Worth exactly what you paid for it, so hey, if I piss you off, all you wasted was your time.

Anyway. I recently read some discussion in a trans* community about the following excerpt from an HRC newsletter:

Getting the truth in front of the American public is no small undertaking. Extremist groups are not only attacking equal rights we've already won – they are raising millions to shut down progress on victories yet to come.

Backed by supporters like you, here's how we're making a stand:

* In Maine, preparing to defend marriage equality at the ballot – sure to be a major fight;
* In California, rolling out a massive initiative to organize clergy and religious communities in support of marriage equality;
* In New Hampshire, building grassroots pressure behind the marriage bill now making its way to the governor's desk;
* In New York, working with state groups to organize support for a marriage bill scheduled for a vote in the state Assembly today;
* In Iowa, ensuring elected leaders continue standing strong against the radical right's relentless campaign to overturn the recent court ruling;
* In Connecticut and Vermont, ensuring that marriage equality is protected forever.

Every single one of these efforts is being threatened. The truth is on our side, but we need YOUR support to broadcast it, talk face-to-face with Americans, and win hearts and minds.

The discussion was critical of the fact that transgender rights were not being addressed by the HRC's efforts at all. Now, this is a thing worth being concerned about, because there are some major issues going on in the US with respect to access to health care, access to housing, fair treatment in the workplace, fair treatment by the State Department, &c with respect to trans* persons. As an organisation which deals with sexuality-based discrimination issues, it is reasonable to expect the HRC to engage with trans-rights issues.

The HRC also has a lot of money, and it is tempting to assume that it can take on any goal it wants to. Making this assumption can lead to the conclusion that HRC is therefore deliberately ignoring trans* issues in favour of same-sex marriage. However, I submit that it is flawed reasoning to assume that the HRC's resources are unlimited; in fact they most certainly are limited compared to, say, the aggregate resources of the Republican Party and its supporters. This means that the HRC must pick its battles.

It is presently the case that there is legislation related to gay rights, and in particular to same-sex marriage, being considered in several state legislatures at this time. It is also the case that there are ballot issues and judicial issues related to same-sex marriage coming up that immediate, decisive action -- often in a grassroots fashion, as in the case of making sure people get to the polls in order to vote on important issues, or encourage their friends in areas of important ballot measures to get to the polls -- can make a major difference on.

Now, here is my question. What are some major trans* issues currently in front of the courts or the legislatures that I can have some impact on?

I ask that in all seriousness as a US citizen who maintains a residence in California. Offhand I can think of several government issues that I can affect, in California and in the United States as a whole, some of which have to do with same-sex marriage, some of which have to do with other issues with which I concern myself (e.g., privacy, copyright, open-source biology). For instance, if the petition for a rehearing in Strauss v. Horton is granted, I can write an amicus curiae brief -- a "Friend of the Court" letter. Is there a trans-rights case currently going before a state or federal court that I can research and submit a brief about?

How about a trans-rights referendum in some upcoming municipal, county, or state election? Is there, say, a proposition in San Francisco to require the City and County to cover HRT and SRS for trans* government employees? If so, I could encourage all my San Francisco readers -- and there are a lot of them -- to get out the vote. And they'd do it. That's the kind of people I make friends with. I could do the same for Houston, Austin, Iowa City, Chicago, Washington DC, Seattle, Miami, NYC, Boston, just by speaking up and getting the word out, thanks to my diverse group of friends. I can also write letters and make phone calls to Congresscritters, state and local representatives, and ask people in all sorts of places to do the same and get the word out themselves.

So I ask you, what are some time-critical issues that I can help spread the word about? Because HRC is going to have to focus on things that it can affect immediately, and really, that's the kind of thing I can help with too.

Is there a website I can go to that tracks trans* issues before the courts or legislatures? When I go to GovTrack and search using the keyword "transgender", I get seven results for the current session of Congress, six of which are memorial resolutions of one kind or another, the other of which is the National Hate Crimes Hotline Act of 2009. That's nice, but GovTrack only follows the US Congress, not state issues, and it doesn't do elections or courts. Is there a centralised repository of up-to-the-minute (-day would be fine, actually) breaking trans* political issues? Preferably one where I can send emails to my representatives with a convenient dropdown menu?

And finally, if there aren't any trans* issues before the courts or on the ballots at the moment, I strongly recommend putting some there. The issues exist, but in order to get them the attention they need in order to be addressed, they're going to have to be forced in the spotlight by someone taking a discrimination issue to trial, or by getting a legislator to propose some form of legislation, or by grassroots effort to get a proposition on a ballot somewhere.

joedecker points out that Obama has asked SCOTUS not to hear a DADT case currently being considered for certiorari.

This annoys me, but Joe, as usual, has accurately captured my annoyance, so go read his post if you want that. Here's my thing. This is only one of several times in the last few weeks that I've read an article about Obama asking SCOTUS not to hear a case. We've got the administration asking SCOTUS not to hear appeals from Valerie Plame and her husband vs. several Bush II officials, families of people killed during 9/11 vs. Saudi Arabia and several Saudi princes (yes, that's a forum, but go read the brief), and some Uighur Muslim Gitmo detainees who want to be released into the US. He's also asked for an overturn of Michigan v. Jackson, which would allow police to interrogate a defendant who has a lawyer (or who has asked for one) without that lawyer being present, which of course opens up all kinds of nightsticky opportunities. (Yeah, txtriffidranch, I know -- use a length of garden hose filled with lead shot and that nun won't have a mark on her. It's the principle of the thing.)

And, of course, despite having promised that, if elected, he would end warrantless wiretapping, he's already broken that promise (though, to be fair, we did see this one coming last summer when he was still a senator.)

What. The hell. Is up. With that? Historically, I know Presidents have clashed with SCOTUS before -- FDR, Nixon -- but since when does the President run around telling the court what to hear and not to hear? Was this just something that didn't get a lot of coverage the last few presidencies, or is Obama actively continuing the monstrous power grabs that eight years of Bush softened us up for?

(Yes, yes, I know the articles all say he's "asking", but really, grow up -- they're putting it nicely.)

Wow, that was a really tiring three hours -- but so rewarding! Thanks to the California Channel and SFGTV for broadcasting the proceedings of the arguments. joedecker, the ACLU, quite a few other Twitterers and I had a rousing discussion going the entire time, and a big thanks to the folks at Twitter for providing us with such a great platform for discussion!

I'm going to go catch the last showing of Watchmen tonight, but after that, I've got a big post brewing on my take on the proceedings. A lot of the endgame arguments dealt with what constitutes an inalienable right and what doesn't; one of the Justices in fact framed it as a dispute between the right of the California people to amend their Constitution and the right of individuals to enjoy equal protection under the law.

Protip: One of these rights is inalienable and the other one isn't. Pop quiz for my readers: which is which, and why does it matter?

Discuss in the comments. I'll be back in a few hours.

Sorry for the late announcement, folks, but I wanted everyone to know -- the California Channel will be broadcasting (and webcasting) the oral arguments in the three Prop 8 cases, starting at 9am Pacific time. (That's about an hour from now.)

You can follow the live stream on the web, and joedecker and I will be Twittering the proceedings at http://twitter.com/prop8liveblog. Come join in the dialogue!

(No, I will not be LoudTwittering anything back here.)

ETA: If the Cal Channel isn't working for you, SFGTV2 will also be broadcasting. Go here and click on the SFGTV2 link. (At the moment I'm watching the Black History Month Kickoff Celebration -- uh, a month late? -- and at 9am the Prop 8 coverage starts. Shanaka Hodge is a good poet, btw.)

I did not realise, until evelien mentioned it, that if you are a non-US citizen and are travelling to the US, even if you are a citizen of a country covered by the Visa Waiver Program, you must now apply for entry to the US online at least 72 hours before you travel. Yes, even if you are only there for a short time. Yes, even if you are only transiting through the US on your way to another country -- that's right, even if you never leave the airport.

Seriously, State Department, what the fuck? US-VISIT wasn't enough of a pain in the ass, so you shut it down and put together an even more annoying program?

I do have to wonder how long this is going to last; this will without a doubt increase the number of deportees (thanks to people who don't find out about the need to apply for authorization, or who forget to do it, or who don't realize that infants who are flying without a ticket still have to have an authorization, &c, &c), and the airlines are going to be extremely nonthrilled about having to mule them all back home.

It's not quite clear from the ESTA website what the goals of the program are. The FAQs seem to indicate that they're trying to keep out people who have been convicted of crimes of moral turpitude and people with communicable diseases. Fun fact: six of the eight communicable diseases that are grounds for denying someone entry to the United States are sexually transmitted diseases. This includes HIV.

Now, I don't know about the rest of y'all, but it has never been my experience that foreign nationals view the US as the place to go on mad fucking sprees. Denying an HIV-positive person the ability to enter the US simply because of his or her medical condition is discrimination, plain and simple, and it just isn't right. There is a DHS "final rule", issued last October, which specifically applies to HIV+ folks, under which they can enter the US for a mere 30 days, rather than the 90 days that everyone else gets on a nonimmigrant tourist visa, but this is small comfort: HIV+ foreign nationals are considered second-class persons under these rules.

Here, incidentally, is where things get interesting. The State Department's page on Classes of Immigrants Ineligible to Receive Visas cites Section 212(a) of the Immigration and Nationality Act. Sec. 212(a)(1)(A)(i) states that any alien "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome" (emphasis mine) is ineligible for admission to the US. HowEVah, if you check out Section 212 on the USCIS website, the bit about AIDS isn't there; it's replaced by a footnote. Turns out that the bit about AIDS was amended out on July 30, 2008.

So, in other words, (1) the State Department isn't keeping its own public information documents up to date (no surprise), and (2) the Department of Homeland Security is issuing its own prejudicial rules, simply because it can. Section 305 of H.R. 5501 removed the language about HIV, passed the House and Senate and was enrolled as Public Law No. 110-293. The jackasses at DHS turned right around and turned it into a rule under colour of their own authority, and that rule affects everyone just as much as a law passed by Congress does.

I bitched a lot during the last eight years about the ridiculous power grabs the executive branch has pulled, and this is just another one of them. AIDS activists, gay-rights activists -- if you aren't pissed off about this, you should be. The DHS's style of thinking is benighted, anti-factual and just plain wrong: they're acting like they think HIV can be contracted from casual contact, which is just as absurd as a frat boy who thinks he can catch "the ghey" from talking to a gay man at a bar. We deserve better from our government.

And just remember, folks: this is a "rule" we know about. The DHS and the TSA have a whole laundry list of "secret rules" which they still enforce, as John Gilmore and others have learned to their peril.

Demand transparency from your government. They're supposed to be of, by and for the people. It's up to us to keep them that way.

Prompted by a discussion with bunnykitteh, who's good at prompting these kinds of things:

Imagine a Facebook and/or MySpace application aimed at organising flash mobs for political action (e.g., the kind of thing Anonymous might use to quickly notify members of imminent $cientology activity in a particular location). What features should it have? (Twitter gateway?)

(Note that with Facebook, especially, there are all kinds of interesting concerns with respect to privacy...)

By way of joedecker: the CA Supreme Court will hear all three petitions filed in response to Prop 8, but will not stay enforcement of the amendment.

So, not the best possible scenario, but not the worst either. The Court's order, given today, is here; no opinion is given as to why the request for stay of enforcement was denied. Conveniently, the Court has provided us with an omnibus of filings related to Prop 8 in their "high profile cases" section. Each of the three cases has a section called "Letters requesting denial of petition and request for stay"; I have not had time to read through them, though I will do so later and summarize the argument as I'm able. (It's been a busy couple of weeks over here.)

Glancing over the letters, I noticed two interesting things. First, though most of those letters are calling for a denial of certiorari and a denial of the stay, the Pacific Justice Center calls for a denial of writ on Tyler v. California and City and County of San Francisco v. Horton -- but only a denial of stay in Strauss v. Horton. (The Center for Constitutional Jurisprudence wrote one letter about all three cases. From a 30-second glance, it appears that the American Center for Law and Justice sent three separate but materially similar letters, one for each case.) The PJC's argument for denying the stay in Strauss v. Horton is a status-quo argument -- "same-sex marriage was only allowed for a couple of months, the status quo for most of the history of California has been no same-sex marriage" -- but I am curious why they did not call for a denial of certiorari as well.

Second, check out who the letter-writers are under Strauss v. Horton. Most of them are law firms or policy institutes. But one of them is under the name of a nonprofit organisation which, apparently, consists of just one woman who styles herself "Heiress Of The Almighty Eternal Creator" [sic] and purports to also be filing on behalf of said Almighty Eternal Creator (!), and one of them is under the name of just one guy. (Yes, their addresses are on the PDFs. I am going to be very, very upset if I hear about people TPing their houses or something, just FYI.)

Welcome to America, folks. Follow the rules of civil and appellate procedure, make sure you provide proof of service to the appropriate parties and meet the filing deadlines, and you, too, can have anything from lucid, reasoned argumentation to ranting whackjobbery and wild claims about your divine nature entered into the court record as an amicus curiae letter. It's your right to do so and it's the court's responsibility to handle it.

Point being, though -- if you want to have your say before the Court, those are some mighty nice templates to follow. You'll probably want to check out the petitions in support of the petitioner, as well, to make sure you're serving the right folks. Their addresses, and the formal language you'll need to establish that you served the petitioners and respondents correctly, are at the back of each letter.

So what are you waiting for? Let's see some amicus curiae letters! I don't care if you're in California or not -- judging by the number at the top of the fax they sent in, the American Center for Law and Justice is in Virginia, and all three lawyers signing their letters state that they're not admitted to the California bar.

Today's order, by the way, also orders the following:

• Secretary of State Bowen requested to be dismissed as a respondent; the Court granted the request.
• "Proposition 8 Official Proponents et al" moved to intervene in all three cases; the motion was granted.
• "Campaign for California Families" moved to intervene in all three cases; the motion was denied.
• A number of state agencies and offices (including the Attorney General), as respondents, are ordered to show cause why the petitioners' requests should not be granted. (This is standard; these state agencies are the ones being sued. Can they say "Um, actually, we think they should be granted"? That's what I want to know.)
• Anyone who wants to file an amicus curiae ("friend of the court") brief has until January 19th. Again, get cracking!

Okay, so if you're a gay person or part of a same-sex married couple in California, what happens to you?

Attorney General Jerry Brown has gone on record that he will uphold all same-sex marriages already performed. If you were married yesterday, you're still married today. City halls in at least some towns have stopped offering marriage licenses to same-sex couples as of today. I'm not sure whether, if you could talk someone into giving you one tomorrow, it would still count.

An interesting wrinkle: what happens if you paid for your marriage license already, but haven't actually gone and picked it up yet? When L. and I got married, we paid for the license online a week ahead of time, then had our ceremony at San Francisco City Hall and had it signed and dated there. San Francisco, at least, says that if Prop 8 passes, even if the results aren't determined till after November 5th, it will (probably) be effective retroactive to November 5th. So I hope everyone who was planning on entering into a same-sex marriage did so before today.

Now for the near future. feyandstrange shares the news that the ACLU has filed for an immediate stay of enforcement on Prop 8 (similar to what happened when San Francisco banned handguns). If the court grants the stay, then it's business as usual and you can go get your marriage license as long as all other qualifications are met (e.g., you're not already married, you're not marrying a minor, &c). The filing also requests that, if Prop 8 is determined to have passed, the Court render it null and void on the grounds that it "attempted to effect a revision of the Constitution without complying with the constitutionally mandated procedures for enactment of a revision set forth in Article XVII of the California Constitution".

So, this could go one of several ways, depending on whether the Court grants the stay and whether Prop 8 actually received a majority of votes. I think it's likely that they will grant the stay, given that two of the petitioners in the ACLU filing are a couple who have been planning to get married for a while, but one of them has a parent who has been too ill to travel for their wedding. I'm not a lawyer, but that strikes me as cause for immediate injunctive relief.

The worst-case scenario is the one where the Court grants neither the stay of enforcement nor the petition to nullify Prop 8 if it passes. That could happen. If it does, then we have to go to federal court to get this reversed, and that's going to be harder. Addressing this in federal court will either mean getting SCOTUS to consider same-sex couples a suspect class -- which thus far they've been unwilling to do -- or coming up with an argument that doesn't rely on the Equal Protection clause. The Full Faith and Credit clause won't work, because the Defense of Marriage Act specifically provides that states need not recognise same-sex marriages performed in other states (though this is a fine opportunity for a couple who's moved from Massachusetts or Connecticut to California to mount that argument against DOMA). I had this vague, crack-addled idea about using the Commerce Clause with respect to couples who traveled to California to get married, went back home, and found their California marriages invalidated, but if Brown doesn't invalidate existing marriages, then that point is moot. It's going to take hard work and a lot of research to get this before SCOTUS, if it comes to that.

That said, working this from the state angle first gives us the opportunity to stall for time; it will take several months at minimum for this to go through the courts, and while I don't think it's likely that we'll see a change in the makeup of the SCOTUS any time soon, we can still use that time to think of how to address this if it does have to go to federal court.

As a side note, one aspect of this filing that I find kind of shitty: the respondents named in the petition are the State Registrar of Vital Statistics, his Deputy Director who handles the forms for marriage licenses and certificates, and the Attorney General, all in their official capacities. The petitioners are asking that the respondents be held responsible for court and attorneys' fees. I hope this means that the Department of Public Health and the Attorney General's office have to shell out, because this is so not these people's fault personally.

rebbyribs (and my parents, incidentally) ask, "How does the State of California determine the sex (or gender?) of a couple getting married? If Prop 8 is applied, do intersex people lose the right to marry?" This is probably based on what's on whatever form of ID you present when you apply for your marriage license. Intersexed persons generally get put into one bucket or the other at birth (and the issue of whether this is at all fair or right is a whole 'nother can of worms); those who end up identifying as the gender other than the one on their birth certificate have to go through the same giant hassle that transfolk do.

Anyway. For the next few days, keep reading the news, hold your head high, and don't give up the ship. The ACLU knew this was a possibility; nobody puts together a 64-page brief in one day, especially when there are eight different groups of counsel in three different cities involved. (If I'm wrong on that, then holy shit these people are machines.) Now is a great time to learn more about your legal process, how it works, and your rights as a citizen, and to educate your friends and family. We've spent the last several months of our lives passionately involved in the electoral process, which is a central aspect of American citizenship. We have the opportunity now to move that fire and momentum into the judicial process and just keep the train a'rollin'.

We're making history here, folks. Today, Prop 8 feels like a defeat. In ten years, it will be a footnote.


This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.

I'll say this for the No on 8 crowd -- we don't waste our time. Three lawsuits were filed today with the California Supreme Court, seeking orders blocking enforcement of Prop 8 and aimed at striking it down, and the count isn't even done yet!

"But, Meredith," I hear you say, "this is a constitutional amendment -- aren't the Supreme Court's hands tied?" Actually, due to the approach the plaintiffs are taking, the CA Supreme Court does have the ability to consider this. The legal reasoning behind the lawsuits is interesting, and if you live in California, it's worth your time to understand it.

( Probably only of interest to those in California )

Next up: what's happening right now, what the next few months mean to you, and what the hell is going on with existing marriages.

Mad props to songblaze for research assistance and getting me thinking about it from this angle.


This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.

I only say "stop holding your breath" because this one's not going to be decided on the basis of the preliminary count, and probably won't be decided on the basis of the semi-final count either. As I type this, there's a spread of some 350,000 votes. If I understand things correctly, this does not yet include absentee, mail-in or early votes yet. Over 100,000 early votes were cast in San Francisco County; over 250,000 early votes were cast in Alameda County. I don't know what the numbers are like across the state, but I can only assume they're also quite high.

Thus, the question comes down to one of whether more early and absentee voters supported or opposed Prop 8. My guess -- and bear in mind this is only a guess -- is that more early voters opposed it, as the Obama campaign put out a concerted effort to get people to vote early and Obama supporters were more likely to oppose Prop 8.

I'll follow up on this after I've had some sleep, but at this point, I need to pass out for a little while.

Voting in my precinct was nice and calm. It took place at an elementary school, so it wasn't exactly quiet -- I cast my ballot to the sound of the school band practicing, out of key, in a nearby room -- but it was expedient, efficient and uneventful. For those of you wondering: Obama/Biden for President/VP, Yes on Props 2, 5, K and R, No on Props 4, 7, 8, 9, H and H's bastard son I. (I voted on a lot more things than that, but those were the high points for me.)

San Francisco still uses paper ballots, tabulated electronically. Each ballot has an arrowhead and an arrow-tail next to each candidate or position on a ballot measure; to place a vote, you connect head and tail with a special marker. Before you leave the polling place, you insert your ballot sheets into a machine, which beeps a certain pattern if the vote was counted correctly. (I didn't get to see what happens if something screws up.) Each ballot also has a detachable receipt, which you take with you when you go. (The receipts have a serial number matching the number of the ballot you voted; this number did not appear to be recorded with my name. I've smudged it out in the photo above.)

On the way out, I bought some chocolate-chip cookies from two eighth-grade girls having a bake sale for the school.

One bit of weirdness that I'm wondering whether I should call in: the poll workers weren't checking IDs. I don't know whether they're required to, and I'm sure groups like Election Protection are currently swamped with real problems at the polls, so if this isn't actually a big deal then I'm not inclined to add to their workload. That said, I could have pretended to be anyone who lived in my precinct and hadn't voted yet.


Any thoughts, LJ-land? ETA: According to Election Protection, ID is only required at the polls in California if you did not include some form of identification (e.g., the last 4 digits of your SSN) when you registered to vote. Thanks, EP!

The following is a response to this post about California's Proposition 8. I left it as a comment there, but comments are moderated, and somehow I don't think it will get posted. Thus, y'all get to read it here.

Amy writes:

"After legalizing same-sex marriage 5 short years ago HIV/AIDS has increased in Massachusetts with more than 40,000 being infected each year."

I don't know what Amy's source on this figure is, but I did some research, and this claim is not only wrong, it's wrong on several orders. The first same-sex marriage in Massachusetts was performed on May 17, 2004. Since then, the prevalence of HIV/AIDS -- "prevalence" meaning "how many people have it" -- has increased, but the rate of increase has fallen off sharply.

First of all, according to the Massachusetts Office of Health and Human Services' epidemiology department, whose 2007 report you can read for free, as of November 1, 2007 there were only 16,866 people known to be living with HIV/AIDS in Massachusetts.

How could there be 40,000 new cases a year if the total number of cases in the state is less than half that?

The report also examines the trends in HIV infection. As you can see in the chart (the right-hand one on the first page), the number of newly diagnosed HIV infections dropped sharply between 2004 and 2005 and again in 2006. If you look at the first page of the data tables, you'll see that in 2003 the total number of cases was 14,992 and in 2004 it was 15,633. That's an increase of 641 cases. In 2005 the number was 16,217 -- an increase of 584 cases. In 2006 the number was 16,621 -- an increase of 404 cases. For the first ten months of 2007 it was 16,866 -- an increase of 245 cases.

What we can see from this is that the rate of new infections in Massachusetts has not only fallen since the introduction of gay marriage, it has fallen more quickly. 57 fewer people got infected in 2004 than in 2003. 180 fewer people got infected in 2005 than in 2004. And 159 fewer people got infected in the first ten months of 2007 than in all of 2005. If we project that trend out to the end of 2007, that would be 190 fewer new infections.

I'm sorry, Amy, but your argument doesn't hold up.

Same-sex marriage has only been legal in California for a very short while. tenacious_snail has a no-punches-pulled account of what it was like before, from the perspective of a daughter of a same-sex marriage:

I flew in to town and pretended that the woman who taught me how to do yard work, taught me to throw a ball, taught me to ski was my aunt. Someone who held my hand while I cried at a play. And who our law said wasn't my "real mom"-- that title got reserved for someone who walked out when I was an infant, but that I was still inherit from if she'd died in Louisiana without a will. She was 87 pounds, lying in that hospital bed, and when I saw her, I had a strong, visceral response and feared that she'd die of this disease. I fainted and hit my head on my way down, which caused *me* to go to the ER as well.

Over the next year, I visited about 4 times-- my real aunt, my stepmom's nephew and I each visited, so that my mom and stepmom would have someone else there for the difficult period that followed each treatment of chemotherapy. Because my mom and stepmom were not legally related, because same-sex marriage was not legal, my mom was not legally entitled to any sort of time off from work to care for her spouse of nearly 30 years.

California's Proposition 8, if it passes, will perpetuate a terrible effect on families. To a child, "family" is the people who take care of you as you grow up and teach you, by example, how to be an adult. The people who go out of their way to make sure that you're fed and cared for, who tuck you in at night, who help you with your homework and show you what responsibility and right action mean. That the law protects this relationship only when a particular combination of genders is involved is patently absurd and unjust.

tenacious_snail could have been raised by either her mother or her stepmother acting as a single parent, and few people would have complained. Why, then, is it such a remarkable matter when two women or two men do the same thing together? The cries of "immorality!" from benighted Prop 8 supporters completely ignore the fact that, working together, a lesbian couple raised a daughter with immense love for and loyalty toward her family, so much so that she was present for her stepmother's final days and death and all the bureaucracy that comes afterward. If that's not family values, I don't know what is.

Absolutely, let us protect families. Absolutely, let us protect children. Let us live under a set of laws which recognise the loving, caring relationships which really exist. Let us give all loving families the right to care for their members without obstruction, rather than reserving that right to heterosexual couples alone.

If you are in California, please vote NO on Proposition 8 tomorrow. If you know anyone in California, please encourage them to vote NO on Proposition 8 tomorrow. If you know anyone who is leaning toward voting yes, please point them at tenacious_snail's story, and ask them, point-blank and honestly, how they would have felt if they had been in the same situation -- whether they think that her mother should have been denied the right to care for her stepmother during her last days. It might not change their minds this time around -- but you can plant the seed of understanding, of recognition that "family" is not defined by X and Y.

ETA: If you're in Florida, please vote NO on 2, and if you're in Arizona, please vote NO on 102. Same reasoning applies. Thanks.

writerpo deconstructs this year's election and pulls no punches whatsoever. It is succinct, brutal, and dead-on. Go read it.

I'm with ilcylic on this one. Suck it, San Francisco!

If I weren't off to a hackfest tonight, I'd be going to the range.

Love,

maradydd, happy gun owner

As promised, the press office of the Senate Judiciary Committee just sent me their release on the Shawn Bentley Orphan Works Act of 2008. (Thanks, y'all!) Below the cut, it's reproduced in full. The first section is a press release, i.e., the who (as in, who's sponsoring it), what (description of the bill), when (today), where (Washington, DC) and why (pull-quotes from the bill sponsors explaining their goals) for journalists to refer to. The second section is a statement from Sen. Patrick Leahy, which (based on its wording) I think is being read before the Senate today.

I especially want to draw attention to the third section in order to head off any possible misinterpretation. The third section is a summary of the bill, not the bill itself. It describes what will be contained in each section of the bill, but the summaries and descriptions are not the bill. So, for instance, the bit in section 2 where it talks about "conditions on eligibility" -- those will be spelled out in much greater detail in the bill itself, which you can look for on THOMAS when it's posted there. I expect it'll be up by tomorrow. (ETA: according to Alex Curtis over at Public Knowledge, the bill numbers you're looking for are S.2913 and H.R. 5889. They have PDFs which you can download, too.)

I'll have some remarks on the bill itself, once the actual text is posted. But for now, enjoy the press kit! (ETA: vanbeast tracked down the direct link on Sen. Leahy's site, so you can read it there too.)

( And now, what you've all been waiting for )

People. Really. When are you going to learn?

The Illustrators' Partnership is at it again, claiming that they've been sent a draft of the Orphan Works Act of 2008. (No THOMAS link provided, because guess what -- there's not one.) "They haven’t officially released it yet," they claim, "but we’ve been told the Senate will do so this week."

O RLY? Time to do a little digging.

See, the thing to understand about Congress -- indeed, any legislature -- is that it's full of rumors. The entire U.S. legislative branch, from the Speaker of the House down to the lowest congressional page, is as gossipy as a high school lunchroom. Legislators like to know what their fellow legislators are up to, and if you want to substantiate a rumor, the best thing to do is to talk to someone on the right committee.

I picked up my trusty mobile phone and looked up the Senate Subcommittee on Intellectual Property. Why, look at that -- one of my Senators, Dianne Feinstein (D-CA), sits on it. I figured I'd start with her office, since I bug them pretty frequently about issues I care about -- they might even know my voice by now. A cheerful staffer picked up on the second ring, and I introduced myself and explained what I was looking for. She couldn't find anything in their database (not surprising, since neither could I), and just to make sure we were on the same page, I pointed out that I was looking for a bill that hadn't been introduced yet, but which I'd heard was likely to be introduced this week, and asked whether anyone on Sen. Feinstein's staff had heard anything about it. She put me on hold, and came back a few minutes later to apologise; no one in the office knew anything about it. I thanked her for her time, and hung up.

Strike one.

Next step: the head of the Subcommittee on Intellectual Property, Sen. Orrin Hatch (R-UT). Unfortunately, no one in Sen. Hatch's office was around. (This happens when you call close to 5pm Eastern time.) I tried one of his state offices, but they said I'd need the Washington office to help me. Oh well. I'll try them tomorrow.

Ball one.

Next step: the ranking Democrat on the Subcommittee on Intellectual Property, Sen. Patrick Leahy (D-VT). (He's also the head of the Committee on the Judiciary, to which the Subcommittee on Intellectual Property belongs, which makes him a good bet for information.) This time, I got a guy who searched through the records, again couldn't find anything, and suggested I talk to somebody in the office of the Committee on the Judiciary. I thanked him and let him route the call.

Strike two.

The staffer for the Committee on the Judiciary searched through everything they had, still couldn't find anything, and said I could talk to their press secretary if I thought that would help. I said sure, it was worth a try, so he tried to raise her on the phone, but only got her voicemail. I left her a message explaining the situation (bill hasn't been introduced yet, heard it was going to be introduced this week, any information on it would be awesome, thanks), left my phone number, and hung up.

Half an hour later, the press secretary for the Senate Judiciary Committee called me back. (Now that's service!) She said that the bill was probably going to be introduced tomorrow, and she'd be happy to send me a press kit about it. I gave her my email address, and inquired as to who will be sponsoring it. As it so happens, the sponsors will be Sen. Leahy and Sen Hatch. I expressed my surprise, since the person I'd talked to at Sen. Leahy's office hadn't known about it, and she said it was probably because the other guy wasn't a Judiciary Committee staffer; she only knew about it because she was. Ok, no big deal then.

Saved by the bell! As I said before, a phone call to someone on the right committee will substantiate (or disprove) any rumor. Your legislators have their phone numbers on the Internet for a reason -- when you have questions, call them.

Still, no points to the Illustrators Partnership for saying "OMG THERE'S A BILL" but failing to disclose the sponsors or how people can get information about it for themselves. As I've said here and elsewhere, my only dog in this fight is making sure that people can get the information to make informed decisions. I'm not a fan of organisations who say "trust us, we have the data, we've interpreted it, no need for you to worry your pretty little heads over what it actually says, just listen to what we say and repeat our take on it to all your friends." A responsible organisation will give you the source material so that you can make your own decisions.

And now I'll do just that. For starters, here's all the contact information for the Senate Committee on the Judiciary. I spoke with Erica Chabot, Judiciary Press Secretary for Sen. Leahy. Give her a call at (202) 224-2154 and she can hook you up with the press materials. (I haven't received them yet; I expect them some time tomorrow.)

You can also contact the offices of Senator Patrick Leahy (D-VT) and Senator Orrin Hatch (R-UT), who are co-sponsoring the Senate bill. Note that I got farther with the Judiciary Committee itself than with Sen. Leahy's office, but once the bill's actually introduced, you'll want to contact its sponsors and the members of the Subcommittee on Intellectual Property to give them your opinion.

If the bill is introduced in the Senate tomorrow, then it should be in THOMAS by Thursday morning. I'll be keeping an eye out for it, and will post at length about it once I've had a chance to read through it. (I also owe the Illustrators' Partnership a response to their response to "Six Misconceptions About Orphaned Works", but I have this thing called a "day job" that keeps me a little busy.)

More later.

In my previous post, I mentioned GovTrack, a nifty, free watchdog service which provides a more user-friendly interface to THOMAS (the Library of Congress's archive of events in current and previous sessions of the United States Congress). With the tools there, you can follow individual Representatives or Senators (they're your representatives, make 'em represent you!), individual bills (so if there's one particular bill whose progress you want to watch, you can track it easily), or issues you care about (by subject or committee. You can do all your tracking through the site, or use RSS feeds of things or people you're interested in, or even sign up to get alerts via email.

Unsurprisingly, one of the most-watched subject areas is copyright. For those of you who are interested in what copyright-policy-related issues actually are up before Congress right now, here's a quick, biased-toward-things-I-find-interesting rundown:

• S. 1642, Higher Education Amendments of 2007. Section 477 would require colleges and universities to inform students that "unauthorized distribution of copyrighted materials, including unauthorized peer-to-peer file-sharing, may subject the students to civil and criminal liabilities," as well as requiring schools to provide students with a description of their policies on file-sharing and of penalties for violating federal copyright law. Passed the Senate in July 2007, doesn't seem to be scheduled in the House yet.
• H. Res. 314, Supporting the goals of World Intellectual Property Day, and for other purposes. This is just a resolution, not a bill; it doesn't propose any changes to federal law. It basically just says "yay intellectual property, intellectual property is great, the House of Representatives thinks World Intellectual Property Day is a good idea." Since it's just a resolution, not actually a bill, it won't go on to the Senate if the House passes it, and the President won't have to decide whether to sign it. But, hey, it's on the calendar.
• H.R. 3746, the College Access and Opportunity Act of 2007. This is very similar to S. 1642, above; in this bill, section 484 talks about the same kind of information-providing requirements. This kind of thing happens a lot in Congress -- the House and Senate will almost simultaneously produce very similar bills, they'll get voted on separately, and eventually one of them will vote to approve the other house's bill. Introduced in October last year, not scheduled for debate yet.
• H. Res. 414, Expressing the sense of the House of Representatives that foreign governments should work diligently to legalize all computer software used by such foreign governments, and for other purposes. Another resolution which won't directly affect U.S. law, but which may influence how we interact with other countries. It exhorts foreign governments to follow WTO agreements, the Berne Convention, and the WIPO Copyright Treaty with regard to how they (as in, the governments themselves, not necessarily citizens of their countries) use copyrighted software. Introduced May 2007, not scheduled for debate yet.
• S. 1353, the Internet Radio Equality Act of 2007. This one is pretty interesting: it's basically the legislative branch attempting to overturn some actions the executive branch took in early 2007 with regard to royalties that web radio stations must pay to content owners. It also proposes that these changes be written into law. Should be of interest to anyone who's involved in producing web radio, whether you're doing it commercially or whether you're just one guy with a copy of Shoutcast. (For instance: did you know that under current law, to be considered a "noncommercial webcaster", you actually have to apply to the IRS for a tax exemption? This stuff is pretty thorny.) H.R. 2060 is quite similar to this one; both have been introduced to their respective houses, neither has been scheduled for debate yet.
• S. 760, the Four Corners Television Act of 2007. Would make it less of a hassle for cable and satellite providers to rebroadcast TV transmissions originally broadcast in state capitals to more remote areas of the state. S. 124, the Satellite and Cable Access Act of 2007, is a competing Senate bill. (That happens sometimes.) S. 258 is also quite similar, but more general, and worth looking at for the interesting issues it brings up -- it allows satellite carriers to rebroadcast content to far-away subscribers even if they've done so illegally before. Introduced last March, not scheduled yet.
• H.R. 1689, the Curb Illegal Downloading on College Campuses Act of 2007. If passed, this bill would let the Department of Education give colleges and universities money that they could use to make it harder for students to use campus networks to illegally download copyrighted material. This is a really short bill, and doesn't go into any kind of detail about what sorts of policies or programs schools can or can't implement. The concept of fair use is never mentioned anywhere in the bill. In practice, I wouldn't be at all surprised if schools ended up getting grants from the Department of Education and spending them on RIAA propaganda materials. I'll be watching this one pretty closely. OTOH, it went to the Committee on Education and Labor last March and hasn't been amended or scheduled. This will be a short legislative year thanks to the election; I bet this one dies in committee.
• H.R. 1524, the Artist-Museum Partnership Act. S. 548 is basically the same thing. Would allow artists, writers, musicians and scholars to donate their works to certain types of nonprofit organisations (e.g., museums) and claim it as a deduction on their taxes. This one's been hanging out in the House Ways and Means Committee and the Senate Committee on Finance since early last year.
• S. 256, the Perform Act of 2007. Also deals with royalties for playing music on the radio, though this one would apply to ordinary FM and AM radio as well as web radio. There's a weird little clause in here, in section 2(c), which I find rather troubling: it requires broadcasters to use technology (read: DRM, though I don't quite get how) to "prevent the making of copies or phonorecords embodying the transmission in whole or in part, except for reasonable recording." What's "reasonable recording", you ask? Well, they define it later. A "reasonable recording" is private and noncommercial, for starters -- ok, that's fine, that's fair use. But the bill doesn't want you, in the privacy of your own home, to be able to (for instance) use software that automatically records only the tracks from a web radio station that match a list of artists you like. (Apparently it's okay for me to listen to "Goth Hits of the '80s" and manually start recording every time a Cure track comes on, but if I write a program to listen to the stream for me and start recording when the word "Cure" appears in the artist field, that would be illegal under this bill.) But it gets worse: a "reasonable recording" is also one that's encumbered with DRM preventing me from redistributing it to anyone, or even to my iPod. (If I have a "secure in-home network", like a set-top box, that's okay, but not my iPod. WTF.)
  
  What I find most offensive about this part of the bill is that it doesn't take into account the desires of individual artists. For instance: I listen to Jonathan Coulton's podcast. iTunes downloads it for me, automatically, every time Jonathan posts a new podcast. Jonathan releases his music under Creative Commons, meaning that he's quite happy for me to go around giving copies of his music to whoever I want. Now, maybe podcasts don't count as "transmissions" under this interpretation of the law, but what if I find an "all Creative Commons works, all the time" web radio station, and decide I want to round out my Jonny C collection by automatically capturing every Coulton track the station plays? Illegal, if this bill passes.
  
  I don't like this bill because it casts a "chilling effect" on innovation. Why prohibit me from capturing just the tracks I want (if the creators are okay with that), and redistributing them if the creators are okay with that? It's an attempt to bring the hammer down on copyright infringement in a way that also prohibits non-infringing behaviour, and that's not cool in my book.
• Moving on, S. 522, the Intellectual Property Rights Enforcement Act. This one would establish a task force to crack down on the international trade and domestic importing of counterfeit goods, e.g. medicines, DVDs, mechanical parts, purses, &c. Sent to the Committee on the Judiciary last February, hasn't left yet.
• H.R. 1201, the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007. This one would fix a lot of broken stuff in the Digital Millennium Copyright Act. If passed, it would be legal to circumvent DRM, break encryption, or otherwise defeat copyright protection for the purpose of doing something non-infringing with the content involved -- for instance, a teacher could use DeCSS to decrypt a couple of DVDs in order to use segments of them in a video for the classroom, or you could remove DRM on music you've bought in order to make it playable on an MP3 player which doesn't support that kind of DRM. It's also on the pile for the Committee on the Judiciary. (They're busy guys.)
• Finally, S. 1957, the Design Piracy Prohibition Act. Same thing as H.R. 2033. It would extend copyright protection to fashion design, and establishes a bunch of definitions and policies related to how that would work.

(I skipped a couple of bills which don't appear to have anything to do with copyright policy, e.g., appropriations bills affecting the Copyright Office.)

Anyway, the summaries and text are all right there for you to read. These are actual bills before Congress right now, so if there are any you particularly support or dislike, then let your elected representatives know! It's a much better use of your time than railing about things Congress isn't even looking at.

My friends list today has been swept by a storm of fear, uncertainty and doubt surrounding this article by Mark Simon on Animation World Network about the issue of orphaned works. "Orphaned works" are creations likely still under copyright -- photographs, illustrations, written works, music, &c. -- for which the original creator cannot be found, and thus their copyright status cannot be determined. Orphaned works present a thorny problem in today's litigious society, because when the question of "who owns X?" can't be answered, very few people are willing to do anything with X if they fear that they'll be sued for it.

For instance, suppose that you have your parents' wedding album, and the photos in it are starting to fade. You go to a photo shop to get the pictures scanned and digitally retouched, so that you can save them on DVD to show your kids in ten years. However, the copyright on those photos belongs to the photographer, not you or your parents. The photo shop tells you that unless you can get permission from the copyright holder, they can't do anything with the photos. Do you know who your parents' wedding photographer was? Do they remember? What if the company the photographer worked for has since gone out of business, and nobody can track down the individual person who took the photos? The pictures are "orphaned works", and no one knows who owns the rights on them.

Or what if you're cleaning out your great-aunt's attic, and you find a box full of pictures of your town as it was 100 years ago? The local history museum would love to add them to its collection -- but it can't, unless you, your great-aunt, or somebody can track down the original photographer and secure his or her permission (or the photographer's estate's permission, if the photographer's dead) to donate the photos. (Copyright in the United States lasts for life of the creator plus 75 (EDIT: 70, for works created today, older works are weird, see here for details; thanks for the correction, internets) years, so chances are, even 100-year-old photos are still under copyright. Thank Disney for that one, guys.)

But Mark Simon apparently believes that enacting legislation to handle orphaned works in a way that protects people who legitimately try to find the original copyright holder, but can't, will lead to the effective invalidation of copyright on ALL UNREGISTERED ART EVERYWHERE OMGZ CALL OUT THE CAVALRY. His article, which I linked above, is miserably poorly researched, jumps to completely illogical conclusions, and, most retardedly of all, implores artists to letterbomb Congress in protest of proposed legislation which does not actually exist. Someone please tell me where this guy is getting the crack he's smoking, because I want to avoid that streetcorner and everything in a six-block radius, kthx.

So, here are six misconceptions that are making the rounds about orphaned works, and a short explanation of why each one is a misinterpretation or just a flat-out lie. I also give links to useful supporting material, and resources you can use to keep track of this issue as it evolves.

(  1. "There’s legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!" )

( 2. "If I want the copyright on my art to be recognised, I’ll have to pay to register each piece!" )

( 3. "If I don’t pay to register my copyright, anyone in the entire world will be able to use it for free!"  )

( 4. "Someone else could register the copyright on my work, and use that against me!"  )

( 5. "If I don’t track down people who are illegally using my copyrighted works, I’m SOL!"  )

( 6. "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"  )

---

I hope this addresses any fears you might have about orphaned works and the sort of legislation that might come up regarding them. If you have any questions, please feel free to comment and I'll do my best to answer them. Likewise, please feel free to link this article or reproduce it in full or in part; I am placing it under the Creative Commons Attribution-Noncommercial-ShareAlike 3.0 United States license.

kynn also has some cogent observations about orphaned works, Mark Simon, his sources, and some follow-the-money fun here.

Good news! Although the Senate voted last week to extend the Protect America Act, also known as the warrantless wiretapping bill, last Friday the House decided to go into recess without voting on it, meaning that it's sunsetted as of Friday. W00t!

In case you were wondering, here's the vote record from the Senate. Quite a few of the Senators who voted yes to telecom immunity are up for re-election in 2008; they include:

Mark Pryor, D-Arkansas
Mary Landrieu, D-Louisiana
Max Baucus, D-Montana
Jack Reed, D-Rhode Island
Jay Rockefeller, D-West Virginia
Jeff Sessions, R-Alabama
Saxby Chambliss, R-Georgia
Pat Roberts, R-Kansas
Mitch McConnell, R-Kentucky
Susan Collins, R-Maine
Norm Coleman, R-Minnesota
Thad Cochran, R-Mississippi
Roger Wicker, R-Mississippi
John Sununu, R-New Hampshire
Elizabeth Dole, R-North Carolina
Jim Inhofe, R-Oklahoma
Gordon Smith, R-Oregon
Lamar Alexander, R-Tennessee
John Cornyn, R-Texas
John Barrasso, R-Wyoming

(Lindsey Graham, R-South Carolina, is also up for re-election but did not vote.)

If you live in one of these states and you value your legal right to communications privacy, then send a message to these fuckheads this November and don't vote for them. Call them and tell them that you will not be voting for them, and tell them why. (Even if you weren't going to vote for them anyway, let them know that they're fired.)

Now, if you'll excuse me, I need to dash off a quick thank-you note to Barbara Boxer and Dianne Feinstein for their nay votes last Tuesday.