Wednesday, August 29, 2007
Copyright Dogs
Today's New York Post had a lead story about Leona Helmsley (also known as "the Queen of Mean") giving $12 million in her will to her dog. Inside, on page 23, is a different story "Pups Hit the paws button." The story describes the world's first DVD detecting dogs being used to bust counterfeiters. The two dogs, Lucky and Flo, have been trained to identify and sniff out the unique polycarbonate used in DVDs; they put their skills to use yesterday in a demonstration at City Hall of bootlegs found in nearby Chinatown. So successful have the dogs been, it is reported, that a bounty was put on the pooches by counterfeiters. The dogs can't distinguish between legit and illegit DVDs though, but their skills are so refined that in a suitcase filled with canned meat, they found the one DVD.
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3 comments:
Dog sniffing?! Makes me feel like I'm re-living some of my feelings about ILLINOIS v. CABALLES (543 U.S. 405). Where do people come up with these ideas? I guess if we're going to allow drug sniffing dogs to make false-positives, there is no sensible reason to restrict them from mis-identifying DVDs. WEAK!!
CK in LA, CA.
How the dogs are used should matter quite a bit. It isn't at all obvious that the fact that you have a DVD in your luggage, even quite a few DVDs, constitutes probable cause that a crime has been committed authorizing a search.
Also, while the law generally allows security personnel to search everyone in contexts like airports and courts, on the theory that public safety is at stake, it isn't clear that the public safety justification for these non-probable cause search is also authorizes blanket searches for copyright violations.
Drug and explosive sniffing dogs in "search everyone" contexts aren't a 4th Amendment problem, because a sniff doesn't count as a 4th Amendment Search, and once there is a positive sniff, that is pretty much per se probable cause for a search for the purpose of locating illegal drugs. Carrying an undeclared controlled substance or explosive is always a crime.
But, carrying an undeclared DVD legally obtained (perhaps even brought from home with you and back) is often not a crime. A DVD sniff might take a mere reasonable suspicion based upon other evidence to the level of probable cause, but it isn't obvious that a DVD sniff by itself adheres to 4th Amendment requirements.
It used to be my job to obtain the maximum possible resources from the governments of the world to combat motion picture and video piracy so I make this comment with great respect to that effort. But there must be a finite amount of resources available in the United States and the other countries mentioned in the article to train dogs in finding particular things with particular smells. The Homeland Security folks need dogs to find people buried alive or dead from natural calamities or from terrorist attacks. Dogs can find explosives at airports and illegal drugs. Dogs can find pollutants that may pose grave health dangers and so forth.
I would feel better if as a condition of training a dog to sniff DVDs it would be trained to sniff other more directly necessary smells . . . not pizza and beer and movies.
In the Ninth Circuit, my bet is that if the dogs are in an airport you have consented to their sniffing and to the subsequent search even if its just because of a whiff of DVD.
United States v. Aukai, 04-10226
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