britain.

Legal sources said that under traditional American justice, rendition meant capturing wanted people abroad and bringing them to the United States. The term “extraordinary rendition” was coined in the 1990s for the kidnapping of terror suspects from one foreign country to another for interrogation.

There was concern this weekend from Patrick Mercer, the Tory MP, who said: “The very idea of kidnapping is repugnant to us and we must handle these cases with extreme caution and a thorough understanding of the implications in American law.”

Shami Chakrabarti, director of the human rights group Liberty, said: “This law may date back to bounty hunting days, but they should sort it out if they claim to be a civilised nation.”

The US Justice Department declined to comment.

How long should copyright last?

From The Guardian:

How long should copyright last?
Victor Keegan (vic.keegan@guardian.co.uk)
Thursday November 29 2007
[...]
Rufus Pollock of Cambridge University has done such a study (tinyurl.com/37g5eo or here). He told the seminar that the optimal length of copyright came out at 15 years. Hogarth would have been unsurprised.

Tehranian: copyright needs reform

John Tehranian, professor of law at university of Utah, wrote a paper (13 pages) called "Infringement Nation: Copyright Reform and the Law/Norm gap"

1 Introduction
2 Copyright relevance
3 Copyright consciousness
4 Copyright's law/norm gap
5 Conclusion

Introduction
As a veteran listener at many lectures by copyright specialists
over the past decade, I know it is almost obligatory for a
speaker to begin by invoking the communications revolution of
our time, [and] then to pronounce upon the inadequacies of the
present copyright act.

Benjamin Kaplan’s wry admonition, made over four decades ago in his
seminal tome An Unhurried View of Copyright, rings just as true today. As the
rapid pace of technological change continues to force a reconsideration of the
vitality of our intellectual property regime, it is tempting indeed to cite the
“communications revolution” of our time—the Internet—as disrupting to the
delicate balance struck by pre-digital copyright laws between the rights of owners
and users of creative works. After all, it was no less than the Supreme Court that
succumbed to this inexorable urge in its first encounter with cyberspace by
famously proclaiming the Internet “a unique and wholly new medium of
worldwide human communication.”2 But the rush to tout the revolutionary
potential of the Internet has subsided; the Panglossian cybernauts have faded like
other fin-de-siècle perpetrators of the “this time, it’s different”3 myth—the dotcom
boomers who embraced wild predictions of Dow 100,0004 and the speculators
who rode the recent real estate wave. A tide of skepticism5 has followed the
euphoria epitomized by John Perry Barlow’s influential Declaration of the
Independence of Cyberspace.6 The Internet, it turns out, can be regulated, even in
the face of the fractured and anarchic international legal regime. Ironically, no less
than the Supreme Court has so held, finding that the Internet is not sufficiently
different to warrant wholesale reform of numerous long-standing legal doctrines.7
All the while, as Congress and the courts chart the course of regulation, a turf
battle over intellectual property rights in cyberspace continues to rage. Copyright
maximalists, such as the Motion Picture Association of America (MPAA) and
Recording Industry Association of America (RIAA), have bemoaned the Internet’s
potential to transform any teenager with a computer into a grand larcenist. They
argue that the ease of digital reproduction has enabled piracy on a scale never
before witnessed in human history, and they have lobbied vigorously for statutory
weapons with which to fight this scourge.8 Meanwhile, copyright skeptics such as
Larry Lessig and Pamela Samuelson have asserted that the digital revolution has
radically enhanced the rights of owners rather than users.9 They argue that
development of digital rights management technology has enabled copyright
owners to exercise unparalleled dominion over their property, thereby constraining
fair use rights.10 Digital fences have begun to dot the online landscape, bringing a
new enclosure movement to our cyber commons every bit as significant as the
eighteenth-century edition.11
So what are we to make of this paradoxical gestalt where the Supreme Court
has simultaneously embraced and rebuffed the Internet’s status as a unique
medium and where educated observers recognize that digital technology has
simultaneously spurred unparalleled rates of piracy and granted heretofore
unknown levels of control to copyright owners? And, with Benjamin Kaplan’s
caveat in mind, what are we to make of a symposium entitled Fixing Copyright, a
designation that presupposes a broken system in need of reform?
Clearly, we are only beginning to grasp the massive changes afoot with the
advent of digital technology. Yet amidst the flux, one constant emerges: the 1976
Copyright Act lies always at the heart of these debates, inextricably mediating our
relationship with cyberspace and new media. Three decades have passed since the
current Copyright Act went into effect. Without dispute, tremendous economic,
technological, and social changes have occurred in that time. And although these
changes do necessarily warrant concomitant reform, this symposium follows on
the premise that we have reached an appropriate point to evaluate the efficacy of
the extant Act and think holistically about the issue of reform.
At this juncture, three key trends bear close observation. First, copyright law
is increasingly relevant to the daily life of the average American. Second, this
growing pertinence has precipitated a heightened public consciousness over
copyright issues. Finally, these two facts have magnified the vast disparity between
copyright law and copyright norms and, as a result, have highlighted the need for
reform.

Conclusion
In recent years, legislators, judges, and practicing attorneys have critiqued law
reviews for their excessively theoretical bent, arguing that their contents have
become increasingly devoid of any real-world value. At the risk of alienating my
academic colleagues and shocking the members of the copyright bar, I would like
to think that this symposium is different. By bringing together a group of leading
copyright scholars, including Tom Bell, Dan Burk, Wendy Gordon, Justin Hughes,
Peter Jaszi, Bobbi Kwall, David Nimmer, Pam Samuelson, and Rebecca Tushnet,
to contemplate the issue of legal reform in practical terms, this symposium strives
to foster a dialogue that could impact future revisions at a concrete level. It is a
first step in what will hopefully become a broader debate over copyright reform.