The industry argued that because federal copyright law defined violations strictly in terms CONSUMER SOFTWARE PIRACY 159... Contempt charges may be brought against parties to proceedings
Trang 1purpose in purchasing a product and allows the consumer to rely on the seller to offer goods only if they are suitable for that particular purpose For example, there may be a breach of theIMPLIED WARRANTY of fitness if a salesperson knowingly sells a consumer software that is not designed for operation on the consumer’s computer For a breach-of-implied-warranty claim to be successful, the consumer must establish that an implied warranty existed and was breached, that the breach harmed the consumer, that the consumer dealt with the party responsible for the implied warranty, and that the consumer notified the seller within a reasonable time Implied warranties may be disclaimed by the seller if they are denied expressly and specifically at the time of the sale
The MAGNUSON-MOSS WARRANTY ACT(15 U.S
C.A § 2301 et seq.) is a federal law that requires sellers to explain, in easy-to-understand lan-guage, the terms of warranties that apply to written sales contracts for items costing $5 or more Under this act, when a product fails to meet the standards promised by the warranty, the seller must repair it, replace it, or refund the purchase price
Consumer Remedies
Laws protecting consumers vary in the remedies they provide to consumers for violations Many federal laws merely provide for public agencies
to enforce consumer regulations by investigat-ing and resolvinvestigat-ing consumer complaints For example, in the case of a false advertisement, a common remedy is the FTC-ordered removal of the offensive advertisements from the media In other circumstances, consumers may be entitled
to money damages, costs, and attorneys’ fees;
these remedies can be effective in a case involving a breach of warranty Depending on the amount of damages alleged, consumers may bring such actions in small-claims courts, which tend to be speedier and less expensive than trial courts
ALTERNATIVE DISPUTE RESOLUTION (ADR) is another option for consumers Some states pass consumer protection statutes that require some form of ADR—usually arbitration or mediation—before a consumer can seek help from the courts Finally, when a large number
of consumers have been harmed in the same way as a result of the same practice, they may join in aCLASS ACTION, a single lawsuit in which one or more named representatives of the
consumer group sue to REDRESS the injuries sustained by all members of the group
In response to public frustration over telephone solicitations, many states and the FTC began to set up systems to bar unwanted telephone sales calls In 2003, the FTC gave U.S consumers the option of placing their telephone numbers on a national “do not call” registry, designed to stop nearly all unsolicited telephone calls Although consumers were initially re-quired to register their telephone numbers on the do-not-call registry every five years, the Do-Not-Call Improvement Act of 2007 allows for consumers to register their telephone numbers only a single time The telephone number remains on the registry until it is disconnected, reassigned, or the person assigned to the number requests that it be removed from the registry More than 157 million telephone numbers, including cell phone numbers, were
on the national do-not-call registry in 2008 The registration of cell phone numbers has been permitted since the inception of the registry in
2003 Telemarketers covered by the national do-not-call registry have 31 days from the date the telephone number is registered to stop the unwanted calls or face legal penalties
FURTHER READINGS Borer, Elizabeth C 2008 “Modernizing Medicare: Protect-ing America ’s Most Vulnerable Patients from Predatory Health Care Marketing through Accessible Legal Remedies ”Minnesota Law Review 92.
Federal Trade Commission “The ‘Do Not Call’ Registry.” Available online at http://www.ftc.gov/donotcall (accessed May 15, 2009).
Kim, WookBai 2009 “Challenging the Roots of the Subprime Mortgage Crisis ” Loyola Consumer Law Review 92.
Marsh, Gene A 1999 Consumer Protection Law in a Nutshell St Paul, Minn.: West Wadsworth.
Pertschuk, Michael 1984 Revolt Against Regulation: The Rise and Pause of the Consumer Movement Berkeley: Univ.
of California Press.
Schultz, Jennifer Saranow 2009 “New Consumer Agency Passes One Hurdle ” New York Times (December 14) CROSS REFERENCES
Consumer Fraud; Product Liability.
CONSUMER SOFTWARE PIRACY The unauthorized use, possession, downloading, duplication, distribution, or sale of copyrighted computer software
COPYRIGHTinfringement is a serious problem for the computer software industry Programs
Trang 2can be copied easily on a personal computer,
thus making detecting and prosecuting
infrin-gements of software copyrights extremely
diffi-cult By estimates of the Business Software
Alliance (BSA), more than 20 percent of all
software in use in the United States was pirated
(acquired through unlawful copying) in 2008,
and domestic and international monetary losses
(the value to software vendors) ran more than
$50 billion from 2007 to 2008 alone The
growth of computer networks, especially the
INTERNET, presents further problems by
provid-ing the means for the almost effortless
trans-mission of data As early as the 1990s, Congress
strengthened protections for software, and
aggressive litigation by the computer industry
targeted corporations, individuals, and
counter-feiters in an effort to clamp down on this
massive theft Yet during the early 2000s law
enforcement remained difficult as software
pirates turned to new technologies to share files
illegally
The Copyright Act (17 U.S.C.A §§ 1 et seq.)
gives exclusive rights to the authors of computer
software Their work is a type of INTELLECTUAL
PROPERTY, which the law treats differently from
tangible property Software companies own
their copyrighted programs even after selling
them to consumers For consumers, buying
software is different from buying a car:
Purchasers of cars are called“owners,” whereas
purchasers of software are called “licensees.”
Although software buyers own the disc or
CD-ROM on which the software is stored, they are
entitled to use it in only a specific, limited way:
it is the content stored on the disc that is
copyrighted The law provides that
manufac-turers, as owners of the copyright, retain the
exclusive right to reproduce and distribute
copies of the software Consumers, as licensees,
do not have the same right They may only copy
the software onto a single computer and make
another copy for archival purposes They may
neither lend the hard copy (disc) to someone
else for copying, nor download the content
contained on the disc for the purpose of
enabling someone elses’s use of it
Consumers break the law when they make
unauthorized copies of software Whether for
profit, free distribution, or personal use, such
duplication constitutes copyright infringement
Copyright owners can sue infringers for
damages that may include profits made by the
infringers, or statutory damages of up to
$100,000 for each work infringed The penalties are more severe when software copying is done
“willfully and for purposes of commercial advantage or private financial gain” (17 U.S.C.A
§ 506) This is a federal crime, carrying fines
of up to $250,000 and jail terms of up to five years
The remote possibility of arrest and prosecu-tion hardly hinders most software thieves The chances of being caught are slight, and the allure can be difficult to resist Software packages are often expensive—from around $50 to several hundred dollars—and copying is literally as simple as clicking a mouse
The rise of computer networking—in which computers are linked within an office or across cities by means of telephone modems—has made illegal copying even easier Network communication is hard to monitor, especially when it takes place over large geographic distances between or among users who can conceal their identities Thousands of computer bulletin boards, as well as the Internet, proved fertile ground for young computer enthusiasts who saw copyright law as a minor hurdle in their acquisition of new warez (computer hacker slang for “illegally acquired software”)
During 1995, the Usenet news group alt
binaries.warez.ibm-pc amounted to a bonanza where thousands of dollars worth of copy-righted software was uploaded weekly by anonymous hackers, free for the taking
Despite gaining ground against infringers, the computer industry’s battle is ongoing The Software Publisher’s Association (SPA), an industry trade group that sues infringers on behalf of its members, claims to have greatly reduced illegal copying in the workplace How-ever, home copying by individuals and counter-feiters has remained a persistent problem
In 1994 federal district Judge Richard Stearns dismissed a case against David LaMac-chia, a Massachusetts Institute of Technology student who had set up an Internet bulletin board over which users traded more than
$1 million worth of software The judge ruled that federal copyright law did not cover not-for-profit copying of computer software Sub-sequently, the software industry blamed this so-called “LaMacchia loophole” for the prolif-eration of onlinePIRACYduring the mid and late 1990s The industry argued that because federal copyright law defined violations strictly in terms
CONSUMER SOFTWARE PIRACY 159
Trang 3Software Publisher’s Association
T
B
he Software Publisher’s Association (SPA) is
an 1,100-member trade group representing the
legal interests of U.S software companies Founded
in 1988, SPA fights copyright infringement from its
offices in Washington, D.C., and Paris SPA is a
division of the Software & Information Industry
Association (SIIA), which offers rewards of up to
$50,000 to individuals who report verifiable
corpo-rate end-user piracy to SIIA through the SIIA hotline
or through the SIIA Corporate End-User Piracy
Internet Report Form Its chief goal is to eliminate
the unauthorized duplication of computer programs
On December 16, 1997, President Bill Clinton
signed into law the No Electronic Theft (NET) Act of
1997, Pub L No 105-147, 111 Stat.2678 The act was
passed to address a loophole in copyright law,
which was successfully exploited by a 21-year-old
MIT student, David LaMacchia, who escaped
federal prosecution for distributing free copyrighted
software on the Web The NET Act punishes
software pirates who willfully copy, distribute, and
traffic in protected software on the Web whether or
not they enjoy a financial gain David LaMacchia set
up a bulletin board on the Internet which he named
“Cynosure.” LaMacchia then solicited bulletin
board correspondents to upload popular software
applications such as Excel, WordPerfect, and
various computer games such as Sim City He then
transferred the uploaded software to a second
encrypted address, named “Cynosure II.” Users
who had access to the Cynosure password could
then download the software The worldwide traffic
generated by the offer of free software attracted the
notice of university and federal authorities During
the brief six-week life of Cynosure, software copyright
holders claim to have lost one million dollars as a
result of the free trafficking of their products Even
though a federal grand jury returned a one-count
indictment charging LaMacchia with conspiring with
unknown persons to violate the wire-fraud statute, the
government could not prosecute under the criminal
copyright statute because there was no evidence that
LaMacchia made no profit
SPA efforts are targeted primarily at the U.S
market, where the industry generates approximately
60 percent of its revenues and where, SPA
estimates, nearly 85 percent of losses to software
piracy occur Successes in cracking down on infringement have made SPA a major player in copyright law The organization’s enforcement actions netted $14 million in recoveries between
1988 and 1995 Among these were a half-million-dollar settlement against a corporation, resulting from an audit, and a $350,000 settlement in May 1991 from a successful lawsuit against Parametrix, an environmental engineering firm In 2002, in a case originating from SIIA, Yaroslav Suris, 27, of Brooklyn, New York, was convicted of one felony count of Criminal Infringement of a Copyright, in violation of 17 U.S.C 506(a)(1) and 18 U.S.C 2319(b) (1) Suris was sentenced to two months incarcera-tion, followed by 14 months of home detention He was also ordered to pay $290,556 in restitution for computer piracy
In the area of lobbying, SPA has asked Congress for tougher legislation designed to stop copyright infringement over computer networks, especially the Internet SPA anti-piracy department conducts public education campaigns and distributes auditing soft-ware that allows businesses and organizations to ensure that they are following the law
According to SPA, Web framing can be a form
of piracy when a viewing window is created for all
or a portion of a Web page or a particular piece of content residing on a Web page Problems with framing typically arise when the manner in which the Web site is framed removes, obscures, or alters navigation tools, links, indicators of source, trade-marks, logos, or advertising located on the Website that is framed Framing of third-party content into another Web page raises many legal issues, including passing off content as one’s own, unfair competition, trademark infringement, trademark dilution, misappropriation, and perhaps copyright infringement
FURTHER READINGS Albert, G Peter 1999 Intellectual Property Law in Cyberspace.
Edison, N.J.: BNA Books.
Zoellick, Bill 2001 CyberRegs: A Business Guide to Web Property, Privacy, and Patents Boston: Addison-Wesley Longman.
CROSS REFERENCES Copyright; Internet; Trademarks
Trang 4of financial gain, most casual violators fell
through the cracks
During the late 1990s, software
manufac-turers successfully lobbied Congress to enact
stringent, new federal legislation to curb
software piracy The first of two major laws,
the No Electronic Theft (NET) Act of 1997,
Pub L No 105-147, 111 Stat 2678,
immedi-ately closed the LaMacchia loophole Under the
NET Act, the definition of a violation includes
unauthorized reproduction or distribution of
copyrighted materials, and financial gain is
understood to mean mere possession The NET
Act provides severe penalties for violating the
copyright of materials worth more than $1,000
in a six-month period by copying, distributing,
or receiving software
One year later, Congress enacted a second,
more sweeping law in the Digital Millennium
Copyright Act (DMCA) of 1998 The DMCA
broadly revamped U.S copyright law to keep
pace with changing international treaties as well
as evolving technologies One major provision,
essentially aimed at hackers, criminalized the
use of any device or technology to break
anti-copying protections on software or other media
such as movies and music But while being
embraced by the software and entertainment
industries, critics including scientists, scholars,
and civil-liberties advocates have argued that
the DMCA limits legitimate professional
re-search and stifles technological innovation
Further complicating antipiracy efforts, new
technologies arose following the introduction of
Napster in 1999 As a free, online software
program used to trade MP3 music files
anonymously, Napster proved wildly popular
with millions of Internet users before
prompt-ing Congressional hearprompt-ings in 2001 as itsPARENT
COMPANY came under fierce litigation from the
music industry Ultimately, Napster was sued by
a number of copyright holders for copyright
infringement, both direct and vicarious
(indi-rect) The U.S Court of Appeals for the Ninth
Circuit held that Napster could indeed be held
liable for copyright infringement, but only if it
knew or should have known of specific
infring-ing files available on its system, and failed to act
to prevent the distribution of copyrighted
material The Court ruled that Naptster could
be held liable, pointing to evidence that
copyright holders had apprised Napster of
12,000 infringing files, and Napster had failed
to affirmatively patrol its system to prevent
access to infringing files A&M Records v
Napster, 239 F.3d 1004 (9th Cir 2001)
After the company filed forBANKRUPTCY, file trading moved to other so-called peer-to-peer (or “P2P”) networks, such as the popular Gnutella or eDonkey, which similarly allowed users to connect online in order to trade software, music, and movies Critically, P2P decentralized file trading through the use of programs designed by computer hobbyists, making enforcement efforts more difficult
In 2005 the U.S Supreme Court ruled, in MGM Studios v Grokster, 545 U.S 913, 125
S Ct 2780, that producers of a software product used to swap files on the Internet, i.e., designed to enable “file-sharing”, even if running on a decentralized network (no central server), could nonetheless be held liable for the copyright infringement that occurred during the use of such software
As the P2P phenomenon spread, attempts to combat it came from industry, academic administrators, and lawmakers Industry repre-sentatives chiefly targeted colleges where stu-dents reportedly were slowing campus com-puter systems to a crawl with their volume of illegal file trading Some educational institutions restricted computer use in the face of copyright-infringement lawsuits Under combined lobby-ing from the software, music, and movie industries, a subcommittee of the U.S House Judiciary Committee held hearings into poten-tial policy solutions in 2003
Because of the ease with which software piracy may be carried out, and the substantial revenue losses that it causes, software manu-facturers continue to call for more stringent legislation and to search for improved methods for detecting and preventing software theft
Besides music, other examples of highly-pirated consumer software products include video games, newer additions of Microsoft or Adobe, and anti-virus programs
FURTHER READINGS Business Software Alliance February 26, 2003 “Press Release: BSA Applauds House Subcommittee for Attention to P2P Piracy Problem.”Business Software Alliance Available online at www.bsa.org (accessed November 20, 2003).
Business Software Alliance 2009 “Sixth Annual BSA-IDC Global Software 08 Piracy Study ” Available online at http://global.bsa.org/globalpiracy/2008/studies/global piracy2008.pdf; website home page: http://global.bsa.
org/ (accessed August 19, 2009)
CONSUMER SOFTWARE PIRACY 161
Trang 5“Congress at 45 RPM.” 2001 The Palm Beach Post (April 10): 14A.
Legard, David February 13, 2003 “IIPA estimates U.S.
Global Piracy Losses at $9.2 Billion in 2002 ” IDG News Service www.nwfusion.com/news/2003/0214iipaestim.
html.
Steinberg, Gene 2002 “Internet File Sharing without Spyware.” Gannett News Service (August 19).
“Timeline of Events in Napster Case.” 2001 Associated Press (February 12).
Warren, Mackenzie 2002 “Online Music Swapping Still Rocks on campus: Students Zero in on Peer-to-Peer Sites for Freebies ” Gannett News Service (July 15).
CROSS REFERENCES Computer Crime; Copyright; Intellectual Property; Vicari-ous Liability.
CONSUMMATE
To carry into completion; to fulfill; to accomplish
A COMMON-LAW MARRIAGE is consummated when the parties live in a manner intended to bring about public recognition of their relation-ship asHUSBAND AND WIFE
To consummate an agreement is to carry it out completely, as in a consummated sale It is
to bring to completion whatever was either intended or undertaken to be done
CONTEMNER
An individual who intentionally acts to hinder or obstruct the administration of justice by a court, either by refusing to comply with its orders or by disrupting its orderly proceedings, thereby com-mitting contempt
CONTEMPLATION OF DEATH The apprehension of an individual that his or her life will be ended in the immediate future by a particular illness the person is suffering from or by
an imminent known danger which the person faces
The phrase in contemplation of death applies
to a gift of property made by its owner who expects to die shortly, the gift being motivated solely by the thought of his or her demise Such transfers are considered akin to TESTAMENTARY
dispositions since they are ineffective unless the owner dies but differ in that the owner must die within a reasonable time from the making
of the gift
The words contemplation of death are syno-nymous with the Latin phraseCAUSA MORTIS
CONTEMPT
An act of deliberate disobedience or disregard for the laws, regulations, or decorum of a public authority, such as a court or legislative body Individuals may be cited for contempt when they disobey an order, fail to comply with a request, tamper with documents, withhold evi-dence, interrupt proceedings through their actions or words, or otherwise defy a public authority or hold it up to ridicule and disrespect The laws and rules governing contempt have developed in a piecemeal fashion over time and give wide discretion to judges and legislative leaders in determining both what constitutes contempt and how it is punished
Contempt of Court
Contempt of court is behavior that opposes or defies the authority, justice, and dignity of the court Contempt charges may be brought against parties to proceedings; lawyers or other court officers or personnel; jurors; witnesses; or people who insert themselves in a case, such as protesters outside a courtroom Courts have great leeway in making contempt charges, and thus confusion sometimes exists about the distinctions between types of contempt Gener-ally, however, contempt proceedings are cate-gorized as civil or criminal, and direct or indirect
Civil contempt generally involves the failure to perform an act that is ordered by a court as a means to enforce the rights of individuals or to secure remedies for parties in aCIVIL ACTION For instance, parents who refuse to pay court-ordered
CHILD SUPPORTmay be held in contempt of court under civil contempt Criminal contempt involves behavior that assaults the dignity of the court or impairs the ability of the court to conduct its work Criminal contempt can occur within a civil
or criminal case For example, criminal contempt occurs when a witness or spectator shouts or insults the judge during a trial A civil contempt usually is a violation of the rights of one person, whereas a criminal contempt is an offense against society Courts use civil contempt as a coercive power, wielding it only to ask that the contemnor comply with the courts’ actions Criminal contempt is punitive; courts use it to punish parties who have impaired the courts’ function-ing or bruised their dignity
A direct contempt is an act that occurs in the presence of the court and is intended to
Trang 6embarrass or engender disrespect for the court.
Shouting in the courtroom or refusing to
answer questions for a judge or attorney under
oath is a direct contempt Indirect contempt
occurs outside the presence of the court, but its
intention is also to belittle, mock, obstruct,
interrupt, or degrade the court and its
proceed-ings Attempting to bribe a district attorney is
an example of an indirect contempt Publishing
any material that results in a contempt charge is
an indirect contempt Other kinds of indirect
contempt include preventing process service,
improperly communicating to or by jurors, and
withholding evidence One man was threatened
with contempt charges because he had filed
more than 350 lawsuits that the judge
consid-ered frivolous Indirect contempt also may be
called constructive or consequential contempt;
all three terms mean the same thing
The essence of contempt of court is that the
misconduct impairs the fair and efficient
administration of justice Contempt statutes
generally require that the actions present a
“clear and present danger” that threatens the
administration of justice
The manner in which an act is committed
or the tone in which words are spoken can
determine whether contempt has occurred
Circumstances, such as the context in which
the words were spoken, the tone, the facial
expression, the manner, and the emphasis, are
also evaluated by the court Failure to complete
an act that, if completed, would tend to bring
the court into disrespect does not preclude the
act from being contemptuous
Criticisms of the Contempt-of-Court
Power
The discretion permitted to judges in
determin-ing what is contempt and how to punish it has
led some legal scholars to argue that the
contempt power gives too much authority to
judges Earl C Dudley, University of Virginia
law professor, wrote that in the contempt
power, “the roles of victim, prosecutor and
judge are dangerously commingled.”
Much of the criticism focuses on the lack of
restraint or due process in determining
punish-ments for contempt In criminal contempt, the
contempt charges become a separate matter, but
they may be heard by the judge who made
them In addition, the same judge may
commence punishment immediately, and the
punishment may be in effect until the contempt case is settled Critics have argued that judges—
who are the principal offended party—may be too harsh For instance, in 1994 the U.S
Supreme Court overturned a decision by a Virginia judge who had fined the United Mine Workers of America $52 million in connection with violence that occurred during a 1989 strike The High Court stated that the fines were excessive and improperly imposed because the union had never had a chance to defend itself in a trial before the fines were imposed
Similarly, individuals who have refused to provide courts with information have been held
in jail—sometimes for years—under contempt charges In Maryland, a woman involved in a custody battle with her ex-husband refused to reveal the whereabouts of her child Elizabeth Morgan spent 25 months in jail before her ex-husband dropped the custody case and it was revealed that the child was staying with Morgan’s parents in New Zealand Journalist Myron Farber, of the New York Times, spent more than three years in jail for refusing to turn over notes that prosecutors sought for a
MURDERtrial
Judges and scholars have defended the practices of indefinite jail time because the contemnor“carries the keys to his prison in his own pocket” and can be released by complying with the court (In re Nevitt, 117 F 448 [8th Cir
1902])
Civil contempt proceedings end when the suit from which they arose is resolved Criminal contempt continues as a separate matter
Settlements may involve jail time, fines, or other retribution For instance, when the Cable News Network (CNN) was found guilty of contempt of court for airing audiotapes related
to the trial of Manuel Noriega, the deposed president of Panama, the network was given the choice of airing aRETRACTIONand an apology for using the tapes or paying a large fine The network made the apology
Contempt of Congress
The Constitution does not explicitly grant Congress the power to coerce cooperation from individuals or to punish acts of disobedience
or disrespect through contempt proceedings
However, the power was discussed at the Constitutional Convention and was implied in the Constitution In 1795 Congress used the
CONTEMPT 163
Trang 7power of contempt for the first time when it arrested, tried, and punished a man accused of bribing members of the House of Repre-sentatives Then Congress acted on its own authority—subsequently called the SELF-HELP
power, which grants Congress the right to compel testimony and punish disobedience without the involvement of a court or other government body if the individual’s actions obstruct the legislative process By 1821 the Supreme Court recognized Congress’s power to arrest and punish individuals for contempt In
1857, Congress created a statute governing prosecution for contempt, which shifted the responsibility for determining contempt from Congress itself to the courts Until 1945 Congress largely ignored this criminal statute and continued to compel testimony and deal with contemnors through its own power
In the late twentieth century, the Supreme Court noted, “Congress has practically aban-doned its original practice of utilizing the
coercive (self-help) sanction of contempt pro-ceedings at the bar of the House” (Watkins v United States, 354 U.S 178, 77 S Ct 1173, 1
L Ed 2d 1273[1957]) Under the criminal statute, Congress must petition the U.S attorney
to bring a case of possible contempt before a
GRAND JURY The case is then tried in federal court Most contempt citations arise from Con-gress’s investigatory powers In its decisions since WORLD WAR II, the Supreme Court has outlined requirements that Congress must meet before it can compel testimony The investiga-tion must have a valid legislative purpose It must be conducted by a committee or subcom-mittee of the House of Representatives or Senate,
or the authority of the investigating body must
be clearly defined in a resolution The questions asked of witnesses must be pertinent to the subject of inquiry Contempt proceedings cannot
be used to harass an individual or organization Finally, before individuals can be held in contempt, they must willfully default, either by failing to appear before the investigating body or
by refusing to answer pertinent questions Congress’s contempt power has come into conflict with the FIRST AMENDMENT in several cases The first of these cases was Barenblatt v United States, 360 U.S 109, 79 S Ct 1081, 3
L Ed 2d 1115 (1959), in which Lloyd Barenblatt refused to answer five questions of the House Un-American Activities Committee, regarding Communist infiltration of educational institu-tions Barenblatt was convicted of contempt then appealed to the Supreme Court, arguing that the questions violated his First Amendment right to freedom of association The Court, in a 5–4 decision, supported Barenblatt The Court stated that the questions were too vague to support a contempt citation and that Congress’s investigative powers must be balanced against First Amendment rights
The conflict between Congress’s investiga-tive powers and the First Amendment surfaced again in 1992 when Nina Totenberg, a National Public Radio correspondent, refused to answer questions of a Senate special counsel about how she obtained confidential documents related to the nomination ofCLARENCE THOMASto the U.S Supreme Court Totenberg had earlier revealed that theSENATE JUDICIARY COMMITTEEwas looking into accusations that Thomas had sexually harassed members of his staff The charges led
to public testimony by law professor ANITA HILL A Senate special counsel asked to have
In 1957 a federal
court found
playwright Arthur
Miller guilty of
contempt of Congress
charges for refusing to
disclose the names of
alleged Communist
writers to the House
Un-American
Activities Committee.
The conviction was
overturned by an
appellate court
in 1958.
AP IMAGES
Trang 8Totenberg held in contempt when she refused
to reveal who leaked information about the
charges to her The request was denied by the
Senate Rules Committee because of its potential
“chilling effect on the media.”
Congress also has used the contempt power
in conflicts with private parties and the
EXECU-TIVE BRANCH of government For instance,
business partners of Ferdinand Marcos, former
president of the Philippines, produced
docu-ments for the House Foreign Affairs Committee
only under threat of contempt citations And
James G Watt, former secretary of the interior,
was charged with contempt by a congressional
committee in the early 1980s when, citing
EXECUTIVE PRIVILEGE, he refused to releaseINTERIOR
DEPARTMENTdocuments
Contempt Proceedings against
President Clinton
On April 12, 1999, President WILLIAM JEFFERSON
CLINTON became the first sitting president in
United States history to be held in contempt of
court The contempt charge against President
Clinton stemmed from a deposition he gave in
connection with a 1994 SEXUAL HARASSMENT
lawsuit filed by Paula Jones (Jones v Clinton,
858 F Supp 902 [E.D Ark 1994]) Jones
alleged that on May 8, 1991, she was an
Arkansas state employee working at a
confer-ence held at a hotel in Little Rock At some
point during the conference, Jones claimed she
was escorted to a hotel room by one of
then-Governor Bill Clinton’s bodyguards, where she
was introduced to the governor Shortly after
the introduction, Jones alleged that Clinton
dropped his trousers and demanded oral sex
from her Jones said that though she refused
and was allowed to leave, her career as a state
government employee suffered thereafter
The Jones lawsuit languished in pre-trial
discovery for the first three years after it was
filed On January 17, 1998, Jones and her
lawyers deposed Clinton, who was now serving
his second term as president of the United
States During the deposition, Clinton was asked
a series of questions about his relationship with
a White House intern named Monica Lewinsky
The president testified that he was never alone
with the former White House intern and did not
have a sexual relationship with her
A subsequent probe byINDEPENDENT COUNSEL
KENNETH STARRrevealed that the president’s DNA
had been found on Lewinsky’s dress, which
eventually led Clinton to admit that he had an
“inappropriate intimate relationship” with his former intern (Jones v Clinton, 36 F Supp 2d
1118 [E.D Ark 1999]) The discovery of the dress also fueled the House of Representatives
to draft ARTICLES OF IMPEACHMENT against the president
A month after giving the deposition, Clinton filed a motion to dismiss the Jones lawsuit On April 1, 1998, United States District Judge Susan Webber Wright granted the motion
to dismiss, finding that Jones had “failed to demonstrate that she has a case worthy of submitting to a jury” (Jones v Clinton, 990
F Supp 657 [E.D Ark 1998]) While the case was pending on appeal, Clinton and Jones settled the sexual harassment lawsuit for $850,000
A year later Judge Wright addressed the issue whether President Clinton should be held
in contempt for denying his relationship with Lewinsky during the January 1998 deposition
At the time he gave the deposition, there was very little evidence indicating that the presi-dent’s testimony was false But in the 14 months that followed, it became clear that the president had not only been alone with Monica Lewinsky but also had some form of sexual relations with her
Accordingly, Judge Wright found the presi-dent in contempt for giving “false, misleading and evasive answers that were designed to obstruct the judicial process” at a deposition over which she personally presided Jones v
Clinton, 36 F Supp 2d 1118 (E.D Ark 1999)
Although Clinton maintained that his“intimate”
relationship with Lewinsky did not constitute
“sexual” relations, Wright said that it is difficult
to construe“the president’s sworn statements …
as anything other than a willful refusal to obey this court’s discovery orders” (Jones v Clinton 36
F Supp 2d 1118 [E.D Ark 1999])
In July 1998 Wright leveled a $90,686 fine against the president Wright said regarding this case that the fine was intended to both punish Clinton for the contempt violation and also“to deter others who might consider emulating the president’s misconduct.”
Wright then referred the matter to the Arkansas Supreme Court to determine whether the president should lose his license to practice law in that state In May 1999 the Arkansas Supreme Court Committee on Professional Conduct recommended that Clinton be disbarred
CONTEMPT 165
Trang 9However, on January 19, 2001, his last day
in office, President Clinton resolved the case before the state ethics committee by agreeing
to surrender his law license for a period of five years and admitting, according to Pete Yost in
an AP Online report, that he “knowingly gave evasive and misleading answers” about his relationship with Monica Lewinsky in viola-tion of Arkansas rules governing attorney ethics Additionally, Clinton agreed to pay a
$25,000 fine
FURTHER READINGS Alderman, Ellen, and Caroline Kennedy 2002 In Our Defense: The Bill of Rights in Action New York: Perennial.
Beck, Carl 1959 Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945–1957 New York: Da Capo.
Dudley, Earl C 1993 “Getting beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts ” Virginia Law Review 79.
Goldfarb, Ronald L 1971 The Contempt Power New York:
Anchor.
Mangan, James J 1994 “Contempt for the Fourth Estate:
No Reporter ’s Privilege before a Congressional Investi-gation ” Georgetown Law Journal 83.
Yost, Pete “Clinton Admits False Statements.” The Washing-ton Post (January 20, 2001) Available at http://www.
washingtonpost.com/wp-srv/aponline/20010119/aponline 143555_000.htm; website home page: http://www.
washingtonpost.com (accessed July 16, 2009).
CROSS REFERENCES Communism; Freedom of the Press.
CONTEST
To defend against an adverse claim made in a court by a plaintiff or a prosecutor; to challenge a position asserted in a judicial proceeding, as to contest the probate of a will
CONTEXT The language that precedes and follows a series of words, such as a particular sentence or clause
The context of a legal document is often scrutinized to shed light upon the intent of an ambiguous or obscure sentence or clause so that
it may be interpreted as its drafter intended
CONTINENTAL CONGRESS The first national legislative assembly in the United States, existing from 1774 to 1789
During its 15-year existence, the Continen-tal Congress served as the chief legislative and executive body of the federal government
Although hobbled by provisions such as an inability to raise funds directly through TAXA-TION, it nevertheless created a viable, if some-times ineffective, national union during the earliest years of the United States The Conti-nental Congress passed the DECLARATION OF INDEPENDENCE and other lasting measures, and
it set important precedents for the government instituted under the Constitution in 1789 Some of the most important figures of early American history were members of the Continental Congress, including JOHN ADAMS, Samuel Adams,SAMUEL CHASE,BENJAMIN FRANKLIN,
ALEXANDER HAMILTON, PATRICK HENRY, JOHN JAY,
THOMAS JEFFERSON, JAMES MADISON, and GEORGE WASHINGTON
The First Continental Congress met in Philadelphia between September 5 and October
26, 1774 Although it was officially called simply the Congress, contemporaries referred to it as the Continental Congress in order to distin-guish it from the various state congresses Fifty-six delegates from twelve colonies (Georgia did not participate) assembled in an attempt to unite the colonies and restore rights and liberties that had been curtailed by Great Britain The Continental Congress adopted the Declaration of Rights, agreements regarding common policies toward Britain, and a resolu-tion that it would meet again the following year
if its grievances were not settled
When Britain rebuffed their demands, the colonists assembled the Second Continental Congress in May of 1775, again in Philadelphia Fighting between Britain and Massachusetts at the Battles of Lexington and Concord had already occurred, and the Continental Congress voted to back Massachusetts It appointed George Washington as commander in chief of colonial armed forces With this decision, Congress undertook a vital role directing the Revolutionary War
As the war continued, colonial opinion began to move toward permanent separation from Great Britain On July 4, 1776, the Continental Congress adopted the Declaration
of Independence, which announced the forma-tion of the United States of America as a new nation In succeeding months, the Congress drafted the ARTICLES OF CONFEDERATION, the new country’s first constitution The Congress approved the Articles on November 15, 1777, but the states did not ratify them until 1781
Trang 10The Articles contained provisions for a
national legislature designated simply Congress
Although some historians have called this
subsequent body the Congress of the
Confeder-ation, most group it with its predecessor and
call it the Continental Congress In this
Congress, each state had from two to seven
delegates but only one vote Delegates were to
serve no more than“three years in any term of
six years” (art V)
During the struggle to approve and then
ratify the Articles, the advocates of states’ rights
greatly weakened its provisions for a strong
federal, or national, government As a result, the
Articles did not allow the federal government to
raise its own funds directly through taxation
Instead, the central government could only
requisition money from the states The Articles
also required a unanimous vote of Congress to
approve any amendments, a feature that made it
difficult to adapt their provisions to the
changing needs of the nation In addition,
Congress as it was constituted under the Articles
proved ill suited to tasks that the Constitution
later assigned to theEXECUTIVE BRANCH, including
the conduct of diplomatic, military, and
com-mercial affairs For example, Congress fared
poorly in negotiating with Britain and France,
in paying war debts, and in putting down armed
revolts such as Shays’s Rebellion
The problems of the Continental Congress
and the Articles of Confederation led to plans
for a new federal constitution During the
Constitutional Convention of 1787, leading
members of the Continental Congress joined
with other politicians and lawmakers to create a
framework for a new national government,
including a new Congress Following
ratifica-tion of the Constituratifica-tion by the states in 1789,
the Continental Congress handed over its
legislative powers to the Congress that
con-tinues in form to the present day
Although the Continental Congress had
weaknesses, it nevertheless passed crucial
legis-lation and set vital precedents for the framing of
the Constitution Its legislative legacy includes
the establishment of the Northwest Territory,
provisions for the sale and oversight of western
land, and many other laws adopted by the later
Congress According to Edmund C Burnett, a
leading historian on the subject, the
Continental Congress … developed and
formulated many of those fundamental
principles of government that have become our national heritage Indeed it is not too much to say that [a] great part of the materials built into the structure of the Constitution itself were wrought in the forge
of the Continental Congress
FURTHER READINGS Burnett, Edmund C 1964 The Continental Congress New York: Norton.
Davis, Derek H 2000 Religion and the Continental Congress, 1774–1789: Contributions to Original Intent (Religion in America) New York: Oxford Univ Press.
McCormick, Richard P 1997 “Ambiguous Authority: The Ordinances of the Confederation Congress, 1781 –
1789 ” American Journal of Legal History 41 (October).
CROSS REFERENCES Congress of the United States; Constitution of the United States; “Declaration of the Causes and Necessity of Taking
up Arms” (Appendix, Primary Document); Northwest Ordinance.
CONTINGENT Fortuitous; dependent upon the possible occur-rence of a future event, the existence of which is not assured
The word contingent denotes that there is no present interest or right but only a conditional one which will become effective upon the happening of the designated condition A contingent remainder is the right to possess property after the death of a person who holds a
LIFE ESTATE in the land provided a specified condition is fulfilled An owner of land who grants a life estate to a son, with a remainder to
a daughter if she marries, has created a
A depiction of members of the Continental Congress, the first national legislative assembly
in the United States, during the signing of the Declaration of Independence John Hancock, president
of the Congress from
1775 to 1777, is shown holding the document LIBRARY OF CONGRESS CONTINGENT 167