Friday Flybys - 3.30.07
By the way, commenting on the increase in interest of many states in establishing their own spaceports, Patti noted, "I am happy today not to have the problem of a launch site proposed from Manhattan." (Alas, some of us native Mahattanites do want a spaceport here. Well, maybe upstate? To my knowledge, the new governor has never gone on the record to dismiss the possibility....)
If you don't have a chance to view the CSIS presentation, Clark at HobbySpace also posted Patti's prepared statement, including her update on rulemaking re experimental permits regs.
(By the way SLP seconds the suggestion raised at CSIS that Patti go on Oprah to talk about space tourism!)
In honor of NOAA, wishing everyone good space and earth weather this weekend. ;)
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"...Space flight, which has been almost exclusively a spectator sport since it began, is about to open the gates to public participation. What a remarkable development that is. People who are not pilots, not scientists, not military officers, not specialists and, so far, not astronauts, will be able to take a ride to space. It will all be made possible by private entrepreneurs, investing their own resources in their own dreams and inviting the public to buy a ticket and join them."
--Patti Grace Smith, FAA/AST
Governor's amendent to Virginia space law
You'll note a number of improvements reflected in this version. Some top flight space lawyers advised the governor on this -- Jack Kennedy has the scoop on the whole fascinating process. For now, SLP congratulates the Personal Spaceflight Federation team of lawyers and everyone involved in putting together this landmark legislation.
First, the governor's amendment goes a long way to bring the bill into sync with the federal Commercial Space Launch Amendments Act (49 U.S.C. § 70101, et seq.) This focus and clarity was missing initially. The bill cites the federal statute; incorporates federal definitions as well as CSLAA's and FAA's "informed consent" scheme; federal language is added to the warning statement, etc.
Now, participants must be informed of the risks of spaceflight and acknowledge and consent ("... a spaceflight entity is not liable for a participant injury resulting from the risks of spaceflight activities, provided that the participant has been informed of the risks of spaceflight activities as required by federal law pursuant to federal law and this article, and the participant has given his informed consent...")
One big hole, the existence of liability if the spaceflight provider had "actual knowledge or reasonably should have known of a dangerous condition," is eliminated. (What were they thinking??) (You should see some of the email I got on that. Hey, I didn't write the provision.)
"Participant injury" is defined.
"Inherent risk" is now "risk." Period.
“Participant’s representative” is clarified.
Also, new language in the warning and acknowledgement statement: "I have been given the opportunity to consult with an attorney before signing this statement." (Yup, more work for space lawyers ;)
Take a look.
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HOUSE BILL NO. 3184
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Governor on March 26, 2007)
(Patron Prior to Substitute--Delegate Kilgore)
A BILL to amend the Code of Virginia by adding in Chapter 3 of Title 8.01 an article numbered 24, consisting of sections numbered 8.01-227.8 through 8.01-227.10, relating to the promotion of spaceflight in Virginia.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding in Chapter 3 of Title 8.01 an article numbered 24, consisting of sections numbered 8.01-227.8 through 8.01-227.10, as follows:
Spaceflight Liability and Immunity Act.
§ 8.01-227.8. Definitions.
For purposes of this section:
"Participant" means any space flight participant as that term is defined in 49 U.S.C. § 70102.
"Participant Injury" means any bodily injury, including death; emotional injury; or property damage sustained by the participant.
"Spaceflight activities" means launch services or reentry services as those terms are defined in 49 U.S.C. § 70102.
"Spaceflight entity" means any public or private entity holding, either directly or through a corporate subsidiary or parent, a license, permit, or other authorization issued by the United States Federal Aviation Administration pursuant to the Federal Space Launch Amendments Act (49 U.S.C. §70101 et seq.), including, but not limited to, a safety approval and a payload determination. "Spaceflight entity" shall also include any manufacturer or supplier of components, services, or vehicles that have been reviewed by the United States Federal Aviation Administration as part of issuing such a license, permit, or authorization
§ 8.01-227.9. Civil immunity for spaceflight entities.
A. Except as provided in subsection B, a spaceflight entity is not liable for a participant injury resulting from the risks of spaceflight activities, provided that the participant has been informed of the risks of spaceflight activities as required by federal law pursuant to federal law and this article, and the participant has given his informed consent that he is voluntarily participating in spaceflight activities after having been informed of the risks of those activities as required by federal law and this article. Except as provided in subsection B, no (i) participant, (ii) participant's representative, including the heirs, administrators, executors, assignees, next of kin, and estate of the participant, or (iii) any person who attempts to bring a claim on behalf of the participant for a participant injury, is authorized to maintain an action against or recover from a spaceflight entity for a participant injury that resulted from the risks of spaceflight activities.
B. Nothing in subsection A shall prevent or limit the liability of a spaceflight entity if the spaceflight entity does either of the following:
1. Commits an act or omission that constitutes gross negligence evidencing willful or wanton disregard for the safety of the participant, and that act or omission proximately causes a participant injury; or
2. Intentionally causes a participant injury.
C. Any limitation on legal liability afforded by this section to a spaceflight entity is in addition to any other limitations of legal liability otherwise provided by law.
§ 8.01-227.10. Warning required.
A. Every spaceflight entity providing spaceflight activities to a participant shall have each participant sign the warning statement specified in subsection B.
B. The warning statement described in subsection A shall contain, at a minimum and in addition to any language required by federal law, the following statement:
"WARNING AND ACKNOWLEDGEMENT: I understand and acknowledge that, under Virginia law, there is no civil liability for bodily injury, including death, emotional injury, or property damage sustained by a participant in spaceflight activities provided by a spaceflight entity if such injury or damage results from the risks of the spaceflight activity. I have given my informed consent to participate in spaceflight activities after receiving a description of the risks of spaceflight activities as required by federal law pursuant to 49 U.S.C. § 70105 and 14 C.F.R. § 460.45. The consent that I have given acknowledges that the risks of spaceflight activities include, but are not limited to, risks of bodily injury, including death, emotional injury, and property damage. I understand and acknowledge that I am participating in spaceflight activities at my own risk. I have been given the opportunity to consult with an attorney before signing this statement."
C. Failure to comply with the requirements concerning the warning statement provided in this section shall prevent a spaceflight entity from invoking the privileges of immunity provided by this article.
2. That the provisions of this act shall expire on July 1, 2013.
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IMAGE: Mid-Atlantic Regional Spaceport, Wallops Island, Virginia; courtesy Steve Earley, The Virginian-Pilot
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IMAGE: Richard Branson and kids from elementary school in Las Cruces fire model rockets on the site of the spaceport. Courtesy, Spaceport America.
Lawyers, insurance & $$$ -- oh my!
The panel included and space lawyers Jim Dunstan and Doug Griffith along with ITAR expert Kerry Scarlott, XCOR's Randall Clague, TGV Rockets' Pat Bahn.
Alas, pessimism about ITAR reform remains a staple of these panels. On the space flight insurance side, as Pat Bahn says, "Amateurs talk propellant, professionals talk insurance.” With regard to liability issues, state legislation is, as Jim Dunstan says "the next great frontier for us space lawyers.” Agreed.
By the way, Rand Simberg blogs Jim Dunstan's talk on risk, liability and space law here.
As for attracting investors, things may be slowly looking up for NewSpace. Esther Dyson said, “There’s more excitement among investors.... In other words, they’re more ready to be stupid.”
(And Esther can says that -- she's one of the investors.)
(By the way, Rand, who also spoke at the conference in Phoenix, has an uplifting story about the changing investment climate.)
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UPDATE: See all of Clark Lindsey's hot updates from the conference on RLV Space Transport News (HobbySpace, of course.)
Lawyers on The Space Show
So far this year The Space Show has featured two excellent interviews with space lawyers. Most recently, Declan O'Donnell sat in the hot seat and deftly fielded questions about international space law and the Outer Space Treaty, space property rights, liability issues and a lot more. He also discussed his organization, United Societies in Space (USIS) and what many agree is a need for a pro-business regulatory system that favors space development. Here's the show summary and Declan's bio. And now listen to the MP3 (March 12, 2007).
By the way, Declan reminded everyone he will be speaking in September at IAC 2007, in Hyderabad, India.
And last month, if you missed it, The Space Show again nabbed the one and only Jim Dunstan, who's always engaging and illuminating. Jim covered in depth FAA's brand new human space flight regulations, and he also brought along some interesting materials (-- space show and tell!) he had put together and which I will definitely link in a whole separate post. Right now, grab this podcast, I recommend it. Here's a bio for Jim and of course you can find him at his law firm, Garvey Schubert Barer.
Yes, 2007 is shaping up to be another fab year in space law media. And it's only March. Thanks David! Well watch for announcements of more space lawyers on the Show. (And truly, David must be eligible for some sort of prize for his graciousness, patience and, well, endurance, don't we all agree? ;)
HIGH FIVES from Space Law Probe to Elon Musk & SpaceX on the company's historic Falcon 1 test launch from Kwaj Atoll to space!
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"I feel very confident 10 years from now that we can be putting both satellites and people into orbit, and maybe beyond (Earth) orbit. I feel very confident in the future of commercial spaceflight, private spaceflight and I think this bodes very, very well actually for achieving some of the goals that I mentioned. It is really an excellent indicator that a small company can achieve great things....We had what I would call a relatively minor issue with the roll-control very late in the flight. But all the really big risk items, the ones we were most concerned, have been addressed. If you look at the early history of rocketry, I think they had something like 12 Atlas failures before the 13th one was successful. To get this far on our second launch being an all-new rocket -- new main engine, new first stage, new second stage engine, new second stage, new fairing, new launch pad system, with so many new things -- to have gotten this far is great." -- Elon Musk, March 20, 2007Indeed! ;)
China Moon Sale Ban Upheld
As I reported earlier (see this post, via China News), the Lunar Embassy of China lost its bid at the District Court level to sell lunar deeds. This week, no surprise, the Beijing First Intermediate People's Court upheld the ruling.
Here's the LA Times, with the headline, Chinese courts says selling moon plots is legal lunacy. (Well, that's not exactly what the court said, but you get the idea.)
Yes, real estate development and commerce will happen on the Moon. But so far, unless the law changes, vendors may want to peddle green chesse sandwiches rather than attempt to market paper moons on Earth. (Meanwhile, we'll know when citizens begin to catch on to these scams when they start offering to pay for lunar deeds with things like fake moon dirt.)
(By the way, I haven't heard anything further on the attempt by plaintiff Li Jie -- Dennis Hope's affiliate on the ground in China -- to sell "World Cup air" to those unfortunate souls who were unable to make it to the international event last year in Germany. Apparently authorities nixed that business plan too. But one wonders, can buckets of "moon air" be next?)
I will follow up in the event an appeal by the Lunar Embassy of China is taken to the nation's Supreme People's Court (最高人民法院).
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IMAGE: Beautiful Harvest moon, not yet for sale, via this quaint blog.
And last month, Feb. 12-27, my second favorite COPUOS body, the Scientific and Technical Subcommittee, held its annual session (the 44th). You can catch up with the daily journals (no final report yet) from that gathering. During the session, a symposium, organized by the Committee on Space Research (COSPAR) and the International Astronautical Federation (IAF), covered the use of equatorial orbit for space science and space applications, focusing on activities in LEO. I think one or two lawyers may have snuck into that. The session also marked the official opening of the International Heliophysical Year (IHY) 2007.
And as noted in the UN's press statement, the subcommittee adopted the voluntary mitigation guidelines for space debris which are based on the Inter-Agency Space Debris Coordination Committee (IADC) space debris mitigation guidelines. Word is, COPUOS will adopt these guidelines.
The Scientific and Technical Subcommittee also continued its multi-year work on issues concerning near-earth objects, space-system-based disaster management support, nuclear power source applications in outer space, and more. Kinda makes you sorry you're a lawyer and not a really talented science type person.
And as I've noted, subcommittee action aside, in this the 50th anniversary of the space age, COPUOS itself will hold its 50th session, June 6-15, 2007, in, as always, lovely Vienna. Happy 50th to COPUOS and all its 67 member states.
Second Life for Pluto
To commemorate Pluto Planet Day, for what it's worth, and to applaud New Mexico's Plutonian vision (although I don't necessarily agree), and to celebrate the 77th anniversary of the announcement of the discovery of the heavenly body named Pluto, whatever in fact it is, I took a look back at an interactive event on Second Life titled, "Is Pluto a Planet?" with Troy McLuhan, which took place on central stage of the International Spaceflight Museum, located at Spaceport Alpha. The debate happened some months ago, I missed the event in real time (or more precisely, SL time), but Troy sent me a transcript of the fun and somewhat edifying proceedings. And yes, a bit of law was cited. If you want a copy of the transcript of this very casual, very Second Life-like event (and if you've ever been on SL you know what I mean by that), send me a note.
And I'll be posting any other space law related news from SL. (So far no space lawyers have hung out a shingle on the much-hyped virtual 3D world. But yes, there are lots of lawyers over there. I was thinking of starting a group called SLSLSL -- Second Life Space Law Society & Lounge. Nah...)
For the blogspace record, the International Spaceflight Museum is the coolest destination on SL. Well, at least the coolest G-rated destination. (I won't discuss some of the other places I may have teleported to. This is a family blog.)
By the way, if you are a member of SL you can teleport to Spaceport Alpha by clicking here. Walk right into the museum from there. Hope I bump into you. (I'm no hot-shot 3D scripter or digital fashionista, so be kind when you see my avatar. I don't get out there much and she could definitely use some new hair.)
Hot new Journal of Space Law
(Tell Prof. Joanne Gabrynowicz Space Law Probe sent you. ;)
JOURNAL OF SPACE LAW
UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW
A JOURNAL DEVOTED TO SPACE LAW AND THE LEGAL PROBLEMS ARISING OUT OF HUMAN ACTIVITIES IN OUTER SPACE
Volume 32 Winter 2006 Number 2
Divergences and Convergences - Space Law and Intellectual Property Regimes:
A Dedicated Issue
Joanne Irene Gabrynowicz
Call for Papers
Outer Space Activities and Intellectual Property Protection in Nigeria
How On Earth Terrestrial Laws Can Protect Geospatial Data
Julie D. Cromer
Copyright Claims For Meteosat And Landsat Images Under Court Challenge
Comment. Intellectual Property in Outer Space: International Law, National Jurisdiction, and Exclusive Rights in Geospatial Data and Databases
Lee Ann W. Lockridge
Of Gardens and Streets: A Differentiated Model of Property in International and National Space Law
Kali N. Murray
Symposium Transcript: Opening and Closing Remarks; Practitioner’s Panel
Intellectual Property Resources In and For Space:
The Practitioner’s Experience
Gary G. Borda
Joanne Irene Gabrynowicz
Pam L. Meredith
Bradford Lee Smith
Report of the IISL Space Law Colloquium in Fukuoka, Japan, October 2005
Edited by Tanja Masson-Zwaan
Framework Agreement between the Government of the United States of America and the Government of the French Republic for Cooperative Activities in the Exploration and Use of Outer Space for Peaceful Purposes
Space Law and Relevant Publications
Macey L. Edmondson
Law Review Articles
Pending Legislation and Regulation
I, Robot Lawyer
Does it take a human to practice, say, space law? It may. Last month the Ninth Circuit Court of Appeals found that a web-based for-pay program that claimed to deliver "expert" legal services was in fact practicing law without a license. Well, the program's non-lawyer owner was. Big no-no. Thank goodness the case involved a bankruptcy law program, not some space law AI software. Interestingly, the lawbot apparently made no claim it applied to an accredited law school but was rejected. (Via Instapundit.)
But what about the future? Don't forget those "lawyer programs" in David Brin's novel, Earth. (Spivey held up one hand. "First I must tell you, Mr. Eng, that what we're about to discuss is highly classified. Top secret." Logan winced. "I want my lawyer program." The officer smiled placatingly. "I assure you it's all legal...")
For now at least, lawyers jobs are safe from robots. But are robots safe? As BBC reports, South Korea is planning for our robotic future by putting together a Robot Ethics Charter, to be released this year -- a set of guidelines covering the role of robots and prevention of robot abuse by humans. Or is it the other way around? (Also via Instapundit.)
(By the way, whatever happened to robot lawyers Stacey, Dave and Nathan?)
No matter. A robot lawyer or lawdroid will probably never make the Wired's list of the 50 Best Robots Ever. Or will one?
(And can robot judges be far behind?)
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Image: ASIMO, cool humanoid robot by Honda. Studying for the robot bar.
It all started of course with the launch of the first satellite, Sputnik 1, Oct. 4, 1957. And let's not forget Sputnik 2, one month after, Nov. 3, 1957, carrying the famous astrodog, Laika. Was it really only 50 years ago?
This year also marks fifty years since the establishment of the International Geophysical Year.
And the lawyers were not far behind: as I've blogged about here, 2007 marks not the 50th, but the 40th anniversary of the so-dubbed Magna Carta of space, the Outer Space Treaty. After all, you can't change the world and usher in a new era without getting some shiny new law to go with it.
Celebrate space all year. Over on the law side, the University of Nebraska already got the ball rolling. And here's another event: the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) and the International Astronautical Federation, in cooperation with UNESCO, COSPAR, the IAA, the International Institute of Space Law and ESA, is hosting an event featuring "four distinguished speakers who will reflect on what has been achieved in space over the past fifty years, and who will look ahead to what can be anticipated in the coming fifty years." The event takes place on March 21, 2007 at UNESCO in Paris. Dr. Neil deGrasse Tyson will there from my hometown, NYC. Here is the programme.
(And, speaking of UNCOPUOS, I would note another 50th anniversary: as I've posted, the 50th session of the Committee on the Peaceful Uses of Outer Space will be held from June 6-15, 2007 in Vienna, Austria.)
A toast! Happy anniversary (actually, anniversaries) to all space agers (and space dogs ;).
Global Remote Sensing Laws
By way of background (i.e. the executive summary):
This study reviews some of the laws and policies that address the commercialization and privatization of space-based remote sensing systems, data, and data products. It contains an analysis of some existing policies, and identifies some Nations that have been reported to be commencing space-based remote sensing activities but do not yet have formal laws and policies. It also identifies some global trends and includes a Nation-by-Nation synopsis of relevant laws and policies. The countries reviewed include Argentina, Australia, Austria, Belgium, Brazil, Canada, China, European Community, France, Germany, Hong Kong (special administrative region of China), India, Iran, Israel, Italy, Japan, Malaysia, Nigeria, Poland, the Russian Federation, South Africa, South Korea, Spain, Thailand, Turkey, Ukraine, the United Arab Emirates, the United States of America, and the United Kingdom.
It's pretty much everything in a nutshell you want to know about remote sensing law on Earth.
The study reveals, inter alia, there's "relatively little formal law, and there are more policies than laws, but the trend is to establish more formal law. Remote sensing applications are catalyzing both remote sensing-specific law and national space law."
It reports that "[a]ccess to data is the presumed norm with exceptions for national security; the number and kind of exceptions are growing; the UN Principles on Remote Sensing are being more narrowly construed." And it observes "shifts," which include "from focusing on data to focusing on users, to focusing on the context of transactions; from profits to becoming operational," and "a steadily increasing interest in disaster response, mitigation, and management." And many more insights.
Don't miss the nation-by-nation charts which summarize national space and remote sensing laws, relevant regulations, policies, and other related laws
and data policies, starting at page 26.
Another gem from Prof. Joanne Gabrynowicz and her crew.
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Image: Landsat 7 image of Washington, DC acquired on May 9, 2005.
Hope for ITAR?
Jeff, speaking for just about everyone in the commercial space arena when he laments, "export control reform is like the weather: everyone talks about it, but no one, it seems, does anything about it," has this observation:
Now, though, there appears to be a chance to make a serious attempt at some form of export control reform. The change in control of Congress after the 2006 elections has put new people into leadership positions of key committees, including some representatives who may be more amenable to reform. However, getting that reform passed through Congress is no easy task, and is fraught with political peril for those who do support it. The odds of getting meaningful reform passed during this Congress may be higher now than they have been for years, but that doesn’t mean the process will be straightforward or assured of success.
Jeff overviews industry complaints about our dreaded U.S. export control regulations aired during a panel this month at the Satellite 2007 conference. We've heard all these serious complaints about ITAR a million times, and it remains critical that industry keep voicing its issues and concerns.
But here is something we haven't heard. An apology from retired Air Force colonel David Garner who as Jeff reports, helped put together the legislation that is a nemesis of space industry: “For what little part I played in where we are now, I’m sorry, and I’m trying to make it right by admitting to the error,” he said. “We never wanted to control parts and components.”
So what now? Jeff cites Congresswoman Ellen Tauscher (D-CA), chair of the strategic forces subcommittee of the House Armed Services Committee, as "[o]ne of the strongest advocates for export control reform on Capitol Hill." You go girl. Although Rep. Tausher's deputy chief of staff warns that in Congress, “[n]ot much has changed.” Jeff quotes him as saying that leadership of certain committees remains "more pro-security than pro-business. So I would see a fairly conservative outlook for major change in the short term.”
But will the Defense Science Board's (DSB) report, expected this year, include a recommendation that the president appoint a nonpartisan commission on export control reform that would look into the issue and provide some guidance for Congress, as Garner hopes? That would be a welcome development, and at least a step in the direction of long-overdue ITAR reform.
(ABC/Jimmy Kimmel Live, via DevilDucky. Of course, if this was a real ad, you know, it would have to satisfy applicable state ethics rules on lawyer advertising, solicitation and marketing...)
SPACE Act of 2007
Here's your registration application and other info for March Storm 2007 if you'd like to participate in the ProSpace citizen space lobbyists' well-organized, annual visit to Capitol Hill to discuss hot issues with lawmakers pursuant to ProSpace's goal of "opening the space frontier."
And if you haven't seen it yet, here's the six-page draft SPACE Act of 2007 (or more formally, the "Space Prizes for the Advancement of Commerce and Enterprise Act of 2007" -- legislation the space savvy citizen lobbyists will call on Congress to introduce and pass that would authorize the establishment of a National Space Prize Board, with an annual budget of $100 million and authority to award prizes up to $400 million.
And according to the March Storm invitation, other preliminary items on this year's Citizens' Space Agenda include: near earth objects (asteroids and comets), ITAR reform and NASA/Commercial Services.