Google Books Ends in Fair Use Verdict for Google

The case brought by the Author’s Guild against Google, for scanning of millions of books without any author’s permission, ended without a trial when Judge Chin granted a motion for summary judgment in favor of Google at the end of 2013.  In his thirty page opinion, Judge Chin agreed that Google’s conduct is affirmatively protected by section 107 of the Copyright Act, which sets out the factors that courts consider when determining if a use of another’s copyrighted work is “fair,” meaning the defendant is not required to obtain a license or pay a royalty for the use.

This controversy started almost ten years earlier when Google began its “Library Project” to scan and index books from a variety of library collections, including Harvard, the University of Michigan, the New York Public Library, Oxford and Stanford.[1]  Millions of books were to be scanned and indexed using Google’s engineering expertise and search engine, including some books that remain under copyright protection.  Google also established a “Partner Program” under which Google worked with publishers and rights holders to index and display books with permission from the owner of the rights in the work.[2]  By Judge Chin’s decision last year, more than twenty million books had been scanned and indexed into the Google Books project.[3]

Google’s database of books includes a full digital copy of each book it scans.  Each such book is indexed for searching.  Users can navigate to books.google.com and search through the index using queries of their own design.  In response, the search engine will return a list of books from the index that are relevant to the query.  Clicking on a particular book will take the user to a page which displays the cover of the book and a short summary of the content.  If the book was scanned through the Partner Program, the user is able to view what the author or publisher has consented to display on the results page.  If the book is in the public domain, the user is able to view the entire book and also to download the electronic version of the book.  However, for books still under copyright protection but not available from the Partner Program, the search result displays the book in “snippet view.”[4]  “Snippet view” is the source of controversy for the plaintiffs in the Author’s Guild because Google did not obtain permission to show portions of the indexed book in search results.[5]

Copyright infringement is the invasion of an exclusive right of an original work by another.  Among the exclusive rights of authors are the rights to reproduce, distribute, and publicly display their works.[6]  Fair use is an affirmative defense to a claim of copyright infringement.  Under section 107, courts consider four factors when determining if a defendant’s infringing use is “fair:” (a) the purpose and character of the defendant’s use, (b) the nature of the plaintiff’s work, (c) the amount and substantiality of the work used by the defendant, and (d) the impact of the use on the plaintiff’s market for his work.[7]  Determining whether fair use applies depends on the facts and circumstances of each case.[8]  Judge Chin emphasizes in his opinion that “transformative” uses of copyrighted material are more likely to be a fair use.  Citing Campbell v. Acuff-Rose,[9] the court defines “transformative” uses of a work as the creation of a new work from an old one, where the new work has a different purpose or character and the fair user alters the original expression resulting in a new work with a new meaning or message.

Fair use has been heavily litigated because the defense turns on the specific facts of each case.  In addition, while the Google Books case is an important one, it is not the first case to raise the issue of fair use in the context of technology on the internet.  More than ten years ago, the Ninth Circuit confronted a search engine that was sued for copyright infringement by a photographer, Leslie Kelly, whose photographs had ended up indexed into Arriba Soft Corp.’s internet image search engine.[10]  In that case, Kelly created, sold and licensed landscape photographs of the American West, which he made available for sale through his website.  The defendant, Arriba Soft, had crawled and indexed images available from public internet web sites, including Kelly’s web site. The Ninth Circuit held that Arriba Soft’s use of Kelly’s photographs was transformative.  Kelly’s purpose in creating his photographs was aesthetic: people would purchase Kelly’s works to have a framed photograph of a landscape in their home.  In contrast, Arriba Soft used Kelly’s photographs to create thumbnails which were placed into a search database so that search users could use keywords to find related images.[11]  The thumbnails could not supplant the original aesthetic use of the works because the thumbnails were at a considerably lower resolution.  Ultimately, Arriba Soft prevailed on the basis that its use of Kelly’s works was a fair use.[12]  Amazon obtained a similar outcome in the case Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007).

In the Google Books case, the court also found that Google’s use of the plaintiff’s works was transformative: “Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.  Google Books has become an important tool for libraries and libraries and cite-checkers as it helps to identify and find books.”[13]  The court continued: “Similarly, Google Books is also transformative in the sense it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.”[14]

The court held that the second factor – the nature of the plaintiff’s works – also favored a finding of fair use, because most of the books indexed by Google, 93%, were non-fiction, and all of the books had been published before Google indexed them.  A court is less likely to find fair use when the defendant has used highly creative works, or works that are not yet published.  The court held that on balance, the third factor – the amount and substantiality of the use of the plaintiff’s works by Google – weighed slightly against a finding of fair use because Google had used all of the works verbatim, though that was required for the purpose of Google’s use.[15]

Finally, the court held that the last factor – the impact on the plaintiff’s market for its works – also strongly supported a finding of fair use.  In this case, the court found that the plaintiff’s market for its original works would be very unlikely to be supplanted by the “snippet” view that was available through Google’s website in response to user searches for keywords.  To the contrary, the court found that Google’s database would most likely enhance the sales of the plaintiff’s works.[16]

As a result, the court found that Google’s use of the plaintiff’s works was a fair use and entered judgment for Google.  The Author’s Guild filed notice of its intention to appeal, and subsequently filed an appeals brief with the Second Circuit in April.  Google’s reply is due in July.  Stay tuned for further developments!


[2] The Author’s Guild, Inc. v. Google, Inc., 1:05-cv-08136-DC 5 (S.D.N.Y. Nov. 14, 2013) (appeal pending in 2d circuit in case number 13-4829 CV).

[3] Id. at 1.

[5] A careful reader will note that Google also has a complete digital copy of each book it scans, which Google backs up to backup media and shares with the source library that provided the work to be scanned.  Plaintiffs alleged that these acts violate the authors’ exclusive rights of reproduction and distribution.

[6] 17 U.S.C. § 106.

[7] Id. at § 107.

[8] The Author’s Guild, Inc. at 16-17.

[9] 510 U.S. 569 (1994).

[10] Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003).

[11] Id. at 818.

[12] Id. at 822.

[13] The Author’s Guild, Inc. at 19.

[14] Id. at 20.

[15] Id. at 22-23.

[16] Id. at 25.

Abe Lincoln – A Personal Hero

I was recently tooling on Facebook this week and noticed an advertisement for the movie “Lincoln” that is scheduled for general release next month.  After clicking on the ad, the individuals promoting this film will be happy to know that I was among those converted to a fan of their Facebook page (as of today, numbering around 44,000).  I was prompted by this Facebook ad to write about Lincoln.  Abraham Lincoln is a personal hero for several reasons.  Of course, Lincoln died a national hero in service to the country.  He served at one of the most difficult times in our nation’s history when pretty much no one else wanted to be president.  And he remains well-known for a number of sound-bites from his speeches that continue to resonate with the public today.  However, he’s a hero to me for several other reasons.

First, he was an attorney for most of his career, and as an attorney, handled many humdrum business disputes, and represented a number of clients over the years.  Such a caseload is not terribly dissimilar today for many small and solo practitioners today like me who make an effort to help the clients that come to them.  Second, Lincoln was, for the most part, a failed politician for most of his career.  While he served as a local politician early in his career, his attempts at federal office and as a presidential candidate outnumbered the times he was elected to such offices.  And, for those students of history out there, Lincoln’s prosecution of the Civil War involved a series of hard losses for the union, at the cost of the lives of many.  Lincoln, however persevered in the face of failure.  I think to myself that if Lincoln could manage to bear the tremendous loss of human life (both during the civil war and also in his personal life at the death of two of his children), surely I can manage when I lose a trial or a client decides to not pay his bill!

Finally, Lincoln was able to change his mind, particularly on the major issue of the union: slavery.  Lincoln did not start out as an abolitionist, even though today I think most would agree that slavery is plainly wrong.  I think it took Lincoln most of his life to come to that conclusion publicly, well after the civil war had started.  Even at the outset of war, Lincoln’s argument was not that slavery was wrong, but that states did not have the legal right to secede.  I aspire to be open to changing my mind, even on ideas I might hold quite dear.

I look forward to the movie next month, and hope you will too!

Final Stage 2 Meaningful Use Regulations

The final version of the Meaningful Use regulations, including the final Stage 2 requirements, were published at the end of August.  A copy of the full regulations can be found here: 2012-21050 (you can also get these from the Federal Register’s web site; the final regulations were published on September 4, 2012.)  The final version of the Stage 2 regulations are similar to the interim regulations that were published earlier this year (and discussed in this post).  However, the final regulations made some changes to what’s in store for providers trying to obtain their incentive payments from the interim regulations.  This article is intended to briefly cover these changes.

Core Criteria Changes

First, the Stage 2 metrics for specific Core criteria were reduced from the interim regulation targets.  For example, for provider use of computerized order entry (§ 495.6(j)(1)), the interim regulations for Stage 2 required that 60% of orders be computerized.  The final regulations softened this so that only 60% of medication orders be electronic, leaving the target of 30% for lab and radiology orders where it had been under Stage 1.  Also, the Stage 2 target for electronic prescriptions in the interim regulation was to be 65% of all prescriptions (up from 40% in Stage 1).  In the final Stage 2 regulation, the metric has been reduced to 50%.

There was also a reduction in the final Stage 2 metrics for (j)(13) and (j)(14) requirements for patients that transition care.  The interim Stage 2 regulations had a metric of 65% of patients with transitions of care have a medication reconciliation performed, and for outgoing transitions, the provider prepare a care summary for the receiving provider.  The final regulations reduce this metric to 50% where it stood when these were Stage 1 Menu criterion.

The final regulations also reduced the target metric for the criterion for using electronic messaging to communicate with patients in (j)(17).  The interim regulations had set the metric at 10%; the final regulations reduce this to 5%.

However, there are other changes that may pose some dilemmas for providers.  The interim Stage 2 core criterion include one for patient electronic access to health information.  This originally was a Stage 1 Menu criterion; it becomes a core criterion in Stage 2.  The metric in the interim Stage 2 regulation was that 50% of patients receive timely access to information in their chart (up from 10% in Stage 1).  However, in the final Stage 2 regulation, there is a second aspect to the metric – namely, that 5% of patients actually download information made available to them.  It is not clear how this will be measured by the software, and it is also not clear how providers will cause patients to download the data made available to them.

An additional metric was added to (j)(14) between the interim and final Stage 2 regulations.  Not only must 50% of patients have a care summary prepared by the provider as part of the transition of care, but 10% of these transitions must involve the electronic exchange of data between the two providers.  This core requirement will tend to incentivize referral patterns between providers that are able to send and receive electronic data between them or through regional health information exchanges.  As a result, those that are unable to participate in such exchanges will become increasingly isolated.

Menu Criteria Changes

There were also two changes in the Menu criteria between the interim and final Stage 2 regulations.  First, the target metric for the first menu criterion, access to imaging results in the EHR, was reduced to 10% in the final regulations from 40% in the interim regulations.  Second, a new menu criterion was added to encourage providers to actually document notes into structured data within the EHR system, and setting the metric to 30% of patients seen during the period.

 

FarmVille, CityVille, This-Ville That-Ville

There are an almost endless number of online games.  Some of them end in -ville.  For that, we have game maker Zynga to thank.  Zynga recently had an initial public offering (IPO), where they became a publicly traded company.  (Zynga, by the way, had set its initial stock price at $10 per share.  Today it is trading down, though the stock had a brief period over $10/share around the time that Facebook announced it would be doing its own IPO later this year.  This impacts Zynga because Zynga itself primarily makes games, like Farmville, to be played on Facebook.)  Farmville and the other games out there used to be grouped under the category of massively multiplayer online games.  I think people stopped using this because the MMOG (or MMORPG for online role playing games) shorthand didn’t spell out anything cool.  And we all have the attention span of six seconds.  I just changed the channel.

What’s surprising is that an online game maker would have an IPO.  It used to be that game makers were local mom and pop shops with a few employees (some of whom were here in Hunt Valley, Maryland, like good old Microprose).  But game makers have become increasingly complex, in some ways like movie production houses.  Games themselves have also pushed the technology envelope.  New games were often an excuse for computer owners to buy a new computer (including yours truly) so that one would have sufficient RAM and a fast enough video card to play the new game du jour.  Given that, the overall online gaming market continues to grow, and the need to access larger amounts of capital to create new games (both in dollars and human capital), it seems likely that more game makers will become publicly traded businesses (or be acquired by existing, large companies like Sony or Disney).

Farmville itself, and its ken, employ several tactics to increase their profit.  First off, activities on Farmville take a certain amount of time to occur.  For example, certain crops on your farm take a variable amount of time to grow, ranging from a few hours (in real time) or a few days.  If you are in a hurry, you can convert real money into game currency, and speed up certain tasks.  In Farmville, it doesn’t appear that there is a way to convert Farmville currency back into real dollars (though this is the case in other systems, such as Second Life).  In addition, there is substantial advertising within the gaming system itself which generates a certain amount of value back to Zynga.  Farmville also has a social component, in that users can become neighboring farmers, and can share resources or tend to each other’s farms.  Farmville attempts to exploit the network effect of allowing users to belong to a virtual community of other game users.  By that I mean that the more users of the game, the more they interact, and the interactions create more users, causing a positive feedback loop that increases the value of the game to its users and Zynga.

There are a lot of online games these days.  Civilization has been working on a release within Facebook.  Ultima (an Electronic Arts game) has operated its own online system on various shards (servers) throughout the world.  Ultima has also recently been advertising a release of its system on Facebook.  EA, by the way, is also a publicly traded company.  Ultima itself has been available for a long time (I have fond memories of trying to complete Ultima III on an old PC).  Blizzard’s World of Warcraft, along with dozens of others, are out there.  For WoW users, ebay.com lists in-game items available for purchase with real money.  In fact, there have arisen a number of game “sweat shops” where employees work on building up inventory for various online games to offer those virtual items for sale for real currency.  As an industry, it appears that these games are here to stay.

The interesting question is whether online computer gaming can be applied within the regular business world.  Gamify.com seems to think so.

Klout and You

Klout is an online influence metric.  The site gathers information from your twitter, linkedin, facebook, google+, instagram, and other online social media web sites, and calculates a score of how your online postings influence others on the good, ole interweb.  This is an interesting metric because, if you are trying to have an impact on other users, you can experiment and see if your Klout score improves or declines.  Having a metric is helpful because the internet can be a very large echo chamber, with no outside way to measure if all the bouncing around off the rocks has any actual impact on your readership.

Try Klout out yourself and see what your current score is.  See how posting more content on various social media web sites impacts others that may follow what you are posting.  Where Klout looks for its scoring is also interesting – you might investigate whether you should join one or more of those web properties.  For example, I do have a google+ account, but rarely spend a lot of time with it.  There are a number of people that have added me to their circles and post content on google+, but I don’t spend too much time on it.  However, I thought I would check it out today.  The Dalai Lama posted a comment that we ought to use the time we have in a meaningful way.  Nice.  If you aren’t using social media to get out your message, maybe now is a good time to start doing something!

Our Conflicted Love Affair With Apple

America, and probably much of the world, loves Apple.  The company’s stock price recently has exceeded $600 per share and its market capitalization is around 1/2 of a trillion dollars.  We buy millions of iPhones and iPads, and i-This’s and i-That’s.  But there is another side to Apple and probably many of the brands that we buy in the U.S.: China.  Oh, how conflicted we are about our life’s love!

Mike Daisey has been making the rounds telling of woes he claims to have personally observed in the manufacturing center of China for Apple products.  The only problem is that Mike’s story involves a little dramatic license because he has a larger agenda which, by the way, is not journalism.  On the other hand, factories in China that make Apple products, such as Foxconn‘s, actually have blown up here and there, killing workers and causing injury to others.  Apple has hit back in recent months with assertions that it has created jobs in the U.S. directly and indirectly through supporting industries.  But there is a simple equation in all the noise: Apple makes its products outside of the U.S. because this makes commercial sense.  Part of its ability to trounce the tablet market is that Apple has negotiated larger volume, longer term, and lower-cost component parts contracts with particular suppliers because of its overall market volume.  And, of course, Apple is cool (or a cult, depending on who you ask).

As a result, Apple products remain priced so that we can buy them and Apple continues to make a healthy profit margin, in part fueling an increase in the share price of Apple from its 2002 price of under $60/share (though it probably helps that Apple is also planning to offer a dividend with all the billions in cash it has on hand, and that Apple is also planning some kind of share buy back).  Factory conditions in other countries are a problem, just as they have been in the United States.  Safety, wage and hour rules, and employee benefits do increase the cost to manufacture goods.  The question for us, though, is should we support subcontractors that avoid these costs so we can buy cheaper products at home?  Is such a business model sustainable?  What do you think?

Mac OS X Viruses: Rare but they happen

Thanks to the MacAttorney, Randy B. Singer.  Randy emailed to his mailing list about a recent virus making the rounds for Mac users.  This “Mac Flashback Trojan” has apparently infected some Mac computers.  Here is an article on how to check if your computer is infected, and how to go about resolving the issue.

For many Mac OS X users, you should have already received a Java update from Apple that will patch this problem.  If not, you can check for operating system updates by clicking on Apple icon in the upper left corner of your desktop and going to Software Update.  If a patch for Java is listed, be sure to install it promptly to protect your computer from viruses like these.

Maryland EHR Incentives

I’m willing to bet you didn’t know about Maryland’s best kept EHR incentives secret: namely, six private insurers will pay up to $15,000 each to each Maryland practice that implements an EHR before 2014.  Here are some details about the program and where you can find further information about it.

There are six insurers that participate in this incentives program: Aetna, CareFirst, Cigna, Coventry, Kaiser Permanente, and United Healthcare.  Each insurer will pay up to $15,000 in two parts to participating providers.  Half the incentive is calculated based on the total number of Maryland patients either assigned to the practice as a PCP, or at $8 per member for each Maryland insured seen by the practice in the last 24 months.  So, if in two years, you treat 938 members of one of the six insurers, you can maximize the first part of the incentive payment.  The other half of the incentive is based on your ability to meet one of the following three criteria: (a) sign up with a state MSO, (b) demonstrate advanced use of your EHR, or (c) participate in a quality improvement initiative with the insurer.

To obtain the incentive payments, you first file an Incentive Application with the appropriate private insurer prior to December 21, 2014.  The insurer will then acknowledge your application.  Then, six months after the application, you submit a Payment Application to the insurer, who will adjudicate the claim in 60 days and make your incentive payment.  These incentives are per practice (rather than by individual physician or provider), however, these are in addition to any federal incentive payments your practice may qualify to receive from CMS under the Medicare or Medicaid programs through the HiTech Meaningful Use incentives.

You can read more about this on the MHCC web site here.

Spam Spam Spam Spam Spam Spam Baked Beans and Spam

“18” year old virgins have recently found online resellers of non-prescription viagra for Magic Jack users that want cheap ski vacations that need health insurance, iPads and Dyson vacuum cleaners at rock bottom, knock off prices!  And all of these thousands of emails have been sent to my account online so that I can help a gentleman from Nigeria move $55 million in money from an African bank account into the U.S. and I can charge a humble $5 million fee to help.  I just need to send my social security number, credit card numbers, street address, and a sample of my signature to a person I’ve never met by email, deposit the bogus cashier’s check in my trust account, and then immediately write a check off the account the next day, well before the bogus check is returned by the collecting bank.

I feel as though I have ended up in the 21st century Monty Python skit about the restaurant that only seems to have “spam” on the menu.  I hear this problem continues, with more than 70% of all email amounting to spam, according to a 2011 article from Symantec (though there was a time that more than 90% of email was spam, so there has been some improvement since those dark days in 2009).  Progress has been made with some service providers that have waged a counter war against spam.  Gmail, for example, group-sources and marks messages as spam based on all messages identified by users as spam across the gmail platform.  This is a surprisingly effective strategy.  My experience has been that there are few false positives.

Previously, email systems were implemented that would check if a message was sent from a known, blacklisted IP address based on a series of independently maintained blacklist databases on the internet.  There have also been other improvements in the background, including the use of special DNS entries, and email gateways that pre-filter messages before reaching the mail server (Symantec had a product it had acquired from Brightmail; Google Apps includes a single-domain license for Postini, which is also generally effective at cutting down spam).  Spam messages often include phishing links, virus-laden email attachments, and other nefarious attacks on users.  Reducing spam makes sense for service providers that are paying, ultimately, for the bandwidth and storage space to process and deliver this junk to users.  We clearly have a way to go to reduce this problem for users.  Until then, if you need male enhancement medicine, are missing out on a $1,000 transfer to your bank account, want to help a political refugee move his family fortune to the U.S., need a usurious student loan, or want to work from home – I’m your guy!

Affordable Care Act Legal Challenges

The Affordable Care Act (ACA) was passed into law in 2010.  This 906 page tome makes a substantial number of changes to the national health care law, but much attention has been focused on the individual health care mandate which is found in section 5000A (codified at 26 U.S.C. 5000A) of the law.  This section requires that “an applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”  If that applicable individual does not have “minimum essential coverage,” that person is subject to a penalty which cannot exceed 300% of $750 ($95 in 2014 and $350 in 2015), or $2,250 in 2016, and which will increase based on a cost of living adjustment in subsequent years.

People are not happy about this requirement to either buy health insurance or face a penalty at tax time that could eat up a family’s federal tax refund.  At least some people are not happy as there have been at least four different challenges to the Affordable Care Act filed in federal court which have made there way up the various federal circuit courts where these cases were filed.  In three of these cases, the administration (defending the constitutionality of the law) was the winner, but in the 11th circuit, the challengers of the law won (in the sense that the court in that case decided to not dismiss their challenge to the law).

In the U.S. today, we generally take for granted that Congress can legislate as it believes it should, and the average person most likely does not think much about whether an act of Congress is constitutional.  However, in our system of government, the Congress is empowered to legislate pursuant to specific enumerated powers found in the Constitution.  The one in play in this case is the interstate commerce clause, which is found in Article I, section 8, clause 3 of the Constitution.  This clause permits Congress to regulate activities that affect commerce between states.  Section 1501 of the ACA discusses how the individual insurance mandate is related to interstate commerce.  There are a number of findings written into the law where Congress has identified:

  • how important health care, as an industry is, to the nation ($2.5 trillion in GDP);
  • that this insurance requirement will add millions of new consumers to the health insurance market across the country;
  • that half of all personal bankruptcies are caused, in part, by medical expenses (which presumably could have been avoided if the medical issue was covered by health insurance); and
  • people don’t buy health insurance when they are healthy, which causes adverse selection in the existing health insurance pool, driving up insurance costs for everyone that does buy insurance.

The challengers to this particular section of the law essentially are arguing that Congress has exceeded its authority in trying to mandate that individuals buy health insurance.  The idea that powers not enumerated to the Congress are reserved to the individual states and the citizens of the country is discussed in the Tenth Amendment and in the history surrounding the nation’s adoption of our Constitution in the late 18th century.  If individuals that purchase health insurance are not impacting interstate commerce, Congress arguably exceeded its authority.

There are Supreme Court decisions that have investigated the limits of the commerce clause.  Federal legislation based on the commerce clause probably hit its high water mark over the buying and selling of wheat in the 1940’s in a case cited as Wickard v. Filburn, 317 U.S. 111 (1942).  In Wickard, the plaintiff had sought injunctive relief against the secretary of the department of Agriculture to prevent the collection of a tax against him for growing more wheat than permitted by federal law which set, at the time, quotas for the amount of wheat a farmer might grow.  The plaintiff alleged that Congress’ attempt at regulating the amount of wheat that a farmer might grow and consume on the farm exceeded its authority to regulate interstate commerce, as this wheat for local use was not in the commerce between states, and could only indirectly affect such commerce.  The Court rejected this argument.

The market for wheat, at the time of Wickard, exceeded any single state in the union.  According to the Court, every state, but one, grew wheat, and all states consumed it.  The market the Congress attempted to regulate was, therefore, a national and not a local one.  That Congress had the authority to regulate such a market was, from the Court’s perspective, squarely found in the Constitution.  “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.”  Id. at 129.

Since Wickard, there has been some retreat from the relatively expansive view of the regulation of interstate commerce by Congress.  Notably, the Court indicated that a federal law aimed at criminalizing the possession of a firearm on a school campus exceeded Congress’ power.  See U.S. v. Lopez, 514 U.S. 549 (1995).  However, a divided Court decided more recently that the regulation of controlled substances, even when these drugs are only used locally as in the case of medical marijuana, may still be properly regulated by the federal government pursuant to the commerce clause.  See Gonzales v. Raich, 545 U.S. 1 (2005).

The Court today faces a number of challenges to ACA which share a commerce clause challenge as to the requirement that citizens buy health insurance or face a tax penalty annually.  To claim that health care, a $2.5 trillion market within the U.S., is not a national market, simply cannot pass the giggle test.  To further claim that making people buy health care or face a penalty, in light of the fact that most health care costs are paid for by insurance, exceeds the authority of Congress also does not pass the same test.  To the contrary – the act of not buying insurance inherently means that the risk pool for those with insurance is smaller, and therefore, increases the cost of insurance to those that carry it, plainly and directly impacts the national health care market.  If there ever was an example of local activity impacting a national industry, this would be it, given that there are between 30 and 40 million people who are uninsured in the U.S.  The challenge made, then, to ACA on this ground is to just misunderstand what Congress is supposed to be doing, and misstates an entire body of law on the enumerated powers of Congress.