Per Curiam
-- A man has to do something for a livin' these days

-- Bloggin' ain't much of a living, boy
Thursday, April 22, 2004
Today at HLS: This afternoon, the Alliance of Independent Feminists, the Office of Public Interest Advising, and the HLS GOP hosted Eileen O'Connor, Assistant Attorney General for the Tax Division at the Department of Justice. Ms. O'Connor turns out to be a wonderful speaker, both about the attractions of working at DOJ and the Tax Division's enforcement initiatives. I'm sure that not much of what she said was novel, but it was certainly interesting, as a law student and as a taxpayer, to have the government's tax enforcement efforts spotlighted.

Ms. O'Connor focused her remarks particularly on several of the most significant challenges the Tax Division faces:

First, she highlighted the "enormous challenge" enforcers face in cracking down on tax shelters, such as cross-border leasing deals. In this fad, highlighted last summer by New York Times coverage of a deal in Frankfurt, Germany, the tax savings from depreciation of a large fixed asset offset the expenses of a deal in which a U.S. company buys a major urban or municipal infrastructure asset and then leases it back to the city. In the Frankfurt example, U.S. investors looked at buying the subway and then turning around and leasing it back to the city. As Ms. O'Connor pointed out, "We used to have the 'smell test,' but I think people are now olfactorily-challenged... some of these schemes don't even pass the snicker test." Nonetheless, she continued, some courts and judges will bite, approving the tax-savings these deals are built around.

Second, in an interesting implicit comparison to the highly-publicized wall between law enforcement and intelligence, she highlighted efforts to lower the wall between civil and criminal tax enforcement. The goal is to enable criminal prosecutions to proceed, with safeguards, before civil cases are completed. This approach is particularly important to tax schemes like a refusal to pay taxes because "we have a voluntary tax system," or "the Sixteenth Amendment was never ratified." With the ability of these schemes to spread via the Internet, obtaining injunctive relief early is key to maintaining control and reassuring law-abiding taxpayers that the system is enforced. She specifically highlighted the Crystal Foster case, where a taxpayer received an erroneous refund for $500,000 after claiming a nonexistent "slavery investment trust credit."

Ms. O'Connor also discussed the use of IRC ยง7609(f), the "John Doe" summons. The IRS can use this tool to go to someone "in a position to know the identities of people not paying taxes," and request cooperation, if several conditions are met:
- the summons relates to the investigation of a particular person or group of persons;
- there is reasonable basis for believing such person(s) has failed to comply with the tax law; and
- the identity of the person(s) sought is not readily available from another source.

The Justice Department has used this power to gain cooperation from credit card companies, using spending records to identify people who have stashed their income offshore and then used direct-debit cards to spend it within the United States. The use of this power requires court permission, according to Ms. O'Connor, but serves as a valuable tool to identify tax cheats.

Her discussion of John Doe summonses led naturally into a discussion of the tax-shelter identity cases, most notably United States v. BDO Seidman, (7th Cir. 2003), where courts have required law firms to turn over the identities of individuals who purchased tax shelters. Other cases involve the law firms Jenkins & Gilchrist and Sidley Austin. Ms. O'Connor emphasized that taking an tough line with accountants and law firms is crucial: organizations with high standing in the community can induce many, otherwise law-abiding people to believe their opinions that taxes can be avoided entirely. Her discussion focused on the "product"-like nature of tax shelters, and the decision by law firms in the last two decades to focus on "providing products" instead of "providing services." If the transaction is entirely product-based, she noted, the customers - "not clients" had not sought legal advice, so no attorney-client privilege exists. Alternatively, she suggested Congress could easily solve the problem of tax shelters by relying on the same distinction - simply require the accrual method of accounting, appropriate for "product" businesses - for all firms that sell tax shelters.

In the end, she brought the focus of her talk back to professional responsibility, and remembering to ask "but is it right," not just "is it within the letter of the law." She described the LLP structure of most contemporary law firms as an enabler to more gray-area behavior: after all, while the tax-shelter business still enriches all the partners at law firms like Jenkins & Gilchrist, limited liability ensures that the other partners are insulated from responsibility from all wrongdoing but their own. If law firms did a better job of using conscience, ethics, and oversight to take care of their own, law enforcement would be a much rarer recourse.

Her topics would have made for a good debate, not just a speech. There is certainly a debate over the use of "John Doe" summonses, both in the individual and the law-firm context. And to what extent has government enforcement focused on tax shelters only when politically pressured by exposes in the press? All in all, however, Ms. O'Connor provided an excellent overview of a subject that most HLS students probably dismiss as "uninteresting." It's certainly not that.

Thoughts on Newsweek reported this week that civil libertarians intent on pressing the "law enforcement" approach to fighting terrorism had picked on one of the wrong targets: Attorney General John Ashcroft. According to the report, Ashcroft has argued for allowing Americans accused of involvement with al Qaeda to have access to the courts instead of treating them as "enemy combatants."

This shouldn't surprise anyone. As a senator, John Ashcroft was known for his support of defendants' civil liberties, voting against the Prison Litigation Reform Act, against a national ID card, and against increased wiretapping powers for the FBI. And in his public speeches, Ashcroft has consistently sounded the theme that the American system of rights for defendants is an important protection from government power, even as he has (consistent with his professional responsibility as Attorney General) defended even the strongest actions of the government to protect Americans from terrorism.

Ashcroft appears to have been singled out by the ACLU and other liberal groups as an avatar representing unchecked power and the threat to civil liberties. Why? In my opinion, it's because liberals lump together the question of "strict separationism" with all other civil liberties issues, and assume that being a civil libertarian requires interpreting the establishment clause in extreme terms, privileging it over the free exercise clause, and barring any public expression of faith. Since Ashcroft is a believer in a weaker establishment clause and believes that his free-exercise rights extend into the workplace, he was immediately perceived as an enemy after his appointment. This view swiftly attached itself to their view of him on all issues. (My theory is only weakly supported by evidence, but barring "secret" memos left unprotected on file servers, it's often hard to identify true motivations.)

Of course, it would be helpful if he recognized that people's perception of the Attorney General has changed since the era of Robert F. Kennedy. The AG is no longer expected to be a right-hand man or a political spokesman for the President. By appearing overtly political, it is easier for the Bush administration's opponents to discredit not only Ashcroft, but many of the (in my opinion, good) policies that he supports. That's why I'm disturbed by the current use of the DOJ homepage.

Front-and-center, it currently features the Attorney General's Testimony before the National Commission on Terrorist Attacks upon the United States, with a prominent link to the 1995 Gorelick memo. Now, I firmly believe that Ms. Gorelick should have recused herself from questioning of AG Ashcroft, and perhaps from the 9/11 Commission. But I also think that this is fundamentally a political question, and that there's probably better uses for the web site than overt political promotion. For example, immediately below the testimony link is a link to information on emergency planning and terrorist attack preparation.

What about the link immediately above, to the DOJ's explanation of why the oft-demonized Patriot Act has received a bad rap. This is a close call - after all, the purpose of defending the Patriot Act is in part political. But it's also an important policy issue and it remains a priority for the DOJ, separate from partisan political ends, to renew the expiring provisions of the Act next year. On that one, I'm undecided.

Wednesday, April 21, 2004
New DVD Can Filter Movie Content: So reads the headline from this FindLaw article, about a new DVD player that can be programmed to remove the "objectionable" content from movies. As Stuart Benjamin so aptly writes, our society has become obsessed with obscenity and has begun to overreact. Benjamin predicts that the Supreme Court will strike down the new FCC penalties for indecency as violative of the 1st Amendment, and I think he may be right. Might the Court also rule that this DVD technology violates the law?

The technology was developed by a company called ClearPlay and works as follows. The user buys the special DVD player from RCA (more manufacturers could adopt the technology later if they wish). The player includes filters for 100 movies, including some popular new choices. Users then pay a monthly subscription fee of $5 to download new filters off of the ClearPlay website. The site currently has 500 filters and will be updated weekly. The user then burns the filters onto a CD for transfer to the DVD player.

At least for now, this process seems too burdensome for a number of people to do on a regular basis (after all, who uses the V-chip?), but let's assume that the technology continues to improve and this becomes a regular phenomenon. Yes, users may appreciate a "swear-free" movie, but does this violate the intellectual property rights of the movie's owner and creator?

My first impression seems to be yes. The player creates a derivative work of the movie, even if it does not physically alter the original DVD. If you rip a music CD to the hard drive, you have created a derivative work. The same electronic copy is made in this case, only the violation is worse because the electronic copy represents an alteration of the original version.

But isn't there a fair use argument here? After all, this is only being done for personal use. The DMCA has no fair use exemption to infringement. This is (technically) what prevents a user from ripping a CD that he legally purchased into mp3 form on his hard drive (even if the industry will not pursue these individuals). In this case, however, the industry has a stronger legal claim, because unlike an mp3, which represents only a minor technical alteration to the content, this would be a major substantive re-structuring of the artistic work. This would seem to impact the fourth of the fair use guidelines, which deals with the economic impact of the use upon a potential market. If this player creates "family friendly" versions of movies, this does not allow the studios to capitalize on this market.

In the Campbell case, the Supreme Court noted that potential markets included markets for derivative works. But the Court also said that a key question is whether the P (in this case the studios) would be interested in filling the market of the D (creating family-friendly movies). The studios could argue that they are already in such a market, as edited versions of movies are routinely licensed to television stations.

In addition, the studios could raise the moral rights behind copyright. Under the Berne treaty, authors have a right not to have their rights changed or corrupted without their permission. In Gilliam v. ABC (the "Monty Python" case), an American television was prohibited form cutting out portions of the British show in order to fit it into a traditional American television time slot. As stated by Nimmer, "Gilliam holds that unauthorized changes in the work that are so extensive as to impair the integrity of the original work constitute copyright infringement." In subsequent cases, courts have been reluctant to expand Gilliam. For example, recording of commercials on the blank leader of videotape preceding plaintiff's pre-recorded motion pictures did not violate copyright, nor did writing the Lord's Prayer on the blank pages of copies of a book. But when the alteration involves the substance of the work, courts have found violations. In Midway Manufacturing, the 7th Circuit held that speeding up the movement in a video game constitutes an unauthorized, and therefore infringing, derivative work. The Supreme Court denied cert in the case, but looking at both Gilliam and Midway, it appears that altering the creative content violates the rights of the creator.

A lawsuit is pending against ClearPlay. The company claims as a defense that it does not alter the original DVD, but it remains to be seen whether this will be enough to trump a copyright claim. My guess is that it will not, and censored movies will be relegated to television broadcasts.

The Whole Story on Baseball Finances: Allen Barra of the WSJ has a piece today on Yankees owner George Steinbrenner, and how, unlike other super-millionaire baseball owners, Steinbrenner is willing to spend more in the name of winning.

    It's not that the Red Sox couldn't afford A-Rod. Like several other major-league owners, including several in the so-called small markets, the Red Sox bosses have personal wealth far greater than Mr. Steinbrenner's. Unlike Mr. Steinbrenner, they seem loath to risk their own money on their teams.

But there is much more to the story than that. The Yankees revenue stream, as Barra points out in one sentence, far exceeds that of the other teams. The key behind this is local television. I don't have the exact numbers handy, but the Yankees local TV deal is $20 million higher than the next closest team, the Mets. That is twenty million per year. This is one additional superstar player, like an Alex Rodriguez. This is two All-Star players, like Gary Sheffield and Kevin Brown. And local TV is not the only place the Yankees have an edge. Yes, other teams have super-millionaire owners, but they do not have these guaranteed revenue streams each year, despite injuries, a bad season or off-the-field turmoil.

The solution: baseball needs a salary cap. It has become obvious that owners such as Steinbrenner will spend whatever it takes to win. While I commend that, it is bad for the game. But that is not the end of the story. Baseball also needs a salary floor. Teams should have a minimum level that must be spent on players to ensure that team owners do not line their pockets with profits while putting a lesser product on the field. The salary cap will encourage many teams to spend more -- you are likely to pay more if you think you have a realistic shot of winning. If you know you do not, why waste the money? Teams will be driven towards the middle, which will mean that almost every team, at the beginning of every season, will have a realistic shot at winning a championship.

Financing Public Schools: Texas Governor Rick Perry has a new way to finance the public schools in Texas -- "sin" taxes on activities such as cigarettes, alcohol and "adult" activities such as strip clubs. With the money brought in by these taxes, the Republican governor could cut property taxes, which of course would be a great benefit to the wealthiest Texas residents.

But is this really a zero sum? Just because Texas is getting additional revenue through these sin taxes, why can't the property taxes remain at the same levels? Schools, even in the wealthiest districts of the state, never have enough money. Schools need new infrastructure, new computer equipment, and most of all, better teachers. Who would not be in favor of raising the teacher salary in Texas so that teaching became a more viable economic alternative for a number of the state's best graduates? Keeping the property taxes along with the sin taxes allows this to happen, at least in part. In addition, lowering property taxes could have negative future consequences, especially if the state faces a future budget crisis. Decreasing property taxes could lead to a greater tax burden, especially if the state were to institute a state income tax.

The proposal does seem appealing, though, because it repeals the Robin Hood system of taking from the wealthiest areas and giving to the poorer districts. While good in theory, the system has had numerous problems in practice, including failing to adequately adjust to changing property values in growing areas. However, the state does not need to lower property taxes in order to get past Robin Hood. In fact, one would think that residents would be willing to pay slightly higher property taxes if they knew the money would stay local, educating their children or their neighbors' children.

An alternative approach would allocate a greater portion of the "sin taxes" to the poorer school districts. This would provide a similar benefit to Robin Hood -- pumping money into the school districts with lower property taxes -- but it looks much more like a government subsidy than it does a tax on the wealthy. Property taxes would stay local, to the satisfaction of many people in wealthy areas, and poorer school districts could improve their relative situation.

And what a great way to support your local school. "Honey, I have to go to the strip club -- don't you want Junior to have a great education?"

Tuesday, April 20, 2004
Broadcast cable? Here's an interesting prospect for increased communications competition, from Emmis Broadcasting executive (and former Seattle Mariners owner) Jeff Smulyan (full disclosure: he's also the former employer of one of my siblings). Low-cost wireless cable:
The gist of the plan: Broadcasters nationwide pool their resources to offer subscribers a package of 15 of the most popular cable networks for $25 a month, about half of what it costs for basic cable.

Broadcasters simply would retransmit the signals of cable networks over the air.

While the plan offers fewer channels instead of more, Smulyan said in the article that consumers are ready for less. "There's a market for low-end product in any business you can name," he told Broadcasting & Cable.

Consultants hired by Smulyan estimate that 10 percent to 15 percent of television homes could be drawn to a low-cost service, and he estimates that three-quarters of the customers would come from existing cable and DBS consumers who consider their services too expensive.
It's an intriguing idea. After all, vast swaths of (theoretically scarce) spectrum allocated exclusively for television signals are going to waste. Proposals to reallocate broadcast spectrum, proposed by JOLT Symposium keynoter Tom Hazlett, among others, have found little traction. And the high fixed costs of traditional cable service have made it hard for new entrants to offer competitive, cable-delivered, low-cost programming packages. At the same time, lease restrictions, neighborhood covenants, and interference make it difficult for a significant portion of Americans to experience the competition promised by DBS. And with the rise of subscription-based Tivo and satellite radio service, many Americans would like to reduce the amount they pay for cable in favor of increased spending on other options.

It will be interesting to see what he says in today's speech at NAB 2004.

Incidentally, whether you label it "broadcast cable," or "wireless cable," the oxymoron implications are enormous.

Monday, April 19, 2004
Massachusetts: A tough place to be poor (if you're a politician): One of the requirements of Massachusetts politics appears to be "You must own a residence in Boston." Never mind that (as we Cantabrigians know), the Boston area is one of the most expensive real-estate markets in the country. First came former governor Jane Swift's experience. Gov. Swift was a politician of modest means from a remote corner of the state -- her home was in Williamstown, as far from Boston as you can get. Her husband, Charles Hunt, was a stay-at-home father, and her income as governor was a mere $75,000 (she was actually the "Acting Governor," still paid the salary of the Lieutenant Governor). As Massachusetts doesn't supply a residence for its governor, she was expected to pay to maintain a residence in Boston as well as her home in Williamstown (unless she was willing to uproot her family and sell her home, with a possible stint in office as short as eighteen months). At least, she was criticized for using state resources (a state police driver at some times, a state police helicopter at others) to ensure that she could spend most of her time working, as opposed to driving on the 2.5 hour commute home.

I thought this silliness might have had to do with Gov. Swift's party membership (Republican), her gender, or her status as the mother of newborn twins. But now, my sympathy shifts to Sen. Kerry, criticized today in Slate because "As a U.S. senator, Kerry would sometimes stay in homes owned by Boston supporters, and he paid rent 'on a per diem basis only for the nights he was in Boston.' After his divorce, Kerry did not have a permanent Boston address of his own." It's my turn to defend Senator Kerry on this one -- it's a little ridiculous to expect him to spend his salary maintaining an unused residence at Boston prices. If it's important as a technicality that he maintain a permanent residence in Massachusetts somewhere, I'm sure he could have kept a tent on a plot of land somewhere west of Worcester for a reasonable price, and done exactly the same, sensible thing: spent his nights in Boston at the home of a supporter, and paid by the night (just as he would have if he spent those nights in a hotel). It seems to me that staying in someone's home also provided him protection in another sense -- it likely helped ensure that he wasn't alone, and vulnerable to rumors about his personal life.

Would you want to pay rent on an empty flat in Boston? I sure wouldn't.

I'll out myself as the shooter who would not vote for a candidate for President who doesn't like sports. Indeed, I would generally favor a candidate whose hobbies or experience included a competitive sport, as opposed to an avocation such as antiquing, sculpting, or skydiving.

To clarify, however. I'm not taking credit for everything attributed to that "one person," although I believe that I made the initial comment. The characterization over at CM amalgamates several of the people at our table into one: I could care less about what sort of stadium President Bush and VP Gore prefer. I also would favor participation in a team sport over an individual sport, such as golf.

But I would defend the idea that it is rational to believe this for what are "uncharitably" labeled "traditional macho attitudes." I would have the same preference if I was selecting a district attorney, or an assistant district attorney. I believe that management of foreign affairs and national defense is the most important issue. And while others may favor a conciliatory, multilateral approach, I haven't been surprised to see France, Russia, and other putative allies outed for their corrupt sleaziness in backing Saddam Hussein. It's an international competition out there, and the President has to be willing to fight and win.

Sure, it's macho. But the study of arts and literature is going to inculcate different values.

There are other reasons that a dislike of sports is troubling. Competitive sports is a central facet of American culture, and I think having that understanding the community-building importance of spectator sports is crucial to being a good leader of Americans. And in a country that lacks the long, shared history of many older cultures, sports records and sports history play an important role in creating an American heritage as well.

For the record, Slate reports that "At St. Paul's School in Concord, N.H., [John] Kerry won a prize for a speech titled, 'Resolved: that the growth of spectator sports in the western world in the last half century is an indication of the decline of western civilization.'"