At Friday’s hearing of the Colorado Senate Business, Labor, and Technology committee, lawmakers voted unanimously to move Colorado state bill SB26-090—titled Exempt Critical Infrastructure from Right to Repair—out of committee and into the state senate and house for a vote.
The bill modifies Colorado’s Consumer Right to Repair Digital Electronic Equipment act, which was passed in 2024 and went into effect in January 2026. While the protections secured by that act are wide, the new SB26-090 bill aims to “exempt information technology equipment that is intended for use in critical infrastructure from Colorado’s consumer right to repair laws.” //
“I can point out at least five problems with the bill as drafted,” Gay Gordon-Byrne, the executive director at the Repair Association, said during the hearing. “The definition of critical infrastructure is completely inadequate. The definition that has been proposed in this bill is not even a definition.” //
Repair advocates also say that limiting this kind of repairability is the exact opposite of keeping devices secure. If something goes wrong with a critical piece of technology, the people using it need to fix it and not have to wait for manufacturer approval.
“There’s a general principle in cybersecurity that obscurity is not security,” iFixit CEO Kyle Wiens said in the hearing. “The money that’s behind the scenes, that’s what’s driving the bill.” //
DarthSlack Ars Legatus Legionis
12y
23,110
Subscriptor++
So critical infrastructure is, well, critical, right? Like you need it to keep working because if it stops you're in a world of hurt? So isn't that the stuff you really, really, really want to be able to repair when it breaks and not sitting on your ass waiting for some clownshoes to show up and charge you a small fortune to turn a screw or apply a patch?
On Thursday, Elon Musk lost his lawsuit alleging that advertisers violated antitrust law by colluding on an ad boycott after he took over Twitter, gutted content moderation teams, and disbanded the Trust and Safety Council.
In her opinion, US District Judge Jane Boyle wrote that the lawsuit was dismissed because Musk failed to state a claim. His arguments that advertisers acted against their own best interests by avoiding advertising on his platform, now called X, did not plead facts showing that consumers were harmed. Without consumer harm, there can be no antitrust violation, the judge wrote, deeming the ad boycott perfectly legal.
The Supreme Court today decided that Internet service providers cannot be held liable for their customers’ copyright infringement unless they take specific steps that cause users to violate copyrights. The court ruled unanimously in favor of Internet provider Cox Communications, though two justices did not agree with the majority’s reasoning.
The ruling effectively means that ISPs do not have to conduct mass terminations of Internet users accused of illegally downloading or uploading pirated files. If the court had ruled otherwise, ISPs could have been compelled to strictly police their networks for piracy in order to avoid billion-dollar court verdicts under the Digital Millennium Copyright Act (DMCA). //
The court decided today that a service is tailored to infringement if it is not capable of “substantial” or “commercially significant” noninfringing uses. The court cited Sony’s 1984 victory in the Betamax case, in which justices found that the Betamax was capable of noninfringing uses and that Sony’s sale of it did not constitute contributory infringement. Sony’s win in 1984 thus contributed to its loss today.
So what does the law truly say across all 50 U.S. states? We've dug through every state's department or bureau of transportation resources and compiled a breakdown of what we found to help shed some light on the matter. All told, we found 23 states with laws that required the use of both wipers and headlights in bad weather, although many more have rules related to the use of headlights in low visibility conditions.
The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus. Most (but not all) are brought into being via legislation. The binary approach ignores the full range of adjudicatory bodies, which find root in different constitutional provisions: Article III, Section 1, Article I, Section 8; Article IV, Section 3; Article II, Section 2/Article I, Section 8, Clause 3; and Article II, Section 1. These distinctions matter for defining jurisdiction and understanding the scope of the authorities—and constitutional protections—that apply. The failure of scholars to take into account the panoply contributes to inaccurate analyses and cabins debates. This Article takes a significant step forward, providing a conceptual framework for each type of court and delineating, based on their legal and historical underpinning, which entities constitute each category. It details the courts’ constitutive elements and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of federal courts in the United States.
Recommended Citation
Laura K. Donohue & Jeremy McCabe, Federal Courts: Article I, II, III, and IV Adjudication, 71 Cath. U. L. Rev. 543 (2022).
Available at: https://scholarship.law.edu/lawreview/vol71/iss3/9
On Friday, the Supreme Court issued its decision in the case(s) of Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose the tariffs. Chief Justice John Roberts authored the 6-3 decision, with Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissenting (though there are some concurrences, as well). //
Mike Ford
3 hours ago
Roberts speaks out of both sides of his mouth...Under ObamaCare, his "reasoning" was that the mandate was a "tax" although not specifically stated so in the legislation.
Yet, here the "reasoning is that Trump cannot act because "tariffs" are not specifically mentioned in the appropriate legislation.
And people wonder why we door kickers hate lawyers (my good buddy Susie Moore being one of the few exceptions). //
Scholar
3 hours ago edited
The court erred on this as it lacks the competency to determine emergency, upon determining which the president has broad authorities under IEEPA to:
investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest[.].
Roberts and Barrett took a totally subjective view on the the lack of explicity in mentioning tariffs in the text of the law. Since when Common Law has become a totally explicit system?
DeMercurio and Wynn sued Dallas County and Leonard for false arrest, abuse of process, defamation, intentional infliction of emotional distress, and malicious prosecution. The case dragged on for years. Last Thursday, five days before a trial was scheduled to begin in the case, Dallas County officials agreed to pay $600,000 to settle the case.
It’s hard to overstate the financial, emotional, and professional stresses that result when someone is locked up and repeatedly accused of criminal activity for performing authorized work that’s clearly in the public interest. DeMercurio has now started his own firm, Kaiju Security.
“The settlement confirms what we have said from the beginning: our work was authorized, professional, and done in the public interest,” DeMercurio said. “What happened to us never should have happened. Being arrested for doing the job we were hired to do turned our lives upside down and damaged reputations we spent years building.” //
Martin Blank
Reading more about it, it seems a bit more complicated. While I don't think the pentesters should have been arrested (much less defamed), it does seem like the people who authorized them might not have actually had that authority.
I was a pentester for about a decade (though I didn't do physical testing), including at the time of this incident. There is a certain amount of trust that goes into contracting. We don't go out just based on an email approval. We get signed authorizations that are presumably vetted by knowledgeable people, and frequently lawyers, on both sides. I wouldn't have thought twice about accepting a contract signed by a representative for the court system itself.
But even more important, the people who hired them should have done their due dilligence. Had they followed the standard protocol and brought legal in, these issues of authority would likely have been pointed out.
There is a high likelihood that legal was brought in. This circumstance was weird, and the only reason that it got out of control was the sheriff. In most places, an improperly authorized test would have resulted in no charges or charges rapidly dismissed after showing that there was no intent to break the law.
You want to be especially in the clear on this, given cops inherent tendencies to be dicks about anything.
Yeah, this whole incident caused some significant changes in how physical pentesting was done.
January 29, 2026 at 7:08 pm
Political-Paige
2 hours ago
I'll jump in as the non-Christian in the room, having been raised Buddhist. Let's divorce (no pun intended) the theology from the legality here.
Frankly? It's none of the business of any government to define marriage. Marriage licenses were once handled by the churches marrying the couples, but they were usurped by state governments for the nefarious purpose of preventing miscegenation... interracial marriages. There were other excuses like blood tests for syphilis. Both rationales are long since abandoned.
There's nothing in the Constitution that lets governments decide whether you can marry, or whom. That's a religious and personal choice. We don't have to like it, but then again, we also don't have to like our in laws. It's not our choice, not our lives, not our circus and not our monkeys.
The only interest government could possibly have in that decision -- which should be between individuals and their church -- is in passing regulations that define tax and divorce rules in marriage and its dissolution. Protect those who lack the ability to consent, as we do in any situation. Then get out of it.
We have laws based on Judeo-Christian ethics, but there's a line between that moral base and codifying this or that rule from the Old Testament.
Patrick Political-Paige
33 minutes ago
It is understandable to want the state as far away as possible from intimate choices, but there are clear, non‑theological reasons why modern states both define and encourage marriage as a civil institution. That concern is not (at its best) about policing virtue; it is about managing predictable problems in property, care, and vulnerability that arise when adults form long‑term unions and have children.
First, children create obligations that someone must legally carry, and the state cannot ignore that. A liberal state does not care whether two people are in love or blessed by a church; it does care that any child has financially responsible adults, clear decision‑makers for medical and educational choices, and a default framework if those adults separate or die. Marriage as a legal status is basically a pre‑packaged set of rules: if you two take on a shared life, then you are presumptively each responsible for the children you bring into it, for their support, and for each other’s basic support. Without such a default scheme, every breakup or death becomes a bespoke legal nightmare, which is precisely when children are least able to protect themselves.
Second, long‑term coupledom generates property, debts, and dependencies that private agreements cannot reliably handle on their own. Most couples do not and cannot afford to draft detailed contracts about every asset, liability, medical contingency, and inheritance scenario. A civil marriage statute gives third parties—hospitals, courts, insurers, employers, pension administrators—a simple, publicly knowable answer to questions like: who can consent to surgery; who gets survivor benefits; who inherits without a will; who is liable for household debts. Without a state‑defined status, those questions would have to be litigated or contracted every time, which would be vastly more intrusive and expensive than a standardized legal framework.
Third, the state has an interest in reducing free‑riding and externalized costs. If two adults share a household and one becomes disabled, society prefers that the other adult has a clear, enforceable duty of support before the costs are shifted to public welfare. If someone dies, it is better that there is a predictable heir to manage assets and obligations than that the estate sits in limbo or the state must step in as guardian of last resort. Marriage law assigns these duties by default, thereby lowering the administrative and financial burden on everyone else.
Fourth, state involvement in defining civil marriage is precisely what makes equal treatment enforceable. If marriage were purely private or ecclesiastical, then access to the associated protections—hospital visitation, inheritance, tax treatment, immigration sponsorship—would depend entirely on private gatekeepers who are not bound by constitutional norms of equality. By defining a civil status that is independent of any church and open (in principle) on neutral terms, the state both creates and can police a sphere where citizens must be treated alike, regardless of religion or lack of it.
Finally, recognizing a legitimate civil interest in marriage does not mean sacralizing any particular religious ethic or banning all alternative arrangements. Adults remain free to structure their intimate lives as they see fit; the question is which arrangements the state will treat as the default template for allocating rights and duties when things go wrong. There, it is neither arbitrary nor theocratic to say: stable, two‑adult unions that take on mutual responsibility and child‑rearing are given a special legal form, because they reliably solve problems the state would otherwise have to solve awkwardly and expensively. In that sense, defining and encouraging civil marriage is less about virtue policing than about risk management and the orderly protection of children, dependents, and property across generations.
In a separate opinion, justice Kenneth Lee accused California of misleading residents in smaller counties — where the open-carry ban does not apply — about how they can lawfully carry firearms. “Our constitutional rights,” Lee wrote, “should not hinge on a Where’s Waldo quiz,” The Hill reported.
thatanonymouscoward Ars Scholae Palatinae
13y
901
I'm gonna have to prepare more crow for people to eat.
I saw a shark once upon a time long ago... of course I'm an untrusted source by design.
As I often pointed out, courts don't let you create events to profit from.
See they could have owned the films, even openly filed cases on behalf of themselves but then there would have been questions, depositions, etc. So they invented shells to hide the client from view and convince the world it was some poor copyright holder getting screwed by evil pirates.
If your playing the home game -
They forged a name on a copyright assignment & submitted a knowingly forged document to courts.
They placed the content on TPB, knowing it would be downloaded.
They lied about their involvement/control/ownership of various firms & shells.
They lied under oath... a lot.
They funneled money out of Prenda from the main accounts, not a client account where actual lawyers place client funds to keep everything above board.
They shifted the money around rapidly trying to hide the trail.
They hired the best of the best lawyers off of craingslist.
They used another lawyers ECF login to file court documents in his name.
They ghostwrote & submitted documents to courts the lawyer of record on the case had never seen.
They tried to sue the person whos identity they stole to forge the copyright assignment. (Not to mention a bunch of us nice people who called them extortionists online.)
They lost that case before it even began because they lied to amend the filing, lied about what another Federal Judge said about a concurrent case they had filed, and pretty much pissed all over the bench.
When this all went sideways they applied the same pay us or else strategy filing bogus Americans with Disability Act lawsuits, and managed to force several small businesses to go under.
@StanFL - there might be a chance that Hans thinks his father can work miracles one more time to save him. He's bailed him out several times but I think he's burned most of goodwill.
@yasth - Thats the fun thing about copyright you can demand actual damages OR statutory damages. The statutory damages are $150,000. Its a very scary number to threaten people with and makes a few thousand sound reasonable. Of course settlement amounts don't get subtracted from the $150K so they can keep scaring people with that number.
Former attorney John Steele was sentenced this week to five years in prison for his role in the Prenda Law porn-trolling scheme, putting an end to a years-long legal drama wild and stupid enough to be prime-time TV.
Steele pleaded guilty in 2017 to federal charges of fraud and money laundering and then cooperated with authorities in the investigation into his former legal partner Paul Hansmeier. That cooperation weighed heavily in Steele’s favor at his sentencing, the Minneapolis Star Tribune reports.
US District Judge Joan Ericksen said federal guidelines recommended a sentence of 10 to 12-1/2 years for Steele’s “vile scheme” but agreed that given Steele’s extreme willingness to cooperate, his defense attorney’s recommendation of five years was “eminently fair.”
Ericksen also said Steele and Hansmeier were liable for paying about $1.5 million in restitution, separate from all the fines and sanctions the two already accrued in recent years. //
Hansmeier was sentenced in June to 14 years in prison for his role in the scheme.
The Prenda Law saga kicked off in 2012, when the copyright troll firm sued Comcast and AT&T, claiming they were accessory to their subscribers “stealing” certain pornographic content. A chain of courtroom events unfolded from there, and in 2013 a judge sanctioned the firm and referred Steele and Hansmeier for criminal investigation.
Prenda made its money by suing people who allegedly downloaded pornographic films online. Its targets frequently agreed to settlements worth a few thousand dollars rather than facing a courtroom process. These copyright trolling tactics netted the company more than $6 million between 2010 and 2013.
But eventual criminal investigations revealed that rather than representing real companies who had a real product that was being traded in violation of copyright law, Prenda was filming its own porn, inventing fraudulent shell companies, and uploading those supposed companies’ content to torrent sites itself. Then the settlement money went directly into the Prenda attorneys’ pockets. //
When an attorney of many years experience gets disbarred by a court, it is not a trivial thing, but a serious, serious punishment, and not something judges take lightly. But, congratulations to Philadelphia’s George Soros-sponsored, criminal-loving and police-hating District Attorney, Larry Krasner, for getting one of his minions kicked out of practice for deliberate lying to a a federal district court. From The Philadelphia Inquirer:
biffbobfred Ars Scholae Palatinae
11y
1,172
Will they kick off Meta/Facebook for torrenting, or is “pirating is only bad if you’re not rich already” going to be the rule here? //
Messy Wise, Aged Ars Veteran
21y
190
can we just have dumb pipes? i don't want a utility knowing or caring what i do.
imagine getting your electricity cut off because the power company doesn't like what you cook. //
thadco Ars Centurion
9y
380
You child stole a candy bar. No more food for you or your whole family forever! //
TylerH Ars Praefectus
13y
4,472
Subscriptor
I would very much like the justices to ask counsel whether they would kick a customer like Facebook/Meta off for large-scale pirating in abuse of this position, or if they would turn a blind eye if the organization has a large enough contract.
I would also very much like the justices to ask whether Sony has considered just making the pirated content more conveniently available for purchase/access. I wager a large portion of pirated content is not actually readily available in an offline-consumable format.
Glaringly absent from these arguments (at least those covered in the article) is "why should the ISPs act merely on the accusation of piracy? Why not just send a notice after you have sued an individual in court and won/proven that they are the specific person committing the piracy? Wouldn't that preserve liability and due process, albeit at the cost of the copyright holder (where it ought to belong, frankly)?" //
Mad Klingon Ars Tribunus Militum
5y
1,776
Subscriptor++
Is Sony and the other copyright holders willing to assume liability for damages for submitting a list of IP addresses performing infringement and being wrong? Even a 90% correct rate would result in 100 improper cutoffs for every 1000 addresses. I doubt that Sony's lists are that good. A fair number of folks use an ISP connection as a VOIP landline. What damages apply if that is cutoff due to being on a Sony list and someone dies due to 911 not working? Or a house is destroyed due to delays in fire department arriving? Bonus points if that person proves no infringement happened. And before someone says "But cell phones....", not everyone lives in an area where cell services is available or reliable.
With Internet connections becoming increasing required for modern life, cutting a house off from the Internet should be a method of last resort. //
GFKBill Ars Tribunus Militum
21y
2,674
Subscriptor
“The approach of terminating all access to the Internet based on infringement, it seems extremely overbroad given the centrality of the Internet to modern life and given the First Amendment,” he said.
And "based on infringement" isn't even in the picture - the studios haven't taken these infringers to court, Cox et al are supposed to just take their word for it. On that basis alone this should be chucked out.
Sony and their ilk want a cheap shortcut, when they should be filing charges against the infringing user and letting a judge determine penalties, if they prove their case. //
GFKBill Ars Tribunus Militum
21y
2,674
Subscriptor
TylerH said:
Glaringly absent from these arguments (at least those covered in the article) is "why should the ISPs act merely on the accusation of piracy? Why not just send a notice after you have sued an individual in court and won/proven that they are the specific person committing the piracy? Wouldn't that preserve liability and due process, albeit at the cost of the copyright holder (where it ought to belong, frankly)?"
The whole thing is an end-run around due process, because it's easy and saves them the expense and effort of suing.
The courts should be telling them to pound sand. //
42Kodiak42 Ars Scholae Palatinae
13y
1,165
Clement said that hotels limit speeds to restrict peer-to-peer downloading, and suggested that universities do the same. “I don’t think it would be the end of the world if universities provided service at a speed that was sufficient for most other purposes but didn’t allow the students to take full advantage of BitTorrent,” he said. “I could live in that world. But in all events, this isn’t a case that’s just about universities. We’ve never sued the universities.”
Clement is either a ... moron, or is hoping the judges are by telling them this outright lie. This is nothing more than a brash assertion that a network configuration that supports peer-to-peer services has no valid personal use cases.
Stewart gave a hypothetical in which an individual Internet user is sued for infringement in a district court. The district court could award damages and impose an injunction to prevent further infringement, but it probably couldn’t “enjoin the person from ever using the Internet again,” Stewart said.
A court isn't even likely to block the user's internet access while the case is ongoing. The fact of the matter is simple: People's livelihoods can very well depend on continued and reliable internet access. What Sony is asking for is a clear violation of our fifth amendment rights by requiring ISPs to enact an unjustified punishment without due process in a court of law.
A decades old consent decree has been lifted against the Republican National Committee's so-called "ballot security" measures. It's a big victory in the RNC's efforts to monitor polling activity and it's a sobering moment for activists who fear this could accelerate voter suppression — especially among minorities.
An elderly woman just scored a landmark court win against her neighbor that forces him to stop smoking weed in his own home.
Josefa Ippolito–Shepherd, 76, of Washington, DC, said the “feces” or “skunk” smell emanating from 73-year-old next-door resident Thomas Cackett’s doorway made her dread coming home.
At the heart of the issue, at least in the case itself, is that Montana's permitless carry law basically says that everyone who isn't expressly forbidden from carrying a gun is considered licensed, and the federal law says people with licenses can carry in the buffer area around a school. The Biden administration argued that no, the licensing had to be explicit--something the law doesn't seem to actually state, for the record--and so he was in violation of federal law.
Metcalf's defense is that he literally had no reason to believe any such thing, which is fair.
However, a bigger issue is the existence of this area outside of the school grounds themselves.
See, the federal law doesn't account for permitless carry as most states have it, nor does it account for things like reciprocity. You have to be licensed in that state in order to just walk past a school on the sidewalk, which is a problem.
This is something most people are going to be unaware of when traveling, for one thing, just as they're not going to be aware of where all the schools in a given city might be. Just following Google Maps could land you a felony charge, simply because Google didn't know you needed to be so many feet away from a school because you're lawfully carrying a firearm.
It's ridiculous. //
California Curmudgeon
7 hours ago
Wasn’t he also within his own yard when he was arrested? Living within 1000 feet of a school should not override your rights.
Streaming is now the most popular way to watch TV, yet many are unaware of what they’re buying. As Reingold's lawsuit points out, paying for content in the streaming era is different from buying media from physical stores. Physical media nets control over your ability to watch stuff for years. But you also had to have retrieved the media from a store (or website) and to have maintained that physical copy, as well the necessary hardware and/or software for playing it. Streaming services can rip purchased content from customers in bulk, but they also offer access to a much broader library that's instantly watchable with technology that most already have (like a TV and Internet).
We can debate the best approach to distributing media. What's clearer is the failure of digital content providers to ensure that customers fully understand they’re paying for access to content, and that this access could be revoked at any time. //
galvanash Seniorius Lurkius
17y
14
Subscriptor++
Is it really that controversial to expect that the word "buy" should have a legally binding meaning? Seems like a pretty simple and straight forward concept to me.
I give you money, you give me a thing. Maybe there are terms binding me as to what I can do with the thing, but assuming I never violate those terms if you can then take the thing away from me I never bought it.
Can we please get a judge to just settle this after like 50 years of this nonsense??? //
SimonRev Ars Praetorian
10y
434
You know, as long as I "bought" a digital asset, I have no ethical compunctions about creating/obtaining a more convenient copy for personal use. I don't do that with rentals.
If Amazon et al tried to provide a "non-fixed term lease" (and yes, I know that is what they really mean with the "buy button"), I would expect to pay roughly 1/2 to 1/3 vs purchasing the physical media. //
A D.C. grand jury has refused to return an indictment against a man accused of assaulting federal law enforcement during a confrontation in Washington, D.C. //
Compare and contrast this with the alacrity with which D.C. grand juries handed out felony indictments for people merely walking into the Capitol on January 6. Had either Dunn or Reid committed those acts on January 6, 2021, they would have been facing a decade or more in prison. //
The reluctance of DC judges and juries to support President Trump in tamping down violence in D.C. Former RedStater Bill Shipley, who goes by the handle @shipwreckedcrew on X, has a solid idea.
Shipwreckedcrew @shipwreckedcrew
·
The case is building for eliminating the District Court for DC, and making it part of the District of Maryland.
You cannot have a District Court that has a juror pool so extremely partisan that objective evidence is simply disregarded based on politics.
Ed Whelan @EdWhelanEPPC
·
The old saying is that a grand jury will indict a ham sandwich. But somehow this one didn’t indict the DOJ lawyer who threw sandwich at federal agent. https://nytimes.com/2025/08/27/us/politics/trump-sandwich-assault-indictment-justice-department.html
10:08 AM · Aug 27, 2025
America’s lower judiciary is out of control — and Supreme Court Justice Neil Gorsuch is putting it on notice.
In a Thursday order, the nation’s highest court granted (in part) a request by the Trump administration to temporarily pause a lower court blockade on the National Institutes of Health’s bid to terminate DEI-related grants totaling nearly $800 million. The ruling was 5-4, with Chief Justice John Roberts and the court’s Democrat appointees saying they would have denied the administration’s application in full. //
In addition to signing onto the majority’s Thursday decision, Gorsuch penned a concurring opinion in the case in which he ripped into the lower judiciary’s out-of-control behavior. While noting that “[l]ower court judges may sometimes disagree with this Court’s decisions … they are never free to defy them.”
Citing a related case recently before the Supreme Court (Department of Ed. v. California), the Trump appointee highlighted how the high court “granted a stay [in that case] because it found the government likely to prevail in showing that the district court lacked jurisdiction to order the government to pay grant obligations.” He wrote, “California explained that ‘suits based on “any express or implied contract with the United States”’ do not belong in district court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the Tucker Act.”
“Rather than follow that direction, the district court in this case permitted a suit involving materially identical grants to proceed to final judgment under the APA,” Gorsuch wrote. “As support for its course, the district court invoked the ‘persuasive authority’ of ‘the dissent[s] in California‘ and an earlier court of appeals decision California repudiated … That was error.”
Gorsuch went on to underscore that “the promise of our legal system that like cases are treated alike means that a lower court ought not invoke the ‘persuasive authority’ of a dissent or a repudiated court of appeals decision to reach a different conclusion on an equivalent record.” More to the point, however, he noted that the district court’s apparent rebuke of the precedent very recently established by SCOTUS in the California case is not an isolated incident among the lower courts.
“If the district court’s failure to abide by California were a one-off, perhaps it would not be worth writing to address it. But two months ago another district court tried to ‘compel compliance’ with a different ‘order that this Court ha[d] stayed,'” Gorsuch wrote. “Still another district court recently diverged from one of this Court’s decisions even though the case at hand did not differ ‘in any pertinent respect’ from the one this Court had decided … So this is now the third time in a matter of weeks this Court has had to intercede in a case ‘squarely controlled’ by one of its precedents.” //
“All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system: Whatever their own views, judges are duty-bound to respect ‘the hierarchy of the federal court system created by the Constitution and Congress,'” Gorsuch wrote.
17 U.S. Code § 107 - Limitations on exclusive rights: Fair use] said:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.