We at CFIF strongly advocate both free trade and intellectual property (IP) protection.  Although typically…
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Pass Free Trade Legislation, But Ignore Calls to Insert "Fair Use" Provisions That Weaken American IP Protections

We at CFIF strongly advocate both free trade and intellectual property (IP) protection.  Although typically distinct policy questions, they are currently intertwined as Congress finally and fortunately moves toward passing free trade legislation.

The pending legislation rightly demands that trading partners recognize American IP rights, but that has naturally drawn fire from some of the usual suspects (e.g., Google, the Internet Association, et al.) who tend to oppose stronger IP rights because those protections tend to run contrary to their own particular business interests.  Specifically, those interests seek to include copyright limitations in free trade bills, including mandatory "Fair Use" exceptions.

That would be a bad idea.

Among other problems, those voices misstate domestic…[more]

May 29, 2015 • 11:04 am

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
Obamites Abuse a Toy Named “Sue… and Settle” Print
By Quin Hillyer
Wednesday, February 27 2013
If you’re a leftist ideologue, this is a nice little gig if you can get it: Serve your ideology, shut the opponents out of the process, and let taxpayers foot the bill.

A burgeoning scandal that was probably responsible for the resignation of Environmental Protection Agency chief Lisa Jackson is also highlighting a scurrilous leftist practice called “sue and settle.” The good news is, a backlash is gaining momentum against this practice that has become a favorite toy of the Obama administration.

First, as for the scandal, in short form: Ms. Jackson apparently was using a private e-mail account to conduct official business, in order to evade laws on government transparency. This is, quite simply, illegal. Several other top EPA officials seem to be embroiled in, and suffering consequences from, the same controversy, with the latest resignation being announced just last week.

(The Washington Examiner broke the story last fall, and asked the important questions about it in January.)

Significantly, U.S. Senator David Vitter and others suggest that a significant part of the e-mail scandal involved attempts to evade investigation into a sort of collusion between the Obama EPA and liberal environmental groups. The “collusion” is effected by the aforementioned practice conservatives call “sue and settle,” which itself is a means of avoiding the usual laws governing the regulatory process.

Several state attorneys general already are fighting against the sue-and-settle practice, which is best described as regulating without benefit of sunlight or procedural fairness. No proposed rule is ever published; no public comment period is allowed; none of the otherwise mandatory cost-benefit analyses are conducted.

EPA and the lefty groups accomplish this through means that are clever but intellectually dishonest. Critics accuse the interest groups and the bureaucrats of consulting in advance to decide on newfangled, costly regulations. Once their ducks are in a row, a group will file suit against EPA – which then turns around quickly, sometimes within a single day, to file a “consent decree” with a court that gives the group exactly what it wants. Other interested parties who might be affected by the decree, such as private landowners or businessmen, often are not only shut out from commenting on it in advance, but actually are completely unaware of the new rules until after they are a fait accompli.

Taxpayers get abused, too, as described by columnist Larry Bell in Forbes:

"On top of all that, we taxpayers, including those impacted regulatory victims, are put on the hook for legal fees of both colluding parties. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three “Big Green” groups received 41% of this payback: Earthjustice, $4,655,425 (30%); the Sierra Club, $966,687; and the Natural Resources Defense Council, $252,004. Most of this was paid to environmental attorneys in connection to lawsuits filed under the Clean Air Act, followed next by the Clean Water Act."

If you’re a leftist ideologue, this is a nice little gig if you can get it: Serve your ideology, shut the opponents out of the process, and let taxpayers foot the bill.

The regulatory agencies under Barack Obama are particularly fond of “sue and settle” because when they try the direct approach, they lose an inordinate amount of court battles. Attorneys general Scott Pruitt in Oklahoma, Greg Abbott in Texas, and others have won a series of victories against these agencies. But litigation is time-consuming and expensive, and regulators know that sometimes they can drag out the suits so long – with their chosen rules in effect in the meantime – that by the time all the appeals are finished, the controversy is basically a moot point, with the aggrieved party already effectively out of business or otherwise permanently hobbled.

Congress, of course, could explicitly rein in the agencies – but President Obama obviously would veto any bill along those lines that somehow reached his desk. To its credit, House Republicans tried anyway last year, with then-Representative Ben Quayle of Arizona introducing what was H.R. 3862 to severely restrict the “sue and settle” gambit. The Harry Reid-led Senate, naturally, wanted nothing to do with it.

Nonetheless, U.S. Senator John Cornyn, R-Texas, on Wednesday introduced similar legislation – this time aimed at the U.S. Fish and Wildlife Service which, like EPA, has started using this tactic of what Cornyn calls “closed door litigation settlements.” As Cornyn accurately described it, “Closed-door [Endangered Species Act] settlements like these not only threaten unwarranted regulation, but give plaintiffs undue leverage over local land owners, businesses and elected officials in the conservation process.”

Cornyn and the state attorneys general fighting back against the dubious practice are correct. What the Obama agencies are doing is really only a small step short of tyranny, cleverly disguised as “public interest law.” In truth, it is law that serves narrow interests, while excluding the rest of the public.

The tactic might be called “sue and settle,” but none of us should settle for the results of these suits.

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