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Eddie
Trad climber
Boston
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May 12, 2006 - 01:22am PT
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what's it go at?
Why didn't he downclimb it?
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GOclimb
Trad climber
Boston, MA
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May 12, 2006 - 01:30pm PT
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Whoever suggested that he may have done this to get back at the park for their outlawing of slacklining - there's probably at least a grain of truth in that.
As for the person who asked what the park's justification is for their rules, I don't know, but here's my guess:
They feel, and I think they are correct in this, that climbers' interests and hikers' interests are, in some cases, at cross purposes. It is their role to determine where to draw the lines to best protect the interests of each. They seem to be trying to accomplish that, in the sense that most hikers come in to check out a limited number of arches, and so they're trying to preserve them for that interest group, while recognizing the climbers' interests in most of the arches, and all the other formations.
GO
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Jaybro
Social climber
The West
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May 12, 2006 - 01:44pm PT
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Could be, and I am sure they would agree with what you said.
But I would like to see it in the park's words, so to speak. I suspect they have never articulated them as eruditely as you did.
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Ain't no flatlander
climber
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May 12, 2006 - 03:58pm PT
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Ask him how many times he rehearsed the climb on a top rope before making the "onsight." When he shot the arrow over the arch to pull up the rope, did he use a compound bow? What type of rope is best for pulling repeatedly across soft sandstone?
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BASE104
climber
An Oil Field
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May 12, 2006 - 04:05pm PT
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You guys sound like a bunch of bickering BASE jumpers over someone possibly burning a site.
Werner. Can't hit the meadow? Back then the parachutes had a very low glide ratio. Now any dimwit should make the meadow if they pull around El Cap Tower.
You all should be aware that land managers have a very long memory.
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UberBabs1
Trad climber
Los Angeles, CA
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May 12, 2006 - 04:37pm PT
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Slabby D: Don't know if any other "lawyer" has chimed in. But based on k-man's citation of the statutory language, maybe someone thought the old reg only concerned the three named formations. (I have not read the actual regulation). Here's a little primer on statutory construction (from a copyright case; I'm doing research on copyright, so) that should numb the mind and stifle discourse:
The Majority concludes that because the statute does not expressly grant standing to assignees of an accrued cause of action, such persons do not have standing. See op. at 885-86. Rather, the Majority reasons that, applying the maxim of statutory construction expressio unius exclusio alterius est,“Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.” Op. at 885 (emphasis in original). In my view, the Majority misapplies this maxim of statutory construction.
First, such maxims of statutory construction are to be used only when Congressional intent cannot be discerned. Indeed, we have noted:
Most strongly put, the expressio unius, or inclusiounius, principle is that ‘[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.’ This is a rule of interpretation, not a rule of law. The maxim is ‘a product of logic and common sense,’ properly applied only when it makes sense as a matter of legislative purpose···· [T]he expressio unius principle describes what we usually mean by a particular manner of expression, but does not prescribe how we must interpret a phrase once written. Understood as a descriptive generalization about language rather than a prescriptive rule of construction, the maxim usefully describes a common syntactical implication. ‘My children are Jonathan, Rebecca and Seth’ means ‘none of my children are Samuel.’ Sometimes there is no negative pregnant: ‘get milk, bread, peanut butter and eggs at the grocery’ probably does not mean ‘do not get ice cream.’ ”
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.1992) (internal citations omitted). See also Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (“This principle of statutory construction reflects an ancient maxim- expressio unius est exclusion alterius··· But even the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent.”). Here, Congressional intent is readily discernible, and, as demonstrated above, contrary to the Majority's application of the maxim.
Second, commentators have noted that the use of maxims of statutory construction such as “ expressio unius ” are problematic insofar as there is no hierarchy of maxims of statutory interpretation. Why choose expressio unius rather than another maxim, indeed, the exact opposite: that listing some cases may include others? ( see fn. 9, infra ). In his recent book, A Matter of Interpretation, Justice Scalia wrote, “[t]he hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.” FN9 Antonin*900 Scalia, A Matter of Interpretation, 14 (1997) (quoting Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994)).
FN9. See Stephen J. Safranek, Scalia's Lament, 8 Tex. Rev. L. & Pol. 315, 316 (Spring 2004) (noting the lack of hierarchy among maxims of statutory interpretation; “in the cases where judges apply interpretive aids, the aids are often used in isolation and are not necessarily the controlling method by which the statute is interpreted.”); see also Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and The Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev.. 395, 405 (1949-1950) (noting that “there are two opposing canons on almost every point”; and noting that the opposing canon for the expressio unius exclusio alterius est is “[t]he language may fairly comprehend many different cases where some only are expressly mentioned by way of example”).
Third, while maxims of statutory construction may, indeed, be helpful in interpreting statutes, they are not binding. The Founders, including Alexander Hamilton, recognized as much. See Alexander Hamilton, The Federalist Papers, No. 83 at 464 (Clinton Rossiter ed., 1961) (“The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of laws. The true test of a just application of them is its conformity with the source from which they are derived.”).
Hence, rather than be guided by a Latin maxim nowhere mentioned by the 1976 Act or our jurisprudence as hierarchically preferable to other means of statutory interpretation, we should be guided by plain legislative intent, which, as our Supreme Court reminds us, trumps the ancient Latin maxim underpinning the Majority Opinion's conclusion. See Nat'l R.R. Passenger Corp., 414 U.S. at 459, 94 S.Ct. 690.
Indeed, it should be noted that where Congress chooses to expressly prohibit assignment, it knows how to do so explicitly. See, e.g., Federal Anti-Assignment Act of 1862, 41 U.S.C. § 15 (expressly prohibiting public contract claims against the U.S. government from being assigned); Federal Assignment of Claims Act of 1940, 31 U.S.C. § 3727 (expressly prohibiting assignment of federal claims against the U.S. government from being assigned); Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1056 (expressly prohibiting the assignment of pension benefits). Here, that Congress did not prohibit assignment of infringement claims may well carry a negative pregnant that it intended not to prohibit assignment.
A second consideration in statutory interpretation is practicality, or put another way, the avoidance of an absurd result. See Royal Foods Co., Inc. v. RJR Holdings Inc., 252 F.3d 1102 (9th Cir.2001) (courts will not interpret a statute in a way that results in an absurd or unreasonable result). Here, were the statute to be read literally, it would result in absurd or unreasonable results.
It has long been recognized that assignment of the copyright does not automatically include assignment of accrued causes of action for earlier infringements of the copyright. See Prather, 410 F.2d at 700 (“ ‘a mere assignment of a copyright does not itself transfer to the assignee any cause of action for infringements that occurred prior to the assignment. Unless the assignment of copyright contains language explicitly transferring causes of action for prior infringements, the assignee cannot maintain a suit for infringements which happened before the effective date of the assignment.’ ”) (internal citations omitted). See also DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184, 192 (M.D.Fla.1962) (holding that the assignment of copyright under 1909 Act does not include the right to sue for “infringements antedating the assignment” and since the assignment as written failed to contain such a grant, “no such right is conferred by the assignment”).
The recognition that the right to an accrued cause of action did not (in the absence of an express contractual assignment*901 of such rights) automatically follow the assignment of the copyright is necessarily a recognition that the two rights should be capable of being separate assets. As separate assets, like any other property right, the two rights can be separately alienated. That much was squarely decided in Prather, supra.
Similar to the 1909 Act, courts have interpreted the 1976 Act to mean that an assignment of a copyright does not automatically carry with it accrued claims unless such claims are specifically named in the contract of assignment. For example, in Infodek, Inc. v. Meredith-Webb Printing Co., Inc., 830 F.Supp. 614 (N.D.Ga.1993), in interpreting the 1976 Act, the court held “the case law clearly states that a transfer of interest for accrued damages must be stated in no uncertain terms. It follows that the transfer of interest to past infringements did not pass from [assignor] to [plaintiff assignee] in the first assignment despite the alleged intent to transfer any and all accrued damages.” Infodek, 830 F.Supp. at 620 (citing Prather, 410 F.2d at 700).
The recognition under both the 1909 and 1976 Acts that an accrued cause of action for copyright infringement is an asset separate from the copyright or the exclusive uses of the copyright saves 501(b) from some absurd results.
Read as the Majority does, Section 501 of the 1976 Act converts a claim for relief for infringement into a life estate, by providing a cause of action for copyright infringement but only for the person who owned the exclusive right at the time of the infringement. The statute would preclude an assignee of the copyright and accrued causes of action from suing on an accrued cause of action-which infringement, by definition was not “committed while he or she was the owner of it.”
The following result would obtain: if a copyright owner instituted suit for copyright infringement (“while he was the owner”), and then assigned the copyright after instituting such suit, the assignee of the copyright and the accrued cause of action could not maintain such suit, for the assignee was not the owner when the infringement occurred. In addition, the text would have to be read such that when the “he” or “she” who owned the exclusive right at the time of the infringement of the copyright dies, “his” or “her” heirs cannot institute the infringement action, for the same reason.
Luckily, Section 501(b) has not been so interpreted. See17 U.S.C. § 501(b). Rather, the section has been interpreted to allow the post-1976 assignee of the accrued cause of action to maintain the suit for accrued causes of action. Indeed, courts have recognized that assignees of a copyright may maintain an action instituted by the previous owner during which such previous ownership the infringement claim arose. See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971 (2d Cir.1991) (allowing plaintiff to bring suit for copyright infringement that had occurred prior to plaintiff's owning any copyright interest where plaintiff was assigned the right to accrued causes of action); see also17 U.S.C. § 201(d)(2) (1976) (“[t]he owner of any particular exclusive right is entitled, to the extent of that right, to all the protection and remedies accorded to the copyright owner.”).
Accordingly, if individuals can bring suit on an accrued infringement claim that did not accrue while he or she was the owner, there is no reason the accrued cause of action cannot be assigned here.
Silvers v. Sony Pictures Entertainment, Inc.
402 F.3d 881
C.A.9 (Cal.),2005.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Topic Author's Reply - May 12, 2006 - 04:50pm PT
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Sheesh!
OK thats 101, now we're overloaded again. I'm starting Indelicate Arch Climb? part III, the resurrected horse
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Largo
Sport climber
Venice, Ca
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May 12, 2006 - 04:56pm PT
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There hasn't been much of an objective look at how much damage, if any, was really and truly done by someone free soloing this thing. That is probably the entire point of the Park Service--they fear this zillion year old arch might get damaged and defaced by people climbing on it, or if one person climbs it, others will follow and ruin the thing. I'm curious as to how much actual damage was done to the arch. If this is all about what "might happen" in the future, setting a dangerous precedent and all that, that's another issue.
JL
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philo
Trad climber
boulder, co.
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May 14, 2006 - 01:38pm PT
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Here is a scenario. A herd of tuoronasaurus photographicus are milling around the base of delicate arch on a typical Arches scorcher. From the crowd emerges a wild haired youth. He is on summer vacation with his parents. He is wearing his Dean Potter chinos and Dean Potter polo shirt. He sports an empty but oh so fashionable Dean Potter chalk bag. The chalk bag is empty as new Park Service regulations require leaving all nail clippers, climbing paraphenallia and "chalk" at check point Potter before entering. In the sixties this kid would have been wearing a cowbow costume complete with six shooter. But that was old hero stuff. This kid doesn't want to be like Gary Cooper and he doesn't want to "be like Mike". He wants to be like Dean! The kid has seen this scene before. Cyber DejaVu. Something deep in his cerebral cortex clicks and the kid becomes transfixed and transcendent. Ignoring the newly bolted on "no climbing above sign" sign and his parents consternation he goes for it just like BigD. Only his spiritual quest ends as a sweated off splat spot at his parents feet. Damn that Park Service rule against chalk. Did I mention the hoard of cameras clicking and whirring away. You just can't buy publicity like that!
While Dean is in no way responsible for the actions of others he should be accountable for his own. He should have known better. I really wonder what was the actual dialog he had with the ranger. Dean "hey can I climb that thing". Ranger " oh yeah sure go for it no body gives a sh#t Mr. Potter".
What could be clearer, No climbing on named arches and no white chalk! The issue is not a single ascent of Delicate Arch. Which by the way vibrated for Dean not because of his transcendence but because it is very "Delicate". Just look at how massively top heavy it is above the erosion zones. The issue is on going and long term relations with land managers everywhere for all climbers' access. Does anyone like having to have their hand held by rangers to climb at Hueco? What about the 'great' treatment climbers get at Red Rocks Nv.? Many areas around the country that are of significant interest to climbers are up for review of their use and management. And what about Private land owners? Do you think they care how cool Dean is?
Take for example Lou Pai. Louie is the former founder of Enron who owns the Taylor Ranch, one of the largest land parcels in Colorado. The Taylor Ranch contains all of Mount Culebra the only state 14er wholly owned by a single private citizen. Access to climb Culebra has been more than problematic since Louie and his armed patrols took over. And trust me Mr Lou will use anything, anything to restrict access to his domain. And that is only one example. The 14ers are criss crossed with private lands and mining claims. Now you or Dean may not care to one day climb all of the 14ers in Colorado but believe me it is a dream and motivation to a great many more people than those who aspire to climb 5.16. And in the long run, all fads aside, the regular outside Joes (and Janes) are the engine of the outdoor industry. Glamour sells but it's regular folk that buy and they buy what they can believe in. Or are sold! Now if these folks cant fulfill their dreams because of imposed access restrictions will the market be happy? Face it our independent free spirited transcendental communion with nature IS big business.
Just because the NPS has so far only said oops guess we need to dumb down the legal speak don't for a moment think that this is over. I predict in a few years it and similarly bone headed acts will be called pullin' a Potter or perhaps doin' a Dean.
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