New APPS: Art, Politics, Philosophy, Science

Travel Ban 2.5, the Camp, and the Airport

by Gordon Hull

On Wednesday night, the Trump administration implemented as much of its long promised Muslim Ban as it thought the Supreme Court would allow.  Travelers from a list of six countries who did not have a “bona fide” connection or “close familial relationship” to someone in the U.S. would be banned.  The administration interpreted the Supreme Court’s ruling as restrictively as possible – the Court said that a mother-in-law would be an example of a close familial relationship, but didn’t mention grandparents – so having a grandparent here (or being a grandparent there) isn’t a close familial relationship.  The ruling smacks of arbitrariness and was rolled out as secretly as possible, and it’s not even clear that it actually does much at all. Then again, the original ban also was a poorly-worded, arbitrary mockery of the rule of law.  For example, the “policy” began with zero warning, leaving travelers stranded in airports with no legal options.  So too, the six countries were allegedly named because of their propensity to breed terrorists, but no one from any of them has committed a terrorist act in the U.S. since 2001.  Countries from which terrorists have come – Saudi Arabia – are not on the list.  Some of the countries have no functioning governments, but Iran does.  And so it goes.  That’s what happens when you promise to get rid of Muslims and then realize that you can’t get away with just making that so by campaign promise.

In Homo Sacer, Agamben declares that the camp (the paradigmatic case of which is the Nazi concentration camp) is the archetype of modern power, suggesting that “the camp as dislocating localization is the hidden matrix of the politics in which we are still living” (175).  He proposes that the model of the camp can be seen in all sorts of institutions: the stadium at Bari where the Italians herded Albanian immigrants, the track where the Vichy herded the Jews before deporting them, and the halls at airports where foreigners asking for refugee status are detained, “all equally [are] camps” (174).  As someone who has read a lot of Adorno, I found this assimilation of airport waiting halls and the Holocaust somewhere between uncomfortable and offensive.  I am still uncomfortable with the comparison, but I do think some of the logic that Agamben is identifying is at work here.  That logic is one in which “the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign” (174).

Another week, another unanimous SCOTUS IP Decision – this time, disparaging Trademarks

The Supreme Court ruled unanimously today (well, an opinion and a concurrence) that a provision in the Lanham Act banning “disparaging” trademarks violated the First Amendment. In the case in question, an Asian-American musician named Simon Tam had attempted to register his band’s name, “The Slants,” in a clear effort to reclaim the slur.  The PTO had refused the registration, on the grounds that it was a disparaging term. The Federal Circuit ruled in favor of Tam (my thoughts on that decision are here).  Writing for the Supreme Court, Justice Alito declined to resolve whether the case required strict or intermediate scrutiny, on the grounds that the disparagement clause failed the weaker, intermediate scrutiny standard.  Alito found two asserted government interests: one was protecting against speech that offends, and he dismissed that argument on the grounds that the “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’” (citing a 1929 dissent by Justice Holmes).  The second interest was in the protection of the orderly flow of commerce.  Here, he pointed out that the statute was in no way narrowly-drawn, as intermediate scrutiny would require.  In the first of a series of reductios, he argued that:

“The clause reaches any trademark that disparages any person, group, or institution [emphasis original; he is quoting statutory text]. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

Exhausting Patents

In another chapter of its ongoing battle with the Federal Circuit (and the second in a week), the Supreme Court (SCOTUS, I will refer to the Federal Circuit as the CAFC) ruled last Tuesday in Impression Products v. Lexmark International that the sale of a patented product “exhausts” the patent-holder’s claim to derive patent revenue from that particular article.  First, a brief background.  Printer toner is like razor blades: companies charge extravagant prices for the toner without which their printers will not operate, while selling the printer itself fairly cheaply.  Such a strategy creates secondary markets in toner, either in third party cartridges that are designed to be compatible with the printer, or in strategies for refilling used cartridges.  Naturally, printer companies hate this, and so engage in all sorts of strategies to stop it.  They warn consumers that using non-proprietary cartridges will cause poor print quality and void their warranty.  They design their devices to try to detect off-brand toner, and refuse to operate if one is installed. These strategies tend to fail in court.  In 2004, the 6^th Circuit ruled that efforts to circumvent the cartridge-detection system did not violate the DMCA (= copyright law).

In last Tuesday’s case, Lexmark had sued a manufacturer of aftermarket ink cartridges, which had been taking used cartridges from either overseas markets or from consumers who had emptied them, refilling them, and then selling them.  Lexmark argued that its exclusive rights should extend to the resold cartridges.  The SCOTUS threw cold water on that argument, citing settled common law on property: when you sell something, you don’t get to derive revenue from subsequent sales.  If Lexmark wanted to try to extend its patent rights, the company could contractually forbid users to give their spent cartridges to companies like Impression, for example, but that would be a matter of contract law, not property.  But patents are a species of property, and patent rights are “exhausted” – i.e., end – when the patented product is sold.