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The 10th Circuit answered that question affirmatively in World Publishing Company v. United States Department of Justice.

The WSJLawBlog has the story:

The Denver-based U.S. Court of Appeals for the 10th Circuit has ruled that federal authorities may withhold mugshots of federal prisoners from the public.

The ruling Wednesday puts the court in line with the Atlanta-based U.S. Court of Appeals for the 11th Circuit. Only the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit has determined that prisoners’ booking photos must be turned over under the Freedom of Information Act.

Politico notes that SCOTUS denied cert on a similar case from the 11th Circuit, notwithstanding the current split, so I’m not too worried about a grant here.

Fortunately, the Sixth Circuit works for me!

If a requester in a Sixth Circuit state asks for a mugshot, the Marshals service will release it and subsequently will release it to anyone. Many national news organizations now employ stringers in Kentucky, Michigan, Ohio, Tennessee to request such photos for nationwide use.

The complaint is here.

 

Volokh has some commentary here:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infrigngement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

I follow this issue with great interest. The value of briefs is not just in merely posting them. The value lies in mining the briefs to determine the efficacy of various arguments, and how courts accept them. West and Lexis aren’t even thinking about this.

Oh, I can’t wait to see what the law suits would be like against Harlan, when it puts frickin everything online, in a form you can Google. Lawyers will suddenly see their mystique and aura fade away, when their records are publicly available. Oh, I’ll get sued, indeed.

An interesting paper from Sai Prakash that offers answers to the main question in Marbury that was never really answered: when did his commission vest?

The most important question in the most famous constitutional law case has been largely ignored, obscuring the political machinations that generated the case. This article recounts the actual events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, supposedly on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actual actions in March of 1801. Adams’s midnight appointments outraged Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities, even those who had received a commission. In other words, the failure to deliver commissions mattered not a whit to Jefferson. This article also addresses whether William J. Marbury and the others who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of laying out these theories, the article discloses the surprising fact that prior to becoming President, Jefferson endorsed the second theory, namely that appointments vest before the act of commissioning. The article also reveals that, well before Marbury v. Madison, the Adams Administration also concluded that appointments could vest prior to any commission being issued or delivered. Notwithstanding this surprising agreement between Secretary of State Jefferson and President John Adams, the article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall be complete. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he makes the appointment. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the possessor of that power may decide the means of exercising it. Based on this principle and a copy of a commission granted to another justice of the peace on March 3, 1801, it is almost certain that John Adams had appointed William J. Marbury on that day. If we assume that all the justice of the peace commissions made out that day were identical (save for the name of the appointee), Adams appointed Marbury prior to leaving office because the text of Marbury’s commission would have indicated that Adams had appointed him.

Now why didn’t CJ Marshall just say that? The, he could have gotten around that entire pesky recusal issue because he frickin failed to deliver the commission.

The Sunday Review has a lengthy feature praising Bell Labs as the epitome of “true innovation.”

Why study Bell Labs? It offers a number of lessons about how our country’s technology companies — and our country’s longstanding innovative edge — actually came about. Yet Bell Labs also presents a more encompassing and ambitious approach to innovation than what prevails today. Its staff worked on the incremental improvements necessary for a complex national communications network while simultaneously thinking far ahead, toward the most revolutionary inventions imaginable. . . .

So how can we explain how one relatively small group of scientists and engineers, working at Bell Labs in New Jersey over a relatively short span of time, came out with such an astonishing cluster of new technologies and ideas? They invented the future, which is what we now happen to call the present. And it was not by chance or serendipity. They knew something. But what?

No doubt Bell Labs invented a lot of great technology. But at what cost.

In Tim Wu’s new book, The Master Switch (I highly recommend it), he tells the other story about Bell Labs.

First, from an economic perspective, it was a state-sponsored monopoly on basic research. Part of the reason why so many great inventions came from Bell Labs–and not elsewhere–was that Bell Labs got all the money.

I can make a comment about the State Science Institute from Atlas Shrugged, but I won’t. I doubt the author of this piece sees any problem with the government funding all scientific research.

Second, and this is more insidious, this article ignores all the technologies that Bell Labs suppressed. Suppressed you say? Of course. Bell Labs was not some altruistic renaissance-era research shop. At it’s core, it’s mission was to sustain the monopoly of big bell. Any technology that threatens that monopoly was suppressed.

For example, in the 1930s, a scientist at Bell Labs invented what was effectively an answering machine–the ability to record voice on huge tapes. Bell spiked the technology, and buried it, for fear that if people could record voice calls, there would be less need to make calls.

Bell Labs also sat on the technology for cellular phones for years, fearing that people would no longer need their phone cables.

Likewise, television could have come to market in the 1930s,  but Bell Labs, along with RCA, opposed it, positing the speculative claim that it would interfere with radio communications (not too different from the recent Lightsquared kerfuffle).

Steven Chu, secretary of the Department of Energy, won a Nobel Prize in 1997 for his workat Bell Labs in the early 1980s. He once said that working in an environment of applied science like Bell Labs “doesn’t destroy a kernel of genius, it focuses the mind.” At Bell Labs, even for researchers in pursuit of pure scientific understanding, it was obvious that their work could be used.

That statement is simply wrong.

Third–and the article concedes this–the pace of change was made by bureaucrats, not innovators:

In his recent letter to potential shareholders of Facebook, Mark Zuckerberg noted that one of his firm’s mottoes was “move fast and break things.” Bell Labs’ might just as well have been “move deliberately and build things.”

Look at what has been done in communications in the years since the breakup of Ma Bell.

Would the Internet ever have come about if AT&T controlled all access to the communication networks? For decades they fought to keep Sprint and MCI from even accessing their phone cables. Can you imagine peer-to-peer networking ever existing?

Said a New York landlord who does not want to evict a low-income tenant.