Ruling Imagination: Law, Art & Creativity, by Peter Friedman

From Blog to Book.
http://blogs.geniocity.com/friedman/
Contents
1 2008
1.1
29
August . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
Introducing Ruling Imagination: Law and Creativity (2008-08-04 13:21) . . . . . . . .
29
Ruling Imagination: Law and Creativity (2008-08-05 08:59) . . . . . . . . . . . . . . . .
29
31
32
33
34
34
35
Ruling Imagination:
1.2
Law and Creativity/Is creativity individual or collective?
(2008-08-14 04:35) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36
37
Creativity and Civilization Require Constraints (2008-08-18 00:10) . . . . . . . . . . . .
38
The 100 Most Creative Moments in U.S. Law? (2008-08-19 10:25) . . . . . . . . . . . .
40
Lawyers need to be effective, not necessarily original (2008-08-20 10:59) . . . . . . . . .
41
Effective Storytelling, McDonalds Coffee, and the Law (2008-08-21 05:06) . . . . . . . .
41
Novelty alone is not creativity, whether in the legal strategy for the war on terror or the
invention of the Segway (2008-08-21 21:52) . . . . . . . . . . . . . . . . . . . .
43
To catch a thief (2008-08-25 08:58) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
Gerry Spence on being a lawyer and a human being. (2008-08-26 00:18) . . . . . . . . .
46
The uses and abuses of the differences between the law on the books and the law in action
(with a particular emphasis on copyright overclaiming) (2008-08-27 00:17) . .
47
Support the troops! (2008-08-28 07:12)
. . . . . . . . . . . . . . . . . . . . . . . . . . .
49
Barney Smith not Smith Barney (2008-08-29 00:24) . . . . . . . . . . . . . . . . . . . .
50
September . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
50
We all, always, are figuring out the stories the world is telling us. (2008-09-02 09:59) . .
50
Segways. (2008-09-02 17:23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51
With whom would you prefer a lager? (2008-09-02 21:31) . . . . . . . . . . . . . . . . .
52
Just because most people like it doesnt mean you have to (2008-09-03 11:01) . . . . . .
52
The wars are over! The wars are over! (2008-09-03 14:51) . . . . . . . . . . . . . . . . .
53
3
1.3
The confusion (and, often, anxiety) that inevitably arises when confronting new and difficult problems (2008-09-05 09:59) . . . . . . . . . . . . . . . . . . . . . . . . . .
55
Propaganda (2008-09-05 13:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56
Sarah Barracuda? Not if Heart can help it. (2008-09-06 13:11) . . . . . . . . . . . . . .
56
Buying art and then refusing to pay (2008-09-08 04:49) . . . . . . . . . . . . . . . . . .
57
Negativelands positivity (2008-09-09 06:07) . . . . . . . . . . . . . . . . . . . . . . . . .
58
Court rules Harry Potter Lexicon infringed J.K. Rowlings copyright (2008-09-09 09:59)
60
The Bush Administrations tyrannical torture policies and its rewards (2008-09-10 00:17)
60
What is creativity in law? (2008-09-11 07:38) . . . . . . . . . . . . . . . . . . . . . . . .
61
September 11, 1973 (2008-09-11 21:15) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62
Looking at Guantanamo (2008-09-15 02:23) . . . . . . . . . . . . . . . . . . . . . . . . .
62
We are all cultural magpies. (2008-09-16 11:18) . . . . . . . . . . . . . . . . . . . . . . .
64
This morning I didnt think about the fact I wasnt being original. (2008-09-16 19:35) .
65
An appeal in the Harry Potter Lexicon case? (2008-09-17 08:57) . . . . . . . . . . . . .
65
Where should art be, and how does it often get where it is? (2008-09-17 13:48) . . . . .
65
Foreign law and legal argument (2008-09-18 09:15) . . . . . . . . . . . . . . . . . . . . .
68
Whats so wrong about looking to foreign law? (2008-09-19 09:08) . . . . . . . . . . . .
69
Foreign law, the Federalist Societys view that the U.S. is better than the rest of the world,
and censhorship (2008-09-20 14:15) . . . . . . . . . . . . . . . . . . . . . . . .
71
Good Guys, Bad Guys, the ambiguity of everyday life, and effective argument.
(2008-09-22 05:22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72
Look for new combinations of old things (2008-09-23 11:50) . . . . . . . . . . . . . . . .
73
Sometimes you need a chimpanzee to move the law forward (2008-09-24 08:26) . . . . .
74
Thanks to Washoe, Animal Law is even entering legal education (2008-09-25 09:36)
. .
74
A new breed of lawyers (2008-09-26 07:21) . . . . . . . . . . . . . . . . . . . . . . . . . .
75
Anatomy of a Murder, or How to Coach a Witness (2008-09-29 12:15) . . . . . . . . . .
76
If a corporation is a person, why is an animal no more than a chair? (2008-09-30 00:34)
77
October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78
1984 Redux? (2008-10-06 12:28) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78
What is obscene? (2008-10-07 10:09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79
The life of the law is a life of art (2008-10-08 11:00) . . . . . . . . . . . . . . . . . . . .
79
How do we explain human beings? (2008-10-10 08:23) . . . . . . . . . . . . . . . . . . .
79
Lessig on Copyright Law: 5 ways to improve it. (2008-10-13 11:44) . . . . . . . . . . . .
80
Is there evidence of voting fraud? Not if you look at all the facts. (2008-10-14 10:17) . .
80
The rhetoric of naming. (2008-10-14 14:45) . . . . . . . . . . . . . . . . . . . . . . . . .
81
How do lawyers solve problems? Any and every way they can. (2008-10-15 10:51) . . .
82
The Chief Justice wishes he were Dashiell Hammet. (2008-10-16 09:27) . . . . . . . . .
82
How can something new come entirely from old things? (2008-10-17 09:26) . . . . . . .
83
Supreme Court dampens hysteria over alleged registration irregularities (2008-10-17 13:21)
84
1.4
For the weekend: Homer says, Its the law. (2008-10-17 18:47) . . . . . . . . . . . . . .
84
Friday Night Music Club: Chris Whitley, Living with the Law (2008-10-17 21:15) . . . .
84
Good lawyering means never being satisfied with one answer. (2008-10-19 20:36) . . . .
84
Creative law enforcement in difficult times (2008-10-20 23:11) . . . . . . . . . . . . . .
85
The KLF knew bankers were pushers (2008-10-21 12:47) . . . . . . . . . . . . . . . . . .
85
Registration Fraud? ACORN as the second coming of the Bolsheviks? Think again.
(2008-10-21 19:46) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
86
ACORN ACORN ACORN ACORN ACORN ACORN ACORN (2008-10-21 23:35) . . .
86
If you scam a villain, maybe youre a hero. (2008-10-22 12:46)
. . . . . . . . . . . . . .
86
Litigants gone wild (2008-10-24 00:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
87
We mere humans have let the financial geniuses down. (2008-10-24 05:36) . . . . . . . .
88
A Legal Guide for Bloggers (2008-10-24 18:58) . . . . . . . . . . . . . . . . . . . . . . .
90
The Army said get information, and feel free to be creative in doing so. (2008-10-27 12:42)
90
Lawyers who want to be writers. (2008-10-28 07:14) . . . . . . . . . . . . . . . . . . . .
90
The most innovative lawyers in the U.K. (2008-10-28 09:11) . . . . . . . . . . . . . . . .
91
20 Civil Liberties Laws Every American Should Know (2008-10-29 06:45) . . . . . . . .
91
Settlement imminent in lawsuit against the Google Library Project? (2008-10-29 12:53)
92
Jurist - the oldest and still greatest legal news site (2008-10-30 05:38) . . . . . . . . . .
93
One word can make all the difference. (2008-10-30 10:08) . . . . . . . . . . . . . . . . .
94
Fred Baron, R.I.P. (2008-10-31 05:37) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
94
Vernon Jordan on Primus King, true courage, and the long road weve traveled
(2008-10-31 06:18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
95
Friday Nights Music Break: Graham Nashs Chicago (2008-10-31 16:23) . . . . . . . .
97
November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
97
Is Google no longer the Copy-Lefts white knight? (2008-11-01 00:00) . . . . . . . . . .
97
Proceedings of the Old Bailey, 1674-1913 (2008-11-03 07:07) . . . . . . . . . . . . . . . .
98
This Land is Your Land (2008-11-04 00:13) . . . . . . . . . . . . . . . . . . . . . . . . .
98
U.S.A. Post-Election Music Break Nina Simone, Feeling Good. And Aeschylus: He
who learns must suffer. And even in our sleep pain that cannot forget falls drop
by drop upon the heart, and in our own despair, against our will, comes wisdom
to us by th (2008-11-05 00:03) . . . . . . . . . . . . . . . . . . . . . . . . . . .
99
Protecting copyright through new technologies must accomodate our constitutional rights
to free speech. (2008-11-06 00:55) . . . . . . . . . . . . . . . . . . . . . . . . .
99
Do we really want to treat artists like shoplifters? (2008-11-07 08:49) . . . . . . . . . . .
100
Friday Night Music Club: Yo La Tengo, The Whole of the Law (2008-11-07 20:43) . .
102
If criminals are criminals because they seek profit, what do you do if you want to prosecute
people for acts they commit with no intent to make money? You change the law.
(2008-11-10 06:26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
102
Repeat after me: being a good lawyer means doing good for the client. (2008-11-11 00:07)
103
Its Veterans Day (2008-11-11 11:55) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
103
5
Dont be fooled again. (2008-11-12 11:23) . . . . . . . . . . . . . . . . . . . . . . . . . .
103
I confess: Im complicit in a corrupt and dishonest system. (2008-11-13 00:17) . . . . .
104
Speaking of Alaskas Governor . . . (2008-11-13 00:17) . . . . . . . . . . . . . . . . . . .
105
Language abuse is posing an existential threat to those around me. (2008-11-13 06:30) .
105
What, indeed, is fair use? (2008-11-13 08:36) . . . . . . . . . . . . . . . . . . . . . . . .
106
Barack Obama, law professor (2008-11-14 09:51) . . . . . . . . . . . . . . . . . . . . . .
107
Top 10 of the Worlds Weirdest Compensation Claims (2008-11-14 10:39) . . . . . . . .
107
Friday Night Music Break: Laurie Anderson: Only an Expert (2008-11-14 18:09) . . . .
108
Friday Night Music Break: Was (Not Was): Hello Dad, Im in Jail (2008-11-14 19:18) .
108
Surely youre joking. I can tell by that ridiculous price. (2008-11-16 22:00) . . . . . . .
108
McElhaney on being a good writer and speaker: let the story pick the words. Glass: and
then explain the point. (2008-11-17 07:03) . . . . . . . . . . . . . . . . . . . .
110
Question authority, and then question those questioning authority (2008-11-18 10:59) .
110
If you cant say it clearly, you arent thinking it clearly. (2008-11-19 00:05) . . . . . . .
111
Lewis Hyde: remaking copyright by recovering the past (2008-11-20 10:21)
. . . . . . .
113
. . . . . . . . . . . .
114
I dont know how to tell you all just how crazy this life feels (2008-11-20 18:06) . . . . .
114
The beginning of the end of a legal nightmare? (2008-11-21 09:03) . . . . . . . . . . . .
115
Friday night music break (2008-11-21 18:03) . . . . . . . . . . . . . . . . . . . . . . . . .
117
Negotiating between playwrights and non-profit theaters (2008-11-22 12:21) . . . . . . .
117
Should museums return antiquities to their countries of origin? (2008-11-24 08:30) . . .
118
Zippy the Pinhead: Siegel, Shuster & Z-Man (2008-11-24 18:10) . . . . . . . . . . . . .
119
A couple of small laughs (2008-11-25 10:11) . . . . . . . . . . . . . . . . . . . . . . . . .
119
Rhetoric, hot air, and powerful speech (2008-11-26 12:12) . . . . . . . . . . . . . . . . .
120
The Power to Pardon and Turkeys (2008-11-28 09:45) . . . . . . . . . . . . . . . . . . .
122
Thankgiving Weekend Music Break (2008-11-29 13:36) . . . . . . . . . . . . . . . . . . .
123
Bail out the Big Three! (2008-11-30 13:05) . . . . . . . . . . . . . . . . . . . . . . . . .
123
December . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
124
Has the Copy-Left lost its white knight? (2008-12-01 00:05) . . . . . . . . . . . . . . . .
124
Why did I call Google a (former?) white knight? (2008-12-02 10:37) . . . . . . . . . .
125
Could Thomas Kinkade assert a property right over his style? (2008-12-03 10:03) . . .
125
Is Wal-Mart a person? Kind of, but not really. (2008-12-04 09:48) . . . . . . . . . . . .
126
Donald Trump, Pop Star (2008-12-05 09:25) . . . . . . . . . . . . . . . . . . . . . . . . .
127
Friday Night Music Club: Tom Paxton: One Million Lawyers (2008-12-05 18:12) . . . .
128
Living the life of an artist or stealing? Coldplay faces the question once again
(2008-12-07 00:22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
128
Art & Money, Part X (2008-12-08 00:33) . . . . . . . . . . . . . . . . . . . . . . . . . . .
130
Sorry, but your political enemies can use your copyrighted works (as long as their use is
fair use). (2008-12-09 05:37) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
131
If youre a bitter lawyer, theres a site for you. (2008-11-20 17:13)
1.5
Moneys value is at bottom dependent on our belief in its value, and art that illustrates
this point is not counterfeiting (2008-12-09 14:27) . . . . . . . . . . . . . . . .
134
Larry Lessig: How law strangles creativity (2008-12-10 00:41) . . . . . . . . . . . . . . .
134
Involved in a lawsuit? Be ready to welcome the world into your life. (2008-12-10 07:55)
135
Should we even consider foreign law in making our own? (2008-12-11 04:08) . . . . . . .
135
Lawyers in movies, then and now (2008-12-11 15:32) . . . . . . . . . . . . . . . . . . . .
136
Franz Welser-Mst is a snob, Donald Rosenberg is engaged in a seemingly futile lawsuit,

and Cleveland is no farmers village. (2008-12-15 01:44) . . . . . . . . . . . . .
137
In these difficult times, artists will need to depend on artists to produce new and innovative
art. (2008-12-16 03:07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
139
Mr. Potato Head, Esq. (2008-12-17 07:30) . . . . . . . . . . . . . . . . . . . . . . . . . .
141
Piecing together coherence (2008-12-18 00:15) . . . . . . . . . . . . . . . . . . . . . . . .
142
Law is real, and so is art. (2008-12-18 16:43) . . . . . . . . . . . . . . . . . . . . . . . .
143
Negotiating with authorities as part of the art itself (2008-12-19 05:20) . . . . . . . . . .
144
Survival (2008-12-19 16:29) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
145
The art behind the bull (2008-12-22 11:07) . . . . . . . . . . . . . . . . . . . . . . . . .
145
RIAA to stop suing over illegal downloads (2008-12-22 12:57) . . . . . . . . . . . . . . .
146
Bush v. Gore lives, as it should. (2008-12-23 09:31) . . . . . . . . . . . . . . . . . . . .
146
The e-book will open a new front in an ongoing legal revolution. (2008-12-24 11:39) . .
147
Its way later than 1984. (2008-12-24 17:28) . . . . . . . . . . . . . . . . . . . . . . . . .
148
MERRY Christmas! (2008-12-24 19:35) . . . . . . . . . . . . . . . . . . . . . . . . . . .
150
Buying art? Buyer beware! (2008-12-26 11:43) . . . . . . . . . . . . . . . . . . . . . . .
150
Defamantion and Anonymity (2008-12-29 13:27) . . . . . . . . . . . . . . . . . . . . . .
151
Knowing liars (2008-12-30 10:12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
152
If its too good to be true, its too good to be true. (2008-12-31 12:12) . . . . . . . . . .
152
2 2009
2.1
155
January . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
155
Righting wrongs the American way (2009-01-06 09:51) . . . . . . . . . . . . . . . . . . .
155
Representing clients in a changing world (2009-01-06 12:48) . . . . . . . . . . . . . . . .
155
Scrabble v. Scrabulous redux (2009-01-07 17:10) . . . . . . . . . . . . . . . . . . . . . .
156
You dont have to sue defamation and exposure (2009-01-08 11:07) . . . . . . . . . . .
157
Art exposing law: Pirates of the Amazon (2009-01-09 10:45) . . . . . . . . . . . . . . . .
157
Guilty until proven innocent (2009-01-12 12:27) . . . . . . . . . . . . . . . . . . . . . . .
158
Judging Puce (2009-01-12 17:06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
159
Lawrence Lessig on The Colbert Report (2009-01-13 00:25) . . . . . . . . . . . . . . . .
159
Law is, first and foremost, human drama. (2009-01-14 12:29) . . . . . . . . . . . . . . .
159
Law as performance (2009-01-14 18:41) . . . . . . . . . . . . . . . . . . . . . . . . . . .
160
Colbert, remixed! (2009-01-14 22:59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
161
7
2.2
Law in Art/Law as Art (2009-01-15 01:50) . . . . . . . . . . . . . . . . . . . . . . . . . .
161
Someone must have traduced Maher A. . . . (2009-01-15 01:52) . . . . . . . . . . . . . .
162
Whos the good guy? (2009-01-16 02:39) . . . . . . . . . . . . . . . . . . . . . . . . . . .
164
Business and law adjusting to our new world (2009-01-22 13:45) . . . . . . . . . . . . .
165
Good lawyers understand they are poets. (2009-01-22 22:41) . . . . . . . . . . . . . . .
166
Are lawyers and artists completely different and atagonistic? (2009-01-23 14:32) . . . .
167
Oppositional figures? (2009-01-26 17:26) . . . . . . . . . . . . . . . . . . . . . . . . . . .
168
Copying or transforming? (2009-01-26 19:14) . . . . . . . . . . . . . . . . . . . . . . . .
169
A funny thing happened on our way from the Cold War (2009-01-27 20:41) . . . . . . .
169
When does appropriation serve creativity? Quite often, in fact. (2009-01-27 21:49) . . .
169
One artists take on issues related to Shepard Fairey (2009-01-28 21:23) . . . . . . . . .
170
And still another take on appropriation and originality (2009-01-28 21:46) . . . . . . . .
171
Heres an old film that fueled my imagination (2009-01-28 21:53) . . . . . . . . . . . . .
171
Its a good day for feisty working women. (2009-01-29 11:31) . . . . . . . . . . . . . . .
171
How the Stimulus Bill will become law. (2009-01-30 13:35) . . . . . . . . . . . . . . . .
172
The Lonesome Death of Hattie Caroll and the recent death of her killer. (2009-01-30 23:46)
172
February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
172
Economic pressures motivate law firms to try innovative billing practices (2009-02-01 02:20)
172
How do we promote creativity? (2009-02-03 15:46) . . . . . . . . . . . . . . . . . . . . .
175
A happy and grateful welcome to A + E: Art + Environment / Architecture + Engineering

/ Aesthetics + Ethics (2009-02-03 16:04) . . . . . . . . . . . . . . . . . . . . .
176
Shepard Fairey, Creator of Iconic Obama Image, Speaks About His Art (2009-02-04 01:34)
176
Detroit Mercy is one of the most innovative law schools in the U.S. (2009-02-04 13:03) .
176
The fight is on: AP sues Shepard Fairey. (2009-02-05 00:26) . . . . . . . . . . . . . . . .
177
Let us regain the understanding that law is to do Justice. (2009-02-05 10:44) . . . . . .
177
Why AP has little chance of success against Shepard Fairey (2009-02-06 20:20) . . . . .
179
Again, lets give more attention to individual justice and less devotion to abstract rules
(2009-02-09 10:24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
181
Now Shepard Fairey sues AP (2009-02-10 01:25) . . . . . . . . . . . . . . . . . . . . . .
182
I think the answer is yes. (2009-02-11 00:04) . . . . . . . . . . . . . . . . . . . . . . . .
182
The Great Emancipator, 200-year-old mashup artist (2009-02-12 02:23) . . . . . . . . .
183
Courts are supposed to do justice even if doing so costs individuals a lot of money.
(2009-02-13 06:21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
185
Collage is art, not theft. (2009-02-16 09:03) . . . . . . . . . . . . . . . . . . . . . . . . .
186
Happy . . . er, Washingtons Birthday? (2009-02-16 12:17) . . . . . . . . . . . . . . . .
187
Justice Roberts: I am the best qualified to do what I do. (2009-02-16 17:23) . . . . . . .
187
Are we not men of laws? (2009-02-17 14:47) . . . . . . . . . . . . . . . . . . . . . . . . .
188
Remix America, I salute you! (2009-02-18 15:57) . . . . . . . . . . . . . . . . . . . . . .
189
Justice? (the remix) (2009-02-20 05:30) . . . . . . . . . . . . . . . . . . . . . . . . . . .
190
2.3
Bob Marley: I Shot the Sheriff (2009-02-20 21:08) . . . . . . . . . . . . . . . . . . . . .
190
The law firm of the future? (2009-02-23 10:15) . . . . . . . . . . . . . . . . . . . . . . .
190
The Associated Press seems bent on waging an unwinnable war. (2009-02-24 11:29) . .
191
Do we really want to treat teenagers singing Winter Wonderland like shoplifters?

(2009-02-24 16:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
191
Mark Twain: we are sewing machines re-weaving old threads. (2009-02-25 07:31) . . . .
191
Law Firms and Layoffs (2009-02-25 14:50) . . . . . . . . . . . . . . . . . . . . . . . . . .
192
Authors audio rights and the accelerating changes in technology (2009-02-25 17:09) . .
193
U.S. Journalism is nothing but he says, she says (2009-02-26 15:47) . . . . . . . . . . . .
193
The Wallflowers: Lawyers, Guns, and Money (2009-02-26 15:53) . . . . . . . . . . . . .
193
Shepard Fairey did not infringe APs copyright because AP could not have had a copyright
in anything Shepard Fairey used in his Obama Hope poster. (2009-02-27 01:59)
193
Wiki contract drafting - wow, I wish Id thought of that. (2009-02-27 16:57) . . . . . . .
195
Friday Night Music Club: Luna: Bonnie & Clyde (2009-02-27 17:18) . . . . . . . . . . .
196
Take less risk and earn less; youll be richer in the end. (2009-02-28 15:05) . . . . . . . .
196
More on Money (2009-02-28 19:37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
198
March . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
198
Hard cases make GOOD law. (2009-03-04 15:50) . . . . . . . . . . . . . . . . . . . . . .
198
You hang yourself with your own words. (2009-03-05 17:42) . . . . . . . . . . . . . . . .
200
Chief Justice John Roberts on legal writing (2009-03-06 18:08) . . . . . . . . . . . . . .
201
Friday Night Music Club: Joan Baez sings Percys Song (2009-03-06 18:21) . . . . . . .
201
Is Shepard Fairey a hypocrite? (2009-03-09 16:43) . . . . . . . . . . . . . . . . . . . . .
201
Dont look back? (2009-03-10 12:11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
202
The making of a lawyer (2009-03-12 11:57) . . . . . . . . . . . . . . . . . . . . . . . . .
203
Good lawyering means remixing (2009-03-12 12:35) . . . . . . . . . . . . . . . . . . . . .
204
The financial institutions and their lawyers could not see the big picture, redux
(2009-03-12 17:18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
204
Shepard Fairey, lightning rod (2009-03-13 16:32) . . . . . . . . . . . . . . . . . . . . . .
206
The ACLU on the Nazis right to march in Skokie, Illinois (2009-03-13 18:21) . . . . . .
206
Friday Night Music Club: Warren Zevon, Mr. Bad Example (2009-03-13 19:45) . . . . .
206
Dow v. Rohm & Haas, settled (2009-03-15 20:08) . . . . . . . . . . . . . . . . . . . . . .
206
A rant (2009-03-17 21:49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
207
A better solution to the mortgage crisis, the federal governments bailout policies, and AIGs
failures to meet the obligations it took the risk of not meeting (2009-03-18 08:27)
208
Best bonds: AIG? Greatest Fascist Dictator: Adolf Hitler? Best Law School: ?????
(2009-03-19 11:35) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
209
War is Peace, or They can sue, but you cant. (2009-03-20 00:59) . . . . . . . . . . . . .
211
We can work it out? (2009-03-20 19:10) . . . . . . . . . . . . . . . . . . . . . . . . . . .
212
Taking care of people and keeping standards high (2009-03-26 17:50) . . . . . . . . . . .
212
9
2.4
Is Michael Murphy another Shepard Fairey? (2009-03-26 18:27) . . . . . . . . . . . . . .
213
I never thought Id agree with John Ashcroft. (2009-03-26 18:42) . . . . . . . . . . . . .
214
Is republication of Mark Cubans tweet on Twitter non-infringing? Almost certainly it is.

(2009-03-30 12:15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
215
April . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
216
The rise of the conservative legal movement (2009-04-01 13:18) . . . . . . . . . . . . . .
216
I think we should shoot puppies! (2009-04-02 10:15) . . . . . . . . . . . . . . . . . . . .
217
Who should most influence the creation and intepretation of our laws? (2009-04-02 13:28)
217
The financial crisis is an opportunity for innovation in legal practice and law schools.
(2009-04-02 17:47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
218
Greenberg v. AIG: the evidence and the truth (2009-04-03 12:27) . . . . . . . . . . . . .
219
We have lost too, too much. Dont let history disappear. (2009-04-03 15:28) . . . . . . .
221
Curly takes the stand. (2009-04-03 17:52) . . . . . . . . . . . . . . . . . . . . . . . . . .
221
Dont let history disappear, redux. (2009-04-04 13:06) . . . . . . . . . . . . . . . . . . .
221
Free Speech, Copyright, and Fair Use: We can express ourselves any way we want, even in
ways that steal your own forms of expression, unless theres a good reason to
stop us. (2009-04-04 20:48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
222
Why do we enforce contract promises? (2009-04-06 11:42) . . . . . . . . . . . . . . . . .
224
AP doth protest too much, methinks. (2009-04-07 17:27) . . . . . . . . . . . . . . . . .
225
There is nothing new under the sun? (2009-04-08 08:40) . . . . . . . . . . . . . . . . . .
225
How creative does a work need to be to win the Brit Insurance Design Award?
(2009-04-08 12:46) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
226
Fix the law, but dont forget what the law has already tried to fix. (2009-04-09 09:27) .
227
Richard Prince, Patrick Cariou, and Appropriation Art (2009-04-09 19:17) . . . . . . . .
228
Requiring McDonalds to disclose the calories in the Big Mac: good for consumers, or
treating customers like idiots? (2009-04-10 11:48) . . . . . . . . . . . . . . . .
229
Is it time to get on from where we are and stop returning art stolen by the Nazis to the
heirs of its original owners? (2009-04-13 13:01) . . . . . . . . . . . . . . . . . .
230
Germany: well still return art stolen by the Nazis. (2009-04-14 16:46) . . . . . . . . . .
230
Wind of Change:
new problems require new laws and new political alignments.

(2009-04-16 09:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
231
Wind of Change: Education and democracy are the ways to wind power. (2009-04-17 00:19)
233
Wind of Change Music Club: Donovan, 1964 Catch the Wind (2009-04-17 11:33) . . .
236
Wind of Change: Forget the jet pack! I want a wind turbine in my backyard instead.
(2009-04-20 00:27) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
236
Shepard Fairey, AP, and Dirty Hands (2009-04-20 15:51) . . . . . . . . . . . . . . . . . .
237
Good lawyers are not terrorists. (2009-04-22 10:47) . . . . . . . . . . . . . . . . . . . . .
237
There still is nothing new under the sun. So what is originality? (2009-04-23 08:33) . .
238
Wikipedia should know better/Addendum: it does, and the problem is solved, though
Wikipedia really didnt have to be quite so heavy-handed. (2009-04-24 05:47)
240
New Orleans Jazz & Heritage Festival, Neil Young on May 3, and May 4, 1970
(2009-04-24 06:58) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
242
I love good lawyers because you can disagree with them and they wont take your disagreement as a personal attack. (2009-04-24 16:00) . . . . . . . . . . . . . . . . . .
242
You need to understand your teachers interests; a librarians job is necessarily one that
requires a narrow view of copyright. (2009-04-27 10:15) . . . . . . . . . . . . .
243
There is nothing new under the sun. (2009-04-28 12:19) . . . . . . . . . . . . . . . . . .
244
Without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling

- without influences great and small, in other words - there is no creating.
(2009-04-29 03:24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
245
2.5
Online markets may be doing more to reduce the looting of antiquities than the always
feuding museum directors. (2009-04-30 13:58) . . . . . . . . . . . . . . . . . .
247
May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
249
Wind of Change: Obama implementing offshore wind projects (2009-05-01 03:11) . . . .
249
Wind of Change: Mayday! Flock of Seagulls at 10 OClock! (2009-05-01 13:01) . . . . .
249
Friday Night Music Club: Theres no business like stealing bits from others
(2009-05-01 17:33) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
249
Stop those dangerous . . . er, player pianos! (2009-05-01 20:09) . . . . . . . . . . . . . .
250
Wind of Change: Wind turbines on Lake Erie soon? (2009-05-02 11:10) . . . . . . . . .
251
Make Cleveland Better! (2009-05-04 09:51) . . . . . . . . . . . . . . . . . . . . . . . . .
251
Lessigs Conversation of Remix - fair use?

Warner Music doesnt think so.
(2009-05-04 14:51) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
252
We have to pay it all back sooner or later. (2009-05-05 13:02) . . . . . . . . . . . . . . .
252
Tweets on Law Practice (2009-05-06 10:07) . . . . . . . . . . . . . . . . . . . . . . . . .
253
Do your own American remix! (2009-05-06 18:32) . . . . . . . . . . . . . . . . . . . . . .
254
Lincoln on legal practice (2009-05-07 11:50) . . . . . . . . . . . . . . . . . . . . . . . . .
254
Yes, Kevin, empathy is part of judging well, and Oliver Wendell Holmes thought so too.
(2009-05-07 13:22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
255
Richard Posner too knows empathy is a component of good judging. (2009-05-07 15:06)
256
Melissa Harris Lacewell on Empathy, its importance to social cohesion, and more on its
importance to good judging. (2009-05-07 17:34) . . . . . . . . . . . . . . . . .
256
The Question: existing copyright laws do more harm than good. (2009-05-08 13:07) . .
257
Leonard Cohen: The Law (2009-05-08 13:08) . . . . . . . . . . . . . . . . . . . . . . . .
257
The Monopoly game is over. (2009-05-11 05:18) . . . . . . . . . . . . . . . . . . . . . . .
257
The MPAA explains how to show DVD clips in the classroom (the easy way?)
(2009-05-11 06:03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
257
Jury service the avoidance thereof and the devotion thereto. (2009-05-12 09:54) . . . .
258
Stuck on a problem? Move! (2009-05-15 09:41) . . . . . . . . . . . . . . . . . . . . . . .
260
A poliitician would be an excellent replacement for Souter. (2009-05-15 11:04) . . . . .
260
Girl Talk on Remix Culture (2009-05-15 23:25) . . . . . . . . . . . . . . . . . . . . . . .
260
What gives money or art its value? Ask J.S.G. Boggs. (2009-05-18 09:39) . . . . . . . .
261
11
2.6
12
Creative Math from Craig Damrauer (2009-05-18 10:02) . . . . . . . . . . . . . . . . . .
262
To catch a thief . . . crowdsourcing? (2009-05-18 14:20) . . . . . . . . . . . . . . . . . .
262
Woody Allen settles for $5 million for commercial use of his image. (2009-05-18 16:01) .
263
The Case of the Twittering Witness (2009-05-19 08:39) . . . . . . . . . . . . . . . . . .
264
The Law is always evolving. What is Kosher, and who decides? (2009-05-19 12:09) . . .
264
Is peer-to-peer music downloading fair use? I doubt it. (2009-05-19 13:13) . . . . . . . .
265
Captain Kirk reads the Constitution. (2009-05-19 16:29) . . . . . . . . . . . . . . . . . .
265
Jesse Ventura on torture. (2009-05-19 17:36) . . . . . . . . . . . . . . . . . . . . . . . .
265
Profits in online radio? (2009-05-20 08:57) . . . . . . . . . . . . . . . . . . . . . . . . . .
265
Nightmare clients - get rid of them before the nightmares become real. (2009-05-20 15:53)
265
How online video creators can make remixes, mashups, and other common online video
genres. (2009-05-20 16:23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
266
Is Nesson crazy? Statuory damages need not relate to actual damages. (2009-05-21 10:27)
266
Shepard Fairey, dishonest Fascist? I dont think so. (2009-05-21 22:41) . . . . . . . . . .
268
Lets hear it for the KLF! (2009-05-22 19:07) . . . . . . . . . . . . . . . . . . . . . . . .
270
Memorial Day (2009-05-25 08:49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
271
The argument against Proposition 8 result due in a few hours. (2009-05-26 08:23) . .
271
Forge ahead, and youll find a way, if not the one you were looking for. (2009-05-26 19:04)
272
What in Gods name is wrong with same sex marriage? (2009-05-26 20:34) . . . . . . .
272
The G.L.U., Superpower of the 21st Century (2009-05-27 02:11) . . . . . . . . . . . . .
277
Off to Holland I go . . . (2009-05-27 23:52) . . . . . . . . . . . . . . . . . . . . . . . . .
277
June . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
278
Tulips and Weed (2009-06-01 10:26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
278
Faking it in Amsterdam (2009-06-03 08:00) . . . . . . . . . . . . . . . . . . . . . . . . .
279
Is Holden Caulfield still only J.D. Salingers character? (2009-06-04 08:21) . . . . . . . .
280
What constitutes good output for a law school, and how do you measure it?
(2009-06-05 09:41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
281
Liberally construing potato chips. (2009-06-05 11:45) . . . . . . . . . . . . . . . . . . . .
281
The Greening of Amsterdam (2009-06-09 11:08) . . . . . . . . . . . . . . . . . . . . . . .
282
What real biking culture looks like. (2009-06-10 12:27) . . . . . . . . . . . . . . . . . . .
282
J.D. Salinger may be a phony. (2009-06-10 12:50) . . . . . . . . . . . . . . . . . . . . . .
283
Listening (not) to Pandora in Amsterdam (2009-06-11 17:33) . . . . . . . . . . . . . . .
283
I dont think J.D. Salinger should own Holden Caulfield. But I think Mickey Mouse belongs
to all of the world too, so what do I know? (2009-06-12 14:07) . . . . . . . . .
284
Prohibition doesnt work! (2009-06-14 19:01) . . . . . . . . . . . . . . . . . . . . . . . .
285
Dont friend judges! (2009-06-15 11:27) . . . . . . . . . . . . . . . . . . . . . . . . . .
285
Does online writing produce better writers? IMHO, it can, but hasnt yet to any great
degree. (2009-06-16 08:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
286
People have always remixed their cultural artifacts; the internet has made them publishers.
(2009-06-16 12:26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
287
2.7
The influence (not) of law professors (2009-06-16 15:56) . . . . . . . . . . . . . . . . . .
287
Robert Johnson made no deal with the devil; he listened to and learned from his colleagues.
(2009-06-17 08:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
288
The justice system complements the political system: Climate Change and Human Rights.
(2009-06-18 08:30) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
290
How does legal innovation occur? Slowly, by looking to the laws of other countries, and
by disguising innovation as interpretation. (2009-06-18 13:02) . . . . . . . . .
290
Googles Library of Babel and its opponents. (2009-06-18 22:41) . . . . . . . . . . . . .
291
If you cant type well, youre inarticulate. (2009-06-19 08:27) . . . . . . . . . . . . . . .
292
$1.92 million penalty for illegally downloading 24 songs. (2009-06-19 10:57) . . . . . . .
293
The (Iranian) Revolution will not be Televised (2009-06-19 17:38)
. . . . . . . . . . . .
293
Doing justice versus making rules. (2009-06-22 12:50) . . . . . . . . . . . . . . . . . . .
293
Do you know youve agreed that Amazon can decide youve agreed to something other
than what you agreed to? (2009-06-23 11:27) . . . . . . . . . . . . . . . . . . .
294
Doesnt art require the use of symbols that resonate with the culture? J.D. Salinger and
his ownership of Holden Caulfield compared to Shakespeare and his theft of
King Lear. (2009-06-23 13:14) . . . . . . . . . . . . . . . . . . . . . . . . . . .
295
Compliments are worthless, and losing is winning:

lawyering in a nutshell
(2009-06-24 10:25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
297
Consumer Protection: an old idea thats new again. (2009-06-24 23:17) . . . . . . . . .
297
John Lennon: an original, or a remixer? Or are they really the same? (2009-06-24 23:33)
298
Lawyers need to learn EVERYTHING. (2009-06-26 06:57) . . . . . . . . . . . . . . . . .
298
Expert is only a name; an experts ideas are only as good as the ideas themselves.
(2009-06-28 22:39) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
298
When law doesn t match up to reality, law loses Connie Schultz makes an unworkable
proposal. (2009-06-29 09:08) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
299
Yes, lawyers need to be experts in design and typography too. (2009-06-30 08:16) . . . .
300
We can only fix the medical malpractice problem if we fix all the problems we use
medical malpractice to address. Universal coverage and medical malpractice
cannot be separated from one another. (2009-06-30 09:55) . . . . . . . . . . .
300
The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA,
even though it won $1.92 from a jury, surely wants her to, likely for any price.
(2009-06-30 15:21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
301
July . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
301
We are very confused about the difference between similarity and illicit copying. Down
Under and Kookaburra this time. (2009-07-01 09:32) . . . . . . . . . . . . . .
301
Did Apple Mislead Investors Regarding Steve Jobs Health? Almost certainly, yes. Then
why did it not disclose the medical facts? (Part I) (2009-07-02 09:48) . . . . .
302
The Madoff Investigation Should Focus on the SEC. (2009-07-02 10:06) . . . . . . . . .
304
KLF: Don t worry about being accused of being a thief. (2009-07-03 19:57) . . . . . .
305
Why is music the main battleground in the copyright wars? (2009-07-06 07:31) . . . . .
306
Think for a moment whether you can imagine Socrates saying, Lets stop talking and go
play; we all know you can learn as much about a person in an hour of play as in
a year of conversation. (2009-07-06 10:02) . . . . . . . . . . . . . . . . . . . .
308
13
2.8
2.9
14
James Boyle: A Songs Tale: Mashups, Borrowing, and the Law (2009-07-07 13:29) . .
309
New technology means the old ways of doing business wont survive how much longer
will we have newsprint? (2009-07-08 10:41) . . . . . . . . . . . . . . . . . . . .
309
How good a literary critic was the judge in the Catcher in the Rye case? (2009-07-09 10:29)
309
Negativland was way ahead of Girl Talk, and still is. (2009-07-10 14:13) . . . . . . . . .
310
Manny Garcias own words betray the weakness of his case. (2009-07-11 14:05) . . . . .
312
Did you hate cliques in high school?

You should hate them as an adult too.
(2009-07-13 17:09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
313
Paris Hilton as law professor: each judge is your BFF, and remedies are everything.
(2009-07-14 09:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
313
Applying the law to the facts where empathy must be part of judging. (2009-07-15 08:57)
314
Amazon, EULAs, and Orwells memory hole. (2009-07-20 08:48) . . . . . . . . . . . . .
315
Dont forget to call your mashup a reflection and critique of the works it appropriates!
(2009-07-21 11:03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
316
Tort law serves a lot of purposes tort reformers dont recognize, though Robert Bork might
have changed his mind. (2009-07-22 12:42) . . . . . . . . . . . . . . . . . . . .
318
Easy Case: Postage Stamp is Fair Use of Korean War Veterans Memorial (2009-07-23 07:39)
320
The fair use test some cases are easy, some are hard, and some are somewhere in between.
A follow up to the dialog regarding the postage stamp and the Korean War
Veterans Memorial. (2009-07-24 03:19) . . . . . . . . . . . . . . . . . . . . . .
321
Michael Jackson was a remix artist! Im shocked, shocked. (2009-07-26 11:01) . . . . . .
326
A legal pattern - innovation, slow embrace of the innovation, abuse of the innovation, and
gradual control of the abuse (2009-07-27 07:33) . . . . . . . . . . . . . . . . . .
326
August . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
326
1L Contracts, the blog: a new educational tool (2009-08-17 10:23) . . . . . . . . . . . .
326
You can reproduce entire copyrighted images! (2009-08-18 07:58) . . . . . . . . . . . . .
327
Doing justice is not calling balls and strikes, and to say it is is un-American.
(2009-08-19 13:17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
328
Do we really want anyone to have free online access to court files? (2009-08-21 11:51) .
329
A tribute to Justice Souter, and his recent speech on civics education (2009-08-25 08:35)
332
September . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
333
Aural Collage and the Law (2009-09-09 18:01)
. . . . . . . . . . . . . . . . . . . . . . .
333
Do we need to protect Exxons right to free speech? (2009-09-10 11:42) . . . . . . . . .
334
RiP! A Remix Manifesto (2009-09-11 12:30) . . . . . . . . . . . . . . . . . . . . . . . . .
335
A corporation is not a person (unless it buys the right to be treated that way).
(2009-09-11 13:21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
335
Chris Whitley: Living with the law (2009-09-11 18:37) . . . . . . . . . . . . . . . . . . .
336
Legal rules, convenient fictions, and figuring out when youve agreed to something you
havent read. (2009-09-14 10:26) . . . . . . . . . . . . . . . . . . . . . . . . . .
336
I dont think Glenn Beck raped and murdered a young girl, but why wont he deny it?
(2009-09-15 11:15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
338
Copyright and Good Judgment: Damien Hirst, Idiot. (2009-09-16 08:43) . . . . . . . . .
339
Few people read them, but some online agreements are enforceable, and some arent; its
a mess. (2009-09-17 13:05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
340
Thank god I can ridicule Glenn Beck and Chiropractors. (2009-09-17 17:00) . . . . . . .
341
Oregon Attorney General is rethinking his copyright claim; Id advise him to back off.
(2009-09-18 07:43) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
342
The Only Ones: The Whole of the Law (2009-09-18 23:21)
342
. . . . . . . . . . . . . . . .
The secret to creativity is knowing how to hide your sources. Albert Einstein
(2009-09-19 09:21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
343
Preaching to the converted or trying to convince the unconvinced? Theyre very different
activities, and the former may well undermine the latter. (2009-09-21 11:59) .
343
How to come up with new solutions: try out new ways of using old ideas and take chances.
(2009-09-23 01:59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
346
Rules must allow for the inevitability of change: art museums and the doctrine of deviation
(2009-09-23 10:19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
346
Lets get straight the historically profound benefits of making information available online
Scribd this time. (2009-09-24 12:14) . . . . . . . . . . . . . . . . . . . . . . .
348
Dan Bull: Dear Lily [an open letter to Lily Allen] (2009-09-26 22:05) . . . . . . . . . . .
350
Lawyers do the best they can for clients; I wish law professors realized thats what lawyers
should always do. (2009-09-28 10:25) . . . . . . . . . . . . . . . . . . . . . . .
350
Law and education must change since the realities they control and shape have changed.
(2009-09-29 10:21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
352
Ideas,
originality,
and
copyright.
Coldplay accused of infringement again.
(2009-09-30 11:40) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.10 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
352
353
If a county court in Georgia can take adavantage of a website and do it well, so can you.
(2009-10-01 12:16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
353
Lying messes you up. Polanski, the rapist, and the lying prosecutor. (2009-10-01 12:35)
353
Mercedes Sosa, R.I.P., 1935- October 4, 2009 (2009-10-04 17:23) . . . . . . . . . . . . .
354
All the cash has been sucked from Simmons mattresses. (2009-10-05 10:28) . . . . . . .
354
Want to become a practicing lawyer? Dont go to Harvard! Nesson and Tenenbaum again.
(2009-10-06 09:55) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
355
How do we decide how a long buried corpse would want his art treated? And is the corpses
former intent all we care about? (2009-10-09 08:49) . . . . . . . . . . . . . . .
357
Why are you working harder for less? Scientific Management, management consulting,
and leveraged buyouts - a century of being conned. (2009-10-11 08:55) . . . .
358
Credit Default Swaps and Mortgage Backed Securities: a Primer. (2009-10-12 10:02) . .
359
Cleveland Museum of Art allowed to use 50% of income from trusts for expansion; 1st time
in Ohio since 1955. (2009-10-12 11:15) . . . . . . . . . . . . . . . . . . . . . .
359
Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work
remains. (2009-10-13 12:37) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
359
Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some
other explanation? (2009-10-13 23:43) . . . . . . . . . . . . . . . . . . . . . . .
361
15
Excellent acount of fair use in educational setting. (2009-10-16 07:55) . . . . . . . . . .
362
Dont lie, even if you think it doesnt matter. Fairey, Garcia, and AP. (2009-10-17 10:27)
362
The new economy, the billable hour, and law school tuition change is afoot.
(2009-10-20 10:12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
362
Make your point and move on; Fairey lied, but AP wont establish he always does.
(2009-10-21 09:49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
363
Using the legal system to intimidate Cook County Prosecutor and Northwesterns Medill
Innocence Project (2009-10-22 14:04) . . . . . . . . . . . . . . . . . . . . . . .
364
Blackberry as ball and chain. (2009-10-23 12:14) . . . . . . . . . . . . . . . . . . . . . .
364
Painting people whose images are protected Alabama football, Tiger Woods, and Obama
(2009-10-23 18:28) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
365
Kids need to learn a lot, but they can teach us a lot too. (2009-10-27 10:10) . . . . . . .
367
Lawyers are beginning to learn that globalization means fewer jobs in the USA.
(2009-10-28 13:23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
367
The EFF fights copyright overclaiming by means of public shaming (2009-10-28 13:48) .
368
The Framers embraced government provided services. (2009-10-29 15:14) . . . . . . . .
368
Warren Zevon: Lawyers, Guns & Money (2009-10-30 19:55) . . . . . . . . . . . . . . . .
368
2.11 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
368
When is a copy an original? (2009-11-01 22:33) . . . . . . . . . . . . . . . . . . . . . . .
368
Cukoo Kookaburra copyright claim (2009-11-02 11:33) . . . . . . . . . . . . . . . . . . .
369
Homeland uber alles. (2009-11-04 11:02) . . . . . . . . . . . . . . . . . . . . . . . . . . .
369
The source of innovation

as a lawyer, as a business person, or as a designer
is creative
thinking. (2009-11-09 07:07) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
370
Protecting an artists legacy: maximize the income from his works, or seek to embody his
art? Moral rights and the successors to John Cage. (2009-11-10 13:18) . . . .
372
Honor our veterans and dont efface their experience with ideology: Freakonomics & the
draft. (2009-11-11 11:14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
375
Fair Use, Fairy Tales, and Collage: more proof Girl Talk wont be stopped
(2009-11-13 10:17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
376
Money or racism? Could the Dolans just do the right thing already? The courts wont.
(2009-11-16 17:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
377
Those naive little innocents may be a lot smarter than you, Mr.
Prosecutor.
(2009-11-17 13:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
377
You can now use Google Scholar to find case law. (2009-11-17 13:51) . . . . . . . . . . .
378
The Amen Break: 40 years of remixing a drum break; but now ownership is being asserted
over it (and not by the creators) (2009-11-20 17:54) . . . . . . . . . . . . . . .
378
Trademark madness (2009-11-24 13:43) . . . . . . . . . . . . . . . . . . . . . . . . . . .
378
Thanksgiving for the American Dedication to the Common Good (2009-11-25 12:31) . .
379
Can we force a prisoner to be medicated in order to be competent enough to be executed?

(2009-11-30 13:51) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
380
2.12 December . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Breathlessly waiting for Murdoch to be sued . . . or wither on the web? (2009-12-01 13:10)
16
380
380
The inexorable trend toward free access to court documents (2009-12-02 14:43) . . . . .
381
Legal education is monumentally difficult. Legal rules are not rules in the sense most
people understand them; they are, instead, formulations intended to reach just
results based on the evidence in individual lawsuits. (2009-12-03 13:45) . . . .
381
Legal Practice and Legal Scholarship and Law School Reputations: Ships Passing in the
Night. (2009-12-04 08:54) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
384
Nesson continues to blame others for his lousy job of lawyering. (2009-12-05 15:23) . . .
386
Steven Levitt and Freakonomics can go to hell! (2009-12-08 22:20) . . . . . . . . . . . .
387
Interpreting, accurately, what isnt there the Redactors Dilemma (2009-12-11 10:03) .
388
Who owns the rights to ebooks - publishers who bought the rights to publish in book
form or the original authors? Ill bet on the authors. (2009-12-14 23:22) . . .
389
Dont let your clients send you emails from their employers email systems.
(2009-12-16 14:02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391
A cell phone really (not just abstractly) is different than an address book.
(2009-12-17 10:05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
392
If you understand the uses and limits of maps, you can begin to understand the uses and
limits of legal rules (and it doesnt hurt to know the offside rules in soccer and
hockey) (2009-12-18 04:10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
393
Bobby Fuller: I Fought the Law (2009-12-18 18:13) . . . . . . . . . . . . . . . . . . . . .
395
SNAFU, anyone? (2009-12-21 06:22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
395
Authorship is rarely a simple question. Architecture this time (2009-12-22 11:02) . .
396
Breaking through to the other side: the music and publishing industries are dying. Music
and writing will live on in new ways, and were living through the revolution.
(2009-12-23 07:14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
397
Merry Christmas from an atheist Jew (2009-12-24 08:58)
. . . . . . . . . . . . . . . . .
399
Bob Dylan: The Christmas Blues/No life is too minor to matter. (2009-12-25 20:02) . .
400
Holy flipping animal crackers, that doesnt even warrant a response . . . (2009-12-30 13:28)
400
Happy new year! (2009-12-31 10:40) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
401
3 2010
3.1
403
January . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
403
DJ Earworm - United State of Pop 2009 (Blame It on the Pop) - Mashup of Top 25
Billboard Hits (2010-01-04 10:46) . . . . . . . . . . . . . . . . . . . . . . . . .
403
The records in the Bristol Palin/Levi Johnston custody battle should be sealed.
(2010-01-05 10:06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
403
We cant trust eye witnesses. (2010-01-06 01:02) . . . . . . . . . . . . . . . . . . . . . .
404
Umberto Eco 13 years ago on the Next Decade in Book Culture (2010-01-07 12:24) . . .
404
Vengeance breeds vengeance; we are a country of laws, not torture. (2010-01-08 10:46) .
405
Billy Bragg & Wilco: Against the Law (2010-01-08 23:18) . . . . . . . . . . . . . . . . .
406
AP shoots itself (twice) in the Copyright Wars. (2010-01-11 11:06) . . . . . . . . . . . .
406
Heres legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it happen?
Stay tuned. (2010-01-12 12:54) . . . . . . . . . . . . . . . . . . . . . . . . . . .
407
17
3.2
18
The New Pornographers - The Laws Have Changed (2010-01-12 20:51) . . . . . . . . . .
408
Supreme Court decides, 5-4, that those public courts arent so public after all.
(2010-01-13 23:15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
408
Learn that government regulation can be very effective in under 2 minutes.

(2010-01-14 19:38) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
408
Are free markets always the best? Of course not, and whered we get that idea?
(2010-01-19 07:31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
409
What is a Judicial Author? (2010-01-19 07:42) . . . . . . . . . . . . . . . . . . . . . . .
410
Who needs public services in case of disaster? Not the rich . . . (2010-01-20 09:41) . . .
410
Corporations = individuals? Confusions in economic theory and First Amendment jurisprudence (2010-01-22 15:12) . . . . . . . . . . . . . . . . . . . . . . . . . . .
411
Bob Dylan: Hurricane (2010-01-22 17:05) . . . . . . . . . . . . . . . . . . . . . . . . . .
411
True innovation in health care: no-fault insurance for bad medical outcomes.
(2010-01-25 06:07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
411
413
Chief Justice Roberts has no respect for precedent that doesnt suit his purposes.
(2010-01-29 11:49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
414
Steven Colbert on Citizens United and Corporations as People (2010-01-29 19:41) . . .
415
Belle and Sebastian: Legal Man (2010-01-29 19:54) . . . . . . . . . . . . . . . . . . . . .
415
Tom Waits: Jockey Full of Bourbon/Down by Law opening (2010-01-31 21:56) . . . . .
415
February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
415
The music industry, book publishing, and now Lexis and Westlaw? (2010-02-01 06:54) .
415
We know the price of everything and the value of nothing. (2010-02-01 21:31) . . . . . .
416
Trying Proposition 8 as teachable moment (2010-02-02 10:51) . . . . . . . . . . . . . . .
416
Mark Twain on invention (2010-02-02 21:05) . . . . . . . . . . . . . . . . . . . . . . . .
416
Archers Daniel Midland abuses copyright law to censor criticism corporations have the
right to free speech, but not the people who criticize them? (2010-02-04 08:12)
417
The South Butt Answer to the North Face (2010-02-04 14:27) . . . . . . . . . . . . . . .
417
Go Saints! (2010-02-05 19:50) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
417
Cuckoo Kookabura Culture as the Language of Art (2010-02-10 12:17) . . . . . . . . .
418
Street Smarts, Book Smarts, and Making them Work Together (2010-02-12 11:28) . . .
418
Ronald Dworkin on Citizens United: a corporation is a legal fiction without opinions of its
own. (2010-02-15 09:31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
419
Theres wealth and then theres wealth. (2010-02-16 12:14) . . . . . . . . . . . . . . . .
419
Photographing public art: a persistent fair use problem (2010-02-18 11:42)
420
. . . . . . .
Jack Mackie, litigator-artist: artists arent entitled to stop uses of their work merely because they dont like those uses. (2010-02-19 13:43) . . . . . . . . . . . . . . .
422
Bob Dylan: Talkin John Birch Paranoid Blues (2010-02-19 13:57) . . . . . . . . . . . .
422
Justice Department: Torture Memos were insane but not the product of professional
misconduct (2010-02-20 12:55) . . . . . . . . . . . . . . . . . . . . . . . . . . .
423
Happy Birthday, George, and thank you for the wisdom on torture. (2010-02-22 11:12) .
425
3.3
3.4
Want to be an innovator? Be a first follower! And Andrew Dubber is worth following.

(2010-02-22 18:11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
426
When Abortion was Illegal (w/Spanish subtitles)(1992) (2010-02-22 20:36) . . . . . . . .
426
Our capacity to be just is measured by our capacity to do justice to those most in need of
it. (2010-02-24 10:11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
426
The Korean War Memorial Postage Stamp Photo Case: I was way wrong! But I still think
I was right, and I think the case is bad for art. (2010-02-25 22:59) . . . . . . .
427
Weezer: Photograph (2010-02-26 21:51) . . . . . . . . . . . . . . . . . . . . . . . . . . .
430
Literature is theft. (2010-02-28 15:59) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
430
March . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
430
New solutions for new problems:

who knows your passwords after you die?
(2010-03-02 10:55) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
430
Thank god for our founding fathers John Adams, honorable lawyer. (2010-03-03 12:39)
431
Requiring licenses for artistic appropriation has nothing to with providing incentives to
create. (2010-03-04 15:48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
431
Lynn Cheney and William Kristol are anti-American. (2010-03-05 08:56) . . . . . . . .
432
Father Coughlins Tea Party, 1939 (2010-03-05 17:17) . . . . . . . . . . . . . . . . . . .
433
Pat Paulsen, a man over 40 years ahead of his time. Or a measure of how radically the
culture has changed. (2010-03-05 18:42) . . . . . . . . . . . . . . . . . . . . . .
433
All Creative Work is Derivative (2010-03-08 10:43) . . . . . . . . . . . . . . . . . . . . .
433
Collage is art, not theft (2010-03-15 13:46) . . . . . . . . . . . . . . . . . . . . . . . . .
433
Law isnt about whats legal and illegal; its about serving clients. (2010-03-15 14:14)
435
Free culture and produce art! (2010-03-18 06:41) . . . . . . . . . . . . . . . . . . . . . .
435
The internet and mixing and matching texts is not destroying authorship, and to believe
so is to misunderstand authorship. Kakutani this time. (2010-03-18 10:54) . .
437
Why has Girl Talk not been sued? You wont find the answer at SXSW. (2010-03-19 09:53)
439
We build culture from culture, and lets stop acting as if any one of us owns it.
(2010-03-19 18:47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
440
Phil Ochs Power and the Glory (2010-03-19 20:46) . . . . . . . . . . . . . . . . . . . .
440
Phil Ochs - There but for Fortune (2010-03-19 20:52) . . . . . . . . . . . . . . . . . . . .
440
What if corporate decision makers lost money when they made bad decisions?
(2010-03-22 15:04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
440
Law can actually solve real problems. (2010-03-23 12:14) . . . . . . . . . . . . . . . . .
442
RIP Ian Macneil: a lawyer, law professor, landlord, and mensch. (2010-03-24 11:56) . .
442
Research only begins with information: patience, insight, and imagination are the most
important parts of it. (2010-03-26 10:57) . . . . . . . . . . . . . . . . . . . . .
443
There may after all be useful methods to develop effective analogies to help guide your
legal research! (2010-03-27 01:56) . . . . . . . . . . . . . . . . . . . . . . . . .
445
April . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
446
Why the music industry wont sue certain samplers such as Girl Talk and the producers
of Copyright Criminals. (2010-04-05 10:21) . . . . . . . . . . . . . . . . . . . .
446
19
3.5
There are a lot of good reasons to be skeptical of evidence, especially of the sort that can
be edited and appears to tell stories that are incredible. (2010-04-13 18:55) . .
447
Should we allow people to sell their souls to the devil? Freedom of contract confronts the
fact people dont read the contracts they enter. (2010-04-16 12:16) . . . . . . .
447
Do you think law schools teach their students how to practice law? (2010-04-19 13:57) .
448
The Copyright Police find out there are Hitler Parodies. (2010-04-22 10:32) . . . . . . .
449
Challenging automated YouTube takedowns (and dont forget to think through the ramifications) (2010-04-27 11:38) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
449
PowerPoint might make you dumb, but understanding why can help keep you from being
dumb even when you dont use PowerPoint. (2010-04-29 09:59) . . . . . . . .
450
There is no shortcut to thoughtful decision making. It requires critical thinking and discussion, and PowerPoint not only doesnt help, it hurts. (2010-04-30 11:05) . .
451
May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
453
40 years ago (4 dead in Ohio) and today. (2010-05-03 21:52)
. . . . . . . . . . . . . . .
453
The Great Lakes Union: a great idea that just keeps getting better (2010-05-05 13:54) .
454
New force for the irreparable harm requirement in copyright preliminary injunction decisions? And might we see the Holden Caulfield sequel after all? (2010-05-07 14:39)
454
Kent State 40 years ago, and making up facts to fit todays world view. (2010-05-11 08:59)
456
Stanford Law School recognizes law is a creative enterprise. (2010-05-11 12:53) . . . . .
457
Will the film,
music,
and publishing industries oppose Kagans nomination?
(2010-05-12 09:47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.6
20
457
Confirmation Hearings for Supreme Court Nominees, Elena Kagan, and the mythical Borking of Robert Bork (2010-05-12 17:09) . . . . . . . . . . . . . . . . . . . . . . .
458
Elena Kagan is no blank slate, and to say otherwise is to spout lies. (2010-05-13 08:28)
461
Art builds on art, be it Shepard Faireys Obama Hope poster or the re-tellings of myths
and legends. (2010-05-14 01:26) . . . . . . . . . . . . . . . . . . . . . . . . . .
463
It s not where you take things from
465
it s where you take them to. (2010-05-17 18:10) . .
Princeton values money-grubbing over open contribution to current political debate.

(2010-05-18 09:24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
466
A lesson for Rand Paul in the differences between the Constitution and statutory law
(2010-05-20 08:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
467
Is there a connection between the failure of law schools to teach legal practice and the 2d
class status of those who do teach legal practice? (2010-05-21 08:20) . . . . . .
468
June . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
469
What is the best preparation for law school? Id suggest it is a liberal arts education.
(2010-06-01 07:22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
469
It aint over til its over Fairey Judge says Obama Hope poster is not fair use, but dont
necessarily believe him. (2010-06-02 09:13) . . . . . . . . . . . . . . . . . . . .
471
Is Elena Kagans thin record of legal scholarship a disqualification for the Supreme Court?
Only if youre a law professor. (2010-06-03 08:39) . . . . . . . . . . . . . . . .
472
David Souter gives a lesson in judging and the failures of Originalism. (2010-06-04 10:08)
472
Im one of the Top 100 Twitterers in the Legal World! (2010-06-04 11:43) . . . . . . . .
475
Woody Guthrie on copyright: we wrote it, thats all we wanted to do. (2010-06-05 17:28)
476
A lawyer must separate bluster from truth and act accordingly: Halsey Minors fall.
(2010-06-07 09:31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
476
Is mistaken slot machine award of $11 million a mistake that excuses the casino from
paying? (2010-06-08 09:48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
478
Law struggling with changes in material reality: corporate confidentiality this time
(2010-06-09 08:43) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
479
A key to effective creative effort: copying. Or dont reinvent the wheel. (2010-06-10 08:17)
480
Our courts and legislatures are bought and paid for the laws theyve made with respect
to oil spills prove it. (2010-06-10 17:35) . . . . . . . . . . . . . . . . . . . . . .
480
Losing $500 million was a legal win: outcomes and predictions from a lawyers point-of-view
(2010-06-11 09:40) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
482
Just say it! (2010-06-11 10:01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
483
Sunday afternoon music break: Paint it Black (Oil Spill Mix) (2010-06-13 16:56) . . . .
484
Stealing what you love (2010-06-14 09:04) . . . . . . . . . . . . . . . . . . . . . . . . . .
484
Does Westlaw infringe a lawyers copyright in his legal document? This lawsuit wont tell
us. (2010-06-15 09:52) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
485
Law students: what you learn is more important than your grade! (2010-06-16 08:42) .
486
Students dont like professors who teach them the really difficult things. (2010-06-18 15:08)
486
Friday Night Innovation Night: If You Want to Sing Out, Sing Out (2010-06-18 17:45) .
488
Slow reading: one piece in a good readers arsenal. (2010-06-21 10:17) . . . . . . . . . .
488
The good thing about being a lawyer is theres always someone to tell you youre wrong.
(2010-06-22 10:09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
489
Judge Dismisses Viacoms Lawsuit against Google for Infringing Videos Uploaded to
YouTube. (2010-06-23 17:40) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
490
EMI goes Zombie:
its business is now owning and exploiting its copyrights.
(2010-06-24 10:45) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
491
Viacoms schizophrenia over YouTube: the industry cries serial killer! (2010-06-25 17:09)
491
If Girl Talk does get sued, Id love to represent him. (2010-06-28 07:11) . . . . . . . . .
493
Khan Academy:
an invaluable new resource in your effort to learn everything

(2010-06-29 08:40) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.7
493
July . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
494
Was Kagan forthcoming? So far it seems to depend on whether you thought shed be.
(2010-07-01 13:06) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
494
Happy Independence Day from Johnny Cash (2010-07-04 11:39)
. . . . . . . . . . . . .
495
Professors, replace your textbooks! (2010-07-05 08:32) . . . . . . . . . . . . . . . . . . .
495
Cuckoo Kookabura Continues (2010-07-06 17:47) . . . . . . . . . . . . . . . . . . . . . .
495
When someone tells you they have an objective method of judging value, run!
(2010-07-08 11:45) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
496
Court decides federal government cannot refuse to give legal effect to state laws that
recognize same sex marriage. (2010-07-08 20:43) . . . . . . . . . . . . . . . . .
497
Plagiarizing about Plagiarism (2010-07-09 11:03) . . . . . . . . . . . . . . . . . . . . . .
498
21
3.8
22
Faireys Obama Hope poster copied nothing from Garcias photo that could be copyrighted.
(2010-07-12 10:09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
498
Legal decisions based on what the law is not the permission culture and copyright
overclaiming (2010-07-13 07:27) . . . . . . . . . . . . . . . . . . . . . . . . . .
500
Donald Rosenbergs lawsuit against the Cleveland Orchestra goes to trial, but stupidity is
not an actionable offense. (2010-07-15 12:07) . . . . . . . . . . . . . . . . . . .
501
Harvey Pekar, R.I.P. (2010-07-15 13:47) . . . . . . . . . . . . . . . . . . . . . . . . . . .
502
Goldman Sachs is a bunch of big fat liars. (2010-07-15 21:18) . . . . . . . . . . . . . . .
503
Art for Justice: Harvey Finkle (2010-07-19 17:12) . . . . . . . . . . . . . . . . . . . . . .
504
Creative Commons licensing is a simple and straightforward application of traditional legal

concepts, but the perception it is something more and even radical is partly the
fault of Creative Commons. (2010-07-20 00:22) . . . . . . . . . . . . . . . . . .
505
Own your words. Anonymity is cowardice, and cowards arent known for their wisdom.
(2010-07-22 08:42) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
506
Property is not always the foundation of liberty: fashion and copyright. (2010-07-23 07:28)
507
Making creations property does not promote creation: fashion this time (2010-07-23 07:30)
507
Friday Music Break The Perfect Disaster: 55 (2010-07-23 13:12) . . . . . . . . . . . .
507
Anonymous online writing: bad writing that wouldnt see the light of day if the writer
knew readers could match the words to the person. (2010-07-26 01:12) . . . .
507
Donald Rosenberg v. Plain Dealer & Cleveland Orchestra, continued (2010-07-28 09:09)
511
Eugene R. Anderson, R.I.P. (2010-07-30 11:15) . . . . . . . . . . . . . . . . . . . . . . .
512
Old School Mashup Tape-beatles: The Grand Delusion, Part 3 (2010-07-31 21:37) .
513
August . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
513
Judge dismisses one of Donald Rosenbergs claims against the Plain Dealer.
(2010-08-02 09:02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
513
You cant own facts Trem belongs to all of us. (2010-08-03 08:12) . . . . . . . . . . .
514
Campbell Soups response to Andy Warhols appropriation (2010-08-03 11:06) . . . . . .
515
Artists learn to cobble together successful careers. (2010-08-03 18:48) . . . . . . . . . .
515
The ADL forgets things that we should never forget. (2010-08-03 21:44) . . . . . . . . .
516
The decision in Perry v. City and County of San Francisco trial court decision striking
down Proposition 8, which banned gay marriage. (2010-08-04 18:53) . . . . . .
516
On tossing aside centuries of tradition. (2010-08-05 20:32) . . . . . . . . . . . . . . . . .
516
California Gurls quotes California Girls. Can you imagine the nerve? (2010-08-05 20:52)
517
Judge refuses to sanction Shepard Fairey. (2010-08-06 08:31) . . . . . . . . . . . . . . .
518
Friday Night Music: DJ Earworm - Like, OMG Baby (Capital FM Summertime Ball
Mashup) (2010-08-06 20:27) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
518
Friday Night Music (paranoid edition):

Steinski - The Motorcade Sped On
(2010-08-06 21:02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
518
Friday Night Music: Rolling Stones vs. Moguai & Tocodisco - Gimme Shelter Freaks ( DJ
Earworm Mash-Up ) (2010-08-07 00:27) . . . . . . . . . . . . . . . . . . . . . .
518
Jury rules against Donald Rosenberg (2010-08-07 13:18) . . . . . . . . . . . . . . . . . .
518
Why I didnt like Donald Rosenbergs lawsuit against the Plain Dealer and Cleveland
Orchestra. (2010-08-07 15:35) . . . . . . . . . . . . . . . . . . . . . . . . . . .
519
Tweet chat at 9pm tonight on Donald Rosenberg v. PD and Cleveland Orchestra

(2010-08-09 08:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
520
A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland Orchestra
(2010-08-11 07:39) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
521
Hot Tuna: Uncle Sam Blues (2010-08-11 23:57) . . . . . . . . . . . . . . . . . . . . . . .
522
Why Shepard Faireys deceit should not stop the court from finding that the Obama
Hope poster did not infringe the copyright in the photo it was based on.
(2010-08-12 15:17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
522
Friday Night Mashup: Evolution Control Committee Rocked by Rape (2010-08-13 20:16)
524
Saturday Night Music: Glenn Gould Goldberg Variations ## 29 & 30 (a quodlibet,

look it up) (2010-08-14 20:02) . . . . . . . . . . . . . . . . . . . . . . . . . . .
524
3.9
Andy Warhol was sued, but the cases were never decided. (2010-08-17 21:17) . . . . . .
525
Blanch v. Koons, transformative appropriation art, and Fairey v. AP (2010-08-18 21:15)
525
Special Friday Night Mashup: Negativlands U2, a lesson in copyright (not least because
its available online now) (2010-08-20 18:27) . . . . . . . . . . . . . . . . . . .
528
Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as plagiarists (2010-08-21 13:15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
529
Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in
the photo he shot and that Shepard Fairey used as the source of the image in
the Obama Hope poster. (2010-08-24 11:26) . . . . . . . . . . . . . . . . . . .
533
If you think lawyers lifting other lawyers language is proof lawyering is easy, you know
nothing about true creativity. (2010-08-25 09:27) . . . . . . . . . . . . . . . .
533
Why dont law professors know how to be lawyers? (2010-08-25 15:41) . . . . . . . . . .
536
August 28, 1963 (2010-08-28 08:20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
536
Richard Posner: Law Schools need to hire more professors who identify more strongly with
legal practice. (2010-08-28 16:34) . . . . . . . . . . . . . . . . . . . . . . . . .
537
The myth of authorship and the rise of a new artistic culture (2010-08-30 18:41) . . . .
537
Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup
& Remix (2010-08-31 11:12) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
538
September . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
539
Judges: you never really understand a person until you consider things from his point of
view. (2010-09-01 13:33) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
539
Happy Labor Day! President Eisenhower on Unions. (2010-09-06 09:42) . . . . . . . . .
539
Arbitration often isnt fast and cheap. (2010-09-06 17:14) . . . . . . . . . . . . . . . . .
541
Is Damien Hirst a plagiarist? And what does that even mean? (2010-09-07 11:39) . .
542
Whatever works, works. If its not hot news, its copyrighted opinion. (2010-09-08 07:51)
544
A Funk/Klezmer Song for Rosh Hashanah: Happy New Year! (2010-09-08 20:33) . . . .
544
Wind of Change? It seems were becalmed. (2010-09-10 08:33) . . . . . . . . . . . . . .
545
Lawyers need typefaces too. (2010-09-21 14:15) . . . . . . . . . . . . . . . . . . . . . . .
545
Who owns Franz Kafkas papers? (2010-09-22 14:09) . . . . . . . . . . . . . . . . . . . .
546
23
Theft, a History of Music (2010-09-29 15:33) . . . . . . . . . . . . . . . . . . . . . . . .
547
Okay, no more Times New Roman. But then what? (2010-09-30 16:01) . . . . . . . . .
547
3.10 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
548
Copyright killing culture. Old news. (2010-10-04 10:24) . . . . . . . . . . . . . . . . . .
548
Fighting Facebooks overreaching. (2010-10-05 11:05)
. . . . . . . . . . . . . . . . . . .
549
Curated by Interesting People. (2010-10-06 17:52) . . . . . . . . . . . . . . . . . . . . .
550
Friday Night Music Break: Moby Grape, Murder In My Heart For The Judge
(2010-10-08 20:05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
550
Appropriation can be original, but sometimes it can be theft too. :) (2010-10-18 09:14)
551
Why is boilerplate called boilerplate? Its durable enough to use over and over.
(2010-10-18 20:29) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
551
Is Shepard Fairey entitled to a jury trial on fair use? Good authority says yes.
(2010-10-19 08:08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
552
It is hereby permitted to reprint my silliness. (2010-10-20 12:56) . . . . . . . . . . . . .
552
Jonathan McIntoshs Buffy vs. Edward (Twilight Remix) (2010-10-20 13:35) . . . . . .
553
On the internet, theyll find out youre a dog if you bite. (2010-10-21 11:20) . . . . . . .
553
Pissed off by Parody (2010-10-22 15:51) . . . . . . . . . . . . . . . . . . . . . . . . . . .
554
Monday Mashup: Stayin Alive In The Wall (2010-10-25 15:31) . . . . . . . . . . . . . .
554
Bo Carter: The Law Gonna Step on You (2010-10-29 11:48) . . . . . . . . . . . . . . . .
554
3.11 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
554
Innovation comes from remixing what we already have. (2010-11-01 07:59)
24
. . . . . . .
554
There are legal remedies, and there are other remedies too. (2010-11-05 12:06) . . . . .
554
Steinski talks about the origins of musical mashups (2010-11-06 13:49) . . . . . . . . . .
555
Be creative? Question Authority. Even the CIA thinks so. (2010-11-15 11:15) . . . . . .
555
Why hasnt Girl Talk been sued? My answer, sampled and remixed in a new article
(2010-11-17 08:48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
556
Matt Ridley: When ideas have sex (2010-11-20 18:48) . . . . . . . . . . . . . . . . . . .
556
Steinski: The Motorcade Sped On (for November 22) (2010-11-22 18:23) . . . . . . . . .
556
Happy Thanksgiving: Arlo Guthrie - Alices Restaurant (2010-11-24 18:54) . . . . . . .
557
What does overclaiming look like? Just watch Facebook. (2010-11-25 22:33) . . . . . . .
557
3.12 December . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
557
30 years on, John Lennon is still a Working Class Hero (2010-12-08 15:57) . . . . . . . .
557
Friedman to judges and lawyers: dont friend or tweet one another! (2010-12-10 11:03)
557
Friday Night Mashup (in further memory of John Lennon): DJ Danger Mouse - The Grey
Video (2010-12-10 21:52) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
559
Retired Justice John Paul Stevens: the death penalty does us no good. (2010-12-12 12:28)
559
A National Public Library? Theres nothing to stop it other than a lack of political will
to do anything useful. (2010-12-12 17:33) . . . . . . . . . . . . . . . . . . . . .
561
Free markets and the end of education as we know it (2010-12-14 17:04) . . . . . . . . .
562
4 2011
4.1
4.2
4.3
565
January . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
565
The future of newspapers? Who knows? But there is one. (2011-01-04 18:32) . . . . . .
565
The negative impact of the internet on music sales has been greatly exaggerated. Im
shocked, shocked. (2011-01-10 19:59) . . . . . . . . . . . . . . . . . . . . . . .
566
There s no such thing as a free sample? Thats ridiculous. (2011-01-11 13:57) . . . . . .
566
Martin Luther King, Jr., April 4, 1967: (2011-01-17 17:05) . . . . . . . . . . . . . . . . .
567
Stanley Fish on How to Write a Sentence. (2011-01-26 10:28) . . . . . . . . . . . . . .
570
We have a responsibility, as artists, to fight for better conditions. (2011-01-31 14:37) . .
570
February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
570
Can Congress constitutionally require individuals to purchase health insurance? It seems

the Founding Fathers assumed so. (2011-02-09 16:40) . . . . . . . . . . . . . .
570
Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity. (2011-02-15 11:06) . . . . . . . . . . . . . . . . . . . . . . . .
571
The Perfect Storm in University Education and the Birth of the Slackoisie
(2011-02-24 13:20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
573
Five Seconds Of Every #1 Pop Single Part 1 (2011-02-24 14:49) . . . . . . . . . . . . .
574
And adult approach to digitizing library holdings (2011-02-25 12:51) . . . . . . . . . . .
574
DIY, from This American Life: you get justice in the next world, in this world you have
the law? (2011-02-26 18:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
576
March . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
577
Noy Alooshe: Zenga Zenga (2011-03-01 09:52) . . . . . . . . . . . . . . . . . . . . . . . .
577
Welcome to the future of publishing. (2011-03-03 11:30) . . . . . . . . . . . . . . . . . .
577
Legal writing:
analytic, interactive, and nonroutine.
A computer cant do it.
(2011-03-06 19:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.4
577
If you think youll come up with a really original idea, youre just kidding yourself.
(2011-03-16 15:52) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
578
Is the NY Times new paywall a platypus? (2011-03-17 15:14) . . . . . . . . . . . . . . .
578
Cariou v. Prince: the damage to plaintiff is far more important than Richard Princes
inability to articulate an artistic intent. (2011-03-22 11:06) . . . . . . . . . . .
579
Substantially similar or original? Cant it be both? (2011-03-23 10:48) . . . . . . . . . .
582
Can you be original if you do nothing but appropriate the work of others?
(2011-03-24 10:12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
583
Appropriation art: is Richard Princes loss its end? I dont think so. (2011-03-25 16:27)
583
Friday Night Mashup: Kutiman Im New (2011-03-25 22:37)
. . . . . . . . . . . . . .
586
Friday Night Mashup: Girl Walk//All Day (2011-03-26 00:02) . . . . . . . . . . . . . . .
586
Doesnt anyone understand that just because you can make money off of it doesnt mean
it should be property? (2011-03-28 11:34) . . . . . . . . . . . . . . . . . . . . .
587
April . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
588
Again: Culture is Collaborative. Kembrew McLeod this time. (2011-04-13 14:32) . . . .
588
Tasini v. Huffington Post frivolous, not creative. (2011-04-18 10:09) . . . . . . . . . .
588
25
4.5
4.6
4.7
4.8
4.9
26
Is Righthaven committing Champerty? It sure seems so. (2011-04-20 13:23) . . . . . . .
589
Bratz, Mattel, and Work for Hire: does copyright really protect the artist?
(2011-04-27 12:42) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
590
May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
591
Is a mans home his castle? Apparently not in Indiana. (2011-05-14 14:27)
. . . . . . .
591
Audacity: fundamental to the practice of art and of law (2011-05-19 11:40) . . . . . . .
592
Search engines pre-filter your results; one more roadblock to effective research
(2011-05-27 11:12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
593
Metaphors really do twist your mind. (2011-05-27 11:42) . . . . . . . . . . . . . . . . . .
594
In memory of Gill Scott-Heron No New Thing (2011-05-28 18:06) . . . . . . . . . . . .
595
In memory of my fathers friends who died on their Odyssey through Germany.

(2011-05-30 12:59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
595
June . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
596
What Lebron lost when he left Cleveland (2011-06-14 11:48)
. . . . . . . . . . . . . . .
596
Kutiman: Thru Jerusualem (2011-06-16 16:51) . . . . . . . . . . . . . . . . . . . . . . .
598
One more step away from old (scholarly) publishing practices (2011-06-16 17:22) . . . .
598
It may be old fashioned to say so, but what Righthaven is doing is Champerty.
(2011-06-23 12:16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
598
Artists dont protect their purity through copyright overclaiming. (2011-06-24 04:27) .
599
Kasumi presents: Geniocity, the Magazine of Innovation & Creativity (2011-06-30 13:32)
601
July . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
601
Please be a supporter of Geniocity, the Magazine of Creativity & Innovation

(2011-07-01 12:43) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
601
. . . . . . . . . . . . . . . .
601
Justice is too expensive: photography and public art this time. (2011-07-08 14:05) . . .
601
Bo Diddley: You Cant Judge a Book by the Cover (2011-07-09 21:20) . . . . . . . . . .
602
Interview with me on News of the World scandal and its US implications (2011-07-15 08:07)
602
This American Life tells the story of a patent troll. (2011-07-25 14:08) . . . . . . . . .
603
You convince people by confirming that what they believe about the world is true.
(2011-07-31 14:49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
603
September . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
604
The Barnes Foundation and Ownership: Outsmarting Albert Barnes (2011-09-01 14:54)
604
PBF on the interrelationships between law, technology, and the arts on 9/15
(2011-09-09 09:01) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
605
The principle of collage is the central principle of all art. (2011-09-17 10:05) . . . . . . .
605
November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
607
Originality relies on a good deal of imitation and even a bit of theft Picasso this time.
(2011-11-07 22:25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
607
An Introduction to Copyright, Fair Use, and Appropriation Art, Part 1 (2011-11-09 10:30)
608
The film, music, and publishing industries have always cried, Wolf! (2011-11-10 11:29)
610
On Veterans Day, someone elses story about my dad. (2011-11-11 12:29) . . . . . . . .
611
Do you think something original can be made entirely from copyrighted pieces? Christian
Marclay: The Clock (2011-11-16 13:27) . . . . . . . . . . . . . . . . . . . . . .
611
Steinski: The Motorcade Sped On (for November 22) (2011-11-22 10:19) . . . . . . . . .
611
4.10 December . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
611
New Years Eve Remix: DJ Earworms United States of Pop 2011: World Go Boom
(2011-12-31 19:04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 2012
5.1
611
613
January . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
613
Creativity? YOU CANT HANDLE CREATIVITY! (2012-01-05 19:07) . . . . . . . . .
613
Saturday Night (2012-01-07 16:38) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
614
John Oswald, pioneer of the aural collage: the futility of law in the face of technology it
cannot control. (2012-01-10 11:33) . . . . . . . . . . . . . . . . . . . . . . . . .
614
Why would any musician give away his music for free? (2012-01-13 15:17) . . . . . . . .
615
Ray Johnson, dead 17 years ago today: I have simply had to accept the fact that out of a
life necessity I have written a lot of letters, and given away a lot of material and
information, and it has been a compulsion. (2012-01-13 23:46) . . . . . . . . .
617
The Evolution Control Committee will sue you if you listen to their new album, but at
least they can host a Saturday night horror flick theyve mashed together the
soundtrack for. (2012-01-14 09:27) . . . . . . . . . . . . . . . . . . . . . . . . .
619
Off Book:
The Evolution of Music Online (a/k/a progress SOPA would end)
(2012-01-18 13:03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
620
Saturday Night at the Mashup Movies:

Negativland, No Other Possibility
(2012-01-21 19:02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
620
Saturday Nights Music Mashup: Kota Ezawa - Beatles: California ber Alles
(2012-01-21 20:48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
620
Clay Shirky on why SOPA & PIPA wont go away: the old media companies want to make
it too expensive for you (artist, consumer, teacher, etc.) to use copies even in
legitimate ways (2012-01-23 20:20) . . . . . . . . . . . . . . . . . . . . . . . . .
620
Building knowledge in the digital age; the transition continues science this time.
(2012-01-25 16:54) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
620
The motion picture and music industries wont give up trying to protect their moneymaking models even if they are obsolete. (2012-01-25 18:34) . . . . . . . . . .
621
Part home, part musical instrument NOLAs Music Box (2012-01-25 22:07) . . . . . .
622
What did Jackson Pollock intend when he painted Lavender Mist? Cariou v. Prince, and
the importance of scripting the artists words. (2012-01-26 11:36) . . . . . . .
623
Joy Garnett Lectures on Painting, Mass Media, and the Art of Fair Use (2012-01-26 16:55)
625
Richard Prince doesnt have to describe one of his paintings as a Rhino in Hot Pants
Shouting, Repent, Repent! for it to be so. (2012-01-27 11:54) . . . . . . . . .
625
Another thought on stating artistic intentions (2012-01-27 15:04) . . . . . . . . . . . . .
628
In loving memory of an American classic (2012-01-27 15:15) . . . . . . . . . . . . . . . .
629
Friday Night Mashup: Kota Ezawa and Yves Klein: Into the Void (2012-01-27 15:42)
629
27
5.2
28
Saturday Night Mashup: The Timelords/KLF Doctorin the Tardis (2012-01-28 15:54)
630
Saturday Night Mashup: Beatles Revolution Number Nine (2012-01-29 00:44) . . . . .
630
Michalis Pichler: Statements on Appropriation (2009) (2012-01-29 02:28) . . . . . . . .
630
Dickie Goodman & Bill Buchanan: The Flying Saucer the first hit mashup and its legacy
(2012-01-29 07:08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
633
The Beach Boys: Villains, just see what youve done. (2012-01-31 00:20) . . . . . . . . .
637
Mount Washington Railroad, New Hampshire (c. 1870) (2012-01-31 16:27) . . . . . . .
639
February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
639
Theyre trying to make it illegal for you to respond to the imagery your bombarded with
every day. (2012-02-01 23:11) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
639
Girl Talk: If they passed out paints on the street for free, Im sure thered be a lot more
painters. (2012-02-02 11:00) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
640
Roy Lichtenstein, Image Duplicator (1963) (2012-02-04 14:35) . . . . . . . . . . . . . . .
641
Distasteful, insensitive, insulting, and totally unacceptable? Sure, but its PROTECTED
EXPRESSION! (2012-02-08 23:17) . . . . . . . . . . . . . . . . . . . . . . . . .
641
Chapter 1
2008
1.1
August
Introducing Ruling Imagination: Law and Creativity (2008-08-04 13:21)

I want to thank the founders of Geniocity.com for inviting me to write for them. Today, I will try to
introduce my subjects. I will, in short, be writing about both the ways law affects creative endeavors and
the ways in which law itself is a creative endeavor.
The former, the ways in which law affects creativity, is, to put it mildly, topical. We are living through
interesting times. I would almost say that Walter Benjamin could not have imagined in 1936 the means
we have to reproduce and disseminate art, but he apparently did, quoting Paul Valery near the beginning
of his famous essay:
Just as water, gas, and electricity are brought into our houses from far off to satisfy our needs in response
to a minimal effort, so we shall be supplied with visual or auditory images, which will appear and disappear at a simple movement of the hand, hardly more than a sign.
But I won t limit myself to copyright law, or even the broader topic of internet law. While I do have
enough of an interest in copyright law that I have maintained a blog about it for the past six months,
I hope to address here any and all legal matters that touch on creativity, whether they pertain to the
internet and other media, the legal implications and concerns regarding attribution in art, or the ownership of art plundered by Nazis or others. I of course always welcome questions and suggestions for topics.
The burden of producing on a deadline, as anyone in a creative field knows, can be overwhelming.
And I am in a creative field. Law is not, as most beginning law students believe, a matter of learning
and applying rules in a mechanical fashion. It is, rather, advocacy and rhetoric the persuasion of a
decision-maker to decide in one s favor. As rhetoric, it is one of the most ancient of arts. I hope to
introduce my audience to these arts and to learn from them ways to improve my own artistic skills.
Ruling Imagination: Law and Creativity (2008-08-05 08:59)

The Age of Collage and the RIAA
The principle of collage is the central principle of all art in the twentieth century.
(1931-1989)
Donald Barthelme
29
Barthelme, one of the greatest and least appreciated writers of the Twentieth Century, has been described as a man who, when the dust of critical obfuscation settles, will surely be remembered as one of
the few truly important players in postmodernism s controversial history. But while visual and literary
collage are, if not fully accepted, well-established artistic forms, aural collage is not.
We live in a regime in which the recording companies require payment for any sample of recorded music,
no matter how brief.
Paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin
Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc. , in a decision that did not even
consider issues pertaining to fair use, enjoined the distribution of Biz Markie s third album because one of
its songs sampled three words and the accompaniment ostinato of Gilbert O Sullivan s schlock hit Alone
Again, Naturally. Duffy wasn t satisfied with a mere injunction, however: he referred the defendants
to the U.S. Attorney s office for criminal prosecution and wrote in his opinion, like a preacher from the
pulpit, Thou shalt not steal has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed.
The U.S. Attorney s office exercised its prosecutorial discretion and refused to seek an indictment against
Biz Markie or his producers.
Record companies certainly have no interest in challenging the existing regime. The recordings they own
are held inviolate too, so why challenge the right of another recording company to require payment for
any sample, no matter how small, no matter transformative its use is, and no matter how little impact it
will have on the market for the sampled piece? Artists who would challenge the existing regime hardly
have the financial wherewithal to challenge the industry and the enormously successful artists who benefit
from it. Thus, as Jonathan Lethem has written, [a]lthough sampling was just a technological extension
of the age-old process of learning through imitation, producers who use samples now pay up instead of
trying to set precedents for fair use.
Thus, the the RIAA states that
cense. (emphasis added)
generally speaking, the use of any part of a song requires a li-
I ll go more into questions of fair use in future posts, but for now let me put it this way: the RIAA s
position is, in light of the right of fair use, indefensible. For business reasons, the RIAA s policy has not
faced serious challenge
record companies who issue work containing samples will pay for those samples
so they in turn will be paid for samples of their own recordings.
But, as I mentioned in my post yesterday, technology changes everything, and we are on the verge
of an age of legitimate unauthorized appropriation of recorded samples. Girl Talk s Feed the Animals
is the latest product from Illegal Art that raises the question, posed by the N &VR Journal: at what
point does sampling end, and a new creation with a new songwriter begin? It s a question posed again
and again by musical collage. It is not, as I am likely to point out again and again, a position that is
anti-copyright. Rather, as Illegal Art s founder, Philo T. Farnsworth, explains:
I should clarify that we are and we aren t anti-copyright. We re against copyright law when it impedes an artist s ability to interact with pre-existing recordings. We re not against copyright protecting
artists from someone copying their material and selling it without compensating them.
And watch out
Girl Talk is one of the big new things. Of course, it seems likely Girl Talk will
be put to the legal test one of these days. That would be a good thing: we might finally have a genuine
examination of the relationship between copyright, fair use, and sampling.
[EMBED]
30

The loss of an important voice: William Patry, Copyright Maven
I am saddened to report that William Patry has, after 4 years, ended his Patry Copyright Blog. There
are several reasons for my sadness. First, Mr. Patry is a wonderful writer, a creative thinker, and one of
the leading authorities, if not the leading one, in the field of copyright. His multi-volume treatise, Patry
on Copyright, has instantly become the authority in the field, not only because of his expertise, but also
because it is the first comprehensive treatise on copyright in 17 years. And no one needs to be told that
the last 17 years constitute an entire epoch in copyright law.
I am also saddened because Mr. Patry is a remarkably generous soul. When, last February, I started a
blog on copyright and fair use as a class project, I took a shot in the dark and wrote him to ask what he
thought of the project. I never expected to hear from him. After all, he is Senior Copyright Counsel to
Google. I am way out of his league on the topics I planned to cover in the new blog. Quite plainly, too,
he is a very busy man.
Within minutes, however, he wrote me back, praising the project and welcoming my questions. I tried not
to abuse the invitation, but I did on several occasions write him and ask him for his reactions to things
I wrote. He was without exception gracious, generous, and, most wonderful of all, endlessly encouraging
to me. As he wrote, it is our human obligation to learn every single day. He added that, in his 26 years
of working in the field, there wasnt a day he wasnt amazed at how much more he had to learn.
That Mr. Patry also plugged my blog on his was just icing on the cake and instantly gave me credibility and attention I could never otherwise have expected.
It is a shame that Mr. Patry became viewed by some as a shill for Google. He had a long and illustrious career in copyright long before joining Google and he made clear that the views he expressed
on his blog were his own, not his employers. Unfortunately, as he wrote in his last post:
There is nothing I can do to stop this false implication that I am speaking on Googles
behalf. And thats just those who do so because they are lazy. Others, for partisan purposes,
insist on on misdescribing the blog as a Google blog, or in one case involving a think tank,
darkly indicating also a la Senator Joe McCarthy, that in addition to funding from Google,
there may be other sources of funding too.
Saddest of all, Mr. Patry is in despair of the state of copyright law, which, in his view (as well as mine)
has lost its purpose: to encourage and promote creativity. He concludes his farewell as follows:
I regard myself as a centrist. I believe very much that in proper doses copyright is essential
for certain classes of works, especially commercial movies, commercial sound recordings, and
commercial books, the core copyright industries. I accept that the level of proper doses will
vary from person to person and that my recommended dose may be lower (or higher) than
others. But in my view . . . we are well past the healthy dose stage and into the serious
illness stage. Much like the U.S. economy, things are getting worse, not better.
Copyright law has abandoned its reason for being: to encourage learning and the creation of
new works. Instead, its principal functions now are to preserve existing failed business models,
to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright
owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back
together again: multilateral and trade agreements have ensured that, and quite deliberately.
31
If Walt Disney Co. (NYSE: DIS) didnt still own the copyright to Mickey Mouse, Walt Disney
(the artist, not the company) would never have had the incentive to create him, right?

What are you thinking, Herb Mitgang?
The knee-jerk reaction some writers and other artists have to any unauthorized use of their copyrighted
works often baffles me. Artists often react viscerally to any unauthorized use of their creations even when
doing so fails to serve, as far as I can tell, any legitimate personal interest they might have. Its as if they
simply think: its my property, and no one can touch it unless I tell them they can!
The Association of American University Presses provides a useful summary of the Google Book Search
Program:
Many university and scholarly presses have participated enthusiastically in the Publisher
program, which allows their print publications to be indexed and displayed to an appropriate
extent through Googles beta online index of print materials while protecting their own, their
authors and third parties rights. The Library program has proven controversial, as Google
plans to scan, digitize, and copy not only public domain works from five world-class research
libraries, but also the in-copyright collections of at least some of those libraries. The libraries
are the Bodleian at Oxford University, Harvard University Library, the University of Michigan
Library, the New York Public Library, and Stanford University Library.
It is important to understand that Google is not merely copying the libraries collections in order to make
them available electronically to the world. Instead, Google Book Search allows its users to search the
entire database of what Google has thus far scanned. For works by authors who have granted Google
permission, a user of the Book Search can scan read the entire text. But for those who have not expressly
provided that permission, a search through Book Search will turn up only books containing the searched
terms along with snippets of approximately 3 lines around the searched terms.
In short, Google Book Search is a boon to researchers, allowing them to locate books relevant to their
research in libraries they could not possibly ever have visited. They then can obtain the books, either
32
through inter-library loans or through online purchases. Without Google Book Search, in other words,
myriads of profoundly useful books scattered around the world would remain utterly invisible to the vast
majority of people with interest in them.
Which brings me to Herbert Mitgang. Mitgang is one of the named plaintiffs in the Authors Guild
lawsuit seeking to shut down the Google Library Project. Mitgang was born in 1920, and since the 1950s
he has been a prolific writer in numerous genres, from journalism to fiction to biography. Among his
books are three on Abraham Lincoln.
Mitgang, however, is hardly a household name. His books on Lincoln are still in print, but, despite
my acquaintaince with several amateur Lincoln-obsessed readers, none of them have read any of Mitgangs Lincoln books. Mitgang is 87 years old. It seems quite likely therefore that, within a decade or
so, the only feasible way Lincoln researchers will be able to obtain his books will be from the collections
being scanned by the Google Library project.
In short, I cannot begin to imagine why Mitgang wants to shut down the Google Library Project.
Without it, his books will likely fade into oblivion. On the other hand, if the Google Library Project is
a success, there is every possibility that future Lincoln researchers might come across and use Mitgangs
Lincoln books. I wish I could get in a room and ask him: Why are you doing this? Do you really want
your lifes work to disappear entirely from the sight of future researchers?
My sister, a lifelong writer, for years bristled at my views of copyright. Shes come around. The fact
that the entire corpus of one genre shes worked in for decades, the retelling of folk tales for children, is
available online has, shes realized, made her more visible, more attractive to publishers, students, and
producers of other media. Exposure is, it seems, the lifeblood of an artist; putting ones work behind a
fence, on the other hand, will only make it invisible.
I wonder what Herb Mitgang thinks of that?

The futility, and perhaps unconstitutionality, of locking down your digital creations
DRM ( Digital Rights Management, a/k/a digital copy protection or digital locks) restricts the ways
you can copy and distribute your digital media. I ve heard even artists suggest that advances in digital
locks will solve the problems they think are posed by the ease with which digital media can now be
duplicated and disseminated.
The Digital Millennium Copyright Act,(the DMCA ) purports to make it unlawful to override a CD
or DVD s digital copyright protection even if the copying of the copyrighted material is legitimate, noninfringing fair use.
I seriously doubt, however, that a court could impose liability under the DMCA on someone who evades
DRM protection to copy material he subsequently uses for a legitimate, non-infringing use. Fair use is
grounded in the Constitution, both in (1) the Copyright Clause, which gives Congress the power to
promote the progress of science and useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries, and (2) in the First Amendment protection
of free speech.
In other words, fair use is a constitutional right, and constitutional rights cannot be infringed by mere
legislation.
Not everyone agrees. Chris Soghoian writes that the creators of the Hillary s Inner Tracy Flick video are
33
in violation of the DMCA s provision making it unlawful to copy material under DRM protection even
though the video otherwise makes fair use of scenes from the movie Election. Thus, Soghoian concludes,
if the creator of the video used DVD-ripping software, its unencrypted, DRM-free copy of the work
(which they would have needed to cut and paste bits into their mash-up) is in no way authorized. This
means, unfortunately for [the videos creator], that it would have no fair-use defense, and could thus face
a copyright infringement lawsuit.
I don t buy it. Many, many digital forms of media state, in effect, that no copying of the information contained herein is permitted by its creator for any purpose. Standing alone, those statements are
meaningless. Plainly, one can make unauthorized copies of information for many purposes. Nor could
Congress pass a constitutionally effective law that purported to make those and similar statements enforceable. Again, if you have a constitutional right to copy and use copyrighted materials, a constitutional
amendment would be required to take away that right.
I do not see why DRM protection, which can generally be cracked very easily, should, for fair use
purposes, be treated any differently than a bare declaration that any copying is unlawful. No statute can
make enforceable mere declarations that unauthorized copies are illegal. I really don t see why an easily
evaded digital lock is, for these purposes, any different.

Away until Tuesday. Peter will resume blogging Aug. 12.

Collaborative Writing and Creativity
Legal writing is collaborative and built on appropriations from earlier legal writing. Does that mean
it is not original? Take for example a judicial opinion written by a high appellate court. The judicial
opinion is not the original work of the wise and creative judge pronouncing from on high. Rather, the
opinion itself is a piece cobbled together from a number of other sources that include the lawyers written
and spoken legal arguments to the court, the opinions rendered by the lower courts (which themselves
appropriated the legal arguments made by lawyers to them), secondary legal sources, and earlier opinions
that were themselves built up from the bits and pieces floating through the legal discourse community.
Nevertheless, conventional legal thinking has since at least the 19th Century propounded the notion of
the judge as quintessentially Romantic author-creator.
Increasingly it is being recognized that all writing is to some degree collaborative
In short, legal writing is quintessentially collaborative and full of unattributed appropriations of texts,
ideas, and forms. My work in this blog will be in part, I think, two-fold: (1) to convince you that such
writing is, despite its mongrel nature, fully original, and (2) to convince you that what you consider
the most original writing is, in fact, far more collaborative and appropriative than you have previously
considered.
In short, I hope to examine what creativity really is and to convince you it is not typically, if ever,
the inspired product of an isolated genius.
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Distributing the Art of a Dead Thief (and matters of attribution)
The death of William Milliken Vanderbilt Kingsland, born Melvyn Kohn, is rife with questions of law
and art. Mr. Kohn, it was discovered, was a fraud, neither once married to French nobility, educated at
Groton or Harvard, nor living on Fifth Avenue.

And while his small apartment on East 72nd Street was full of art, he appears to have stolen most of
it. The New York County Public Administrators Office, which handles the estates of people who die
without wills, put the art up for auction through Christies and another auction house. But it was only
after the buyer of one of the pieces looked into its provenance that he discovered it had been stolen.
Experts at Christies soon discovered several other of the pieces had been stolen.
Mr. Kohn apparently really did own a few of his pieces; the receipts were found in his apartment. But
there are still 105 pieces unaccounted for. If no one

comes forward to
claim them, they will be auctioned and the proceeds will go to Mr. Kohns heirs, several of whom seem
to have turned up.
So what has the FBI done? Just what any fifteen year old would in 2008: posted a website containing
images of all the contested works, hoping their true owners will turn up.
Needless to say, however, return of the works to their rightful owners will be no easy task. The FBI
agent in charge of the case described the conversations with potential leads as discussions of prehistoric
history. And then, of course, theres that old bugaboo: authenticity. The agent said of a drawing listed
in the collection as a Corot: Well, you know what they say about Corot, dont you? He did 500 pictures
and there are 2,0000 of them in the United States.
Im sure this isnt one of the paintings that ended up in Kohns collection:
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Ruling Imagination:
Law and Creativity/Is creativity individual or collective?
(2008-08-14 04:35)
Do you view the creative act as an individual or collective one?

As I began to explain on Monday, law is a quintessentially collaborative enterprise. Even when we
glorify or vilify individual judges, we consider them part of a justice (or justice) system. It s no secret
among lawyers that the listing of authors on a legal document top to bottom reflects 2 things: the lawyers
at the top are the more important ones, and the lawyers at the bottom did most of the legal research,
analysis, and writing. Its also a point of pride for a lawyer when a judges opinion constitutes little more
than a cut-and-paste job of the lawyers own brief (without attribution, of course).
Apparently, as Coturnix at ScienceBlog.com puts it, the death of the single author is also a trait
of scientific writing:
The question of authorship on scientific papers is an important question. For centuries,
every paper was a single-author paper. Moreover, each was thousands of pages long and
leather-bound. But now, when science has become such a collaborative enterprise and singleauthor papers are becoming a rarity, when a 12-author paper turns no heads and 100-author
papers are showing up more and more, it has become necessary to put some order in the
question of authorship.
The artists among you might consider these questions limited to the professional or practical spheres.
And you might wonder too what they have to do with a blog concerning law and creativity.
Well, in the words of the CWRU English Department s Authorship Collective, changing historical notions
of creativity - specifically, the change of an understanding of creativity as a collaborative, group effort
to creativity as the product of a single inspired mind - are precisely the notions that created modern
intellectual property rights and the ways those rights protect individual creations without protecting
collaborative or communal creations:
An author in the modern sense is the creator of unique literary, or artistic, works
the originality of which warrants their protection under laws of intellectual property Anglo
American copyright and European authors rights. This notion is so firmly established
that it persists and flourishes even in the face of contrary experience. Experience tells us that
our creative practices are largely derivative, generally collective, and increasingly corporate
and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and
originary.
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The Authorship Collective explains that for the better part of human history the ways new works drew on
known, existing works contributed to the value of the new work. Writers, like other artisans, considered
their task to lie in the reworking of traditional materials according to principles and techniques preserved
and handed down to them in rhetoric and poetics the collective wisdom of their craft.
[In contrast, the] individualistic construction of authorship is a relatively recent invention,
the
result of a radical reconceptualization of the creative
process that culminated less than two centuries ago in the heroic self-presentation of Romantic
poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine
authorship is originary in the sense that it results not in a variation, an imitation, or an
adaptation, and certainly not in a mere reproduction, but in a new, unique in a word,
original work which, accordingly, may be said to be the property of its creator and to
merit the laws protection as such. See Martha Woodmansee, The Genius and the Copyright:
Economic and Legal Conditions of the Emergence of the Author .
What does this shift in the notion of authorship have to do with the law? Well, quite a bit, but, for now,
let s note that Wordsworth, the seminal figure in the notion of the author as solitary genius, was one of
the chief lobbyists on behalf of the Statute of Anne, the first British copyright law with any real force. In
short, the central figure in creating the notion of artistic creation as the product of solitary inspiration
was a central figure in laying claim to exclusive ownership of the products of that solitary inspiration.
And for all that, his sister and Coleridge were both major contributors to his art. Whodve thunk?

Art/Creativity or Craft/Skill?
I noted yesterday that whether any creative achievement can properly be described as the product of an
individual is a question that arises naturally to a lawyer; law is fundamentally collaborative, and it is
therefore easy for a lawyer to understand most or even all creative efforts as collective endeavors.
There s another dichotomy concerning creativity that lawyers are also sensitive to: the dichotomy between art and mere skill.
Within the legal world, law professors who teach the most theoretical materials consider themselves
scholars. They consider professors who teach actual lawyering skills (such as legal writing) and lawyers
themselves as their intellectual inferiors. I imagine the attitude to be something like the way architects
37
must view engineers.
The dichotomy has legal significance in the area of copyright. In order to be entitled to copyright
protection, a work has to have some creative element. [O]riginality is a constitutionally mandated
prerequisite for copyright protection.
Thus, achievements requiring enormous degrees of skill can be left without copyright protection. In a
recent case, a court dismissed a copyright infringement lawsuit brought by Meshwerks against Toyota.
Meshwerks had created digital models of Toyota cars for use in Toyota s advertising. The digital models
had substantial advantages over mere photographs because with just a few clicks of a computer mouse
the advertiser could change the car s color, its surroundings, its dimensions, and its styling. In the past,
advertisers had to conduct new photo shoots of a manufacturer s entire fleet of cars each time it made
even a small design change.
Nonetheless, Meshwerks computer models were not entitled to copyright protection because they were
mere models of the cars themselves. As the court stated (pdf): Put another way, Meshwerks models
depict nothing more than unadorned Toyota vehicles the car as car. . . . works are not copyrightable
to the extent they do not involve any expression apart from the raw facts in the world.
I am of course familiar with the dichotomy between art and craft. Or is it obvious that the strict
demarcation between art and craft . . . exists only in the philosopher s imagination ?
Creativity and Civilization Require Constraints (2008-08-18 00:10)
Creativity, paradoxically, requires constraint. As the poet George Szirtes put it in a piece in the February
2006 issue of Poetry, I would contend that the constraints of form are spurs to the imagination: that
they are in fact the chief producers of imagination.
Szirtes, whose family fled Hungary as refugees in 1956, clearly is not concerned only with aesthetics.
He makes clear that negotiating the tension between form and anarchy not only underlies the poetic
triumph of meaning and structure over chaos and meaninglessness, but also the triumph of civilized
38
values over barbarity.

Legal reasoning, if it is in fact reasoning, also requires respect for constraints. Though there is of course
considerable debate about the proper nature of the constraints to be applied, there is little debate that
without any constraints legal interpretation is nothing but the assertion of raw power. Thus, as the
Stanford Encyclopedia of Philosophys article on Interpretation and Coherence in Legal Reasoning puts
it,[m]uch jurisprudential writing on interpretation in legal reasoning is concerned with how to strike the
right balance between the conserving and creative elements in interpretation, and with the constraints
which are and/or should be operative upon judges as they undertake this balancing act.
Thus, on the one hand, Owen Fiss argues that judges are constrained both by the need to be faithful to
the original legal text which they are interpreting, and by supplementary norms of interpretation which
are constitutive of the judicial role. Stanley Fish, on the other hand, would argue that the texts Fiss
identifies as constraints upon interpretation cannnot serve that purpose because those texts themselves
do not have meanings in advance of particular interpretations of them. Nevertheless, as the Stanford
Encyclopedia article makes clear, Fish is not arguing for a radical, unconstrained indeterminacy in legal
interpretation:
This seemingly radical indeterminacy is deceptive, however, for although Fish removes the
constraints on interpretation provided by legal texts or supplementary norms of the judicial
profession, he replaces them with the conditioning and training processes of interpretive
communities, which ensure that, ...readers are already and always thinking within the norms,
standards, criteria of evidence, purposes and goals of a shared enterprise, such that, the
meanings available to them have been preselected by their professional training. (Fish 1989,
133).
In short, there must be some intellectually sound justification for a legal interpretation; else it ceases to
be an interpretation and is reduced to mere edict.
Lying about the law removes all constraint, and there is no milder way to characterize the 2002 Department of Justice memorandum (the Torture Memo)(pdf), drafted by John Yoo and signed by Jay Bybee.
The Torture Memo limited the definition of torture to treatment causing pain equivalent in intensity
to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function,
or even death. (Torture Memo at 1) Thus, treatment that did not cause that high intensity of pain and
suffering was, according to Yoo and Bybee, perfectly legal.
In drafting the memo, Yoo genuinely was constrained by existing law that prohibited subjecting prisoners
to severe pain. But how did he come to define severe pain as the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even death?
39
He did two things: he tried to derive a definition of severe pain from a federal statute that had nothing
to do with the subject matter or the purposes of his analysis, and he lied about what that federal statute
actually stated.
The statute from which he sought guidance governed benefits under the Medicare + Choice plan.
(Torture Memo at 5-6) In other words, in trying to determine the proper treatment of prisoners under
U.S. law, he looked to law that sought to ration payouts from an insurance fund in order to maintain the
solvency and effectiveness of that fund. One would expect Congress to define the benefits it grants and
the circumstances under which it grants them narrowly; U.S. taxpayers would demand it.
But Yoo did not merely seek a definition of severe pain from an absurdly inappropriate place. He
made his definition up out of whole cloth. The statute does not define the term severe pain. Rather, it
defines the circumstances that constitute an emergency medical condition requiring coverage under the
Medicare + Plan:
The term emergency medical condition means a medical condition manifesting itself by
acute symptoms of sufficient severity (including severe pain) such that a prudent layperson,
who possesses an average knowledge of health and medicine, could reasonably expect the
absence of immediate medical attention to result in(i) placing the health of the individual (or, with respect to a pregnant woman, the health
of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part.
Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C.
Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit,
thought they could get away with this utterly fictional definition of severe pain. And they did. Plainly,
though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there
is no law that could prevent the President from theoretically ordering the torture of a child of a suspect
in custody - including by crushing that childs testicles.
Unconstrained, and thus without any scintilla of creative imagination, law is merely barbarity. I hate to
start writing about creativity in law from this dark abyss, but it is going to take creativity and imagination
to overcome the barbarity the Yoos and Bybees (and the long line of banal technocrats from whom they
intellectually descend) have loosed upon the world.
The 100 Most Creative Moments in U.S. Law? (2008-08-19 10:25)

From the Law Librarian Blog:
Robert F. Blomquists (Professor of Law/Swygert Research Fellow, Valparaiso) Thinking

About Law and Creativity: On the 100 Most Creative Moments in American Law [download from SSRN or ABA Journal] is a very interesting article as long as you do not take
Blomquists act of ranking creative moments in American law too seriously. If you did take
the ranking seriously you would have to note his bias for environmental law. You would have
to question why Rachel Carsons Silent Spring (1962) and Charles Reichs The Greening of
America (1972) ranks higher than Richard Posners Economic Analysis of Law (1973) and
why Berle and Means The Modern Corporation and Private Property (1932) fails to appear
in the ranking while Al Gores Earth in the Balance (1992) and An Inconvenient Truth (2006)
do appear in the Top 100.
. . . what makes Blomquists article interesting is the project itself, the attempt to articulate Americas most creative legal moments to energize and clarify our synoptic thinking
40
about the nature of legal creativity. In it he identifies, court decisions, executive actions, specific statutes, legislative programs, landmark articles, books, and events in legal education.
He offers brief justifications for his selections and their placement in his ranking but I think
the use of a numerical ranking system as an organizing device is too artificial and constrains
his commentary; a matrix or web of law with major and minor nodes for the layering of laws
creative moments might be better way to perform this sort of intellectual archeology.
Lawyers need to be effective, not necessarily original (2008-08-20 10:59)

I wrote recently that legal writing is a quintessentially collaborative enterprise. That in part is why I
think copyright is not an issue with respect to legal documents. A more important reason legal documents are not accorded copyright protection is that what matters with respect to a legal document is
its effectiveness, not its originality. If a lawyer could copy an existing document that would do an as
effective a job as it could for his client, he would be violating his professional code of ethics not to copy it.
It thus boggles my mind when people write seriously that legal documents that duplicate others might
constitute copyright violations.
Its simple reality (and good business): lawyers and judges cut and paste from one anothers documents
every day, and it would be absurd to impose a regime of copyright designed to promote original creativity
if it undercut a legal regime designed to promote effective representation. Similarly, it is absurd to accuse
lawyers of plagiarism in the documents they produce as lawyers. There have been cases which have
spoken in terms of lawyer plagiarism, but they all can be better understood as fraud (charging clients
for research that was nothing but the copying of pre-existing work) or malpractice (excessive copying
that produces a document that bears little relationship to what the specific representation demands, as
opposed to effective cutting and pasting of pre-existing work into newly written work) than as plagiarism.
Plagiarism is passing off someone elses work as your own. But, again, in legal practice (as opposed
to legal scholarship or law school work), the point of the work is its effectiveness, not its source or its
originality.
In other words, all you students of mine, plagiarism in school is not allowed. It is an unethical act
that can and will result in expulsion and disqualification from the practice of law. But lets not confuse
contexts: some contexts, specifically academic practices, produce in their audiences the expectation of
originality; in others, specifically legal practice, originality can be effective, but effectiveness is the bottom
line.
Effective Storytelling, McDonalds Coffee, and the Law (2008-08-21 05:06)
That effective stories arise from a relatively limited set of recurring patterns
is no secret. The existence of these archetypes may be one more blow to the Romantic myth that creativity grows out of individual genius, but, as regular readers of this page will learn, I dont believe creativity
arises, divinely inspired, from individual geniuses.
41
But creative lawyers know the patterns of effective stories, as I was reminded again the other day when
I read Alexander Stars review of Charles Tillys Credit and Blame. Star writes:
Reflecting on tort cases, Tilly suggests that we possess something like an all-purpose
justice detector. When something good or bad happens, we measure the magnitude of the
change, identify an agent who helped bring it about and assess how the agent s skills, knowledge and intentions figure in the result. How much blame does the Ford Motor Company
deserve when an Explorer rolls over on the highway? The answer, Tilly writes, depends on
how badly the driver or passenger was injured, whether Ford should have known the crash
was likely to happen and whether it intended to build the car the way it did. Lawyers argue
this way in civil suits, but couples apply similar rules of thumb when they argue over who left
the car windows down.
I think it is very astute of Tilly to identify this pattern of blame in tort cases: (1) how badly was the
plaintiff injured, (2) should the defendant have known the injury was likely to happen, and (3) did the
defendant intend to create the likelihood of the injury.
An excellent example of this pattern at work is the infamous McDonalds Coffee Case, the inspiration for the Stella Awards, which were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of
McDonalds coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million dollars in
damages.
Just last week at physical therapy for rapidly improving sciatica (thanks to my outstanding physical
therapists), I was teased again with the way the McDonalds Coffee Case exemplifies the supposed idiocy
of the personal injury system. The physical therapists know Im a law professor. How can I blame them?
Tillys pattern explains their reactions perfectly: they must think the following: (1) How bad could the
injury have been? Weve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could
McDonalds have known? Again, weve all spilled coffee on ourselves, and who among us have suffered
burns meriting $2.9 million in damages? (3) McDonalds sells coffee! How could it possibly have intended
to burn Ms. Liebeck, when all it intended was to caffeinate her?
But a jury awarded Ms. Liebeck $200,000 in compensatory damages; this amount was reduced by
20 percent (to $160,000) because the jury found her 20 percent at fault. The jury also awarded her $2.7
million in punitive damages but the judge later reduced that amount to $480,000, or three times the
actual damages that were awarded. And that amount was compromised in a confidential settlement
that resolved the appeal.
Were the jurors, judges, and lawyers who resolved this case simply insane? Are all the people who
refer to the case when decrying the U.S. justice system just so much smarter than those people?
Ah, theres another way of looking at the story, the way lawyers, juries, and judges look at cases they
actually decide: through the evidence, and the evidence (as with the other facts from Ms. Lubiecks case
in this posti, from the True Stella Awards site) , viewed through Tillys paradigm, tell a very different
story:
(1) How badly was Ms. Lubieck injured?
She was burned badly (some sources say six percent of her skin was burned, other
sources say 16 percent was) and needed two years of treatment and rehabilitation, including
skin grafts. McDonalds refused an offer to settle with her for $20,000 in medical costs.
(2) Did McDonalds know the injury was likely to happen?
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From 1982 to 1992, McDonalds coffee burned more than 700 people, usually slightly but
sometimes seriously, resulting in some number of other claims and lawsuits.
(3) Did McDonalds intend to create the likelihood of injury?
McDonalds quality control managers specified that its coffee should be served at 180-190
degrees Fahrenheit. Liquids at that temperature can cause third-degree burns in 2-7 seconds.
Such burns require skin grafting, debridement and whirlpool treatments to heal, and the resulting scarring is typically permanent.
Witnesses for McDonalds admitted in court that consumers are unaware of the extent of
the risk of serious burns from spilled coffee served at McDonalds required temperature, admitted that it did not warn customers of this risk, could offer no explanation as to why it did
not, and testified that it did not intend to turn down the heat even though it admitted that
its coffee is not fit for consumption when sold because it is too hot.
Im not arguing that Ms. Liebecks case constituted the epitome of justice. As William Gaddis wrote,
Justice? - you get justice in the next world, in this world, you have the law. What I am saying is that
we are human, and we respond to the evidence we are told in the way we are told it. Effective lawyers
know these truths. All truly creative people do.
Novelty alone is not creativity, whether in the legal strategy for the war on terror or
the invention of the Segway (2008-08-21 21:52)
One measure of creativity must be its effectiveness rather

than its mere novelty. On that score, as Jane Mayer noted back in the July 3, 2006 issue of the New
Yorker, the Bush Administrations legal strategy for the war on terror might have been radical, even
unprecedented, but can hardly be called creative:
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[T]he Administration s legal strategy for the war on terror[,] [k]nown as the New Paradigm,
. . . rests on a reading of the Constitution that few legal scholars share namely, that the
President, as Commander-in-Chief, has the authority to disregard virtually all previously
known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside.
. . . The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as
possible. Criminal courts and military courts, with their exacting standards of evidence and
emphasis on protecting defendants rights, were deemed too cumbersome. (emphasis added)
Over two years since Mayers article, nearly seven years since September 11, 2001, what have we got? As
the Christian Science Monitor puts it:
One conviction, of Salim Ahmed Hamdan, the personal driver of Al Qaeda leader Osama
bin Laden. After a two-week-long trial and three days of deliberations, the military court in
Guantanamo Bay, Cuba, convicted Mr. Hamdan of providing material support for terrorism
by driving Mr. bin Laden around Afghanistan. In spite of the conviction, legal debate
regarding the trial rages on.
Im not merely ranting about a war in Iraq Ive opposed since its inception, or of the fraudulent legal
analysis that produced this Administrations conclusions regarding what constitutes torture. Im pointing out that results count, and what is more telling than an utter and complete failure to meet the very
purpose of a radical departure from existing norms? It doesnt take a cognitive psychologist to recognize
the differences between mere novelty and genuine creativity, but its plain Arthur J. Cropley does:
The cognitive approach to creativity emphasizes the processes involved in producing effective novelty, as well as the control mechanisms that regulate novelty production, and the
structures that result. Merely novel structures display surprisingness and incongruity, to be
sure, but they must also be meaningful and practicable to be effective.
Do you remember the Segway? (Thats Dick Cheney, of all people, riding one up there in the upper right
of this post.) As Jeff Foust wrote two years ago in The Space Review, in 2001 (before 9/11, of course),
the question being pondered by millions was simple: what is IT? IT was the codename
for the invention that had reportedly been developed by famed inventor Dean Kamen. Details
about IT (also known as Ginger , its internal codename) were scant . . . .
What was known was that IT was some kind of transportation technology. The Inside report
. . . said that the device had wowed over luminaries like venture capitalist John Doerr, who
invested in the project while claiming it was as revolutionary as the Internet; Steve Jobs,
the Apple co-founder who reportedly claimed that cities would be architected around the
device; and Amazon.com founder Jeff Bezos, whose trademark laugh could be heard echoing
through the halls of Kamen s New Hampshire headquarters as he tried out the device during
a June 2000 visit. The potential upside of this device was seemingly limitless, providing a
sharp and hopeful contrast to the dot.com world, which was crashing to Earth at the same
time. The speculation spawned a web site, theITquestion.com, where visitors traded the latest
rumors on just what IT might be.
Kamen officially unveiled the Segway on the ABC TV show Good Morning America in
44
December 2001. The response was& underwhelming, in many quarters. I m tempted to say,
That s it? co-host Diane Sawyer blurted out when the sheet covering the Segway was pulled
away. But that can t be it.
But that was it. From a technological standpoint Segway was a revolutionary invention:
a computer-controlled, self-balancing human transporter that was highly maneuverable yet
easy and safe to use. However, to the public, whose expectations had bloomed in hothouse of
hype fueled by the media and the Internet over the last year, the Segway seemed more like
an odd-looking scooter than the device that was as revolutionary as the Internet and would
force people to rearchitect cities. . . .
It s little surprise, then, that Segways failed to sell at anywhere near the levels its backers hoped. When the company issued a recall notice in September 2003 to correct a software
problem, it said only 6,000 devices had been manufactured to date. Kemper, in his book Reinventing the Wheel (the softcover version of the book about the development of the Segway
that was originally published under the title Code Name Ginger), reported that as of summer
2004 the last date sales figures had been released less than 10,000 Segways had been sold.
(Segway s media relations office failed to respond to a request last week for updated sales
figures.) That s a far cry from the pre-release belief, voiced by Doerr, that Segway would
make its first billion dollars faster than any other company in history. No one seems to be in
a hurry these days to redesign cities around the Segway; after all, when was the last time you
saw a Segway rolling down the sidewalk?
To catch a thief (2008-08-25 08:58)
Kelly Crow writes in the Wall Street Journal about innovative

ways law enforcement agencies are trying to keep up with art thieves, who are becoming bolder and
more violent. [N]ow for the first time the [FBI] is upending tradition by training a nationwide squad to
combat art crime. Prosecutors and law-enforcement officials are hailing the move . . . . The FBIs role
is increasingly crucial. As Crow notes:
The U.S. is the biggest buyer within the $6 billion black market for art, the FBI says. Last
year alone, 16,117 artworks in the U.S. were listed by the London-based Art Loss Register as
missing or stolen, up from 14,981 the year before. At the same time, worsening economies and
shifting priorities are forcing governments to slash their budgets to combat art crime. New
York Cit York City cut $4 million from its museum-security budget earlier this summer.
45
Crows story focuses on Robert Wittman,who has spent

over 20 years tracking art thieves. Wittman, though, has been an anomaly within the Bureau until now
the FBI has treated art crime like a tweedy backwater compared with offenses like terrorism, racketeering
and drug smuggling. Experts are worried too whether the Bureaus new art squad will be able to replace
the soon to retire Mr. Wittman, one of whose stings, as recounted in detail by Crow, sounds like the
summary of a new television pilot that crosses Miami Vice with the world of Christies and Sothebys.
But Wittman makes clear the difference between what he and television cops do, emphasizing that his
work can be incredibly stressful because unlike actors, you only get one shot and you have to remember
everything you ever said.
The Wall Street Journal also includes with the story the details on Arts Ten Most Wanted Works,
which include The Concert, by Vermeer (pictured above right). As recounted by the museum from which
The Concert was stolen, In the early morning hours of March 18, 1990, thieves dressed as Boston police
officers entered the Isabella Stewart Gardner Museum in Boston and stole 13 works of art.
Gerry Spence on being a lawyer and a human being. (2008-08-26 00:18)
Gerry Spence is as good a lawyer and compelling an advocate as I have ever witnessed. He now has a
blog. If youre interested in being an effective lawyer, its a must read. If youre interested in how life
really works, its just as important. I am pleased too that his views on certain matters are similar to
mine. Heres what he writes:
46
The trial of a case, in its simplest form, is telling

a story jurors can understand. Yet most lawyers are taught little, if anything, about communicating with others. They are taught to deny their feelings and, at last, have so long
shielded themselves against their feelings that many find it nearly impossible to get in touch
with them. Yet justice is a feeling and jurors (as do we all) make their decisions based on
their feelings.
Most lawyers know little about classical literature and history, have never written a poem,
have never painted a picture, have never stood before an audience and sung a song, have never
been permitted to confess their pain or their love, and, in short, have been denied the stuff
of personhood. One need not write poetry or paint pictures to be a successful human being.
But some intimacy with the arts and the language and its use and with right brain functions
of feeling and creativity are essential to the development of the whole person. Little wonder
that lawyers, disabled by all of the stifling, mostly useless mental exercises they have suffered,
have trouble relating to jurors, much less to the rest of mankind.
The uses and abuses of the differences between the law on the books and the law in
action (with a particular emphasis on copyright overclaiming) (2008-08-27 00:17)
Its pretty obvious law and behavior often diverge. In some cases, that divergence arises from ambiguity
and the realities of human relationships. How do you respond when a valued customer arguably breaches
his contract with your client? Quite possibly, if not likely, your client will be better served by ignoring
the breach of the written obligation and keeping the customer satisfied. As Charles L. Knapp, Nathan
M. Crystal, and Harry G. Prince write in the preface (pdf) to the casebook I use in my Contracts course:
[I]n real life there is likely to be not just one answer to a client s problem but a whole
range of possible answers, some of which are clearly wrong, but many of which are at least
plausibly right, in varying degrees. Living with ambivalence and uncertainty is not always
pleasant, but the ability to do so is surely a more necessary lawyering skill than mastering
the niceties of citation form.
47
Some lawyers and clients, however, abuse this gap between law and behavior. I am not referring to
the everyday, harmless disregard of the rules. How often do you obey the speed limit? But, as Judge
Richard Posner writes, this dichotomy long noted by legal thinkers between the law on the books and
the law in action is a particular problem in copyright law. Often the mere threat of an infringement
action can extract money from someone using copyrighted material in a legitimate way. The problem, of
course is exacerbated considerably because the copyrights to so much of our media are owned by corporate conglomerates. Who is going to fight Disney, even if hes right? Another problem is the widespread
ignorance in the media about copyright. As Posner writes:
The result is a systematic overclaiming of copyright, resulting in a misunderstanding of

copyrights breadth. Look at the copyright page in virtually any book, or the copyright notice
at the beginning of a DVD or VHS film recording. The notice will almost always state that
no part of the work can be reproduced without the publishers (or movie studios) permission.
This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright
notice risks receiving a threatening letter from the copyright owner. He doesnt know whether
he will be sued, and because the fair use doctrine is vague, he may not be altogether confident
about the outcome of the suit. The would-be fair user is likely to be an author, movie director,
etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since
a publisher worries about expansive fair uses of the books he publishes, he doesnt want to
encourage such uses by permitting his own authors to copy from other publishers works. So
you have a whole law in action law invented by publishers, including ridiculous rules such
as that any quotation of more than two lines of a poem requires a copyright license.
Universal Music recently was, at least for the moment, slapped down in a particularly absurd instance of
copyright overclaiming. Universal sought to remove Stephanie Lenzs 29 second video of her son dancing
to Princes Lets Go Crazy from YouTube via a takedown notice under the Digital Millennium Copyright Act (the DMCA). Lenz in turn sued Universal on the grounds that in sending the takedown notice
Universal knowingly misrepresented that Lenzs video was infringing. Remarkably, Universal argued that
a copyright holder need not consider whether the use of copyrighted material is legitimate fair use before
sending a takedown notice. The DMCA provides, however, that a copyright owner can send a takedown
notice only if he has a good faith belief that use of the material in the manner complained of is not
authorized by the copyright owner, its agent, or the law. If use of copyrighted material constitutes fair
use, it is authorized by the law. And there is no question that determining fair use can be a difficult
and complicated determination. But not in not in Stephanie Lenzs case heres the offending video:
[EMBED] Thus, it should be no surprise that U.S. Federal District Court Judge Jeremy Fogel rejected
Universals argument that, before sending a takedown notice to YouTube, it did not need to even consider
whether the presence of Princes Lets Go Crazy in the video was a fair use . Accordingly, the judge
refused to grant Universals motion to dismiss Lenzs case. In his decision (pdf), Judge Fogel wrote:
An allegation that a copyright owner acted in bad faith by issuing a takedown notice
without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to . . . the DMCA. Such an interpretation of the DMCA furthers
both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA,
Congress noted that the provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed
without recourse.
Not everyone has the guts of Stephanie Lenz. Thats a problem. The Universals of this world have all the
money. Recently, the Electronic Frontier Foundation noted that another federal judge denied copyright
infringement allegations from Universal . . . affirming an eBay sellers right to resell promotional CDs
that he buys from secondhand stores.
48
Support the troops! (2008-08-28 07:12)

Heres some creativity in law, from my very own University of Detroit Mercy Law School:
Project Salute is a mobile law office which provides free assistance and/or representation to thousands
of low-income veterans exclusively on federal benefits issues throughout the United States. As recounted
this past February in the Detroit Free Press:
It was April 21 and UDM law students were rolling out a mobile clinic that would travel
around metro Detroit to offer veterans free legal help in obtaining federal benefits. It was
6:12 a.m. That was our first call, Dean Mark Gordon said. They didnt stop. A veteran
from the West Coast phoned: He was actually crying. . . . He felt so abandoned and was so
pleased that someone was listening, Gordon said. Now, less than a year after its debut, the
service is going on a national tour. The clinic for now in a converted Winnebago heads
out Thursday for an American Legion post in San Antonio. As it tours the country, it will be
staffed by UDM students and faculty. UDM staff also will work with local attorneys in each
city who will offer pro bono work. UDMs original van will continue to tour metro Detroit,
Gordon said.
The media coverage continues unabated. You can watch some of it here. GM has donated a wheelchairaccessible, top-of-the-line 2008 Winnebago Outlook 31C to the project. Detroit Mercy law students and
volunteer lawyers work out of the mobile law office, not only helping vets get their deserved government
benefits, but also training lawyers in every locality they visit on the ins and outs of the work so that it
will continue even after Project Salute departs. Here are the links to several news telecasts from the days
Project Salute was in Houston:
Day 3: Project Salute Passes Knowledge To Lawyers

Day 2: More Local Vets Helped By Project Salute
Day 1: Project Salute Helps Vets Get Benefits
Hope Arrives For Houston-Area Vets
Tour Project Salute Bus
49
Barney Smith not Smith Barney (2008-08-29 00:24)

Creativity legal, artistic, mechanical, scientific, or political is often (always?) not creation but, rather,
the selection and arrangement of what is already around us every day, unnoticed, until it is held up and
discovered to be exactly what is needed to do what needs to be done.
[EMBED]
1.2
September
We all, always, are figuring out the stories the world is telling us. (2008-09-02 09:59)
Lawyers understand better than most that putting together a story in ones mind is the most common
everyday act we all engage in. People speak of proof and facts as if theyre certainties, but lawyers
know that proof is merely evidence that can only be understood in light of other evidence and that
facts are not hard and fast things inferred from the evidence. As I tell my students, We never have
Gods videotape.
But we need to understand the evidence we confront as hard and fast enough to support the decisions we always have to make, whether were jurors or just ordinary people making the decisions ordinary
people make all the time. And were not bad at it; we come to the best story we can given the facts and
move forward. The process may almost be like natural selection: our decisions about how to interpret
the evidence we have are tested by the consequences those decisions entail, and so our interpretations
(we hope) get better as we see our decisions succeed and fail.
In short, the world is a story just like a news story, a movie, or a novel is. And those of us who
engage in storytelling know more than a few things about how to put together the evidence to sway our
audience in the way we want our audience to be swayed. I wrote the week before last about one pattern
humans find compelling.

There are many, many more effective methods of telling stories. Tell the story from the point of view
of the person with whom you want your audience to identify. Move what you emphasize to the front of
your story, to the front of your paragraphs, and to the front of your sentences. Spend more time on what
you want to emphasize. Stay credible. Take what you want to de-emphasize and bury it in the middle of
your story, in the middle of a paragraph, and in the middle of a sentence. Better yet, surround that bad
evidence by good evidence at the beginning and ends of those paragraphs and sentences. Do mention
the bad facts (if you dont, some adversary will, which will considerably damage your credibility), but
mention them as briefly as possible.
I could go on, but thats enough for today.
One last thing: how do you decide about the evidence regarding Sarah Palin?
50
Is she a true agent of change? Shes taken on the establishment in traditionally corrupt Alaska to
become one of our ruling partys rising stars and walks the walk when the real world we all struggle
with confronts her. She ran for governor and won against the former Senator who had appointed his
own daughter to succeed him in the Senate and is more popular with her constituents than any other
governor is among his or hers. When she is faced by the kind of unanticipated smack in the face Reality
often doles out as she has been by her daughters pregnancy, a private matter that anyone could face
she shows that she stands by her principles. She opposed the Bridge to Nowhere, the project which
is synonymous with business as usual in Washington, and she is a political enemy of the corrupt Senator
from her own party, Ted Stevens. In short, John McCain showed he really is a true maverick in choosing
her.
Or is she this years Thomas Eagleton and Geraldine Ferraro rolled into one? Shes a charismatic Christian creationist who would outlaw abortion even in cases of rape and incest. She was a member of a
political party that stands for the secession of Alaska, the abolition of all property taxes, and the privatization and exploitation to the hilt of all public lands within the new country. She was elected governor of
a state so unpopulated she only needed 115,000 votes to win, and so, while she may be popular there, her
popularity hardly shows she is representative of real Americans. How could it? She has been governor
of that state for less than two years. She believes in abstinence-only education, yet the ineffectiveness of
that policy in fighting teen pregnancies is highlighted by her own 17 year old daughters pregnancy. She
supported the bridge to nowhere before she opposed it. She didnt take on the corrupt Ted Stevens,
as Lindsey Graham claimed, but, rather, led a major fundraising effort for him. Shes even under investigation for pressuring Alaskas commissioner of public works to fire the state trooper who was engaged in
an acrimonious custody battle with her sister. In short, she is Exhibit A for the defects in John McCains
decision-making and judgment.
Addendum: from Hilzoy at Obsidian Wings: Sarah Palin was not registered as a member of the Alaska
Independence Party, though TPM Muckraker found that her husband was.
Segways. (2008-09-02 17:23)
Hey, maybe I should sue for copyright infringement! :)
51
With whom would you prefer a lager? (2008-09-02 21:31)
An often effective method of persuasion is to change the topic

from what the argument is about to who the arguer is. It s known as a fallacy because, according to
the Nizkor Project, the character, circumstances, or actions of a person do not (in most cases) have a
bearing on the truth or falsity of the claim being made (or the quality of the argument being made) : the
topic in the presidential race isn t what the President will do, it s what kind of person he is. As Crooks
& Liars pointed out last Spring
The data is clear. If the election is about the economy, health care and Iraq, John McCain
cannot become the 44th president. Only if the GOP succeeds once again in transforming
the race into a media medley about lapel pins, angry ministers and Muslim-sounding middle
names can the Republicans hope to maintain their hold on the White House.
And so, [w]hile their man [or woman], be it George W. Bush or John McCain [or Sarah Palin], is the
authentic guy [or girl] you d ike to have a beer with, the GOP drives the media conventional wisdom
that paints the likes of Al Gore, John Kerry and now Barack Obama as effete, out-of-touch elitists whose
positions change with the wind.
So it shouldn t be a surprise that today the Washington Post quoted Rick Davis, campaign manager
for John McCain s presidential bid, claiming that [t]his election is not about issues, said Davis. This
election is about a composite view of what people take away from these candidates.
[This leaves aside to me a truly astonishing question: what is it that makes Barack Obama an elitist but not John McCain?]
The creative mind is the one that can master these methods, take them apart when they re being used
against him, and come back with an even more effective strategy.
But what would I know? I blog about law and creativity, and I m an academic who used to work
with a major law firm and at that time lived in Manhattan. I must be an out-of-touch elitist.
Just because most people like it doesnt mean you have to (2008-09-03 11:01)
I asked last night what it is that makes Barack Obama and not John McCain an elitist, and what Ive
figured out is that its a stupid question that, like the ad hominem fallacy, tries to avoid the issues we
52
really need to think about. From Butterflies and Wheels:
But elitists dont have a monopoly on hidden agendas and invidious motives. Oneupmanship, jockeying for position, ressentiment, self-righteousness, the thrills of disapproval
and condescension and getting it right while others get it wrong - those are all equalopportunity pleasures. Anti-elitists get their own little frissons from saying Youre a snob
and Im not. In fact, of course, its impossible to think anything is right as opposed to wrong,
that any attitude, stance, commitment, political view, idea is better than any other, without
opening the door to approval of self and disapproval of others. Quite, quite impossible. If
were too afraid of being smug and superior and self-righteous to have any opinions at all,
we just become vacuous spineless shapeless nothings, and we can never improve or correct
or change anything. What could be a more conservative position than that? No, abdication
of judgment is neither possible nor desirable, we have to be clear about that, and just settle
down to doing it well instead of badly. Terry Eagleton puts it this way:
We should, I think, give no comfort to those who in the name of a fashionable anti-litism
would ignore real evidence of cultural deprivation, though we should remember of course that
there is no single index of cultural flourishing or decline.
The elitism epithet works to inhibit judgment because it is so a priori. It assumes, without
argument, that to say that any popular book or movie or piece of music or tv show is bad is
a thought-crime, because doing so second-guesses majority opinion; it says majority opinion
is wrong. Democracy is expanded from the political realm to that of ideas and art, and taken
to mean that the popular is automatically good and the good is automatically popular. Put
like that it looks insane, but what else does the elitist epithet mean?
Sad to say, if were going to think at all, we have to be able to think for ourselves. De
Tocqueville pointed out how difficult this can be in a democracy, and he scared the hell out
of John Stuart Mill, who pointed out the difficulty and the necessity even more sharply. Both
the difficulty and the necessity are still with us.
The wars are over! The wars are over! (2008-09-03 14:51)
Interpretation, of course, is a creative endeavor, whether its Biblical hermeneutics or statutory interpretation. Last week, the United States District Court for the District
of Massachusetts in U.S. v. Prosperi (pdf) needed to determine whether the term war in a federal
statute includes the conflicts in Iraq and Afghanistan. Interestingly, the court found that they are not
53
now wars, though they were. The defendant was arguing that they never were wars, that Congress
intended the statute (which stops the running of the statute of limitations applicable to the crime the
defendants were being tried for) to apply only to conflicts in which Congress had declared war. Congress
has authorized the President to use force in Afghanistan and Iraq but never declared war.
The court determined, essentially, that the conflicts in Afghanistan and Iraq were wars because they
constituted armed conflicts of sufficient size and scope. In essence, they were wars because they looked
like wars, talked like wars, and walked like wars.
The court also determined, however, that the wars have ended.
The court had to do
so because under the statute the applicable statute

of limitations begins to run again three years after the termination of hostilities as proclaimed by the
President . . . . The court noted that it is very unclear when these wars ended or will end: Traditionally, the end of a war is marked by the signing of a formal peace treaty. However, formal surrenders like
those of Germany and Japan at the end of World War II, like formal declarations of war, are the modern
exceptions. The court also admitted that a strong case can be made, given the continuing expenditures
and loss of life in Iraq and Afghanistan, that the United States remains at war. Nevertheless, the court
finally decided the wars ended, respectively, with the recognition of the government of Hamid Karzai in
Afghanistan and with Bushs Mission Accomplished speech in Iraq:
On December 22, 2001, the United States formally recognized and extended full diplomatic
relations to the new government of Hamid Karzai.37 That recognition signaled the cessation
of a state of war with Afghanistan. Accordingly, the statute of limitations with respect to
the Afghan conflict, expired on December 22, 2004. Similarly, on May 1, 2003, President
Bush, while aboard the USS Abraham Lincoln, proclaimed that [m]ajor combat operations
in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed.
And now our coalition is engaged in securing and reconstructing that country. Consequently,
with regards to the Iraq conflict, the statute of limitations expired on May 1, 2006. (footnotes
omitted)
I thought youd like the good news.
p.s. The government apparently argued, but not very strenuously, that the ongoing war on terror
constitutes a war as well. Of course, that would mean we ll forever be at war. It s not the first time the
Bush Administration has made this argument; it has done so continuously since 2001. The court, like
any body I ve heard of presented with the argument, didn t take it seriously:
At the hearing on the motion, there was also discussion of a global war on terrorism,
waged principally against Osama bin Laden and al Qaeda. The use of the metaphor of war
54
to describe the struggle against terrorism has been criticized. See Sir Adam Roberts, The
War on Terror in Historical Perspective, 47 SURVIVAL 101-130 (Summer 2005). I do not
understand the government to be pressing the argument that the United States is at war
with al Qaeda, at least in any traditional legal sense.
The confusion (and, often, anxiety) that inevitably arises when confronting new and
difficult problems (2008-09-05 09:59)
To allay anxiety caused by their inevitable confusion, I regularly explain to my students that any problem
worthy of their professional expertise will require a period during which they do not have a clue how
to solve the problem, when they feel completely confused. I have to confess utter confusion regarding
how this election will turn out. On the one hand, a Democrat victory seems inevitable. There is no
one I know well who isnt hurting these days. The economy is in a shambles, prices on necessities are
skyrocketing, we havent yet captured or killed Osama Bin Laden, Afghanistan is in chaos, what victory
realistically constitutes in Iraq remains a mystery (do we really expect to walk out of their with a strong
and democratic ally?) . . . I could go on.
At the same time, I wouldve been astounded during most of my life to think the U.S. would elect a
black as President unless he happened to be a conservative Republican. And my belief that a majority
of U.S. voters would choose a Democrat this year runs up against that unshakeable feeling. There are
certainly people who will say their vote is based on race (and anyone who says otherwise really is out
of touch with certain segments of the U.S.), but they are in a minority. Others claim astonishment that
people think their intentions are based on race even when all indications are otherwise. Representative
Lynn Westmoreland claims he is astonished that calling Barack and Michelle Obama uppity would be
taken as a racist comment.
Others speak in a code maybe they themselves dont realize is racist. As reported in last weeks Cleveland
Jewish News, a Cleveland mental health counselor, for example, is concerned not so much about Obama
the man, but the influences he might be subjected to from Muslims. I know he was brought up as a
Christian, but both his father and stepfather were Muslim, and there has to be some influence there, she
maintains. Although she also has serious reservations about McCain, she is haunted by her concerns
about Obama.
And then there are the people whos financial motivations are difficult to separate from other motivations.
My sons doctor yesterday asked me what I thought of Wednesday nights Republican convention. I said I
thought it was ugly. He told me he thought it was excellent and that he doesnt like the people around
Obama. Then he turned to my son and said, Youre fathers a liberal. He wants to make a lot of money
and give it all away.
I bit my tongue and stopped myself from saying, Your doctors a conservative. He wants to make a
lot of money and keep it all for himself. But what do I expect from a loyalist to that a party that
fraudulently claims Obama will will impose painful tax increases on working American families when in
fact, as reported accurately by FactCheck.org, Obama proposes to cut taxes for most individuals (81.3
percent of all households would get a tax cut), while raising them only for a relative few at the top?
Its difficult to separate peoples economic motivations from their more visceral motivations. I can almost
understand the people who make a lot of money and do not want to shoulder a fair burden of paying for
the infrastructure, services, and schools necessary to a society that allows them and others to do so, but
I cannot understand people like Mitt Romney (Its time for the party of big ideas, not the party of Big
Brother!) and Rudy Giuliani, the former mayor of New York City (Im sorry that Barack Obama feels
that her hometown isnt cosmopolitan enough. Im sorry, Barack, that its not flashy enough.). Check
that I can understand Rudy. I once worked with Rudy. I remember sitting across a desk from him and
his eyes glazing over as I explained the results of legal research I had done for him. His chief assistant
55
was in the room, furiously taking notes. I knew the assistant was the person I was reporting to while
we were all pretending I was reporting to Rudy. Rudy is a mediocre person wrapped in a remarkable
amount of ambition. I suspect Romney must simply be the same.
The Republicans are, undeniably The Party in Power, Running as if it Werent.
Where will all of this leave us in November? I dont have a clue. I need to follow the advice that I
give to my students and not let this utter confusion cause me too much anxiety.
Propaganda (2008-09-05 13:34)

Propaganda, I suppose, is a creative art.
[EMBED]
Propaganda is neutrally defined as a systematic form of purposeful persuasion that attempts to influence the emotions, attitudes, opinions, and actions of specified target audiences
for ideological, political or commercial purposes through the controlled transmission of onesided messages (which may or may not be factual) via mass and direct media channels. A
propaganda organization employs propagandists who engage in propagandism the applied
creation and distribution of such forms of persuasion. Richard Alan Nelson, A Chronology
and Glossary of Propaganda in the United States, 1996
Sarah Barracuda? Not if Heart can help it. (2008-09-06 13:11)

From the Seattle Times:
Ann Wilson and Nancy Wilson posted a message Friday on their Web site condemning
the use of their 1977 hit at the Republican convention. The song was played when McCain,
the partys presidential nominee, was joined onstage after the speech by his running mate,
Alaska Gov. Sarah Palin. . . . Republican officials didnt ask for permission to use the song
and would not have been given the OK if they had done so, the Wilsons said.
In a statement posted Friday on the EW.com site, the Wilsons wrote:
Sarah Palins views and values in NO WAY represent us as American women. We ask
that our song Barracuda no longer be used to promote her image. The song Barracuda was
written in the late 70s as a scathing rant against the soulless, corporate nature of the music
business, particularly for women. (The barracuda represented the business.) While Heart
did not and would not authorize the use of their song at the RNC, theres irony in Republican
strategists choice to make use of it there.
[EMBED]
I wonder, though whether the Republican Partys use of the song isnt fair use. Its political, non-profit
speech, and it doesnt seem as if it would have any negative impact on the market for Hearts song.
Then again, the use does use a substantial portion of the song, and the song is a creative work. Heart,
presumably, could license the work for political and commercial purposes, though, so perhaps the use
does have a negative impact on derivative markets for the song. I think any hope Heart would have
of winning an infringement case would depend on showing that. The matter is reminiscent of 1984,
when Ronald Reagan appropriated Bruce Springsteens Born in the USA, though in name only. From
Cnn.com:
56
In the heart of his 1984 re-election campaign, Ronald Reagan made a speech in Hammonton, New Jersey, and took the opportunity to invoke the name of one of the Garden States
favorite sons.Americas future rests in a thousand dreams inside our hearts, the president
said. It rests in the message of hope in the songs of a man so many young Americans admire:
New Jerseys own Bruce Springsteen. Reagan or his speechwriter was likely thinking of
one song in particular: Born in the U.S.A., the title cut from Springsteens No. 1 album of
the time. . . .But look deeper, and there was another dimension to Born in the U.S.A. The
song was the ferocious cry of an unemployed Vietnam veteran.Down in the shadow of the
penitentiary/Out by the gas fires of the refinery/Im 10 years burning down the road/Nowhere
to run aint got nowhere to go, Springsteen sang in a working-class howl.The singer wasnt
amused by Reagans appropriation of his work. I think people have a need to feel good about
the country they live in, he later told Rolling Stone. But whats happening, I think, is that
that need which is a good thing is getting manipulated and exploited. You see in the
Reagan election ads on TV, you know, Its morning in America, and you say, Well, its
not morning in Pittsburgh. The singer, who spent much on 1984 on a huge concert tour,
dedicated Born in the U.S.A. to a union local at one stop.
Buying art and then refusing to pay (2008-09-08 04:49)
The New York Times on Friday ran a story explaining that Sotheby s has filed a $16.8 million lawsuit against the art collector and Internet entrepreneur
Halsey Minor for refusing to pay the auction house for three paintings he bought in May (including
The Peaceable Kingdom and the Leopard of Serenity by Edward Hicks (left)). According to the story,
Diana Phillips, a spokeswoman for Sotheby s, said that Mr. Minor had told the auction house that he
had not paid for the works because hewas owed money by other parties and could not afford to. Halsey
strenuously objected to the suggestion he couldnt afford the paintings, explaining instead that he refused
to go through with the sale because he didnt know at the time of the sale that Sothebys had an interest
in maximizing the amount he would bid because the paintings seller owed $11.5 million to Sothebys.
According to the Art Law Blog, Mr. Halsey explained:
Did they have an economic interest in the painting they were showing me privately and
touting, or did they not? Who knows, I still may have paid $9.6 mm for the painting, but at
least I would have been able to take their scholarship/marketing in context and with a grain
of salt.
When a broker shows you a home and sells you on its merits and you find out later the
broker owned the home, the law has been broken and the process has been tainted. I am going
57
to bet that when they have to finally cough up the documents and stop spouting nonsense
they will have served in the dual role of auctioneer and secret undisclosed owner. And all else
will have been long forgotten.
There are several problems with Mr. Halseys position. The first is that generally, unless a broker (of art
or real estate) is acting as an agent of the buyer, the broker owes no duties to the buyer. In other words,
the broker does not have any duty to explain its financial interest in the transaction. In fact, generally
when you buy from a broker you know the broker is acting on behalf of the seller and that the brokers
fee will be depend on how high the selling price is. In short, a broker acting on behalf of a seller very
often, if not almost always, has an interest in maximizing the sale price. Hes a salesman, and we know
how to take the words of a salesman. Sothebys may be high end, but the truth of the matter is that its
full of salesman whose products happen to be very expensive art.
In addition, according to the Times story, the sale of the paintings by Sothebys attracted a lot of
attention at the time because of the financial problems of the paintings owner. It doesnt stretch the
imagination to suppose, therefore, that Mr. Halsey knew at the time of the sale that Sothebys had an
even greater interest in the painting than a brokers fee based on a percentage of the sale price.
Of course, whether he has the money or not Mr. Halsey may be trying to back out of a deal for an
asset that, like most other assets these days, isnt what it was worth at the height of the market (not
that long ago, but a time that is rapidly fading from memory).
Negativelands positivity (2008-09-09 06:07)

Ive written before here about Girl Talk. As I wrote then, Girl Talks music, which consists entirely of
the weaving together of samples from other recording artists, is a direct challenge to a legal and business
regime that has treated as theft any sample of any recording without permission, regardless of the size
of the sample and regardless of the appropriating works origniality.
Long before Girl Talk, however, came Negativeland, doing the same thing and, unlike Girl Talk, articulating intelligently along with the music the theoretical justifications for its methods. Here, as post-modern
as it gets, is Negativelands No Business:
[EMBED]
Negativelands art can lead to amusing ironies. including its confrontation with U2 or, rather, as they
found out later, when they actually ran into U2s Dave Evans (a/k/a The Edge), U2s record company,
which had never actually consulted with the members of U2 before taking legal action that wiped Negativelands U2, a tape collage satire of U2s I Still Havent Found What Im Looking For, off the face
of the earth.
One may not agree with Negativelands stance (and they can go on about it), but it is a thoughtful
and undeniably compelling one, as this excerpt one of their essays should begin to make clear:
We think it s about time that the obvious esthetic validity of appropriation begins to be
raised in opposition to the assumed preeminence of copyright laws prohibiting the free reuse
of cultural material. Has it occurred to anyone that the private ownership of mass culture is
a bit of a contradiction in terms?
. . . We are now all immersed in an ever-growing media environment
an environment
just as real and just as affecting as the natural one from which it somehow sprang. Today
58
we are surrounded by canned ideas, images, music, and text. . . . Most of our opinions are
no longer born out of our own experience. They are received opinions. Large increments of
our daily sensory input are not focused on the physical reality around us, but on the media
that saturates it. As artists, we find this new electrified environment irresistibly worthy of
comment, criticism, and manipulation.
The act of appropriating from this media assault represents a kind of liberation from our
status as helpless sponges . . . . Appropriation sees media, itself, as a telling source and
subject, to be captured, rearranged, even manipulated, and injected back into the barrage by
those who are subjected to it. Appropriators claim the right to create with mirrors.
Our corporate culture, on the other hand, is determined to reach the end of this century
while maintaining its economically dependent view that there is something wrong with all
this. . . .
Our cultural evolution is no longer allowed to unfold in the way that pre-copyright culture
always did. True folk music, for example, is no longer possible. The original folk process of
incorporating previous melodies and lyrics into constantly evolving songs is impossible when
melodies and lyrics are privately owned. We now exist in a society so choked and inhibited by
cultural property and copyright protections that the very idea of mass culture is now primarily
propelled by economic gain and the rewards of ownership. . . .
. . . That being the case, there are two types of appropriation taking place today: legal
and illegal. So, you may ask, if this type of work must be done, why can t everyone just follow
the rules and do it the legal way? Negativland remains on the shady side of existing law because to follow it would put us out of business. Here is a personal example of how copyright
law actually serves to prevent a wholly appropriate creative process which inevitably emerged
out of our reproducing technologies.
In order to appropriate or sample even a few seconds of almost anything out there, you
are supposed to do two things: get permission and pay clearance fees. The permission aspect
becomes an unavoidable roadblock to anyone who may intend to use the material in a context
unflattering to the performer or work involved. This may happen to be exactly what we want
to do. Dead end. Imagine how much critical satire would get made if you were required to
get prior permission from the subject of your satire? The payment aspect is an even greater
obstacle to use. Negativland is a small group of people dedicated to maintaining our critical
stance by staying out of the corporate mainstream. We create and manufacture our own work,
on our own label, on our own meager incomes and borrowed money. Our work is typically
packed with found elements, brief fragments recorded from all media. This goes way beyond
one or two, or ten or twenty elements. We can use a hundred different elements on a single
record. Each of these audio fragments has a different owner and each of these owners must be
located. This is usually impossible because the fragmentary nature of our long-ago random
capture from radio or TV does not include the owner s name and address. If findable, each
one of these owners, assuming they each agree with our usage, must be paid a fee which can
range from hundreds to thousands of dollars each. Clearance fees are set, of course, for the
lucrative inter-corporate trade. Even if we were somehow able to afford that, there are the
endless frustrations involved in just trying to get lethargic and unmotivated bureaucracies to
get back to you. Thus, both our budget and our release schedule would be completely out of
our own hands. Releases can be delayed literally for years. As tiny independents, depending
on only one release at a time, we can t proceed under those conditions. In effect, any attempt
to be legal would shut us down.
So OK, we re just small potato heads, working in a way that wasn t foreseen by the law,
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and it s just too problematical, so why not just work some other way? We are working this
way because it s just plain interesting, and emulating the various well-worn status quos isn t.
How many artistic perogatives should we be willing to give up in order to maintain our ownerregulated culture? The directions art wants to take may sometimes be dangerous, the risk of
democracy, but they certainly should not be dictated by what business wants to allow. Look
it up in the dictionary
art is not defined as a business! Is it a healthy state of affairs when
business attorneys get to lock in the boundaries of experimentation for artists, or is this a
recipe for cultural stagnation?
Court rules Harry Potter Lexicon infringed J.K. Rowlings copyright (2008-09-09 09:59)
Ive been vindicated. I wrote on April 14 that I thought J.K. Rowlings lawsuit for copyright infringement
against the author of a Harry Potter Lexicon would prevail because the case was so much like another,
Castle Rock Entertainment Group v. Carol Publishing, Inc., where the court ruled that a trivia book
based on the characters and events of the Seinfeld television series infringed the copyrights held by the
producers of the TV show.
Yesterday, a federal judge in New York City ruled in J.K. Rowlings favor and blocked publication of
the Harry Potter Lexicon because Rowlings lawyers had established that the lexicon copied too much
directly from the novels.
The court in the Seinfeld case ruled that the author of the trivia book based on the TV series had
merely repackaged the facts of the series in a different way. Similarly, the Harry Potter Lexicon was
merely a repackaging of material from the Harry Potter books. Apparently, the lexicons entries copied
verbatim substantial parts of the book.
It has been said again and again, and rightly, that determining whether a new work that takes material
from a copyrighted work infringes the copyright or is non-infringing fair use is exceedingly difficult and
almost always depends on the particular facts of the case.
Cases like Rowlings and the Seinfeld case turn, nevertheless, primarily on two issues: how much is
copied and how much does the work constitute original, transformative, work that is, how much is
the new work something original unto itself rather than merely a repackaging of the old work. Thus,
if one commenter to my April 14 post had been right that the Harry Potter Lexicon, as its author
had claimed, had contained substantial amounts of commentary without substantial outright copying
the Lexicon might have been non-infringing fair use. As the decision now stands, however (it may
be appealed), the lexicon seemed to be too much repackaged copying and too little independent work.
Certainly, that is J.K. Rowlings view. She was quoted after the decision saying, The proposed book
took an enormous amount of my work and added virtually no original commentary of its own. ... Many
books have been published which offer original insights into the world of Harry Potter. The Lexicon just
is not one of them.
The Bush Administrations tyrannical torture policies and its rewards (2008-09-10 00:17)
Ive written here before of the Bush Administrations interpretations of law that lied about and distorted the rules on which their authors based their conclusions. One point I made was that achieving real
intelligence in any creative endeavor, including law and art, requires acting within constraints. Anthony
Lewis has an excellent article in the current New York Review of Books that goes into some detail on the
history of what he calls Official American Sadism. Among other matters (read the whole article), I am
grateful that he points out that with respect to torture and the treatment of prisoners in the so-called
War on Terror, many U.S. lawyers, military lawyers who have represented enemy combatants, have
followed the rule of law, the very constraint that keeps the President from acting like an arbitrary tyrant.
In contrast to those real heroes, Lewiss suggests that members of the administration have committed
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war crimes, a point that is certainly not far-fetched, though I doubt well ever see them prosecuted:
Unlike John Yoo and William Haynes, most American lawyers who have been involved in
the issues of torture and boundless detention have defended American ideals of justice. That
has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above,
is one example among many. Large numbers of private lawyers have volunteered their time
and struggled against official obstacles to represent prisoners. . . .
To date the enablers of torture . . . are doing fine. President Bush, Vice President Cheney,
and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the
president had unlimited power to order the use of torture, was nominated and confirmed as
a judge of the United States Court of Appeals for the Ninth Circuit before his torture role
became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients President Bush
et al. were the deciders. Yoo is also regarded by television programs and by the opinion
pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.
Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked
questions about their responsibility. When Addington was asked whether it would be legal to
torture a detainees child, he replied: Im not here to render legal advice to your committee.
[Yoo, on the other hand, has not been as evasive, at least in the past. In December 2005 he
stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody - including by crushing that child s
testicles. ] William Haynes, the former Defense Department general counsel, appeared before
a Senate committee and repeatedly said, in answer to questions, that he could not remember.
A Washington Post column on his testimony was headlined Abu Ghraib? Doesnt Ring a
Bell.
Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane
Mayer, the International Committee of the Red Cross concluded in a report last year that
interrogation methods used by the CIA on a high-level prisoner categorically constituted
torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned
into a War on American Ideals, says the ICRC report was sent to the CIA, the detaining
authority, which shared it with the President and the Secretary of State. Mayer writes that
the report warned that the abuse constituted war crimes, placing the highest officials in the
US government in jeopardy of being prosecuted.
(hyperlinks added; footnotes omitted).
What is creativity in law? (2008-09-11 07:38)

In Creativity and Law: Can they Live Together? (pdf), Margaret A. Boden, a cognitive scientist in
Great Britain, identifies three main ways in which creativity informs the law:
(1) Combinational Creativity: putting familiar ideas together in unfamiliar ways.

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(2) Exploratory Creativity: exploring, navigating, and testing the potential and boundaries
of some pre-existing way of thinking.
(3 Transformational Creativity: changing one or more dimensions of the current conceptual
space so that things can now be thought which were impossible to think before.
In the coming days, I hope to explore each of these categories, both in terms of Bodens discussion and
of my own experience as a practitioner and professor. For now, I have two points to make: plainly, in
answer to the question posed by the title of Bodens article, both she and I feel creativity and law not
only can live together but are inextricably intertwined. Anyone who thinks that applying law to real life
is merely a matter of finding the right law to apply to the right situation has no appreciation for the
infinite complexity of life, the ways that while history repeats itself history never repeats itself in
precisely the same ways, and the ways that everyone brings their own perspective to events. We never, as
I have previously written here, have Gods video tape of events. We only have the fragmentary pieces
of individual testimony, documentary and physical evidence, and the intelligence we can bring to bear on
putting those fragments together in a coherent and persuasive way.
Which brings me to the last point I have for today. Boden describes creativity as the ability to generate
ideas that are new, surprising, and valuable. I have no particular reason to question that definition. But
she goes on to explain:that in law, valuable can mean a whole host of different things. Id like to suggest
one simple definition of what is valuable in law: is the product persuasive? If so, it will make its impact
on the outcome of cases, the outcome of negotiations, the outcome of counseling, the outcome of judicial
decisions. If the legal product is not convincing, no matter how elegant, daring, or radical it might be, it
has little legal value.
September 11, 1973 (2008-09-11 21:15)

September 11 is a date that resounds with infamy, and not only in the way most of you think. On
September 11, 1973, Augusto Pinochet, with the aid of the CIA, overthrew the democratically elected
government of Salvador Allende, imposing a brutal military dictatorship and giving Milton Friedman and
his acolytes their first laboratory for the application of their truly radical free market economics. I dont
mean that capitalism is radical. I mean that the capitalism of Friedman and his followers was and, even
though today it has come to represent the common wisdom today, still is.
Chile, economics, and even September 11 are obviously off-topic for me, but I couldnt help but think
I had to bring it up after listening on PRI this afternoon to the story of American Mishy Lesser, who
was in Chile on September 11, 1973 and, hunted by the newly installed military dictatorship, was taken
in, along with her boyfriend, by a family with no particular political commitments. They subsequently
helped her get out of the country, but for their efforts were arrested, imprisoned, and tortured. Lessers
boyfriend ended up as one of the legion of Chilean disappeared. Thirty five years later, Lesser returned
to Chile to find the family who gave her sanctuary so that, among other things, she could find out why
they did risked so much for a stranger who brought them so much tragedy. Go here to listen to her story.
Looking at Guantanamo (2008-09-15 02:23)

I mentioned in my post last Thursday that Margaret Boden, a cognitive scientist in Great Britain, has
described three principal ways law is creative. The first she calls Combinational Creativity, which she
describes as putting familiar ideas together in unfamiliar ways.
Putting familiar ideas together in unfamiliar ways is perhaps the type of creativity law students come to
know best. As first year law students quickly learn, law is not a set of abstract rules imposed on reality.
Rather, legal rules tend to be conditional they are developed case by case as justifications for the
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results the courts deem just in those cases. But any time a new case arises that presents a new set of
facts not foreseen by the courts that made the earlier decisions, the rules articulated in earlier cases
may no longer seem just and appropriate.
The U.S. Supreme Court was faced with the need to put familiar ideas to work in a way previously
unanticipated in its recent decision in Boumediene v. Bush. The Court in Boumediene decided that
prisoners held at the U.S. base in Guantanamo are entitled to invoke the constitutional writ of habeus
corpus to challenge their detention as enemy combatants. In plain English, once a person s liberty has
been taken away, he is entitled to challenge his imprisonment by requiring the government to prove before
a court that it has a legitimate basis for holding him. As the New York Times has explained, the Bush
administration has taken the position that it needs very little to justify holding prisoners indefinitely as
enemy combatants :
The government sets a frighteningly low standard for itself, saying it needs only some
evidence that a citizen has associated with a terrorist organization bent on hostile acts
to hold him indefinitely.
One reason the Bush administration established its detention center in Guantanamo was plainly so it
could argue that prisoners held there were outside U.S. territory and therefore beyond the geographic
reach of U.S. courts. Thus, the administrations thinking went, even if the only evidence against a prisoner
was the word of some Afghani who had captured him that he was a member of the Taliban or Al-Qaeda,
the prisoner would not be able to challenge that evidence or even present contrary evidence of his own in
any court. As the Supreme Court explained in Boumediene, the administration s argument was based on
the unique status of Guantanamo, over which the U.S. holds complete control under a perpetual lease
from Cuba:
Guantanamo Bay is not formally part of the United States. And under the terms of the
[1903] lease between the United States and Cuba, Cuba retains ultimate sovereignty over
the territory while the United States exercises complete jurisdiction and control. . . .
The United States has maintained complete and uninterrupted control of the bay for over
100 years. . . . And although it recognized, by entering into the 1903 Lease Agreement,
that Cuba retained ultimate sovereignty over Guantanamo, the United States continued
to maintain the same plenary control it had enjoyed since 1898. Yet the Government s view
is that the Constitution had no effect there, at least as to noncitizens, because the United
States disclaimed sovereignty in the formal sense of the term. The necessary implication of
the argument is that by surrendering formal sovereignty over any unincorporated territory to
a third party, while at the same time entering into a lease that grants total control over the
territory back to the United States, it would be possible for the political branches to govern
without legal constraint.
The Court also recognized that prior law did not establish how a territory with such a status should be
treated. Thus, it concluded that the historical examples of hybrid territories both sides presented to the
Court failed to answer to the question before the Court. Interestingly, the Court compared the absence
of convincing historical precedent to the situation it faced in 1954 in Brown v. Board of Education:
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[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in
the modern age, the common-law courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too much, one way or the other, from
the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483,
489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the
Fourteenth Amendment , discussed in the parties briefs and uncovered through the Court s
own investigation, convince us that, although these sources cast some light, it is not enough
to resolve the problem with which we are faced. At best, they are inconclusive ) . . . .
So what did the Court do? It decided that although ultimate sovereignty over Guantnamo continues
to reside in Cuba, the United States exercises complete jurisdiction and control that is absolute and
indefinite. The U.S. as a a matter of fact exercises all the control over Guantanamo it would if it legally
owned it rather than held it under a perpetual lease. In addition, it is impossible to consider Guantanamo Cuba s territory in connection with the U.S. detention center, even though technically Cuba is
the territory s sovereign, because Cuban law does not apply on Guantnamo: [n]o Cuban court has
jurisdiction to hear these petitioners claims, and no law other than the laws of the United States applies
at the naval station.
In short, if U.S. law does not apply to the prisoners held at Guantanamo, no law does. That is exactly what
the Bush administration had wanted, and it is exactly what the Supreme Court rejected in Boumediene.
We are all cultural magpies. (2008-09-16 11:18)

Ive written before that many consider all creative endeavors collaborative. This collaborative quality
obviously has significance in an environment in which, for example, the RIAA states that generally
speaking, the use of any part of a song requires a license. (emphasis added). Although until now the
courts have indeed found that a sample of any part of a song does require a license, a more nuanced
approach is, I think, inevitable. That inevitability is not just because groups like Girl Talk and Negativeland are creating works that sound genuinely original by weaving together pieces of other recordings. It
is also because there is a growing recognition that some of the people we consider our greatest originals
are cultural magpies. And pop music, the property the record industry protects most fiercely, is likely
the most unoriginal original art there is. As the KLF put it in The Manual (How to have a Number One
the Easy Way):
Every Number One song ever written is only made up from bits from other songs. There
is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar.
There is no point in searching for originality. In the past, most writers of songs spent months
in their lonely rooms strumming their guitars or bands in rehearsals have ground their way
through endless riffs before arriving at the song that takes them to the very top. Of course,
most of them would be mortally upset to be told that all they were doing was leaving it to
chance before they stumbled across the tried and tested.
You dont believe them? Check out Kid Rock (and dont get me wrong I like the song, but no small
part of my liking it is knowing the songs its derived from):
[EMBED]
[EMBED] [EMBED] [EMBED]
And just to make your head spin, read this.
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This morning I didnt think about the fact I wasnt being original. (2008-09-16 19:35)
I didnt realize when I wrote this mornings post that Ann Bartow at Sivacracy.net had over a month
ago quoted musician Jeffrey Lewiss piece in the New York Times making essentially the same points:
All aspects of creativity are basically reconstituted bits and pieces of things we ve seen,
heard and experienced, finely or not-so-finely chopped and served in a form that hopefully
blends the ingredients into something new. The ancient Greeks seemed to know this, expressed in their belief that the Muses of creativity were the daughters of Mnemosyne, Titan
goddess of memory. Perhaps we would like to think that the thoughts that go into creating a
new song are purely impressions from real life, but a melody does not suggest itself as much
from the impression of the 6 train ride you took this morning as it does from a melody from
another song. The same for chord progressions, song concepts, lyric sounds and patterns,
song structures and everything else. Folk music is supposed to be a shared continuum after
all, and as Louie Armstrong said, All music is folk music, I ain t never heard no horse sing
a song.
Despite knowing all this, as a supposedly creative artist I am often shocked to discover
that a song I ve written has been a blatant unconscious rip-off of somebody else s song, either
in its structure, or lyrics, etc; if I m lucky the other person s song is not particularly popular
or recognizable!
Sometimes I realize this as soon as I ve come up with it: Oh, I can t use that great chorus I just wrote, I guess it s the same melody as that Gnarls Barkley song. Sometimes I don t
realize until years later where the ingredients of a song came from. . . .
Thus so many of us snobby real artists are just cover artists in disguise, taking various
devious steps to confuse our listeners into praising our songwriting. Perhaps what I do
should be called song-composting, song-mulching, song-smoothie-ing, something like
that. Or you could just call it ripping off and take me to court. I d probably lose.
An appeal in the Harry Potter Lexicon case? (2008-09-17 08:57)

More on the Harry Potter Lexicon, which a few days ago was ruled to infringe J.K. Rowlings copyright:
the Berkman Center for Internet & Society at Harvard University announced that its Citizen Media Law
Project will work closely with a Right to Write, a new non-profit, to to help support creative artists
faced with legal threats or lawsuits. Right to Write links to an article written by Anthony Falzone, the
Executive Director of the Stanford Fair Use Project, in which Falzone writes, Needless to say were
disappointed [in the decision holding the Harry Potter Lexicon infringed Rowlings copyright], as is our
client, RDR Books. Careful and thoughtful as the decision is, we think its wrong. So stay tuned to see
where we go from here.
Sounds to me like there will be an appeal.
Where should art be, and how does it often get where it is? (2008-09-17 13:48)
Ingrid D. Rowland in the New Republic writes a terrific review and critique of Who Owns Antiquity?:
Museums and the Battle over Our Ancient Heritage, by James Cuno. Cunos publisher describes the
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book like this:
Whether antiquities should be returned to the countries where they were found is one of
the most urgent and controversial issues in the art world today, and it has pitted museums,
private collectors, and dealers against source countries, archaeologists, and academics. Maintaining that the acquisition of undocumented antiquities by museums encourages the looting
of archaeological sites, countries such as Italy, Greece, Egypt, Turkey, and China have claimed
ancient artifacts as state property, called for their return from museums around the world,
and passed laws against their future export. But in Who Owns Antiquity?, one of the worlds
leading museum directors vigorously challenges this nationalistic position, arguing that it is
damaging and often disingenuous. . . . The first extended defense of the side of museums
in the struggle over antiquities, Who Owns Antiquity? is sure to be as important as it is
controversial.
As Rowland explains in her review, Noting that modern laws about the import and export of antiquities
did not exist when Napoleonic troops discovered the Rosetta Stone, Cuno suggests that under modern
conditions British soldiers might not have been able to . . . spirit it away to the British Museum, with
the result that Jean-Franois Champillon might not have been able to decipher Egyptian hieroglyphic
script. The point of this exercise . . . is to demonstrate a larger point, which is that antiquities laws as
currently drawn impoverish rather than enrich the global level of culture. In addition, Cuno argues that
nations who retain and reclaim their archaeological heritage are advancing harmful nationalistic agendas,
not the preservation of cultural artifacts with global relevance:
The emotional, national cultural identity card played by some proponents of nationalist
retentionist cultural property laws is really a strategic, political card. National museums are
important instruments in the formation of nationalist narratives; they are used to tell the story
of a nations past and confirm its present importance. That may be true of national museums,
but it is not true of encyclopedic museums, those whose collections comprise representative
examples of the worlds artistic legacy.
Rowland will have none of it. First, she points out that the encyclopedic museums whose interests
Cuno is advancing are themselves the products of nationalism. As she puts it, [t]he founders of the
Metropolitan Museum of Art, the Boston Museum of Fine Arts, and the Art Institute of Chicago [where
Cuno is museum director] imperiously took it for granted that those cities belonged to a United States
of America that stood as beacon to the worldthe land of the free and the home of the brave. It is either
naive or tendentious to argue that those institutions were founded instead to serve some great multicultural vision of human fraternity. She also goes to some length to counter Cunos criticisms of Italy, the
source of so much of the looted art spread through museums throughout empires past and present.
Rowland also points out that, while the encyclopedic museums might have preserved some of the antiquities they obtained over the years, they have also taken away a lot:
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It is a different thing to see the ancient statue called the Spinario right there in Rome
where Pope Sixtus put it in 1471, where many of the great artists of the Renaissance drew
it, where Winckelmann and Goethe saw it, than it is to see an ancient bronze in the Met. It
is one thing to stand in the theatre of Ephesus, right there where the riot broke out among
the silversmiths who made votive trinkets for the Temple of Artemis, who feared the impact
that a wandering preacher named Paul of Tarsus might have on their businessand it is quite
another matter to see a column from that temple in the British Museum. The Elgin Marbles
have been spared the foul air of modern Athens, but they were not spared a good British scrub
down with soap and water when they arrived in the early nineteenth century, and neither fate
has been kind to the polished surface of the Parthenons sculpture.
With respect to moveable antiquities, Rowland emphasizes that their removal from their geographic
origins robs their audience of an appreciation for their true significance. We see Greek pottery in the
Metropolitan Museum, for example, without realizing it came from Italy and reflects the market demands
of the ancient Etruscan culture that imported it as much as it does the culture of the Greek exporters.
She also wonders why Cuno focuses on the value of one donors contributions to the Metropolitan Museum of Art while ignoring that donors landmark agreements to return some of her collection to Italy.
Rowland, in short, reads Cunos book as a brief for outright possessionthat we own antiquity as much as
the Italians, Greeks, Chinese, and Iraqis do, and therefore we have an equal right to their archaeological
wealthrather than as some abstract idea of respect for a shared human cultural tradition.
Rowland also has her own problems with the system that passes antiquities to encyclopedic museums,
including the fact it is dominated by organized crime. She also questions whether nationalism is such
a bad thing. It has allowed Italy to modernize and become the home of the best experts on antiquities
from the Italian peninsula. And with respect to Egypt, she writes, with some sharpness:
[A] growing number of modern Egyptians are no longer illiterate fellahin. The new Library
of Alexandria stands across the street from the University of Alexandria, with its 140,000
students; its alumni include the Nobel laureate Ahmed Zewail, now at Caltech and one of
the most imaginative chemists working today. Zahi Hawass may be a baron in his position
as head of Egypts Supreme Council of Antiquities, but he serves notice to the barons who
dwell in the worlds encyclopedic museums that they must now take the bright, eager young
people of Egypt into account.
Rowland acknowledges that Cuno represents a new generation of museum directors who improve significantly on their predecessors arrogant destructiveness. But she begs for squarely addressing the problems
posed by the hubris, greed, and lust for possession that beautiful things have always exerted on our own
breed of gregarious primate.
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Shes certainly right about the greed and lust for possession of
beautiful things. The London TimesOnline reports that[a]rt theft is big business. The FBI estimates
that it is a global industry worth $6 billion (3.3 billion) a year. In France it is reckoned the fourth most
lucrative criminal activity. Reviewing Stolen: The Gallery of Missing Masterpieces, by Jonathan Webb
and Julian Radcliffe, Rachel Campbell-Johnston explains:
The art world is a rarefied place. Discretion is prized. Dealers prefer not to discuss client
lists. Collectors can be very secretive. On top of that, art works are usually whisked out of
the country a few days after being stolen. Often they will not emerge again for years. When
they do they may well be in the hands of a bona fide person. . . .
Art theft, as Stolen makes clear, is frequently connected with the crimes with which it competes for police attention. . . . Criminals in Dublin, for instance, pulling off a spectacular
heist in a country estate, corralled Rubens, Vermeer and Goya into providing venture capital
for a drug-dealing ring. In Buenos Aires at the time of the Falklands conflict, Czanne helped
a brutal dictatorship to pull off an illicit arms deal.
To get a sense of whats been lost, you can read the Guardians descriptions of the greatest art youll
never see.
Foreign law and legal argument (2008-09-18 09:15)

I wrote a post over two years ago on the point, but the legitimacy of U.S. courts referring to foreign law
is an issue again today because the New York Times published a front page article discussing the waning
influence of the U.S. Supreme Courts decisions on the court decisions of other nations. One reason,
according to the article, is the steady outcry from some quarters against any reference to foreign law in
the U.S. courts.
I find this outcry absurd and positively contrary to the tradition of Anglo-American law. The common law system, unique to the Anglo-American world, is one that builds law case by case, recognizing
that to achieve justice the unique facts of each case require consideration of the arguments of the parties
directly affected by those facts.
The key to my point is that the courts hear arguments. They consider prior precedents, the views
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of experts, and even the rantings of political idealogues. Theres nothing wrong with doing so. There
should be no limit on what courts can refer to and rely on; rather, faced with deficient evidence or authority, the answer is correct evidence or authority. Thus, as I explained two years ago, when a judge relies on
the above-referenced political idealogues screed about the purported litigation explosion in reaching her
decision, the answer isnt to forbid her from doing so. The answer is for lawyers and judges to point out
that the facts dont support her argument, that in fact 86 % of trial judges surveyed consider frivolous
litigation anything from no problem to a small problem, while only 2 % consider it a big problem.
Thus, when Anthony Kennedy wrote the majority opinion in the Supreme Court case holding that
executing juveniles is cruel and unusual punishment under the 8th Amendment to the U.S. Constitution, it was perfectly legitimate of him to point out in support of his conclusion that evolving standards
of decency that mark the progress of a maturing society could be measured in part by the fact that
no other Western industrialized country executes juveniles. One may disagree that U.S. standards are
identical to those in other countries. Justice OConnor did so in that decision, arguing that too few
states had recently enacted such laws to convince her that the country generally had set its face against
the juvenile death penalty.
The disagreement between Kennedy and OConnor is the kind of disagreement courts resolve every
day, but to not merely disagree with Kennedy but seek to entirely cut off reference to any source for ones
legal arguments is contrary to any notion of law I understand. I expect it from (influential) right-wing
wackos who think judges should be impeached for even considering foreign law in reaching their decisions. I dontf from our most recently appointed and confirmed Supreme Court Justices, John Roberts
and Samuel Alito:
At their confirmation hearings, Chief Justice John G. Roberts Jr. and JusticeSamuel A.
Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional
cases. Chief Justice Roberts noted that foreign judges were not accountable to the American
people and said that allowing the use of foreign precedent expanded judicial discretion.
Foreign law, you can find anything you want, Chief Justice Roberts said. Looking at
foreign law for support is like looking out over a crowd and picking out your friends.
You can just as easily find anything you want in virtually any source courts regularly cite. As I stated
above, the answer to bad argument is good argument, not censorship. There is nothing special about
foreign court decisions except, it seems, an ever-growing U.S. fear of everything foreign.
Whats so wrong about looking to foreign law? (2008-09-19 09:08)

An Australian correspondent writes, in response to my post yesterday
Whats surprising to me as an Australian is that there is any controversy at all. Theres a

huge difference between looking at various sources for examples of reasoning and acknowledging established local precedent as representing the law. From 1st year our students are taught
the difference between persuasive and binding authority. Isnt it healthier to be transparent
about the reasoning process rather than pretending that judges arent sometimes influenced by
personal ideology or politics or God forbid, high level judicial reasoning from othe jurisdictions
with a common legal heritage?
He also reminds me of a law review article written here in the States over ten years ago that, on the same
grounds, questions the basis for any objection to using foreign law for guidance in making U.S. law. In
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All the Worlds a Courtroom, Judging in the New Millennium, 26 Hofstra L. Rev. 273 (Winter 1997),
Shirley S. Abrahamson and Michael J. Fischer opened with the description of an oral argument in a case
before the Wisconsin Supreme Court:
In the . . . case, the defendant, a one-time farmer who had been diagnosed with
Alzheimers disease, struck and injured the head nurse in a health care center where he
was confined. The court was asked to resolve one issue: Should the farmer be judged by the
traditional tort standard of the reasonable person, or given that he was not capable of either
controlling or appreciating his conduct, should he be absolved from civil liability altogether?
In most states, including Wisconsin, the courts ha[d previously] concluded that a mentally
disabled person must be held to the same objective standard of care as someone without such
a disability. Thus the mentally disabled are generally held liable for their acts under the
reasonable person standard.
American legal scholars have sharply criticized this traditional American rule. They point
out that applying the reasonable person rule to people with mental conditions, in effect, imposes liability without fault, even though the law of negligence is ordinarily grounded in fault,
and even though liability is incompatible with modern views and treatment of the mentally
ill.
Counsel for the farmer urged the Wisconsin Supreme Court to adopt a rule that persons
should be held liable only when they know what they are doing. And like most lawyers urging
a court to adopt a new rule, counsel for the farmer sought to reassure the court of the wisdom
of change by pointing to law from other jurisdictions, specifically Florida and Canada, which
seemed to buttress her point. If the new rule works there, her reasoning went, then surely it
could work in Wisconsin.
Florida, the Canadian case was an entirely different matter altogether. Petitioner is not
aware, the brief noted archly, if Canadian case law has precedential value in the United
States.
Counsel, of course, knew quite well that it does not. But by the same token, neither does
Florida law have precedential value in Wisconsin. Why then did the nurses counsel single out
Canada? Probably because the law of foreign countries is treated today with the suspicion
that may have once marked some state courts approach toward the law of their sister states.
Today our state courts accept the logic behind Justice Cardozos famous remark, in a case
involving New York and Massachusetts law. New York is not so provincial, Cardozo wrote,
as to say that every solution of a problem is wrong because we deal with it otherwise at
home. But while state courts routinely look to the decisions of their sister jurisdictions for
the insights and persuasive value they potentially possess, the nurses counsel obviously
viewed looking across our national borders as an inherently suspect activity.
I was perplexed. Why did the farmers counsels citation of Canadian law signal desperation and trigger derision? Why, I wondered, should case law from Canadaan English-based,
commonlaw jurisdiction geographically closer to Wisconsin than Floridanot be considered
persuasive?
Professor Johns and I ask the same question, but now of several members of our countrys Supreme Court,
including its Chief Justice. As far as I can tell, theres no good reason other than a pandering to the
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jingoism running strong through our current politics. One correspondent has taken strong exception to
me in essence calling Chief Justice Roberts a xenophobe, and I dont think he personally is. Nevertheless,
his political support depends on pandering to xenophobia. I can think of no other reason to close off
consideration of arguments and reasoning that may be helpful to resolution of difficult legal questions.
Foreign law, the Federalist Societys view that the U.S. is better than the rest of the
world, and censhorship (2008-09-20 14:15)
I now have a bit better idea of where the opposition to citation to foreign law (discussed in my last
two posts) comes from. Its the belief that the U.S. is so exceptional theres no point in looking to the
socialist constitutional courts of Europe. Thats what Steven Calabresi, a law professor at Northwestern
and co-founder of the Federalist Society writes in the September 20 New York Times:
Those of us concerned about citation of foreign law

your article quotes me as one of
them
believe in something called American exceptionalism, which holds that the United
States is a beacon of liberty, democracy and equality of opportunity to the rest of the world.
We think that it is a good thing that constitutional liberties like freedom of speech and of the
press are protected more vigorously in the United States than in any foreign country. . . .
The country that saved Europe from tyranny and destruction in the 20th century and that
is now saving it again from the threat of terrorist extremism and Russian tyranny needs no
lessons from the socialist constitutional courts of Europe on what liberty consists of.
I think that considering the U.S. so exceptional it has no need to even consider the views of foreign courts
xenophobic is, after all, not off base. The first Chief Justice of the United States Supreme Court, John
Marshall, himself stated that the opinions of British courts are entitled to that respect which is due to
the opinions of wise men who have maturely studied the subject they decide.
Merely dismissing the decisions Western European countries have reached on profound legal and moral
issues (including the execution of juveniles) as the decisions of socialists unworthy of even being considered by us exceptional Americans is not argument its name calling and egocentricity. I dont see what
the difference is between law review articles, British courts, or any other source that might be considered
the opinion of wise people who have maturely studied the subject they are opining on. Foreign court
decisions may be politicized, but of course U.S. court decisions, laws, and regulations are exceedingly
political too: its all politics, whether in the foreign courts, the law reviews, or the U.S. Supreme Court.
By that I dont mean to be a cynic or a hard core Legal Realist rather, I mean its all argument. If one is
persuaded that the fact the U.S. was the only western industrialized nation that permitted the execution
of juveniles made doing so cruel and unusual, then why should one not be permitted to consider that
fact? Justice OConnor explained why she wasnt convinced by that fact, but she explained why with
counter-argument, not by suggesting the argument was illegitimate.
Clarence Thomas, Antonin Scalia, Samuel Alito, and John Roberts all are or have been members of
the Federalist Society, of which Professor Calabresi (a former student of Scalia) was a co-founder. I presume, therefore, that Calabresi speaks for them when he states that the U.S. is just too exceptional (and
other countries too socialist) to even allow the courts to look at other countries laws in determining
what U.S. law is or should be.
It is their views I consider un-American. Their views suggest the courts should be censored. It is
one thing, as Ive written, to not be persuaded by the views of other countries. It is censorship, however, to suggest judges cannot even consider those views. Who better represents the source of American
Jurisprudence than John Marshall? Are no jurists from other countries wise men who have maturely
studied the subjects they decide? And if we forbid reference to foreign law, why not forbid reference to
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law review articles, which, after all, generally advance the idiosyncratic views of their authors and rarely
have any influence whatsoever on an actual lawmaking?
The sooner we get over American Exceptionalism and realize we learn more and make better decisions the more we consider the opinions of other wise men who have studied the same subjects we are
studying, the sooner well be better off.
But one more word on the Federalist Society. If you pay attention, its members spout an unerring
common line on issues theyve identified as important. They sometimes remind me in their methods of
organization of Bolsheviks, who went out into the world with their marching orders to spread the Soviet
Communist Partys word. Professor Calabresi in his letter to September 20ths Times makes clear the
Federalist Society leaderships view on whether U.S. Courts should even be allowed to refer to foreign
law. Is it any wonder that in the Times article provoking Calabresis letter quoted Scalia, Roberts, and
Alito in ways entirely consistent with Calabresis and the Federalist Societys views?
Good Guys, Bad Guys, the ambiguity of everyday life, and effective argument.
(2008-09-22 05:22)
Its a funny thing that non-lawyers usually consider most legal disputes to be between Right and Wrong,
the Good Guy and the Bad Guy. Its an especially difficult prejudice to overcome in first year law students.
Dont get me wrong. There are situations where there are Good Guys and others where there are
Bad Guys. Then there are situations where there are both Good Guys and Bad Guys. The trick in
becoming a good lawyer, though, is that from his own point of view, each side to a dispute thinks hes
the good guy.
Thus, if you merely try to paint your adversary as a Bad Guy, youre going to lose. If, on the other
hand, if you understand his arguments as ones made out of good faith in the belief that they represent
truth, justice, and the American way, you have gone a long way toward figuring out how to shape your
arguments so you can prevail.
Both sides think theyre right. And both sides to most disputes have merit. Usually, though, one
side has the better of a well-articulated argument.
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Look for new combinations of old things (2008-09-23 11:50)
Lists of instructions for boosting creativity often suggest combining things you have not thought might be related. Obviously, this advice has application in
art. It also, just as obviously, has application in law. As Shaun Tan, an accomplished Australian author
and illustrator puts it:
Paul Klee once described an artist as being like a tree, drawing the minerals of experience
from its roots - things known, observed, read, intuited and felt - and slowly processing them
into new leaves. Similarly, the science writer Stephen Jay Gould notes that the greatest discoveries are to be found not in a freshly hewn cliff of shale, but in old museum collections, by
rethinking the relationships between the objects that have already know about.
Four weeks into my Contracts class with a group of new law students, they still goggle when I point
out that the rules they learned the first week can be used to explain the results the fourth week. The
students think the fourth weeks materials have to be explained by the fourth weeks rules. They can
be, but in law any good explanation for a given result is an acceptable one. The more good explanations
you have, the more likely you are to the court you should win.
In Neil Duxburys Truth and Rhetoric,(pdf) Ratio Juris. Vol. 12 No. 1 March 1999 (116 121), the
author quotes from Dennis Pattersons book Law and Truth:
In choosing between different interpretations, we favor those that clash least with everything else we take to be true. In law, as in all matters, [w]e convince someone of something
by appealing to beliefs he already holds and by combining these to induce further beliefs in
him, step by step, until the belief we wanted finally to inculcate in him is inculcated. In law,
we choose the proposition that best hangs together with everything else we take to be true.
(Law and Truth, 172, citation omitted)
Of course, the ability to combine ideas in new ways requires having as large a storehouse of ideas as
possible.
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Sometimes you need a chimpanzee to move the law forward (2008-09-24 08:26)
Traditionally, the law has treated animals as personal

property. In other words, your dog is no different to you than one of your chairs. There have been slight
modifications animal cruelty laws, most notably but for most purposes your dog is no more than
chattel. From the New Yorker ironically enough in an article about Leona Helmsley and her dog, to
whom she left $12 million in trust comes the story of how the growing field of animal rights began.
It all started with Washoe, the first chimpanzee to learn sign language to communicate with humans.
When there came a time Washoe was going to be sent off for animal testing, Victoria Bjorklund, a lawyer,
wanted to set up a trust and appoint a guardian for Washoe. The problem was that New York law only
permitted the appointment of guardians for a person with a disability. As the New Yorker explains:
[Bjorklund and her colleagues] argued that the mental, emotional, sociological, and biological characteristics of Washoe and the other chimps warrant their treatment as persons
entitled to representation. The lawyers submitted affidavits from such animal experts as Jane
Goodall, who said that chimpanzees are biochemically closer to humans than they are to any
other of the great apes. According to the brief in the case, the chimps are capable of rational
thought, communication, and other higher cognitive functions, justifying their treatment as
the legal equivalent of minors or disabled humans. In a 1997 decision, the surrogate of Nassau
County agreed and appointed a guardian to administer the trust for the benefit of the chimps.
That trust was then respected by the State of Washington, where Washoe lived, Bjorklund
said. We think it was the first trust ever established for the benefit of specific nonhuman
primates.
Thanks to Washoe, Animal Law is even entering legal education (2008-09-25 09:36)
My former colleague at Case Western Reserve, Kathy Hessler, is the Director of the Animal Law Clinic
at Lewis and Clark Law School in Portland, Oregon. The clinic, in which students under the superivision
of professors represent clients in real cases, specializes in animal protection issues including cases against
those who have harmed or injured animals, custody disputes, activist defense, dangerous dog hearings,
pet trusts, and assistance for non-profit organizations. Under Professor Hesslers direction, it will also
begin to focus on larger cases focusing on law reform with respect to animal issues.
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A new breed of lawyers (2008-09-26 07:21)
As the New York Times reported two years ago, a couple in New York
City rescued three pigeons in Central Park and gave them a home in their apartment for years. When the
building went co-op, however, the new landlords sued to evict the couple under a city ordinance outlawing
chickens, cows, or any pigeon except Antwerp or homing pigeons. Maddy Tarnofsky, a new breed of
lawyer, came to their rescue. First, she wondered, how could the landlord prove the pet birds werent
Antwerp or homing pigeons? He couldnt; there is no biological difference between Antwerp pigeons or
any other pigeons, and, a veterinarian testified, the birds could likely be trained to home as well. The
court dismissed the eviction proceeding.
As the Times goes on to explain, the growing field of animal law is not without its critics: Many
veterinarians, for example, fear that pet lawyers could become the animal-world equivalent of medical
malpractice lawyers, reaping large juryawards and contributing to a rise in malpractice insurance costs.
The American Veterinary Medical Association formed a task force on animal law last year and came out
squarely against redefining the legal status of pets.
Many animal law lawyers, however, want to distinguish themselves from animal rights advocates: they
are concerned primarily with getting the legal system to acknowledge that animals have an intrinsic value
beyond mere property, because of the bond between pets and their owners.
Not that animal rights advocates are anything to fear.
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ADDENDUM: As Stefani points out in the comments, Christopher Green had demonstrated in his
groundbreaking study, The Future of Veterinary Malpractice Liability (pdf), the fears manifested in
the American Veterinary Medical Associations opposition to redefining a pet as something more than
the equivalent of a chair are baseless. Im not surprised. Playing to the publics fears of personal injury
lawyers is an old and baseless trick.
Anatomy of a Murder, or How to Coach a Witness (2008-09-29 12:15)

In the Michigan Bar Journal, Frederick Baker, Jr. writes Reflections on the 50th Anniversary of Anatomy
of a Murder (pdf), noting the movies realism and its creation of the law thriller as a whole new literary
genre:
[C]onsider the lecture, in which Polly [the defense attorney hero] tells his client the law
so that Mannion [the defendant in a murder trial] could tell him the facts that might sustain
an insanity defense. It is such a deft example of how a lawyer can walk the fine ethical line
between coaching a client and counseling the client on what testimony might offer salvation
that it is included in Ladd and Carlson s evidence text, which is where I first encountered
Anatomy of a Murder, while studying evidence with Ronald Carlson.
John [Voelker] literally created a new fictional genre with Anatomy. Before then, no novel
had so truly depicted the actual preparation and trial of a case. The Grishams and Turows
who followed all owe a debt to John, who wrote a novel that was both true to life and true to
himself.
[EMBED]
As Michael Asimow writes, both the novel and the film version (which he describes as (probably the
finest pure trial movie ever made) are filled with legal and ethical issues that resonate to this day:
In his famous lecture, Biegler [the defense attorney in the movie] skates close to the line
of unethical witness coaching that is, knowingly altering a witness story about the events
in question. When Biegler first meets Manion [his client] in jail, he manages to overcome the
client s intense mistrust and then the discussion turns to whether the client has a defense.
How far can counsel go in suggesting a defense to a client who hasn t a clue? And should the
lawyer discuss possible defenses before asking the client what happened? Because once the
client has told the attorney his story, that freezes the client s version of the facts; it s too late
to mold the facts to fit a particular defense.
Clearly it is improper to assist the client to make up facts that never occurred. . . .
But it s perfectly OK (indeed obligatory) for counsel to interview a witness and to discuss his
testimony in order to assist the witness to testify effectively. And surely it is appropriate to
tell a client what the law is, even if that suggests a defense to the client that he might not have
realized was available. The problem is that a clever attorney can convey an implicit message
to a witness that alters the witness testimony without ever coming out and actually telling
the witness to do it.
In the film, Biegler is obviously quite aware of the limits on witness coaching but most observers think he stayed on the ethical side of the line. Without first asking Manion exactly
what happened, he tells Manion about the categories of justification and excuse and rules
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out each possible claim. For example, killing in the defense of another is a possible justification but not an hour after the purported rape occurred. Biegler also nixes the unwritten
law which allows you to kill someone whom you discover in flagrante with your spouse. Not
recognized as a defense in Michigan, unfortunately.
So Biegler keeps Manion guessing until Manion says I must have been mad. Sorry, bad
temper isn t a defense. No, says Manion, I must have been crazy. Well, Lieutenant,
replies Biegler, as he steps from the room, in the meantime, see if you can remember how
crazy you were. So the client comes up with the defense, albeit with a bit of gentle prodding
from the attorney, and either remembers or fabricates the facts to support that defense. We ve
screened this scene before quite a few audiences, and hardly any attorneys have ever voted to
discipline Biegler, even though it seems quite likely that Manion s testimony is different than
it would have been in the absence of the lecture and that Biegler intended exactly that.
In the book however, Biegler goes a step further. The suggestion for the insanity defense
comes from Biegler, not from Manion. Speaking in the first person, Biegler recounts his conversation with his client: Then, finally there s the defense of insanity. I paused, and spoke
abruptly, airily: Well, that just about winds it up. Then Manion starts asking questions
about insanity. Biegler plays dumb and answers the questions, but tells the reader: My
naivete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had.
And here I d just slammed shut every other escape hatch and told him this was the last.
Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was
no cretin. (Pp. 45-46)
It can be argued that, in the book s version, Biegler overstepped the line by coaching his
client right into a made-up defense. . . . The movie, however, is more subtle. The client
comes up with the defense, but obviously with a lot of covert help from his lawyer.
Stephen M. Wise discusses the ways society shapes the development of the law in connection with the rising awareness that animals are not merely things:
Is it up to society to force a change in the law? Or will the law change society?
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The law both leads and follows society. The legal system changes through the decision
of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery
amendments to the U.S. Constitution in the 19th century and the numerous civil rights
statutes of the 20th century. But the way the law changes and the way society changes are
connected. People who try to change the law also depend upon changes in societal values, as
well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with
reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos
of the last 20 or 30 years. These discoveries form the springboard from which I can argue for
their rights and personhood.
How do you think our view of animals will develop in the next 20 years?
It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all
nonhuman animals in the same way. Some we clearly value more than others. Even though
chimpanzees don t have any legal rights, we no longer euthanize them after they are no longer
useful in medical experiments, as we do, say, to white mice. This fact both results from and
drives the coming legal personhood of Great Apes. We re beginning to see this not only in
the U.S., but throughout the West. Westerners are also increasingly valuing their companion
animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite
trend is rising in [parts of] Europe. I think we will see the European trend expand even as
factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just
how much abuse of nonhuman animals used for food people are willing to accept. Stir in the
environmental degradation that is its inevitable consort and there is going to be a backlash
that will drive factory farming in the U.S. in the direction that Europe has taken and will,
perhaps, drive at least some of it out of business.
Theres nothing radical about Wises position. The law already recognizes that artificial entities such
as corporations are legal persons and are therefore, among other things, entitled to the protections
accorded people under the Bill of Rights.
1.3
October
1984 Redux? (2008-10-06 12:28)

As explained in this case study (pdf):
In early 1984, Pennzoil and Getty Oil agreed to the terms of a merger. But before any
formal documents could be signed, Texaco offered Getty Oil a substantially better price, and
Gordon Getty, who controlled most of the Getty shares, reneged on the Pennzoil deal and sold
to Texaco. Naturally, Pennzoil felt as if it had been dealt with unfairly and immediately filed
a lawsuit against Texaco alleging that Texaco had interfered illegally in the Pennzoil?Getty
negotiations. Pennzoil won the case; in late 1985 it was awarded
$11.1 billion, the largest judgement ever in the U.S. An appeals court reduced the judgement
by $2 billion, but interest and penalties drove the total back up to $10.3 billion.
History seems to be repeating itself in the battle between Citigroup and Wells Fargo over who will buy
Wachovia. As reported in todays New York Times, Wachovia was on the verge of collapse last week
until Citigroup salvaged it in a government-backed deal that was upended Friday, when Wells Fargo made
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its startling bid. The announcement touched off a whirlwind of legal activity and angry recriminations
by Citigroup . . . .
Lawyers for Citigroup and Wells Fargo argued at a judges home on Saturday evening, Citigroups lawyers
in person and Wells Fargos by telephone. As of now, the status of the situation is very much up in the
air, though the Times hardly minimizes the disputes importance: At stake is the shape of the American banking system, which is being redrawn almost weekly as a handful of large players merge, and the
government s own standing to broker future bank rescues . . . . .
What is obscene? (2008-10-07 10:09)

Glenn Greenwald points out an interesting irony. A federal judge last week sentenced Paul Little to
nearly 4 years in prison for distributing a porn film the court determined was obscence despite the fact
it involved only consenting adults and was distributed only to consenting adults. Littles attorneys argued
that the film couldnt be obscene because it involved no pain to the participants. The judge rejected the
argument, writing, This is clearly degrading, clearly humiliating and intended to be so.
The Bush Department of Justice makes it a point to prosecute producers of adult pornography. The
irony, of course, is that this is the same Department of Justice that argued that torture does not
include any conduct that does not cause the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. To compound the obscenity, our Congress
retroactively immunized anyone and everyone in the Government who may have been involved in any
state-sanctioned line-crossing behavior even after the lines were radically re-drawn
The life of the law is a life of art (2008-10-08 11:00)

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express
eloquently my view of the common ground shared by artists and lawyers:
As I conceive it, the life of the law is . . . a life of art, the art of making meaning
in language with others. Its goal, like that of other arts always imperfectly attained, is the
integration into meaningful wholes of the largest and most contradictory truths the incorporation into the case of what can be said on both sides of it, the recognition in our discourse
of other ways of talking all under the ruling requirement that what we say makes sense.
The lawyer must know what the literary person knows, that he or she is always one person
speaking to others in a language that is contingent and imperfect. And the excellence of mind
required of the lawyer, like the excellence of the composition the lawyer makes, is integrative:
a putting to work in the same text of as many of one s resources and capacities as possible in
an meaningful way.
How do we explain human beings? (2008-10-10 08:23)

Annette Gordon-Reed, the author of The Hemingses of Monticello: An American Family, is a lawyer as
well as a historian. The two avocations mesh well, especially in trying to give coherence to seemingly
incoherent ideas. As pointed out in Newsweek, for example, people have floundered in the face of the
seemingly inexplicable, including the idea that Jefferson, a lifelong proponent of emancipation, could
own slaves and sustain an intimate relationship with a woman who was not only his property but his dead
wife s half-sister. Gordon-Reed s training as a lawyer is the ideal preparation for developing persuasive
explanations for what seems crazy because when it gets down to it we re all a bit crazy:
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The first thing you learn in law school is people are crazy, says [Gordon-Reed], who also
teaches history at Rutgers and law at New York Law School. They ll come into your office and
explain their motivation, and it will be totally a lie. They don t even understand themselves
what their motivations are. It s not all going to fit. Historians may think that because their
subjects are dead, you don t have to deal with the consequences of their shattered lives if
you re not for real. Lawyers don t have this luxury. We re training people to deal with
people s lives. Somebody s going to go to jail, somebody s going to lose a child. You have
to be for real. Which may be how Gordon-Reed takes the stuff of Sally Hemings s life-the
quotidian and the epic-and makes it indelibly real.
Lessig on Copyright Law: 5 ways to improve it. (2008-10-13 11:44)

Starting his article with an account of the silliness Universal Music Group visited upon Stephanie Lenz,
Lawrence Lessig makes a compelling case that the existing regime of copyright laws subverts its very
purposes motivating creativity. Accordingly, Lessig proposes the following revisions to our laws:
1. Where the creativity is an amateur remix, the law should leave it alone. It should deregulate
amateur remix.
2. Deregulate the copy: Copyright law is triggered every time there is a copy. In the digital age,
where every use of a creative work produces a copy, that makes as much sense as regulating breathing.
The law should also give up its obsession with the copy, and focus instead on uses like public distributions of copyrighted work that connect directly to the economic incentive copyright law was intended
to foster.
3. Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law
purports to regulate everyone with a computer, there is a special obligation to make sure this regulation
is clear. It is not clear now.
4. Restore efficiency: [W]e should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term.
5. Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for
peace, and build upon a host of proposals that would assure that artists get paid for their work, without
trying to stop sharing.
Is there evidence of voting fraud? Not if you look at all the facts. (2008-10-14 10:17)
Lawyers are skeptics not because they are innately skeptical but because they are trained by experience
not to trust the first plausible explanation of a given set of facts.
ACORN is very much in the news these days. As the New York Post reports, The vote of Darnell
Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORNs voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of
Elections officials said yesterday. Nash had registered to vote repeatedly from an address that belonged
to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to
testify.
News like this provokes Sarah Palin to declare, The left-wing activist group, ACORN, is now under
investigation for voter registration fraud in a number of battleground states... We cant allow leftist
groups like ACORN to steal this election.
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Lets take a look at this news. First, as my colleague Jonathan Adler points out, Of course registration fraud and actual voter fraud are not the same thing. (emphasis added) In other words, the fact
someone is fraudulently registered does not mean that he will or can get away with fraudulently voting.
In fact, there is no evidence in recent history of any voter fraud involving voting by fraudulently registered
voters. Jon would counter that registration fraud makes it impossible or at least very difficult to prove
voting fraud.
First, Im not sure why thats true. Voting fraud investigations would look into whether people who
had voted were properly registered. The same evidence available in the prosecution of registration fraud
would therefore be available.
Second, its at least suspicious that the eruption of investigations and prosecutions of alleged registration fraud shortly before an election follows so closely the pattern that David Iglesias, the former U.S.
Attorney in New Mexico, points to as the background of his firing by the Bush administration. Having
investigated such allegations and found them inadequate to support any prosecution for voting fraud,
Iglesias was fire, apparently for not following the Republican script. Now the Mukasey Justice Department appointed a special prosecutor to look into the firing of Iglesias and several other U.S. Attorneys.
Iglesias has explained that he was pressured to bring these types of voter fraud claims by Republicans in
New Mexico shortly before elections in order, in his view, to influence the elections. He investigated the
claims and concluded there was no basis for prosecution. Is there suddenly now evidence for identical
prosecutions?
So is there widespread work to get enough fraudulent voters on the rolls to elect Obama? I doubt it. In
fact, I am prepared to say, no way.
[EMBED] Addendum: U.S. Department of Justice crime statistics cast doubt on the existence of
widespread voter fraud. According to a report by the Justice Departments Criminal Division on prosecutions between October 2002 and September 2005, the Justice Department charged 95 people with
election fraud and convicted 55. Among those, however, just 17 individuals were convicted for casting
fraudulent ballots; cases against three other individuals were pending at the time of the report. Further,
on April 12, 2007, The New York Times reported, Five years after the Bush administration began a
crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized
effort to skew federal elections, according to court records and interviews. Additionally, a 2007 report titled The Truth About Voter Fraud by New York Universitys Brennan Center for Justice stated: [W]e
are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes
being cast:
There have been several documented and widely publicized instances in which registration
forms have been fraudulently completed and submitted. But it is extraordinarily difficult to
find reported cases in which individuals have submitted registration forms in someone elses
name in order to impersonate them at the polls. Furthermore, most reports of registration
fraud do not actually claim that the fraud happens so that ineligible people can vote at the
polls. Indeed, we are aware of no recent substantiated case in which registration fraud has
resulted in fraudulent votes being cast.
The rhetoric of naming. (2008-10-14 14:45)

Dont you just love the names that legislatures give their laws? Like 2003s Clear Skies Act, which in
fact weakened the Clean Air Acts provisions against air pollution. Well, yesterday the President signed
into law the Pro-IP Act, which, if it did what its name says it does, would advance the purposes of
intellectual property laws. But all the Pro-IP Act does is increase substantially the already substantial
81
penalties for piracy of copyrighted and patented products. The purpose of copyright, according to the U.S.
Constitution, is to promote [t]o promote the progress of science and useful arts. Yesterdays post should
make clear I dont think increased penalties for downloading music or posting videos with copyrighted
music is the kind of change that advances copyrights purposes. But if Congress says so, it must be so,
right?
How do lawyers solve problems? Any and every way they can. (2008-10-15 10:51)
What problem do I need creative solutions to? Im designing a course for the school Im visiting this
year that is intended to bring together for the first year students everything theyve been learning in all
their courses in a way that teaches them to solve problems the way lawyers do. How do lawyers solve
problems? The following description, from a course intended to do similar things at Stanford, says it
well:
A client comes to a lawyer rather than, say, a psychologist, investment counselor, or

business advisor because she perceives her problem to be essentially legal in nature. But
most real world problems do not conform to the neat academic boundaries that define and
separate different bodies of knowledge, and a well-trained lawyer must be able to counsel
clients beyond the confines of his or her technical legal expertise. Indeed, most clients do
not expect their lawyers to confine themselves to the law, but rather expect a lawyer to
integrate legal considerations with the other components of their problem. Thus, much of
a lawyers work involves assisting clients in solving non-legal problems. The solution may
be constrained, facilitated, or even driven by the law, but they often call for judgments,
common sense, and even expertise not particularly of a legal nature. Even when legal questions
dominate, their resolution often calls for problem-solving beyond the analysis of appellate
decisions that characterizes most law school instruction. This course endeavors to prepare
students for their roles as creative problem solvers. It focuses on these issues, among others:
understanding a probabilistic factual world, including assessing correlation and causation;
making decisions with tradeoffs under conditions of uncertainty; understanding individual
and social phenomena that can conduce to or impede effective decision-making.
My problem, of course, is that articulating what I want to do and actually figuring out how to do it for
4 sections of approximately 50 first year law students are two entirely different things.
The Chief Justice wishes he were Dashiell Hammet. (2008-10-16 09:27)

Coincidentally, yesterday in class a student asked me how legal writers use narrative to persuade audiences. I gave the driest answer possible: its telling the facts in a way that swings the audience your
way. Theres no such thing as an objective story. If you read a judicial opinion, as soon as the judge
writes the facts it becomes apparent from the way the story is shaped which way hes ruled. But yesterday the Chief Justice John Roberts engaged in storytelling I dont think any lawyer other than the
Chief Justice could get away with. Seven of the justices of the Supreme Court refused to hear an appeal
from the Pennsylvania Supreme Courts reversal of the conviction of a man for possession of a controlled
substance. The Pennsylvania Supreme Court had held that there was on the grounds that had not been
probable cause to arrest the man. In his dissent from the decision, Roberts wrote as follows:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the
morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.
Devlin knew. Five years on the beat, nine months with the Strike Force. Hed made fifteen,
twenty drug busts in the neighborhood. Devlin spotted him: a lone man in the corner.
82
Another approached. Quick exchange of words. Cash handed over; small objects handed
back. Each man then quickly on his own way. Devlin knew the guy wasnt buying bus tokens.
He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of
crack [cocaine] in the guys pocket. Head downtown and book him. Just another day at the
office.
How can something new come entirely from old things? (2008-10-17 09:26)
I ve written before (here and elsewhere) about Girl Talk, the

name under which Greg Gillis records and performs his aural collages, made up of hundreds of samples
of pop recordings re-worked by him through contemporary technology into what can only be considered
new songs. Gillis continues to get attention as he makes his way on tour across the country, this week in
Tuscon and Dallas. As I have previously pointed out, on its face, Gillis s work seems to run afoul of legal
authority which holds that the use for commercial benefit of any recorded sample, no matter how brief,
constitues copyright infringement. As the Tuscon Weekly points out, Gillis is a little tired of hearing
about this:
Gillis says he s tired of the media characterizing his music as a lawsuit waiting to happen,
yet he admits: There s definitely a component there of seeming like an outlaw, and I think
that appeals to some people. Girl Talk s appeal, perhaps, speaks to the preoccupations of a
new generation raised online and he may be just the sort of celebrity it fosters.
And indeed, Gillis samples such litigation-happy groups as Metallica. Nevertheless, I suspect Metallica
will not sue Gillis. Why? Because lawyers no you don t sue people who have the strongest case on the
question of law you are concerned about. In other words, Gillis poses the greatest risk to the legitimacy
of the cases ruling that any sample, no matter how brief, is an infringement. Metallica, thus, would
rather sue someone who sampled their music in some ham-fisted way that plainly did exploit the value
Metallica has created. Metallica would win the lawsuit against such a defendant.
Gillis, however, really does seem to have transformed his raw materials into something entirely new.
(You can hear for yourself by downloading his album here, for any price (even zero
itself an interesting
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move in legal terms).)

In fact, whether a work is transformative is, exactly, what is determinative in deciding whether its
appropriation of copyrighted work is fair use or infringement. No one is going to listen to a Girl Talk
song that samples a Metallica song as a substitute for the Metallica song. The Girl Talk song is something entirely new, even if it is made up of things entirely old. This focus on the transformative nature
of an appropriating work comes from one of those rare law review articles that actually have an impact
on the real world, although in this case it was by a judge, Pierre Leval.
Supreme
Court
dampens
hysteria
over
alleged
registration
irregularities
(2008-10-17 13:21)
On the election news front, from SCOTUS Blog:
The Supreme Court on Friday lifted a federal judges order that would have required Ohio
election officials to set up new procedures to verify voter registration across the state in the
weeks before the Nov. 4 balloting. The unsigned (Per Curiam) order is here. The order
blunts an effort by the Ohio Republican Party to gain access to registration data that would
enable it to challenge voters eligibility at polling places.
This decision removes the threat, reported in this mornings New York Times, that [m]ore than 200,000
registered Ohio voters may be blocked from casting regular ballots on Election Day because of a federal
appeals court decision on Tuesday requiring the disclosure of lists of voters whose names did not match
those on government databases . . . .
For the weekend: Homer says, Its the law. (2008-10-17 18:47)
[EMBED]
Friday Night Music Club: Chris Whitley, Living with the Law (2008-10-17 21:15)
Chris Whitely, Living with the Law
[EMBED]
Good lawyering means never being satisfied with one answer. (2008-10-19 20:36)
At Drinking Song, the blog of an advertising copy writer turned law student, John Johnson has developed a theory that proves to me hes ahead of the game: a good lawyer needs to do just as much-if not
more-creative thinking as any Madison Avenue soap huckster. Even more importantly,
One of the things I learned [as an apprentice copy writer] was: Dont stop at the first good
idea you have. Keep going. Keep asking what if . . . until you have a dozen ideas that
might be something. But what you should never do is delude yourself that your first decent
idea is enough, because chances are, its a fairly obvious one that pretty much anybody could
come up with. This, it seems, is the very thing that hobbled my exam performance. And
the reason Im likely, as Al Franken/Stuart Smalley would say, to die homeless, penniless and
twenty pounds overweight. I have a tendency to be what we in the law biz call conclusory.
In other words, once I see a solution, (particularly under the fairly intense time pressure of
an exam) I stop thinking about other possibilities. This is bad in advertising, but it can be
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fatal for a lawyer. In advertising, assuming you operate at fairly high level of conceptual
sophistication to begin with, your one good idea might turn out to be the best solution and
get you fame and awards and a coterie of nubile co-ed interns. And if not, no harm done; it s
probably still a serviceable solution and it moves the needle* for your brand. But for a lawyer
to focus on just that one idea, he s leaving himself (and his client) vulnerable to the other
side by not seeing other ways an issue can be argued or the facts construed, not seeing how
the other side can defend against his idea. Im sure there are other possible permutations of
prospective doom, but Im too tired to think them all through just now.
I always tell my students: one good answer is a good answer. Two good answers are better. The more
good reasons you have for youre client being right, the better off your client is. So if any of my students
are reading: dont be satisfied with the first half-decent answer you come up with.
Creative law enforcement in difficult times (2008-10-20 23:11)
From the Chicago Tribune:

Approximately 70 foreclosure orders that will not be served are displayed at the Cook County Sheriffs
office on Wednesday.
As the nationwide mortgage crisis puts the squeeze on homeowners, the Cook County sheriffs office is
on pace to evict more people than ever from foreclosed homes.
At least it was until Wednesday, when Sheriff Tom Dart announced he wouldnt do it anymore.
Dart cited the growing number of evictions that involve rent-paying tenants who suddenly learn their
building is in foreclosure because the landlord neglected to pay the mortgage. By refusing to do any
foreclosure-related evictions, the hope is that banks will change their policies.
(hat tip to MInor Wisdom)
The KLF knew bankers were pushers (2008-10-21 12:47)

Lawyers can be creative, and artists can have profound insights into matters legal and financial. An
earlier project of mine on copyright and fair use grew out of a work by the KLF, a couple of musicians
and artists from the U.K. who are worthy of even greater recognition than that they have received in
their native land. Among other things, they wrote The Manual (How to have a Number One the Easy
Way), a how-to guide on creating a number one pop hit. While The Manual is a work of brilliance at
many levels, I was taken aback again today by the timeliness of one more aspect of the wisdom they
85
impart therein:
Banks are in the business of making money by lending it. The more they lend the more
they make. They want us, the punter, to become addicted for life to the false sense of security
it gives us. Banks will go to extremes thinking up new and ingenious ways of getting us to borrow money from them. First and foremost they want us to get into property: Buy a house,
because with your property as security they can always lend you more and more money. If
things were to go badly wrong and you werent able to keep up the interest payments they
can always force you out of house and home and get their money back that way.
Of course, it would be bad for the banks if they were seen to be throwing too many families onto the street or forcing businesses to the wall in order to redeem their loans. They
would always prefer to lend more money so as to help pay off the interest on the earlier loans.
Banks have spent millions over the past few years trying to destroy the publics old impression
of the bank manager in bowler, brolly and pinstripe, to the approachable and amiable sort of
chap who will attempt at all times to say Yes!. They have only done this, not because they
like being nicer, but to seduce you into coming in and borrowing more money. Remember,
when you are going in to see a bank manager youre going to see a pusher; a pusher dealing
in one of the purest, most addictive drugs - money.
Registration Fraud? ACORN as the second coming of the Bolsheviks? Think again.
(2008-10-21 19:46)
Ive written already a couple of times about the hysteria being fomented over purported registration fraud
purportedly being perpetrated by ACORN.
Heres more:
[EMBED]
ACORN ACORN ACORN ACORN ACORN ACORN ACORN (2008-10-21 23:35)

[EMBED] [EMBED] [EMBED] [EMBED] [EMBED]
If you scam a villain, maybe youre a hero. (2008-10-22 12:46)

Han van Meegeren is known as the boldest modern forger of Old Masters. In the current issue of the New
Yorker, Peter Schjeldal reviews two books about van Meegeren. Among other points, Schjeldal points
out that art forgeries are far more expressive of the times in which they are created than of the times of
the artists they imitate: The art historian Max Friedlnder . . . said, Forgeries must be served hot,
and promulgated a forty-year rule four decades or so being how long it takes for the modern nuances
of a forgery to date themselves as clichs of the period in which they were painted.
One of the most remarkable things about van Meergeren is that among his customers for forged Vermeers (van Meergerens specialty) was Herman Gring. As Schjeldal explains:
This small point is notable because, in time, the fact that van Meegeren had scammed
Gring helped him not only to evade charges of collaboration but to become a folk hero. Lopez
demonstrates how evidence of the painter s coziness with the Occupation regime got buried
by the single question of whether he had sold Gring a patrimonial cynosure (potentially a
86
capital offense) or a worthless fake. Early in 1947, a newspaper poll found van Meegeren to
be the second most popular man in the Netherlands, after the newly elected Prime Minister.
I cant help but take this opportunity to plug one of my favorite all-time novels, The Recognitions, by
William Gaddis. As explained on the Gaddis Annotations website (a project with which I have been
lucky enough to have had an insignificant role), Gaddiss novel can be summarized as follows:
In a carefully wrought and densely-woven series of plots involving upwards of fifty characters across three continents, we follow the adventures of Wyatt Gwyon, son of a clergyman
who rejects the ministry in favor of the call of the artist. His quest is to make sense of contemporary reality, to find significance and some form of order in the world. Through the pursuit
of art he hopes to find truth. His initial failure as an artist leads him not to copy but to
paint in the style of the past masters, those who had found in their own time and in their
own style the kind of order and beauty for which Wyatt is looking. His talent for forgery
is exploited by a group of unscrupulous art critics and businessmen who hope to profit by
passing his works off as original old masters. As the novel develops, these art forgeries become
a profound metaphor for all kinds of other frauds, counterfeits and fakery: the aesthetic, scientific, religious, sexual and personal. Towards the end, Wyatt wrenches something authentic
from what Eliot called the immense panorama of futility and anarchy which is contemporary
history. The nature of his revelation, however is highly ambiguous and is hedged about by
images of madness and hallucination, which disturbs simple distinctions between real and
authentic, between faiths and fakes.
Litigants gone wild (2008-10-24 00:34)

Most legal disputes dont become lawsuits. Most civil lawsuits (approximately 98 %) settle before trial.
Why? Once evidence and cooler heads come into play, reason takes over. Thus, most lawsuits that go
on at any length, much less to or even beyond trial, arise for one of two reasons: (1) the adversaries each
have reasonable grievances and legitimate grounds with which to press them, or (2) at least one of the
parties is out of his mind.
An example of the latter type is described by MercuryNews.com and in its own farcical way brings
to mind Jarndyce v. Jarndyce:
The case so far has spawned more than 53 court appearances and a stack of documents a
foot tall. A judge was forced to withdraw in the middle of a key hearing; the matter has been
appealed as high as the California Supreme Court; and the legal drama that just wont die is
87
still dragging on after three years.

An international identity-theft ring? Gang-related homicides? Some horrible child abduc-
tion case?
Not even close.
The case that wont quit concerns two scratch marks less than 6 inches long on the rear
door of a Toyota RAV4. Damage to the electric vehicle: $653.13. Owner and alleged victim:
Silicon Valley tech millionaire Steve Kirsch.
Santa Clara County prosecutors say Kirschs involvement had nothing to do with why they
accused two people in 2005 of felony vandalism - a stiff charge that carries a maximum penalty
of three years in state prison and has set off the avalanche of legal maneuvers.
The car was keyed, prosecutors allege, in retaliation against Kirsch, an avid anti-junk-fax
crusader who had taken one of the defendants to court for sending multiple unsolicited faxes.
This was more serious than your average vandalism, said Deputy District Attorney Pinaki
Chakravorty, one of several prosecutors involved in the case over the years. Kirschs power,
influence and wealth had nothing to do with it. They didnt get what they wanted in court
and they tried to intimidate the person who brought the case.
Just one teensy glitch in the object lesson for would-be vandals: One of two defendants
Howard Herships
turns out to be a self-styled legal beagle who continues to deluge the
courts with motion after motion.
Herships, 64, of San Francisco, said hes been unfairly charged and vows to fight the case
at the countys Hall of Justice, which he calls the Hall of Injustice. The other defendant cut
a deal without implicating Herships and had the charge wiped off the books.
This case is insane, says Herships. It was only charged in the first place because Kirsch
is very influential in Santa Clara County and probably worth about $200 (million) or $300
million. . . .
A trial to resolve the matter is set for Dec. 15, but everyone involved with the case that
wont die is resigned to another delay. A judge last year reduced the charge against Herships
to a misdemeanor, which carries a maximum of a year in county jail. But hes more likely
to wind up being put on probation
if a jury doesnt walk Herships. Regardless, Deputy
District Attorney Marisa McKeown, whos now handling the case, says the county will not
drop it as a matter of principle.
We mere humans have let the financial geniuses down. (2008-10-24 05:36)
Theres nothing original in my critique of Alan Greenspans thinking, but it boggles my mind that a man
who has been considered the financial genius of our recent times could engage in reasoning as fallacious
88
as that described in the review of his legacy written on October 8 in the New York Times (emphasis
added):
Chairman Alan Greenspan has fiercely objected whenever derivatives have come under
scrutiny in Congress or on Wall Street. What we have found over the years in the marketplace is that derivatives have been an extraordinarily useful vehicle to transfer risk from
those who shouldn t be taking it to those who are willing to and are capable of doing so, Mr.
Greenspan told the Senate Banking Committee in 2003. We think it would be a mistake to
more deeply regulate the contracts, he added.
Today, with the world caught in an economic tempest that Mr. Greenspan recently described as the type of wrenching financial crisis that comes along only once in a century,
his faith in derivatives remains unshaken.
The problem is not that the contracts failed, he says. Rather, the people using them got
greedy. A lack of integrity spawned the crisis, he argued in a speech a week ago at Georgetown
University, intimating that those peddling derivatives were not as reliable as the pharmacist
who fills the prescription ordered by our physician.
How can anyone, much less one considered a genius, design systems intended to govern human behavior
and fail in doing so to account for inevitable human weaknesses? And how can such purported geniuses
persist in the face of overwhelming evidence of their failings as Greenspan has? Yesterday, he told the
House Committee on Oversight and Government Reform that
Those of us who have looked to the self-interest of lending institutions to protect shareholders equity, myself included, are in a state of shocked disbelief.
Im no genius, purported or otherwise, but I do remember back

in the 80s, as I witnessed from up very close the demise of a financial institution that many believed had
created a new market immune to every markets eventual downward turns. It was then that I realized
that at least some of the investment bankers with whom I was dealing were a different species of animal
than I. I had the firm belief their visual fields, like the Terminators, provided continual digital readouts
of relevant financial information about anything and everything they glanced at. Unlike the Terminators
data streams, however, the digital readouts in the visual fields of the Financial Geniuses provided a
continual updating of the price per share of whatever it was they happened to be looking at. Thus, for
89
example, they could glance at the disclosures set forth in a bond offering and instantly calculate the
impact those disclosure would have on the issuing companys price per share. Worse, however, I was
convinced they could look at me and instantly read their estimates of my own value. And believe me,
that value was, at best, de minimis.
A Legal Guide for Bloggers (2008-10-24 18:58)

From the Electronic Frontier Foundation: A Legal Guide for Bloggers
The Army said get information, and feel free to be creative in doing so.
(2008-10-27 12:42)
At 30, Tony Lagouranis was bored and broke. But he was good with languages, wanted to learn Arabic,
and figured the Army would teach it to him while he paid down his student debts. Even when he became
an interrogator, his superiors assured him the Iraqis he questioned would be cooperative. During the
First Gulf War, the Iraqi captives had freely volunteered truthful answers to the questions theyd been
asked. But by the time Lagouranis arrived in Iraq, well after the 2003 invasion, things had changed, and
his superiors instructions had changed as well. They gave him a list of authorized interrogation tactics,
which Lagouranis describes as follows:
[I]t was also an open-ended document. It said explicitly that the interrogator needed the
freedom to be creative. It said these [techniques the use of dogs, dietary manipulation, using
sleep deprivation, stress positions and environmental manipulation ] are only suggestions
of what you can do. So basically there were no limits.
As The First Post further explains, Lagouranis realized the futility of his interrogations:
Lagouranis saw people crippled through prolonged use of the stress positions he forced
them to adopt, and driven to the verge of insanity through weeks of sleep deprivation and
psychological disorientation. But maybe it was worth it if it produced valuable intelligence
in the fight against the insurgency? No, he says. As a method of getting intelligence it was
useless. And besides, the aim of interrogations shifted subtly. A lot of what we ended up
doing was trying to gather confessions, not intelligence. I think that the commanders wanted
to show that they were doing a good job and were picking up guilty people. But in fact we
were just rounding up whoever was on the street. They just wanted us to force people to
confess so that they could brief their commanders and say that they had captured all the
terrorists.
Lagouranis quit, managed to get an honourable discharge on the grounds that he suffered from an
adjustment disorder, and is now working as a bouncer in Chicago.
Lawyers who want to be writers. (2008-10-28 07:14)

Eighteen years after Ben Fountain left Akin Gump Strauss Hauer & Feld LLP to begin his life as a fiction
writer, hes a success. I left Akin Gump twelve years ago. Does that mean six more years until I make it
as a writer?
90
The most innovative lawyers in the U.K. (2008-10-28 09:11)

From Londons Financial Times comes this years list of the ten most innovative U.K. lawyers. [T]he
submissions showed that it is possible to overturn conventional notions of the role of the lawyer. The
bold individuals who dreamt up a new scheme, persuaded colleagues of its importance, set it in motion
and made a success of it can take ample credit in their achievement.
Nevertheless, the judges who made the choices were dismayed to find no women lawyers or members of
ethnic minorities. This follows a report last month from The Lawyer magazine that women account for
just 14 per cent of partners at the UK s four leading or magic circle firms. One judge commented that
law firms claiming the mantle of innovation must surely show a greater commitment to diversity.
Perhaps thats why Marc Harding, General Counsel of Barclays, was selected for
leading the charge for the profession to step up to the challenge of diversity, helping the
Law Society complete its first draft of a diversity charter. Mr Harding first demanded that his
legal suppliers give Barclays diversity statistics in 2006. Not only must the seven key advisers
to the bank deliver these statistics, he also demands them from the bank s 10 specialist legal
panels. The legal press have commented that his work in moving diversity up the agenda will
have a lasting impact on the client-lawyer relationship.
Another interesting choice was David Gray, Chief Executive of Eversheds:
To demonstrate the importance of openness and accountability, Mr Gray created a mechanism to receive feedback from the firm s partners. In a courageous move, he kicked off the
process at a conference in 2006, where he stood in front of Eversheds partners and invited
them to score him on his performance during his live presentation. The partners anonymously scored Mr Gray from 1 to 5 on specific questions via electronic keypads, with the
results screened instantly for all to see. Mr Gray says it was pretty terrifying , but I did it
because I wanted to bring home to them that accountability had to start at the top .
Mr Gray invites feedback via an intranet page, asking partners to rate him on communication, strategic decision making, motivational skills and general leadership.
20 Civil Liberties Laws Every American Should Know (2008-10-29 06:45)

From the Criminal Justice Degrees Guide, 20 Civil Liberties Laws Every American Should Know:
1. Fair Housing Act
2. Racial Profiling Laws
3. Same Sex Marriage Laws
4. Voter I.D. Requirement Laws
5. Americans with Disabilities Act
6. Equal Pay Act of 1963
7. Ledbetter v. Goodyear
8. Oregon Death With Dignity Act
9. Roe v. Wade
91
10. EC in the ER laws

11. Medical Marijuana Laws
12. Occupational Safety and Health Act
13. Parent-child custody laws
14. Adam Walsh Child Protection and Safety Act
15. Detainee Basic Medical Care Act
16. The National Security Act of 1947
17. U.S. Patriot Act
18. Freedom of Information Act
19. Extraordinary Rendition
20. No laws for the terrorist watch list
You should read the entire post
these are mere links to the subjects Kelly Kilpatrick, the author of
the post, comments upon with a considerable degree of intelligence.
Settlement imminent in lawsuit against the Google Library Project? (2008-10-29 12:53)
I ve long been fascinated by the Google Library Project, considering it one of the greatest boons to
research since Gutenberg. I ve written on this blog of my bafflement at its opponents, especially those
authors who fear their inclusion within the project. I ve written elsewhere at the utter misconceptions
that govern some views of the project. (I have, however, been called a dickwad for pointing out these
misconceptions, a characterization unsupported by reference to any law.)
The good news is that, as Open Access News reports, Andrew Albanese reports in Library Journal,
October 10, 2008, that Google and a group of publishers may be close to settling the publishers lawsuit
against the Google Library Project:
Nearly three years after its initial filing, it appears a settlement may finally be near in
publishers lawsuit over Google s controversial program to scan books from library shelves.
Although rumors of a settlement have flared up and died down intermittently over the years,
sources wishing to remain anonymous this week told the LJ Academic Newswire and Publishers Weekly that talk of a final agreement has indeed heated up, with one publishing insider
confirming that a settlement was imminent, although no solid time frame was known&.
A settlement has long-been expected, as it would avoid what is setting up to be a messy
trial. Industry-watchers have predicted the two parties eventually would reach some kind of
blanket license agreement, noting that avoiding a court decision involving murky copyright
and fair use boundaries is the logical, least risky-and least costly-option for both parties.
From the start, publishers have maintained that the wholesale scanning of copyrighted books
from libraries is an unreasonable expansion of fair use, and that Google is creating a valuable
asset without compensating rightsholders. Google has countered that its plan, which makes
only snippets of copyright-protected books viewable online, is fair use, and that publishers,
can also opt out of having their books scanned&.
[T]he AAP suit, filed in October 2005 on behalf of McGraw-Hill, Pearson Education, the
92
Penguin Group, Simon & Schuster, and John Wiley & Sons, does not seek damages. It seeks
an injunction that would essentially declare that Google s scanning of an entire book still
under copyright without permission is infringement. . . .
Jurist - the oldest and still greatest legal news site (2008-10-30 05:38)
Jurist, one of the oldest and very best legal news sites, has announced a new presence on Facebook.
Jurist is a production of the University of Pittsburgh University of Law, and was founded by Professor
Bernard Hibbits, one of the pioneers of the use of the internet in legal education and the dissemination
of legal news, having created the site that became Jurist back in the ancient days of 1996. As Hibbits
explains in connection with the decision to create a Facebook page:
The page is designed to give our US and worldwide audience a space in which to share
their JURIST experiences and their common interest in the legal news and commentary that
we offer every day, while giving readers occasional behind-the-scenes peeks at law student
staff operations here at the University of Pittsburgh School of Law, JURIST s host institution.
After more than a decade of delivering content to hundreds of thousands of largely anonymous
readers around the world, our staff is looking forward to seeing the faces and hearing the voices
of the ever-growing number of JURIST readers on the Facebook service!
Not only is Jurist one of the Ancient Wise Oracles of the online legal world, it is a moment-to-moment
legal media center. Just to give two examples of particular concern to me:
As I wrote yesterday, Google seemed on the verge of settling the long-running and profound disputes
concerning its Google Library Project. Jurist now reports the settlement is final:
Internet search company Google, Inc. [corporate website] agreed Tuesday to settle [Google
press release] two copyright infringement lawsuits stemming from its book-scanning initiative
[Google Book Search website]. The two lawsuits were brought against Google by The Authors
Guild [advocacy website; press release, PDF], an advocacy group seeking to preserve copyright protection for authors, and by other plaintiffs including the Association of American
Publishers (AAP) [organization website; AAP press release], The McGraw-Hill Companies,
Inc., Penguin Group (USA), Inc., and Simon & Schuster, Inc. [corporate websites]. Under
the terms of the settlement agreement [text, PDF], which is subject to approval by the US
District Court for the Southern District of New York [court website], Google will pay $125
million to authors and publishers of copyrighted works. In return, Google will be allowed
to display online up to 20 % of the total pages of a copyrighted book, and will offer users
an opportunity to purchase the remainder of any viewed book. The New York Times has
more. The Washington Post has additional coverage.The two lawsuits settled Tuesday were
originally brought against Google in 2005. In September 2005, The Authors Guild alleged
[JURIST report] massive copyright infringement at the expense of the rights of individual
writers. The lawsuit accused Google of engaging in unauthorized scanning and copying of
books through its Google Print Library Project [Google backgrounder; advocacy copyright
analysis, PDF]. The AAP lawsuit, filed in October 2005 [JURIST report], alleged that Google
infringed copyrights held by a number of publishing companies when it scanned the entire
book collections of several universities to make them searchable online.
With respect to another profound concern of mine, military torture, Jurist reports that a federal judge
has ruled that evidence obtained by torture cannot be admitted in the trial of a Guantanamo detainee:
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A US military judge ruled Tuesday that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] to
Afghan officials following his capture in 2002 was obtained using torture and is therefore
inadmissible at his upcoming military commission [JURIST news archive] trial. Army Col.
Stephen Henley found that Afghan officials threatened to kill Jawad and his family unless
he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. Henley
ruled that obtaining a confession using threat of death amounted to torture, and that under
Guantanamo trial rules his confession is therefore inadmissible. Reuters has more. Jawad,
who was transferred into US custody after the confession to the Afghanistan government, was
designated an enemy combatant in 2004. He was later charged [charge sheet, PDF; JURIST
report] with attempted murder and intentionally causing serious bodily injury for his role in
the attack, which injured two US soldiers and an Afghan translator. The case against him
faces growing problems. Last month, former military commissions chief prosecutor Army Lt.
Col. Darrel Vandeveld resigned [JURIST report], citing ethical qualms with the military
commissions defense counsel discovery procedures. In May, Jawad moved [JURIST report]
to have all charges against him dismissed, alleging that he has been tortured in US custody
and subjected to the so-called frequent-flier program, in which certain inmates are moved
between cells at two to four hour intervals in an attempt to cause physical stress through sleep
deprivation. Jawad, the fourth Guantanamo detainee to be formally charged with war crimes
under the 2006 Military Commissions Act [text, PDF], is set to face military commission on
January 5, 2009.
One word can make all the difference. (2008-10-30 10:08)

In July, Nebraska passed a version of what has become known as a safe-haven law, which allows a
parent to surrender an infant without fear of prosecution. Such laws were adopted by every state over the
last decade after numerous reports of babies left to die in trash bins or plastic bags. But only Nebraska s
version, which took effect in July, extended the protection to children, meaning up to age 18, rather
than specifying a maximum age of a few days or months.
According to today s New York Times, this choice of language has provoked Nebraska s governor to
call call a special session of the state legislature next month, immediately after the elections, to rewrite
the statute. As the Times reports:
On Tuesday, a 17-year-old boy was left by his mother and stepfather in Lincoln, and a
15-year-old girl was abandoned by her father in Omaha. That brought the number of children
left in state hands since Sept. 1
usually by parents or guardians who said the child was
uncontrollable and violent
to 24, including one who was left at a police station rather than
a hospital as the law dictates.
We all hoped this wouldn t happen, Mr. Heineman said of the continued drop-offs. Now
circumstances dictate that we act.
The cost of a special session has been estimated at more than $80,000, and the state s citizenlegislators will have to take time off from their private jobs.
Fred Baron, R.I.P. (2008-10-31 05:37)

Ive been immensely fortunate during my career to learn from and work wth some extraordinary people.
One of them, Fred Baron, died yesterday. According to the Dallas News,
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Mr. Baron said a 1970 Ralph Nader speech in Austin influenced him to use the law to
regulate business conduct in ways the government could not. In 1977, Mr. Baron founded
his Dallas firm, Baron & Associates, which became Baron & Budd, where he later was joined
by his wife. Mr. Baron was highly successful litigating for plaintiffs injured by substances
including asbestos, pesticides and lead.
As a result, Mr. Baron became known as the King of Torts for his more than 30 years of successfully
representing clients injured by toxic substances, My principal work with Mr. Baron involved preparing
him as a witness to testify to the fairness of a settlement one of my clients was entering into with a class
of asbestos plaintiffs. My clients adversary in the case was seeking to scuttle the settlement in order to
maintain control of the company liable to Mr. Barons clients. My connection with him was, therefore,
brief and limited to matters almost purely professional. Nonethless, the obituarys characterization of
Mr. Baron as brilliant and passionate is entirely consistent with my own impressions. It is also consistent
with what he made of his life after his enormous professional success:
Mr. Baron built a lucrative practice and shared his financial success with a host of causes
from the arts to the Texas Democratic Trust, which he founded in September 2005.
The party was literally broke, Mr. Stanley said. There was no energy, there were no
funds. Fred enabled a structure to be rebuilt to support and elect Democratic candidates in
Texas.
Many credit Mr. Barons trust with giving Dallas County Democrats the wherewithal that
led to their success in the November 2006 election.
He contributed not only his money, but his time and his vision, Mr. Stanley said.
Mr. Barons philanthropic efforts werent limited to the political arena.
The first floor of the Baron home was devoted to public charity.
His house was open to any organization that wanted an event there, Mr. Stanley said.
The home was used for fundraisers for all kinds of Dallas religious, cultural and social justice
organizations, Mr. Stanley said.
Mr. Baron was especially proud of the Baron & Blue Foundation, which is dedicated to
eliminating homelessness and improving low-cost housing in the Dallas area, his wife said.
I dont remember ... [the Barons] ever saying no to any request, Mr. Stanley said. He
was just so generous and open.
Vernon Jordan on Primus King, true courage, and the long road weve traveled
(2008-10-31 06:18)
One of the greatest men I have ever known is Vernon Jordan, my former partner in Akin Gump Strauss
Hauer & Feld, LLP. Newsweek recently ran an excerpt from Jordans new book, Make it Plain. The
excerpt makes as clear as is possible that legal progress requires imagination and, perhaps most of all,
sheer courage:
Primus King was my man.

Born in 1900 in Hatchechubbee, Alabama, the son of sharecroppers, Primus E. King grew
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up in Columbus, Georgia, where his parents had moved to escape the grinding oppression of
the sharecropping system. King was unlettered like many Southern blacks in those decades
for whom the state and local governments made formal schooling an impossibility.
But Primus King well understood the denial of rights blacks endured. His determination
to be as independent as possible of the Souths Jim Crow rigged system of government and
social relations showed itself early in his learning the trade of barbering. Later, in 1939,
Kings religious faith led him to become an itinerant Sunday preacher, ministering as called
by one of the many small black churches that dotted the Black Belt countryside in Georgia
and Alabama. It was that faith, he later said, which fortified him for the task he undertook
on July 4, 1944.
On that day, Reverend Primus King walked into the Muscogee County Courthouse in Columbus, Georgia, to cast his vote in the states Democratic Party primary election. Because the
racist Democratic Party monopolized political activity in Georgia as it did throughout the
South, the primary determined the outcome of the general election. For that very reason,
the state Democratic Party barred blacks from voting in the primary. It was that travesty of
democracy that King, quietly supported by the local NAACP, intended to change.
I am a citizen of this city and this state, he declared to the white election officials that
day. I own property. I pay taxes. I can read and write and do arithmetic, and I have not
committed a crime of moral turpitude. I have come to vote.
His words got King roughly escorted out of the courthouse by police officers. But King
persisted, and with the prearranged help of two local white lawyers, filed a federal suit to
outlaw blacks exclusion from the Democratic primary.
That brought a warning from party officials, who summoned King before them and bluntly
told him that if you dont withdraw the lawsuit, you could end up in the Chattahoochie
River.
King, standing alone before the pillars of segregationist power, replied, Well, if that happens, then at least Ill be thrown in the river for something, as opposed to all the colored
people whove been thrown in there for nothing. And he walked out.
In October 1945, the Federal District Court in Macon, Georgia, ruled in Kings favor, striking
down the Georgia white primary. In March 1946, the U.S. Circuit Court of Appeals in New
Orleans upheld that ruling, and the following month the U.S. Supreme Court declined to hear
the Georgia Democratic Partys appeal.
The all-white Georgia Democratic primary now officially stood where it belonged outside
the bounds of the Constitution of the United States.
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Friday Nights Music Break: Graham Nashs Chicago (2008-10-31 16:23)
Considering the intensity of the political moment and the fact my sons current U.S. History project is on
Bobby Seale, I thought Graham Nashs Chicago, would be the appropriate song for this weeks Friday
Night Music Break:
[EMBED]
1.4
November
Is Google no longer the Copy-Lefts white knight? (2008-11-01 00:00)

Google has been a very interesting company to anyone concerned with copyright law. Google has taken
on lawsuits raising issues others dont have the resources to fight over, and Google has been very effective
in making good arguments in those cases. Fred von Lohman now wonders if those days are gone:
Late last month, Google announced a settlement in its lawsuit with book publishers and
authors over its Google Book Search offering. . . .
The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up
in the name of the disruptive innovation that fuels the Internet economy. . . .
Google, assisted by its expensive, top-drawer legal team, has a track record of winning these
precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Googles legal investments have paid dividends for the
entire Internet innovation economy.
Until now. By settling rather than taking the case all the way (many copyright experts
thought Google had a good chance of winning), Google has solved its own copyright problem
- but not anyone elses. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has
left its former copyright adversaries to maul any competitors that want to follow its lead.
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Proceedings of the Old Bailey, 1674-1913 (2008-11-03 07:07)

I just discovered The Proceedings of the Old Bailey, 1674-1913, a fully searchable edition of the documents from the 197,745 criminal trials held in Londons central criminal court during that period.
According to John Langbein, the Proceedings are probably the best accounts we shall
ever have of what transpired in ordinary English criminal courts before the later eighteenth
century. Although initially aimed at a popular rather than a legal audience, the material
reported was neither invented nor significantly distorted. The Old Bailey Courthouse was a
public place, with numerous spectators, and the reputation of the Proceedings would have
quickly suffered if the accounts had been unreliable. Their authenticity was one of their
strongest selling points, and a comparison of the text of the Proceedings with other manuscript
and published accounts of the same trials confirms that what they did report was for the most
part reported accurately.
The database is a treasure trove for historians and the curious. A random search for a topic of some
interest to me, stock fraud, undearthed the case of Richard Slocombe the younger, who was indicted for
feloniously and deceitfully impersonating his father, thereby securing for himself 50 of the 450 worth
of South Sea Annuities owned by his father. The records include transcripts and summaries of some of
the trial testimony. Here is the report of Mr. Slocombes testimony in his defense and the testimony on
his behalf by his uncle.
Prisoners defence:
From what I had conceived and collected from discourse between my father and mother,
this was mine upon my coming to age; my father is at these years reduced to a degree of
insanity, he cannot recollect one half hour what he spoke the last; I am fully persuaded if
my mother and sister were here, they would coincide perfectly in what I advance in every
respect; as to the transfer, I signed nothing but my own name; if I had been conscious I was
doing wrong, I should have made but one transfer, and took all the money at once; I did not
act with any view of defrauding, therefore I most humbly hope you will take it in the most
favourable consideration and construction; I am not particularly desirous of calling my father.
To his [Slocombes] character:
John Pierce . I am the prisoners uncle; I never knew but that he always bore a good
character, he was always very dutiful.
Richard Slocombe the younger was found guilty and was executed.
This Land is Your Land (2008-11-04 00:13)

Nobody living can ever stop me,
As I go walking that freedom highway;
Nobody living can ever make me turn back
This land was made for you and me.
[EMBED]
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U.S.A. Post-Election Music Break Nina Simone, Feeling Good. And Aeschylus:
He who learns must suffer. And even in our sleep pain that cannot forget falls drop
by drop upon the heart, and in our own despair, against our will, comes wisdom to
us by th (2008-11-05 00:03)
[EMBED] [EMBED]
Protecting copyright through new technologies must accomodate our constitutional

rights to free speech. (2008-11-06 00:55)
We are, of course, in the midst of a conflict between

existing intellectual property laws and the radical changes to the material conditions on which those
laws were built. Producers of music and video scream bloody murder because their products can be
reproduced and disseminated at little cost, an entirely different situation than when that reproduction
required expensive equipment and copies could only be sent out in phyisical form one at a time.
These are truisms, but they are the truisms that are at the basis of the intellectual property wars
through which we are living.
Theres a new skirmish on the horizon, brought to my attention by Brian Ledbetter of Snapped Shot.
According to Computerworld, MySpace and Viacom International-owned MTV Networks today moved
to resolve some key online video issues by tapping a new technology that inserts advertising into any
videos uploaded by users to MySpace whether theyre authorized or not.
In other words, if you upload a copyrighted clip, the new technology will insert advertising into the
clip whether you want it there or not. The motivations of the copyright owners are obvious. They want
money for the use of their copyrighted materials, which they consider their property. But, while copyrighted materials are intellectual property, they are not property in the sense that real estate, money,
and cars are property.
99
Heres the rub: the technology poses some serious First Amendment problems. The fair use of copyrighted materials without consent is not an infringement of the copyright owners property rights.
We are not a society oriented only toward property ownership. Free expression, based primarily in
the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and
not to their particular expression, that is vital if self-governing people are to make informed decisions.
There is, however, an inherent tension here. While the First Amendment disallows laws that abridge
the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets
government off speakers backs, while the Copyright Act enables speakers to make money from speaking
and thus encourages them to enter the public marketplace of ideas.
Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust
Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th
Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001). In Sun Trust, the owners of the copyright to
Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the
depiction of slavery and the Civil-War era American South and that used and drew upon the characters
and story line from Gone with the Wind. The court ordered the lawsuit dismissed because The Wind
Done Gones use of the characters and story line from Gone with the Wind constituted fair use. In doing
so, the court made clear that First Amendment privileges are . . . preserved through the doctrine of
fair use and that to hold otherwise would jeopardize over 200 years of the constitutional guarantee
that new ideas, or new expressions of old ideas, would be accessible to the public.
This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of
Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to
march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court).
(And, incidentally, I am a member of the board of directors of the local chapter of the Anti-Defamation
League.)
So heres the problem: MySpace and Viacom-MTV are creating technology that will insert advertising into speech that is mine. The mere fact that this speech will be composed in part of materials derived
from their copyrighted works does not make my speech theirs; it does not give them the right to inject
their advertisements into my own creations. They may think Im stealing their property if I take a sample
of one of their copyrighted works and use it to create something new. I think theyre wrong. But I also
think theyre doing the equivalent of putting a billboard on my front lawn when they put their advertising
in that new creation of mine. And I think thats wrong too.
Do we really want to treat artists like shoplifters? (2008-11-07 08:49)

Effective lawyering, like any effective practice, requires choosing the right objective. There are less charitable ways to think of this strategy. I could just as easily write that effective lawyering requires choosing
the right victim. You dont sue someone who will beat you, no matter how righteous your cause. Sun Tzu
made this strategy plain: If your enemy if superior in strength, evade him. The Art of War (ch.1, v.21),
Thats why, for example, I dont think Metallica will sue Girl Talk even though Girl Talk makes music
by sampling the recordings of a myriad of artiststs that include litigants as aggressive as Metallica. Girl
Talks work may consist entirely of sampled copyrighted works, but it is work constructed so creatively
that it constitutes something genuinely new and creative, something, in the words of the law, that is
transformative of its copyrighted materials.
Girl Talk is like Jeff Koons. In Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), the United
States Court of Appeals for the Second Circuit ruled that Jeff Koons appropriation of a copyrighted
photograph in a painting did not infringe the photographers copyright because Koonss use of the pho100
tograph was transformative:
Koons is, by his own undisputed description, using [the copyrighted photograph] as fodder
for his commentary on the social and aesthetic consequences of mass media. . . . When,
as here, the copyrighted work is used as raw material, . . . in the furtherance of distinct
creative or communicative objectives, the use is transformative. . . . His stated objective
is thus not to repackage Blanchs Silk Sandals, but to employ it in the creation of new
information, new aesthetics, new insights and understandings.
Instead of going after the artists like Girl Talk and Jeff Koons, copyright holdlers (typically large media
conglomerates) go after victims they think they can beat into submission. Thus, for example, Princes
music company, Universal Music Group, sought to remove the 29 second video of a moms son dancing to
Princes Lets Go Crazy from YouTube via a takedown notice under the Digital Millennium Copyright
Act (the DMCA). Other people think suing college students for illegally downloading music is the right
strategy for resolving the inevitable conflicts posed by the clash between our new technologies and our old
copyright laws. College students dont have the money to defend lawsuits brought by media companies.
And, the thinking goes, if a bunch of defenseless law students are deterred, everyone else will fall into
line:
In a lot of ways, downloading is more like shoplifting than it is like piracy, the term often
used for it. Pirates embrace a life of crime; shoplifters often see their activity (wrongly) as an
exciting and slightly risky diversion - a relatively petty vice in an otherwise law-abiding life.
The recording industry will have to use similar tactics, and like retail stores, they will have
to live with a small loss from undetected stealing. But that loss can be minimized, through
warnings, monitoring, and enforcement. And word of enforcement spreads. . . . Few students
will keep downloading once their classmates have famously gotten in deep trouble for doing
just that. That is good for them, but even better for us. . . .
The more seriously society takes shoplifting, the more shoplifters will be deterred. The
same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at
stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting,
the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real
risk of getting caught.
There is a big problem with this reasoning. The use of copyrighted materials without permission is not
like shoplifting. Intellectual property is not tangible property, and the law does not equate the two. As
I wrote just yesterday,
We are not a society oriented only toward property ownership. Free expression, based
primarily in the First Amendment of the Bill of Rights, is also foundational to our society.
It is exposure to ideas, and not to their particular expression, that is vital if self-governing
people are to make informed decisions. There is, however, an inherent tension here. While the
First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause
calls specifically for such a law. The First Amendment gets government off speakers backs,
while the Copyright Act enables speakers to make money from speaking and thus encourages
them to enter the public marketplace of ideas. Balancing this conflict is precisely the purpose
of the fair use doctrine,
101
The problem is a real one. I have a new friend, Cathy Vogan, who has created Futurisms, a film that uses
the song Que Sera Sera as a jumping off point to comment on the songs naivete in the face of Reality. I
think Futurisms is a genuinely creative work.
But Facebook has removed Futurisms from its site, and while the company gives my new friend an
opportunity to file a counter-notification contending that she has a right to have her film posted, when
she looks at what she must declare to file the counter-notification, she sees, in her words, a scary legal
word: perjury, and wonder[s] what will happen to me if I proceed.
Who can blame her? Should she take on Facebook? She is a struggling, but fairly well-known video artist
with 8 international awards who has never sought to make money from her creative work.Futurisms was
completed a few months ago, and has never been shown anywhere, besides her website and Facebook.
Stephanie Lenz took on Universal Music Group and won. Thankfully, she had the help of the Electronic Frontier Foundation. What should Cathy do? I think she should file her counter-notification.
Perjury requires lying, and as long as she doesnt lie, theres no harm in filing the notification. The
worst that can happen is that Facebook will refuse to alter its position.
But do we really want to treat artists like shoplifters?
ADDENDUM: Cathy filed her counter-notification, and Facebook has restored FUTURISMS. Here it
is too:
[EMBED]
Friday Night Music Club: Yo La Tengo, The Whole of the Law (2008-11-07 20:43)
[EMBED]
If criminals are criminals because they seek profit, what do you do if you want to
prosecute people for acts they commit with no intent to make money? You change
the law. (2008-11-10 06:26)
Back in May of 2001, two federal prosecutors wrote Novel Criminal Copyright Infringement Issues
Related to the Internet (David Goldstone and Michael OLeary, USA Bulletin, May 2001) to provide
Department of Justice (DOJ) lawyers with guidance in prosecuting criminal copyright infringement cases.
The memorandum is already so dated that much of its discussion seem almost naive (about, for example,
the online posting of copyrighted materials). Nevertheless, it points out one more way that the change
of the material reality governed by the law requires changes in the law. Typically, non-violent crimes are
illicit efforts to make money. Thus, criminal statutes against non-violent crimes almost always require
prosecutors to prove the defendants intended to profit from their allegedly illegal activities. But, as the
DOJ memorandum points out, the law relating to online copyright infringement needed to be changed
because of a remarkable new wrinkle: many defendants committing their alleged acts of criminal copyright infringement via the internet do so without any intention or hope of gain:
Infringement without profit motive is far more common in cases of Internet-based copyright
infringement than it is in the physical world. Until recently, the prosecution was required
to prove that copyright infringement was done willfully and for commercial advantage or
private financial gain. Now the law provides for prosecution in the absence of these monetary
considerations.
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Repeat after me:
being a good lawyer means doing good for the client.
(2008-11-11 00:07)
Time Ferris, in his post How Not to Use a Lawyer, explains well how lawyers can serve their clients. Ferris
observations are a personal case study provoked by an obnoxious letter from a laywer representing a
business Ferris had actually spoken positively about in his book. The lawyer had a legitimate request to
make to Ferris regarding the specifics of Ferriss written statement, but the letter was so obnoxious all it
did was end up hurting the lawyers client. Ferriss points:
1. How you say something IS what you say.
2. Its counterproductive to threaten someone until you determine their incentives to refuse compliance.
3. Its better to steer the golden goose rather than kill it.
4. Dont mistake symptoms with root problems, or confuse correlation with causation.
5. If you threaten someone in a digital world, it might become what your prospective customers see
first.
Its Veterans Day (2008-11-11 11:55)
Dont be fooled again. (2008-11-12 11:23)
One way weve been bamboozled by the myth that regulating financial
markets is bad is by allowing ourselves to be convinced that hedge funds and the like are just too
sophisticated for simple folks like us to understand. So we dont even try to understand them. What
happens? They steal us blind.
In 2005, law professor David Skeel, in Behind the Hedge, simply explained what hedge funds are,
why and how they are unregulated, and their pernicious effects on our economy. I wish I could say now,
three years later, that his conclusions showed him to be hysteric:
[T]here is a cost greater than lost dollars for all these practices . . . . It is the danger
that investors will lose confidence in the markets because the markets are rigged. People
will not entrust their resources to a marketplace they dont believe is fair, an American Bar
Association task force said 20 years ago in a study of insider trading, any more than a card
103
player will put his chips on the table in a poker game that may be fixed. The same holds
true today. If investors faith in the integrity of the markets is shaken, some will pull their
money out, meaning less money will be available for American corporations to invest in ways
essential to the nations prosperity. Investors will also be unwilling to pay as much for stocks
or bonds in initial or subsequent public offerings, making it more difficult for companies to
raise money for expansion or the creation of new technologies and products. The effect on
the markets, and on the American economy, would be devastating.
[EMBED]
I confess: Im complicit in a corrupt and dishonest system. (2008-11-13 00:17)

Im sometimes asked why the law cant speak clearly to the average person. I wish I had a good answer.
Im not without answers; theyre simply not very satisfying. My first answer is that the question why law
cant speak more clearly is like asking why pigs cant fly. They dont, and it doesnt. Ive given up trying
to figure out why. Im primarily concerned these days with trying to figure out how to teach people who
will practice law how they can begin to understand legal language. I know that task itself achieving a
glimmer of understanding of legal language takes a monumental amount of work even when attempted
by incredibly well educated and bright people.
My second answer is that making oneself understood is incredibly difficult for anyone. The President of
the United States, the Governor of Alaska, and many other very powerful and accomplished people seem
incapable of the art. Why would you expect some low level lawyer at a federal agency to be clear if these
people cant be?
In the end, though, I sometimes throw up my hands in utter frustration, realizing I myself remain
befuddled or, even worse, that they system is intended to be as confusing as possible. Ive known since
law school (25 years ago) the purpose of the patent system is to encourage the disclosure of ideas by
inventors to increase the inventiveness of others. We offer an inventor exclusive rights to profit from
his invention in exchange for his disclosure of the invention because doing so will at least allow other
inventors to learn the patented knowledge and build upon it.
Now Techdirt makes clear that Im an idiot: Defenders of the patent system quite frequently point
out that one of the main benefits (some claim the only benefit) of the patent system is disclosure. That
is, because the patent system requires you to disclose your patent, the patent system is quite helpful in
spreading ideas. This is a myth thats easily debunked on a few points. First, youll bother applying for
a patent for your invention only if you know the invention will be figured out anyway. Otherwise, why
bother? Second, since the penalties for knowingly infringing a patent are so much worse than accidentally
infringing, companies actually discourage their employees from examining patents. The companies are
better off if theres no proof they actually knew about any patents they infringe. Finally, Slashdot points
us to a Microsoft employee admitting that looking at patents is a total waste because they never actually
disclose anything useful:
When using existing libraries, services, tools, and methods from outside Microsoft, we must
be respectful of licenses, copyrights, and patents. Generally, you want to carefully research
licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never
search, view, or speculate about patents. I was confused by this guidance till I wrote and
reviewed one of my own patents. The legal claims section the only section that counts was
indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended
when it comes to patents.
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Speaking of Alaskas Governor . . . (2008-11-13 00:17)

From Counterfeit Chic:
Eric Wilson at the New York Times started the Sarah Palin knockoff watch with his
observation last week that she had arrived at the Alaska governors mansion the first time
wearing what appeared to be a knockoff Burberry scarf. Now her youngest daughter has
been photographed carrying (Mommys?) Louis Vuitton bag, also alleged to be fake.
Even if the luxury bag turns out to be genuine perhaps part of that $150K shopping spree
it doesnt exactly scream all-American hockey mom.
And if the scarf and bag are indeed counterfeit, Sarah may have to face a few questions about
the source of the illegal merchandise and her take on fakes. Not to mention their association
with child labor, organized crime, and, yes, in some cases even funding for terrorism.
Language abuse is posing an existential threat to those around me. (2008-11-13 06:30)
Perhaps its being reminded recently to re-read Politics and the English Language. Perhaps its journalisms daily abuse of our language. Perhaps its the despair peculiar to mid-November of the first semester
of law school, when students have realized they have learned a lot and, understandably, given the enormous effort theyve made over the last three months to accomplish that learning, let up, forgetting what
Ive been telling them for those three months: it will be many, many years before they feel in their guts
theyre really good at expressing themselves as lawyers and understanding other lawyers. Perhaps its
the letter a friend received from her mortgage lender making a sincere and pathetic effort to explain to
a human being what it could do for her under the federal governments recent baiiout plan. Perhaps
its reading of Malcolm Gladwells most recent best-selling insight it takes 10,000 hours of practice for
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anyone to become really good at anything and realizing that maybe it takes 10,000 hours of practice
to become a really good legal writer. Perhaps its realizing again, for the thousandth time, that lawyers
really do often use their skill with language to obscure and deceive.
At any rate, I am suffering from the cynicism Orwell in that essay mentioned in the first sentence
above argues against:
Most people who bother with the matter at all would admit that the English language is in
a bad way, but it is generally assumed that we cannot by conscious action do anything about
it. Our civilization is decadent and our language so the argument runs must inevitably
share in the general collapse. It follows that any struggle against the abuse of language is a
sentimental archaism, like preferring candles to electric light or hansom cabs to aeroplanes.
Underneath this lies the half-conscious belief that language is a natural growth and not an
instrument which we shape for our own purposes.
Can we at least agree on one thing? Can we stop using the term existential threat to refer to a threat
that poses a genuine risk of destroying someone or somethings very existence? As in:
Iran poses an existential threat to Israel.

The Soviet Union during the Cold War posed an existential threat to the United States.
Islamofascism poses an existential threat to Western democratic capitalism.
The term existential threat hides the real question how much of a threat? behind the idea that if
something poses a threat to ones very existence it is as bad as a threat gets.
Maybe its just that I started writing this post at 4am, which Ive heard is the new midnight.
What, indeed, is fair use? (2008-11-13 08:36)

My students sometimes wonder whether their failures to find clarity in the law are the result of a lack
of intelligence. They arent. Let me give a very timely example. The New York Press writes that Girl
Talks music aural collages of others recordings exists without fear of lawsuit, thanks to the fair use
doctrine in U.S. copyright law. The RIAA, on the other hand, states that generally speaking, the use
of any part of a song requires a license.
The RIAAs position is not without basis. Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner
Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider
issues pertaining to fair use, enjoined the distribution of Biz Markies third album because one of its songs
sampled three words and the accompaniment ostinato of Gilbert OSullivans schlock hit Alone Again,
Naturally. Duffy wasnt satisfied with a mere injunction, however: he referred the defendants to the U.S.
Attorneys office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,Thou
shalt not steal. [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of
civilization. Unfortunately, in the modern world of business this admonition is not always followed.
Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly,
holding that the defendant had committed copyright infringement by using in his own musical recording
a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to
extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must
be balanced against maintaining the composers incentive to create, the very core of the fair use doctrine.
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The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice (as
reflected in the RIAAs statement quoted above) is to pay for any and all recorded samples. Record
companies certainly have no interest in challenging the existing regime. The recordings they own are
held inviolate too, so why challenge the right of another recording company to require payment for any
sample, no matter how small, no matter transformative its use is, and no matter how little impact it will
have on the market for the sampled piece?
Plainly, then, the New York Press is engaging in wishful thinking in assuming Girl Talk can operate
without fear of lawsuits because of the fair use doctrine. But MTV.com is being just as innacurate
when it writes that Girl Talks failure to get permission to use the copyrighted recordings it uses means
that they appear in [Girl Talks] song[s] illegally. And Techdirt is right on the money when it writes:
[W]ith over 300 samples used on the album, theres almost certainly going to be a few who
get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band
the Guess Who is planning to go after Girl Talk, noting that: Well chase it down. What
more can you do? Well, actually, theres plenty more that you can do such as recognizing
that no one who hears the music on Girl Talk is going to see that as a replacement to the
Guess Whos album and, if anything, it might entice new fans to the original.
So does Girl Talk exist without the fear of lawsuits? Of course not. But, as I wrote recently, if were
advising a client whose recordings Girl Talk had sampled, I would advise that client not to sue Girl
Talk: its position to argue that it has transformed the copyrighted materials and thus that their use
is non-inringing fair use is just too good. Id go after someone I am more likely to beat. Othewise, Id
lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand
Upright Music and Bridgeport Music.
The law may not be clear, but what I advise a client can nonetheless be clear. Grasping that paradox is central to what it takes to being to really learn to think like a lawyer.
Barack Obama, law professor (2008-11-14 09:51)

A former students account of the President-Elect as a law professor.
Richard Epstein is considered one of the most brilliant people in legal academia, but I genuinely hope my
Contracts students dont feel at the end of the year the way this student felt about Epsteins Contracts
class:
You dont actually learn the law in law school, at least not at a school like Chicago. Law
school is for training you to think through arguments like a lawyer would, and to give you a lay
of the land in various fundamental legal areas. Put another way: after spending two quarters
studying Contracts with Richard Epstein, I had no idea how to actually draft a contract.
Top 10 of the Worlds Weirdest Compensation Claims (2008-11-14 10:39)

I havent fact-checked this post, so I would take it with a grain or entire shaker of salt, but its amusing
to read the Top 10 or the Worlds Weirdest Compensation Claims. As a Contracts professor, I am particularly amused by the following two (numbers 4 and 1 on the list):
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In 2005 a Romanian prisoner, Pavel M., while serving 20 years for murder, sued God. He
argued that his baptism was an agreement between him and God under which, in exchange
for value such as prayer, God would keep him out of trouble.
Cathy McGowan, 26 of Derby, England, was overjoyed when a DJ told her that she had
correctly answered a quiz question and had won the competition prize: a Renault Clio. However, when she arrived at the radio station to pick up her prize she was presented with a
4-inch model of the car. In 2001, she sued and a judge at Derby County Court ruled that the
Radio Station and its owners to pay 8,000 for the real vehicle.
I would, incidentally, expect my current Contracts students to be able to answer on their exam why it
would be that Ms. McGowan should have received the value of the real vehicle. For that matter, they
should be able to explain why Pavel M.s breach of contract claim would be dismissed as well, though that
argument might fall within the scope of Civil Procedure: my guess is that there is no governmental court
in the United States that has subject matter jurisdiction over claims against God. Personal jurisdiction,
on the other hand, wouldnt be a problem, assuming God is everywhere. Putting aside the jurisdictional
issues, it is difficult for me to opine on the merits of Pavel M.s contract claim since I dont have the
terms of the agreement he reached with God.
On a not altogether incidental but less frivolous note, I should point out that frivolous claims (which Ms.
McGowans plainly wasnt) really arent the problem many people claim them to be.
Friday Night Music Break: Laurie Anderson: Only an Expert (2008-11-14 18:09)
[EMBED]
Friday Night Music Break: Was (Not Was): Hello Dad, Im in Jail (2008-11-14 19:18)
[EMBED]
Surely youre joking. I can tell by that ridiculous price. (2008-11-16 22:00)
On Friday I mentioned the case of a radio contest winner who successfully sued the radio station for the
value of a Renaul Clio after shed won a contest offering the car to the contests winner. When shed
shown up to the station to claim her prize, the station had given her a tiny model of a Renault instead of
an actual car. This type of case turns on whether a reasonable person would believe the offer is a serious
one. Radio stations do offer cars as prizes. In contrast, check out the following:
[EMBED] After seeing the ad, John Leonard, then a 21-year-old business student, discovered he could
purchase individual Pepsi points from the company for 10 each. After sending Pepsi $700,008.50
representing money he had raised from five investors for 6,999,985 Pepsi Points, fifteen of his own Pepsi
Points, and a little extra for shipping and handling Leonard demanded his jet. Pepsi laughed off the
claim, pointing out the Harrier had never been offered in the Pepsi Points catalogue and was just in the
commercial to provide a humorous completion to the piece. As indicated by Snopes.com, If we have
to put disclaimers on spots that are obviously farces, where does it end? Pepsi spokesman Jon Harris
said. Well, it didnt end there. Leonard filed suit in Miami against Pepsi for breach of contract, fraud,
deceptive and unfair trade practices, and misleading advertising. Leonard lost. In the opinion dismissing
Leonards lawsuit, Judge Kimba Wood (speaking from personal experience, an excellent judge, though
not immune from notoriety), did what lawyers often have to do spell out in painstaking detail what
most people accept as gut feelings. In this case, she had to spell out that a reasonable person viewing
the commercial would know that Pepsi was joking about the Harrier Jet:
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Plaintiffs understanding of the commercial as an offer must also be rejected because the
Court finds that no objective person could reasonably have concluded that the commercial
actually offered consumers a Harrier Jet. . . . In evaluating the commercial, the Court must
not consider defendants subjective intent in making the commercial, or plaintiffs subjective
view of what the commercial offered, but what an objective, reasonable person would have
understood the commercial to convey. . . . If it is clear that an offer was not serious, then
no offer has been made . . . An obvious joke, of course, would not give rise to a contract. . .
. On the other hand, if there is no indication that the offer is evidently in jest, and that an
objective, reasonable person would find that the offer was serious, then there may be a valid
offer. Plaintiffs insistence that the commercial appears to be a serious offer requires the Court
to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as
the essayist E.B. White has remarked, Humor can be dissected, as a frog can, but the thing
dies in the process.... The commercial is the embodiment of what defendant appropriately
characterizes as zany humor. First, the commercial suggests, as commercials often do, that
use of the advertised product will transform what, for most youth, can be a fairly routine
and ordinary experience. The military tattoo and stirring martial music, as well as the use
of subtitles in a Courier font that scroll terse messages across the screen, such as MONDAY
7:58 AM, evoke military and espionage thrillers. The implication of the commercial is that
Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives. The
commercial in this case thus makes the exaggerated claims similar to those of many television
advertisements: that by consuming the featured clothing, car, beer, or potato chips, one
will become attractive, stylish, desirable, and admired by all. A reasonable viewer would
understand such advertisements as mere puffery, not as statements of fact, see, e.g., Hubbard
v. General Motors Corp., 95 Civ. 4362(AGS), 1996 WL 274018, at *6 (S.D.N.Y. May 22,
1996) (advertisement describing automobile as Like a Rock, was mere puffery, not a warranty
of quality), . . . and refrain from interpreting the promises of the commercial as being literally
true. Second, the callow youth featured in the commercial is a highly improbable pilot, one
who could barely be trusted with the keys to his parents car, much less the prize aircraft of
the United States Marine Corps. Rather than checking the fuel gauges on his aircraft, the
teenager spends his precious preflight minutes preening. The youths concern for his coiffure
appears to extend to his flying without a helmet. Finally, the teenagers comment that flying
a Harrier Jet to school sure beats the bus evinces an improbably insouciant attitude toward
the relative difficulty and danger of piloting a fighter plane in a residential area, as opposed
to taking public transportation. Third, the notion of traveling to school in a Harrier Jet is
an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how
the teenagers schoolmates gape in admiration, ignoring their physics lesson. The force of
the wind generated by the Harrier Jet blows off one teachers clothes, literally defrocking
an authority figure. As if to emphasize the fantastic quality of having a Harrier Jet arrive
at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely
unrealistic. No school would provide landing space for a students fighter jet, or condone the
disruption the jets use would cause. Fourth, the primary mission of a Harrier Jet, according
to the United States Marine Corps, is to attack and destroy surface targets under day and
night visual conditions. . . . Manufactured by McDonnell Douglas, the Harrier Jet played
a significant role in the air offensive of Operation Desert Storm in 1991. . . . The jet is
designed to carry a considerable armament load, including Sidewinder and Maverick missiles.
See id. As one news report has noted, Fully loaded, the Harrier can float like a butterfly
and sting like a beealbeit a roaring 14- ton butterfly and a bee with 9,200 pounds of bombs
and missiles. . . . In light of the Harrier Jets well-documented function in attacking and
destroying surface and air targets, armed reconnaissance and air interdiction, and offensive
and defensive anti-aircraft warfare, depiction of such a jet as a way to get to school in the
morning is clearly not serious even if, as plaintiff contends, the jet is capable of being acquired
in a form that eliminates [its] potential for military use. Fifth, the number of Pepsi Points
the commercial mentions as required to purchase the jet is 7,000,000. To amass that number
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of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next
hundred yearsan unlikely possibility), or one would have to purchase approximately $700,000
worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which
plaintiff was aware when he set out to gather the amount he believed necessary to accept the
alleged offer. . . . Even if an objective, reasonable person were not aware of this fact, he
would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.
Plaintiff argues that a reasonable, objective person would have understood the commercial
to make a serious offer of a Harrier Jet because there was absolutely no distinction in the
manner in which the items in the commercial were presented. Plaintiff also relies upon a press
release highlighting the promotional campaign, issued by defendant, in which [n]o mention
is made by [defendant] of humor, or anything of the sort. These arguments suggest merely
that the humor of the promotional campaign was tongue in cheek. Humor is not limited to
what Justice Cardozo called [t]he rough and boisterous joke ... [that] evokes its own guffaws.
Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). In
light of the obvious absurdity of the commercial, the Court rejects plaintiffs argument that
the commercial was not clearly in jest.
Leonard v. Pepsico has become a favorite of Contracts professors. There are several good reasons why.
First, it plainly states the applicable rule: an offer is an offer if a reasonable person would take it as an
offer, regardless of what the person making the offer subjectively intends. Second, of course, it allows us
to use in-class video, which makes us feel as if were somehow staying in touch with our students desires.
Third, Judge Wood does a good job at the skill that is so central to good lawyering articulating feelings
that most people are satisfied at merely feeling, not explaining. In this case, the feeling is the feeling
of humor (that Pepsi was just joking), but more often judges are required to explain why something is
just when most non-lawyers would be satisfied with merely asserting I just think its fair or I just
think its not fair. Good lawyers, in short, begin their work where most people end their thinking. Good
lawyers take what people feel and make explicity and clear the reasons for those feelings. Leonard v.
Pepsico is an excellent case to illustrate one more very important principal. What people intend is often
embodied in and expressed by the price they are offering. No one could take seriously an offer to buy a
Harrier Jet for $700,000. In fact, I might say (and often do to my Contracts students) that nothing is as
expressive as price.
McElhaney on being a good writer and speaker: let the story pick the words. Glass:
and then explain the point. (2008-11-17 07:03)
How do you do what Ive been writing about making your thinking clear by avoiding empty phrases
that dont address the really dire questions you face? My former Case Western Reserve colleague Jim
McElhaney, whos literally written the book on Trial Practice, has excellent advice in a column entitled
Stop Sounding Like a Lawyer: The first step in becoming a good writer and speaker is to concentrate
on the story. Let the story-not the legal theory-pick the words.
McElhaney does a good job in the article of telling a story and conveying its significance. Ira Glass
(a college classmate I have crossed paths throughout my life with remarkably talented and accomplished people without many of those traits rubbing off on me) explains that both a compelling story and
reflection upon the storys significance are necessary to capture an audiences attention:
[EMBED]
Question authority, and then question those questioning authority (2008-11-18 10:59)
It may seem off topic to engage in a prediction regarding a sports event, but let it be heard here first
this weekend Michigan will beat Ohio State in football. In fact, you are likely to hear it nowhere
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else. Michigan is suffering its worst football season in history. Ohio sports writers are writing things like
Michigan (3-8) couldnt be a bigger underdog if it were coming off a loss to St. Ignatius [an Ohio high
school football power] at home instead of a loss to Northwestern.
But my point is this: lawyers beat adversaries who never question the assumptions and premises most
people never question. Lawyers need to make decisions. Thats a topic for another day. And one could
question premises and assumptions forever without ever coming to a decision, so Im not suggesting that
one engage in perpetual questioning, that one ape Hamlet.
Rather, I am suggesting that the common wisdom is far more common than it is wise and that no
lawyer ever got far for long by going with his unexamined gut instincts. And it almost seems a law of
sports that when one team is considered unbeatable it will lose.
In the political arena, Tom Tomorrow has it right on.
Oh yeah: GO BLUE!
p.s. A friend at the ABA Journal is asking lawyers to complete the Journals survey on how you think
the recession will affect the legal profession. You can do so here. All I know is that if Congress doesnt
help out the auto industry there are an awful lot of people in Michigan and Ohio who will lose their
jobs and/or never get paid for goods and services they have already provided. I suppose, though, that
bankruptcy lawyers will make out well.
If you cant say it clearly, you arent thinking it clearly. (2008-11-19 00:05)
At Language Log, Geoffrey K. Pullum makes a crucial point in criticizing Sarah Palins inchoherence:
I think being so utterly unable to explain what one wants to say is truly and reasonably
regarded as a defect in ones qualifications for office - partly because being so inept at talking
in a controlled and sensible way strongly suggests that there was no sensible thought back
there, and partly because even if there were sensible thoughts back there somewhere, a leader
needs to be more skilled at articulating them.
I suppose Id qualify Mr. Pullums statement in one way where theres incoherence, there rarely are
sensible thoughts, even allowing for the ungrammatical nature of a lot of spoken language,
In short, if you cannot write or speak your thoughts coherently, you dont have coherent thoughts. Think
about it. How often have you heard a lecture, thought how much brilliance was there, and then gone
home to write down notes embodying that brilliance, only to find out that there are gaps and fallacies
filling spaces that must be filled if the brilliance is to persist?
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If you cant say it, you dont know it. On this point, Malcolm Gladwells Blink has been widely misinterpreted (and was perhaps intended) as a brief in favor of gut feeling over analysis. I think, given the
compelling examples he writes about, that Gladwells thesis would better be stated as follows: the gut
feelings of people well trained and experienced in a field are often better than analysis. There is a huge
difference between the gut feelings of hockey moms untrained in tax or foreign policy and hockey moms
trained in tax and foreign policy when it comes to opining on tax and foreign policy. Richard Posners
review of Blink explains (emphasis and hyperlink added) my point well:
As Exhibit A for the superiority of intuitive to articulate thinking, Gladwell offers the case
of a purported ancient Greek statue that was offered to the Getty Museum for $10 million.
Months of careful study by a geologist (to

determine
the age of the statue) and by the museums lawyers (to trace the statues provenance) convinced the museum that it was genuine. But when historians of ancient art looked at it, they
experienced an intuitive revulsion, and indeed it was eventually proved to be a fake.
The example is actually a bad one for Gladwells point, though it is a good illustration
of the weakness of this book, which is a series of loosely connected anecdotes, rich in human
interest particulars but poor in analysis. . . .
But back to the case of the Greek statue. It illustrates not the difference between intuitive thinking and articulate thinking, but different articulate methods of determining the
authenticity of a work of art. One method is to trace the chain of title, ideally back to the
artist himself (impossible in this case); another is to perform chemical tests on the material of
the work; and a third is to compare the appearance of the work to that of works of art known
to be authentic. The fact that the first two methods happened to take longer in the particular
case of the Getty statue is happenstance. Had the seller produced a bill of sale from Phidias
to Cleopatra, or the chemist noticed that the statue was made out of plastic rather than
marble, the fake would have been detected in the blink of an eye. Conversely, had the statue
looked more like authentic statues of its type, the art historians might have had to conduct a
painstakingly detailed comparison of each feature of the work with the corresponding features
of authentic works. Thus the speed with which the historians spotted this particular fake is
irrelevant to Gladwells thesis. Practice may not make perfect, but it enables an experienced
person to arrive at conclusions more quickly than a neophyte. The experts snap judgment is
the result of a deliberative process made unconscious through habituation.
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Lewis Hyde: remaking copyright by recovering the past (2008-11-20 10:21)

Lewis Hyde is one of the great, and almost entirely unknown, U.S. geniuses. According to this past weeks
New York Times Magazine, David Foster Wallace called him one of our true superstars of nonfiction.
Hydes fans - among them Zadie Smith, Michael Chabon and Jonathan Lethem - routinely use words
like transformative and life-altering to describe his books, which theyve been known to pass hand
to hand like spiritual texts or samizdat manifestoes. The source of much of this reverence is Hyde s
first book, The Gift (1983), which has never been out of print (it was recently rereleased by Vintage in a
25th-anniversary edition) and which tries to reconcile the value of doing creative work with the exigencies
of a market economy.
According to the Times, Hydes attention these days has turned to the ways computers and the internet have affected our views of creation and property. As Ive written before, intellectual property
may be property, but we make a huge mistake when we assume it is property just like land or couches
are property. The ease with which we now can copy and instantly and disseminate intellectual property
world-wide has, however, entirely upset existing intellectual property law. We should not be shocked
by the legal chaos when the material underpinnings on which law has been made change, the law is
likely no longer going to work very well. When that upheaval occurs in a political climate that worships
capitalism, we probably shouldnt be surprised that, as Hyde puts it, the last 20 years have witnessed
a corporate land grab of information - often in the guise of protecting the work of individual artists that has put a stranglehold on creativity, in increasingly bizarre ways.
One particular example of what upsets Hyde is the Sonny Bono Copyright Extension Act, which is
commonly understood to be the result of Disneys capacity to economically coerce legislation to protect
its monopoly over Mickey Mouse. The point of copyright law is to encourage invention for the public
good. As the Supreme Court has stated, [t]he monopoly created by copyright thus rewards the individ-
ual author in order to benefit the p

ublic. There is no reason
to believe Mickey Mouse and Donald Duck would not have been invented and that Walt Disney would
not have been fairly compensated for their invention without the Sonny Bono Copyright Extension Acts
posthumous extension of the Disney Corporations control over the images of Mickey Mouse and Donald
Duck. Such laws provoke Hyde to write:
Always in the background lies the question of the commercialization of culture, exemplified
at the moment by many thingsthe enclosure of the public domain, the patenting of aboriginal medicines, proprietary control of genetic materials or of the internet, and the general
market triumphalism that has followed the end of the Cold War.
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According to Hyde, we can begin to achieve the intended purposes of intellectual property to promote
invention, not maximize the wealth of the inventors if, as the Times writes, we recover
the idea of the cultural commons as a deeply American concept. To that end, [Hyde]
excavates a history of the American imagination in which the emphasis is not on the lone
genius (Thoreau scribbling hermetically in the Massachusetts woods) but on the anonymous
pamphleteer, the inventor eager to share his discoveries. In an essay that offers a preview of
his book (posted, fittingly, on his Web site), Hyde posits that the history of the commons
and of the creative self are, in fact, twin histories. The citizen called into being by a republic
of freehold farms, he writes, is close cousin to the writer who built himself that cabin at
Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that
made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that
every town should have ... a primitive forest ..., where a stick should never be cut for fuel,
a common possession forever, the one that led the framers of the Constitution to balance
exclusive right with limited times. It is a tradition worth recovering.
If youre a bitter lawyer, theres a site for you. (2008-11-20 17:13)

I had my down days in nearly twelve years of practice, but it didnt (I hope) embitter me. There are
a lot of bitter lawyers out there, though. Many of them are bitter because they would rather be doing
something else. Many are quite creative. The ones at Bitter Lawyer have put that creativity to work
on a website likely to be bookmarked on the web browsers of many big firm associates. They have webisodes, columns, and their own version of legal news (an interview, for example, with Ashley Dupre, the
ex-prostitute patronized by ex-Governor Eliot Spitzer) . As the founders of the site write:
Feeling trapped? Head spinning with self-hate? Tired of taking orders from humorless
workaholics? Have more than two headhunters on your speed dial? Talking to friends about
moving to Sun Valley or writing a screenplay? Congratulations, youve come to the right
place. The founders of Bitter Lawyer know exactly what youre experiencing. Weve worked
at Big Firms, pulled all-nighters, been stuck in windowless conference rooms for weeks. In
short, we know what its like to be an attorney, which is why we created this website.
Our singular goal is to create an engaging, insightful entertainment destination for lawyers.
But were new at this. So please, send us your thoughts and opinions and tell us how to make
Bitter Lawyer a more interesting and exciting experience. This is your site. Tell us what you
want and well do our best to deliver it.
I dont know how to tell you all just how crazy this life feels (2008-11-20 18:06)
From MSNBC:
John McCain may have lost the presidential election to Barack Obama, but his campaign
seems absolutely determined not to lose to Jackson Browne. The singer/songwriter sued
McCain in August after the Republican candidate for the highest office in the land used his
song, Running on Empty, in a campaign commercial that targeted Obamas energy plan. .
. .
McCain, of course, is arguing that his use of the song was fair use, not copyright infringement (hyperlinks
added):
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The campaigns fair use reading is based on the application of the standard four-factor
test that includes the purpose and character of the use of the song (McCain argues it was
non-commercial and transformative); the nature of the work (McCain derides the song as old,
old, old, with a title thats an acknowledged cliche); the amount and substantiality of the use
of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono,
who had sought to prevent the unauthorized use of John Lennons Imagine in a film); and
the effect of the use of the song (McCain says that rather than damage the songs commercial
potential, his use will likely increase the popularity of this thirty year-old song).
In some ways, the case is reminiscent of Master Card v. Nader 2000 Campaign Committee, in which
the court dismissed Mastercards lawsuit against Ralph Naders 2000 Presidential Campaign Committee.
Mastercards lawsuit alleged, among other things, that a Nader campaign add that borrowed heavily
from Mastercards priceless moments television ads infringed on Mastercards copyright in those ads.
The court concluded:
The Nader Ad does add something new and qualifies as a transformative work. Whether
it comments on the original is the issue in question. MasterCards message depicted in
its Priceless Advertisements is very plain and straightforward. In a series of advertisements,
MasterCard presents various intangible moments that are highly valuable, yet unable to be
purchased or are priceless. Hence, there are some things that money cant buy.
This idea is followed by the message, that the viewer-consumer can purchase everything else
with their MasterCard credit cardfor everything else, theres MasterCard. Ralph Naders
Political Ad attempts to show various ways different Presidential candidates can be bought in
the big-money arena of Presidential politics and contrasts the priceless truth represented
by Ralph Nader as the remedy for the bought and paid for positions of others. Through
this depiction, Ralph Nader argues that he not only sends across his own message, but that
he wittingly comments on the craft of the original, which cloaks its materialistic message
in warm, sugar-coated imagery that purports to elevate intangible values over the monetary
values it in fact hawks. This commentary may reasonably be perceived. The message need
not be popular nor agreed with. It may be subtle rather than obvious. It need only be
reasonably perceived. Ralph Naders Political Ad is sufficiently a parody for the purposes of
a fair use analysis, and consequently, is transformative.
William Patry, Googles Senior Copyright Counsel, opines on typically futile efforts to use copyright to
quell political speech here. There is a long history of this type of thing, as Ive mentioned here and as
you can see in the videos below, none of which was successfully blocked by the owners of the copyrighted
works being used:
[EMBED] [EMBED] [EMBED]
The beginning of the end of a legal nightmare? (2008-11-21 09:03)

Sanity is beginning to take hold once again in our countrys legal institutions. Judge Richard J. Leon
is no wild eyed liberal. He was appointed as a judge by George W. Bush in 2002. Back in the 80s
he served as counsel to the Republicans in the congressional investigation of the Iran-Contra affair, and
he was Special Counsel to the U.S. House Banking Committee for its Whitewater investigation. In
January 2005 he dismissed the habeus corpus petitions of 5 Algerian detainees in the U.S. military prison
at Guantanamo Bay.
Yesterday, however, Judge Leon ordered (pdf) the release of the same 5 detainees after evaluating and
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rejecting government evidence that they were dangerous enemy combatants. According to the Washington Post, The Algerians were detained for years on allegations that they had been plotting to blow up
the U.S. Embassy in Sarajevo when they were picked up by Bosnian authorities and later turned over
to U.S. officials. Bush mentioned the bomb plot in his 2002 State of the Union Address. But the government withdrew those allegations last month without explanation. Judge Leon explained in his order
that to allow the detention to continue based on so thin a reed (emphasis in original) of evidence as
that presented by the government would be inconsistent with this Courts obligation. He also explained,
Unfortunately, due to the classified nature of the Governments evidence, I cannot be more specific about
the deficiencies of the Governments case at this time.
Judge Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the governments evidence against him was sufficient to label him an enemy combatant.
Last month another federal judge ordered the release into the United States of a small group of Chinese Muslims held at Guantanamo Bay. The government conceded that those men are not threats to the
United States.
But the Bush administration will not give up the fight it began years ago when it set up the prison
at Guantanamo. The Chinese Muslim prisoners have not been released pending the governments appeal,
which is based on the argument that regardless of the threat posed by the prisoners the courts do not
have the power to order the executive branch to release a detainee into the United States. And the Justice
Department, in response to yesterdays decision by Judge Leon, praised the decision to keep ben Sayah
in custody while stating, We are of course disappointed by, and disagree with, the Courts decision that
we did not carry our burden of proof with respect to the other detainees.
As Jurist reports, In a related development Wednesday, a military judge at Guantanamo Bay rejected
evidence against detainee Mohammed Jawad [JURIST news archive], finding that it had been obtained
through torture. Other evidence against Jawad for his pending trial by military commission was excluded
in October, also because it had allegedly been obtained through torture.
Perhaps this is the beginning of the end of a long national nightmare. The Bush Administration set
up the prison at Guantanamo after 9/11 on the theory that, since Guantanamo is not technically U.S.
territory, the executive branch could do anything there to anyone without any legitimate review by any
institution independent of the executive. It could take people from China or Algeria, and even U.S.
citizens, stick them in Guantanamo, torture them, and throw away the key, and there would be nothing
anyone could do about it.
But lets not be naive. Four Supreme Court justices in Boumediene v. Bush (pdf) argued that the
Guantanamo detainees were not entitled to the right to a habeus corpus hearing requiring the government to establish grounds for their detentions. Justice Scalia in his dissenting opinion in Boumediene,
joined by Justices Thomas and Alito, wrote that allowing the type of hearing that Judge Leon held will
almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to
preserve a time-honored legal principle vital to our constitutional Republic. But it is this Courts blatant
abandonment of such a principle that produces the decision today. Picking up on this vitriolic rhetoric
from three of our highest jurists, conservative commentators wrote things like the following:
On June 12, the Supreme Court in Boumediene v. Bush gave the roughly 270 prisoners
held at our prison camp in Guantanamo Bay, Cuba, the same constitutional rights as you
and I. These foreign terrorists all plotted, planned, fought against and even killed American
soldiers, who, now thanks to an oligarchy of five justices, can go before a U.S. federal judges
in civilian court to challenge their years-long detention. (emphasis added)
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Judge Leon made clear what the truth is: in the United States of America you cannot throw people into
a cage and throw away the key without some legitimate basis for doing so. The mere fact the military,
the CIA, or (as in the case of the Algerians freed by Judge Leon) Bosnian authorities detained people
and sent them to Guantanamo does not establish that they have plotted, planned, fought against, or
killed U.S. soldiers. We have to do away with Guantanamo, and we have to do away with torture. We
have fought and won wars far more threatening and damaging without abandoning our constitutional
principles and the principles of the Geneva Convention. January 20, 2009 cannot come soon enough.
Friday night music break (2008-11-21 18:03)

Jimmy Cliff: Sitting in Guantanamo Limbo
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Negotiating between playwrights and non-profit theaters (2008-11-22 12:21)

The Brewing Fight over Theatrical Rights reported in todays New York Times strikes this law professor as an easily resolved conflict. Playwrights are complaining that non-profit theaters, in their standard
form contracts to produce plays, are asking for 40 percent of the authors royalties for the play for 10
years. In other words, if [the playwright] were to collect, say, $50,000 from [his play] over the next decade
- a respectable sum for a well-received new play - the [non-profit theater] would receive $20,000 of it.
The forty percent of future earnings (known as subsidiary rights) is standard for commercial theaters,
but is a new high for non-profits. From the playwrights point of view, its simply too much. You dont
want your kids to grow up to be playwrights theyll starve. The article quotes one playwright, Sarah
Ruhl, who says, If youre talking about the difference between $18,000 a year or $30,000 a year, thats
the difference between being able to support yourself by playwriting - or not.
The non-profit theaters, on the other hand, argue that they deserve a cut because they increase the
value of a new play with a first-rate New York production. And anyone involved in the non-profit world
in these days knows that any source of income is desperately needed. It isnt really fair to say, as Ms.
Ruhl does, A nonprofit theater could raise that $12,000 from a corporation or a donor. For most nonprofit theaters, it seems unlikely donors fall off trees. Very few theaters are as well situated as the Lincoln
Center Theater in New York and the Center Theater Group in Los Angeles, each of which has agreed to
take no subsidiary rights. Its nice when you can draw on the charitable impulses of Wall Street and Hollywood moguls. And the comment seems particularly insensitive coming from Ms. Ruhl, who, according
to the New Yorker, is thirty-four and has already won a half-million-dollar MacArthur Fellowship for
her plays.
So heres the problem: for most playwrights, who make very little on their plays, 40 percent of their
royalties for 10 years is too much. For most theaters, the only way to produce plays is to tap every source
of income they can. Why not a sliding scale? 10 percent for the first X dollars in royalties, 20 percent
for the next Y amount, etc.
This should not be war between playwrights and non-profit theaters. They need each other, and mutually
beneficial ground can easily be achieved. Anyone should be able to see the common ground and I dont
expect this brewing fight to be a very bloody one.
Then again, when money is tight, people can get very nasty about the little remaining. Those fights,
though, are capitalism at its worst. As Lewis Hyde, the writer about whom I wrote the other day, has
noted, we already know that successful playwrights should support new playwrights and that we should
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not have to rely on private patronage to fund new plays. In his Afterword to the Canongate edition of
The Gift (pdf), Hyde writes about the ethic by which the producer and director Joseph Papp used to
manage the Public Theater in New York:
Papps habit was to underwrite a great many theater productions and take a small ownership stake in each. Those that succeeded helped pay for those that came later. In the most
famous example, A Chorus Line began at the Public Theater and then went to Broadway,
opening in the summer of 1975. It ran without interruption for fifteen years, a commercial
success that allowed Papp to support the work of less-established playwrights and companies.
David Mamet, Sam Shepard, Elizabeth Swados, the Mabou Mines theater group and dozens
more received support during the years that Papp managed the Public. Potential profitability
is not a criterion for funding awards at Creative Capital; as with other arts funders, we ask
our panels to look for originality, risk-taking, mastery, and so forth; we respond especially to
projects that transcend traditional disciplinary boundaries. That said, the principle of sharing the wealth is essential to the Creative Capital model. It makes explicit the assumption
that all who have succeeded as artists are indebted to those who came before, and it offers a
concrete way for accomplished practitioners to give back to their communities, to assist others
in attaining the success they themselves have achieved.
Should museums return antiquities to their countries of origin? (2008-11-24 08:30)

The headline on Stephen Litts piece in yesterdays Cleveland Plain Dealer, Analysis: Museums often
pay the price for looted antiquities, is misleading. As Litt explains, it is more the exception than the
rule that museums return antiquities to the countries from which those pieces have been looted. Why?
[I]f an object was looted, there will be no record of its existence. Many museums, including Clevelands,
have collected and shown ancient works whose exact origins remain unknown.
Nonetheless, the Cleveland Museum of Art recently agreed to send 14 objects back to Italy, where theyd
been illegally dug up, cleaned, and restored before being put up for sale on a market that eventually lands
them in museums around the world. Litt explains that this agreement is part of a new wave of scrutiny
museums are exercising over their collections. Nonetheless, many consider the museums complicit in
activities that are both illegal and immoral. Cases such as the one involving the Cleveland Museum are
the easy ones because there was clear proof the pieces were looted, not just an absence of documentation
about where the pieces came from:
To experts such as Ricardo Elia, a Boston University archaeology professor and a close observer of the antiquities trade, such lack of documentation is proof that an object was looted.
He estimated that as much as 90 percent of the antiquities purchased in recent decades by
American museums are the product of looting.
But Timothy Rub, director of the Cleveland Museum of Art, said that lack of exculpatory
evidence about an artworks origins doesnt prove a wrongdoing was committed or that the
work should be relinquished on demand.
If Ive inherited as director custody of an object that doesnt have a provenance before a
certain date and somebody says, Its ours, give it back, thats a pretty tough thing, he said.
Ive got to ask you to make a case.
The difficulty of arguing such cases makes it unlikely that the recent wave of repatriations to
Italy will lead to a vast purge of artworks from American museums.
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Instead, if the negotiations show anything, its that museums, including Clevelands, are
willing to part with antiquities only when foreign governments provide persuasive evidence
connecting the works to recent criminal wrongdoing.
Thats a difficult threshold to reach, and its rare. The art bust in Switzerland, for example, documented the precise trail taken by specific objects from the looters who dug them
up to the middlemen who cleaned and restored them, provided them with phony ownership
histories and put them on the market.
You may not see another case this dramatic for 20 or 30 years, Elia said. They found
bags of Polaroid photographs and information from Hechts diaries.
As I wrote in September in connection with the arguments going on over whether pieces like the Elgin
Marbles and the Rosetta Stone should be returned to Greece and Egypt, Litt points out that antiquities
are big, and illegal business, dominated by organized crime.
Zippy the Pinhead: Siegel, Shuster & Z-Man (2008-11-24 18:10)
A couple of small laughs (2008-11-25 10:11)

A couple of amusing things this morning, a dismal day here in Detroit. First, from CNet comes the news
that
A British woman has reportedly been kicked off a jury for posting a note on Facebook
asking her friends what they thought of the trial.
She was given the boot after the court received a tip about the posting. . . .
The womans name has not been released, but the court appears to have been Burnley Crown
Court in Lancastershire, and the case involved child abduction and sexual assault. According
to The Sun, the woman posted details of the case on Facebook and added, I dont know
which way to go, so Im holding a poll. Yeah, thats bad.
The trial is said to have continued with 11 jurors instead of 12.
And from Overlawyered comes the tip that Sullivan & Cromwell, a major and very established New York
City law firm, employs an attorney named Soo Yoo. Which reminds me of William Gaddiss A Frolic of
His Own, in which
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Oscar Crease [is] a college instructor who is suing both a film company and himself.
Firstly, he is convinced that a Hollywood mogul has plagiarised an unpublished play of his
about the American Civil War and turned it into a blood-and-guts blockbuster. Secondly,
he has managed to get himself run over by his own car while hotwiring it and, through the
insurance company, he is claiming damages against himself.
The brand of Creases Japanese car? Sosumi.
Rhetoric, hot air, and powerful speech (2008-11-26 12:12)

Charlotte Higgins in the Guardian writes about Barak Obamas power as a speaker and its connections
to ancient oratory, Obamas training as a lawyer, and the connections between writing and speaking:
There have been many controversial aspects to this presidential election, but one thing is
uncontroversial: that Obamas skill as an orator has been one of the most important factors
- perhaps the most important factor - in his victory. The sheer numbers of people who have
heard him speak live set him apart from his rivals - and, indeed, recall the politics of ancient
Athens, where the public speech given to ordinary voters was the motor of politics, and where
the art of rhetoric matured alongside democracy.
Obama has bucked the trend of recent presidents - not excluding Bill Clinton - for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon
Favreau, the 27-year-old who heads Obamas speechwriting team, has said that his job is like
being Ted Williamss batting coach.) . . .
More than once, the adjective that has been deployed to describe Obamas oratorical skill
is Ciceronian. Cicero, the outstanding Roman politician of the late republic, was certainly
the greatest orator of his time, and one of the greatest in history. A fierce defender of the
republican constitution, his criticism of Mark Antony got him murdered in 43BC.
During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions
such as whether or not to declare war on an enemy state were decided by the entire electorate
(or however many bothered to turn up) in open debate. Oratory was the supreme political
skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised
and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks,
and they put a name to most of them.
It turns out that Obama knows them, too. One of the best known of Ciceros techniques
is his use of series of three to emphasise points: the tricolon. (The most enduring example of
a Latin tricolon is not Ciceros, but Caesars Veni, vidi, vici - I came, I saw, I conquered.)
Obama uses tricola freely. Heres an example: Tonight, we gather to affirm the greatness of
our nation, not because of the height of our skyscrapers, or the power of our military, or the
size of our economy ... In this passage, from the 2004 Democratic convention speech, Obama
is also using the technique of praeteritio - drawing attention to a subject by not discussing
it. (He is discounting the height of Americas skyscrapers etc, but in so doing reminds us of
their importance.)
One of my favourites among Obamas tricks was his use of the phrase a young preacher
from Georgia, when accepting the Democratic nomination this August; he did not name
Martin Luther King. The term for the technique is antonomasia. One example from Cicero
is the way he refers to Phoenix, Achilles mentor in the Iliad, as senior magister - the aged
teacher. In both cases, it sets up an intimacy between speaker and audience, the flattering
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idea that we all know what we are talking about without need for further exposition. It humanises the character - King was just an ordinary young man, once. Referring to Georgia by
name localises the reference - Obama likes to use the specifics to American place to ground
the winged sweep of his rhetoric - just as in his November 4 speech: Our campaign ... began
in the backyards of Des Moines and the living rooms of Concord and the front porches of
Charleston, which, of course, is also another tricolon. . . .
It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama
is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment - Dreams From
My Father, Obamas first book, will surely enter the American literary canon. Like Cicero,
Obama is a novus homo - the Latin phrase means new man in the sense of self-made.
Like Cicero, Obama entered politics without family backing (compare Clinton) or a military
record (compare John McCain). Roman tradition dictated you had both. The compensatory
talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University
of Glasgow, is a skill at setting up a genealogy of forebears - not biological forebears but
intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the
Elder. For Obama it is Lincoln, Roosevelt and King.
Steel also points out how Obamas oratory conforms to the tripartite ideal laid down by
Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos - emotion,
argument and character. . . .
In English, when we use the word rhetoric, it is generally preceded by the word empty.
Rhetoric has a bad reputation. McCain warned lest an electorate be deceived by an eloquent
but empty call for change. Waspishly, Clinton noted, You campaign in poetry, you govern
in prose. The Athenians, too, knew the dangers of a populaces being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman
politician Cato - though it could have been McCain - who said Rem tene, verba sequentur.
If you hold on to the facts, the words will follow.
Cicero was well aware of the problem. In his book On The Orator, he argues that real
eloquence can be acquired only if the speaker has attained the highest state of knowledge otherwise what he says is just an empty and ridiculous swirl of verbiage. The true orator
is one whose practice of citizenship embodies a civic ideal - whose rhetoric, far from empty,
is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project
is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship.
Can Obamas words translate into deeds? The presidency of George Bush provided plenty of
evidence that a man who has problems with his prepositions may also struggle to govern well.
We can only hope that Obamas presidency proves that opposite.
One of the most impressive and useful things to me about Obamas speeches is his ability to unite his
rhetorical moves (like the use of anaphora and epiphora noted in the Higgins article) to very powerful
themes.
The most notable example of this to me was his 2004 Convention speech the part about there not
being a Red or Blue America, but, rather, a United States of America, etc. That speech, in addition
to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in
the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea that we are a
united country precisely because we recognize and respect our vast differences has always been one of
the best things of what it means to be a U.S. citizen.
Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the
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speaker/writer wants to convey then one can use the devices to further that theme. Without the
theme, the devices really are just empty rhetoric.
The Power to Pardon and Turkeys (2008-11-28 09:45)

The President and governors have the power to pardon and grant other relief and/or immunities from
criminal prosecution. The web site Pardon Power reports the news on the exercise of these powers. As
it explains, a pardon is
The removal of all disability or punishment. Pardons may be granted before or after
conviction. Today, they are usually granted in order to restore civil rights (the right to vote,
hold public office, participate in a jury, own a firearm, etc.). Pardons can have conditions
attached. There has been a steady decline in the granting of pardons since 1900 whether one
looks at the raw number of pardons, the percentage of applications that result in pardons or
the percentage of presidential clemency decisions which result in pardons. There has, however,
been a more accelerated decline since the late 1960s.
The site also defines on its home page the terms amnesty, clemency, commutation, expungement, remission, reprieve, respite, and sealing, all powers that executives can exercise unilaterally to relieve the
burdens of criminal prosecution, whether that prosecution is a potential one, an ongoing one, or a completed one.
Each year the President and some governors engage in a pardon of a turkey, which I suppose is intended to deflect our minds from the annual mass sacrifice of turkeys for our national day of gratitude.
This year, as seattlepi.com reports, Sarah Palins pardon turned into an seeming parody of itself:
Moments after pardoning a Thanksgiving turkey, she gives a news conference at a turkey
farm - unaware that apparently unpardoned birds are being executed behind her. MSNBCs
captions include, Turkeys Die as Governor Palin Takes Questions from the Media, Gov.
Sarah Palin Keeps Talking While Turkeys Get Slaughtered Behind Her, and Gov. Palin
Apparently Oblivious to Turkey Carnage over Her Shoulder.
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As the Gothamist notes, this is probably why the White House Turkey Pardon is done at 1600 Pennsylvania Avenue and not at a slaughterhouse. Then again, another law professor writes: Deal with it,
you candy-asses. If you eat meat, something like that is going on in the background for you too. A
Palin supporter writes, After shes sworn in in 2013, I hope President Palin arranges for a ritual turkey
slaughter to be going on behind her at every press conference, Another: Farmers kill animals. Then
they sell them. Grocery stores package them. Meat-eaters buy them and eat them. This is no big deal except if you reside in the Ivory Tower or the David Brooks/Kathleen Parker/Arianna Huffington/Daily
Kos intellectual complex. Still another likes the suggestion that Palin did it on purpose. Tough call:
Im sure she wasnt fazed by the sight, but it certainly isnt above her to undermine the stupidity of the
turkey pardon tradition. If she was having a little passive-aggressive fun, shes certainly earned it.
From a different point of view, as Joe Windish observes, Michael Pollan wrote in The Omnivores
Dilemma:
Sometimes I think that all it would take to clarify our feelings about eating meat, and in
the process begin to redeem animal agriculture, would be to simply pass a law requiring all
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the sheet-metal walls of all the CAFOs [concentrated animal feeding operation], and even the
concrete walls of the slaughterhouses, to be replaced with glass. If theres any new right we
need to establish, maybe this is the one: The right, I mean, to look. ... The industrializationand brutalization-of animals in America is a relatively new, evitable, and local phenomenon:
No other country raises and slaughters its food animals quite as intensively or as brutally as
we do. No other people in history has lived at quite so great a remove from the animals they
eat. Were the walls of our meat industry to become transparent, literally or even figuratively,
we would not long continue to raise, kill, and eat animals the way we do.
The turkey pardoned this year by the President, incidentally, is known as the National Thanksgiving
Turkey. This years National Thanksgiving Turkey, according to the White House, was flown after
its pardon first class to Disneyland Resort in Southern California, where he [was] the grand marshal
of Disneys Thanksgiving Day Parade. After the parade, guests will be able to visit the turkey in
Frontierland section.
Thankgiving Weekend Music Break (2008-11-29 13:36)

Arlo Guthrie: Alices Restaurant
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Bail out the Big Three! (2008-11-30 13:05)

Thanks to the Cleveland Plain Dealer for this and for this, from Thomas Suddes:
Its hard to imagine anything more disgusting than the blowhards who claim that consigning Chrysler, Ford and General Motors to Bankruptcy Court would be a good thing.
In fact, cutting Big Three workers wages would also cut spending at supermarkets and malls,
shrinking many other Ohio paychecks, too.
And benefit cuts would add clients to Ohios Medicaid tab, which bulges now like a gluttons waistline.
Critics of a Big Three bailout relish double-talk - magic of the market, creative destruction - because it hides the cruel, real-world truth. A collapse of the Big Three would destroy
Ohio families and towns, especially in Greater Cleveland and the Dayton area. Ohioans in
Twinsburg, Lordstown, Warren, Moraine and a score of other towns deserve better from their
country than to be declared human surplus.
According to data from the state Department of Development, almost 15,000 Ohioans work
for General Motors, about 11,000 for Ford, almost 7,000 for Chrysler and 6,000 for Delphi,
the parts manufacturer. If you want to argue that losing or downsizing those payrolls would
be no big deal, try to sell that story elsewhere. Im from Youngstown and my father worked
in a steel mill. So did the whole neighborhood. Correction: What was the neighborhood.
End of story - a heartbreaking story.
In the 1970s, Wall Street and Washington caused American steels troubles, but the Free
to Choose economic cult predictably blamed the United Steelworkers. Union members had
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the gall to prefer a living wage and decent benefits to company-town serfdom. Yet the steel
those overpaid men and women produced - not wage cuts dreamed up by economists with
lifetime jobs - is what built Ohio.
Sure, theres more in play politically in the Detroit bailout stalemate than campaign contributors 30-year war on the living standards of American working families.
As Gerald F. Seib wrote so eloquently in Tuesdays Wall Street Journal, congressional factors
also are at work. First, Western, environmentally minded [Democratic] leaders . . . dont
see the auto companies as particularly important to their region, or friendly to their green
causes. Second, among congressional Republicans, foreign-owned auto plants concentrated
in the Republican-leaning . . . South . . . stand to benefit if the Big Three American
companies go down.
Suddes is right that a bankruptcy consigns Ohio (and Michigan, and several other states but I live
and work in Ohio and Michigan) to economic disaster. In bankruptcy, the debtor delays and reduces its
payment of its debts, and it cancels contracts without any liability. In other words, if any of the Big
Three go into bankruptcy, every business that services the auto industry directly or indirectly will be
jeopardized. Perhaps these businesses will be reconsituted somewhere and some way in the future, but
in the meantime entire cities, towns, and states will be uprooted. Richard Shelby of Alabama declares
in the Senate that we cant bail ou the Big Three. He doesnt mention the benefit that would bring to
the non-union, Japanese and German auto makers with factories in his state. Some people do mention
the United Auto Workers, as if its mere existence is proof of corruption and ineptness, but they dont
mention the enormous concessions the UAW has made in the past several years. It is time to help out
Detroit and the entire surrounding Great Lakes region.
1.5
December
Has the Copy-Left lost its white knight? (2008-12-01 00:05)

Google has been a very interesting company to anyone concerned with copyright law. Google has taken
on lawsuits raising issues others dont have the resources to fight over, and Google has been very effective
in making good arguments in those cases. Fred von Lohman now wonders if those days are gone:
Late last month, Google announced a settlement in its lawsuit with book publishers and
authors over its Google Book Search offering. . . .
The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up
in the name of the disruptive innovation that fuels the Internet economy. . . .
Google, assisted by its expensive, top-drawer legal team, has a track record of winning these
precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Googles legal investments have paid dividends for the
entire Internet innovation economy.
Until now. By settling rather than taking the case all the way (many copyright experts
thought Google had a good chance of winning), Google has solved its own copyright problem
- but not anyone elses. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has
left its former copyright adversaries to maul any competitors that want to follow its lead.
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Why did I call Google a (former?) white knight? (2008-12-02 10:37)

I wrote yesterday that some fear Googles decision to settle the lawsuit over the Google library project
heralds a new era, one in which Google will not be the rich uncle fighting the fights over copyright that
others, who cannot afford being engaged in protracted lawsuits, will be unable to fight. The point deserves some further observations.
First, those who represent wealthy corporate interests typically decry the fact that in the U.S. both
the party who brings the lawsuit (the plaintiff) and the party who is sued (the defendant) bears its own
litigation costs, win or lose. This rule (the American Rule) is in contrast to the English Rule. In the
U.K., the party who loses a lawsuit pays the costs of the winners lawyers. As a result, there are fewer
cases brought by plaintiffs without resources. Corporate interests that advocate for tort reform dont
want individuals suing corporations as often as they currently do for things like personal injury and employment discrimination. If plaintiffs had to pay the costs of the defendants attorneys in those lawsuits
when the plaintiffs lost, far fewer plaintiffs would in fact sue.
But in the copyright arena in these internet days, it generally is wealthy corporate interests that are
threatening to sue or suing individual defendants. Because many of these defendants cannot afford to
pay for lawyers to fight these threats, they back down. As a result, there is what is called copyright
overclaiming - that is, copyright holders claim rights they dont have, threaten legal action (or send
DMCA takedown notices), and get what they want even though they are not entitled to it. Sometimes
copyright holders can get help (from, for example, the Electronic Frontier Foundation), but in 999 cases
out of 1000 theyre left to their own devices, and it usually makes far more sense to back down then to
fight. Why pay for a lawyer to fight an expensive lawsuit when, if you lose, youll have to pay the far
more expensive legal costs incurred by your adversary too?
Thats why, if Fred von Lohman is right and Google is no longer going to fight copyright battles it
thinks should be fought on the merits (and not only for short term business advantage), it would be a
real loss; it is, in short, why I called Google a white knight in the title of yesterdays post.
Could Thomas Kinkade assert a property right over his style? (2008-12-03 10:03)
Frank Pasquale writes that the painter Thomas Kinkade may

be positioning himself to be able to assert copyright or trademark claims over people who allegedly appropriate his style. There are several problem that would face Kinkade. First, its difficult to protect
a style rather than a work. Second, Kinkades style has been described as something less than an
original one: Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: He
has a vocabulary, as most painters do. And its a vocabulary of formulas, unfortunately. And he shuffles
the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on,
rocks. And you end up with this. Kinkades own instructions on how to make a film in his style may
not belie this criticism that his style is little more than a simple formula:
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Whenever possible utilize sunset, sunrise, rainy days, mistiness any transitory effect of
nature that bespeaks luminous coloration or a sense of softness.
Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual
pacing. Even quick cut-away shots can slightly dissolve.
[Make] references to my anniversary date, the number 52, the number 82, and the number
5282 (for fun, notice how many times this appears in my major published works). Hidden
Ns throughout preferably thirty Ns, commemorating one N for each year since the events
happened.
Theres no question, though, that a court would hold that copying a Kinkaid painting whole would
constitute copyright infringement, (Doing so in small, electronic form for purposes of commentary and
criticism, however, would constitute non-infringing fair use.) Even maps, as Pasquale points out, are
protected by copyright against wholescale copying, even if the underlying information they compile is
entirely factual. Thats why mapmakers used to put fictional locations in obscure places on their maps
people who copied such maps whole would be revealed by the use of the fictional place. But can a style
be protected? That would be a difficult position to maintain, especially given the legitimate influence
any successful artist will necessarily have. Nevertheless, Pasquale concludes, Its a tricky legal question
as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection
when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable.
Is Wal-Mart a person? Kind of, but not really. (2008-12-04 09:48)
One of the odder and more influential innovations in

law was the 19th Century recognition of corporations as persons, a notion that has begun to have a
profound impact on our law in the last 30 years. That a corporation is a person is something you learn
early in law school, and for the most part the notion is not a disturbing one. I teach contracts, and there
seems nothing odd to me that corporations are parties to contracts and thus have rights and duties under
those contracts.
That an abstract entity (albeit one with concrete assets) has the same legal status as you and I do
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becomes weird, however, when you start considering constitutional implications. How can a corporation
have the right to free speech? Well, they argue they do, and the argument has profound implications,
particularly in the area of campaign contributions. The principal argument against regulating campaign
contributions is that doing so limits free speech. If one limits what a person can give to a candidate or
a party, the argument goes, then one is limiting the extent to which that person can express his political
beliefs. Limiting money, in other words, is limiting speech. But when speaks of limits on corporate contributions, youre talking not only of limiting money, not speech, but of limiting money from something
that isnt really a person (but that, after all, only is expressing the views of people who have their own
rights to free speech).
In an interview with BuzzFlash from 3 years ago, Is Wal-Mart a Person?, Thom Hartmann tells why
it is kind of but not really:
Nike asserted before the Supreme Court last year, as Sinclair Broadcasting did in a press
release last month, that these corporations have First Amendment rights of free speech. Dow
Chemical in a case it took to the Supreme Court asserted it has Fourth Amendment privacy
rights and could refuse to allow the EPA to do surprise inspections of its facilities. J.C. Penney
asserted before the Supreme Court that it had a Fourteenth Amendment right to be free from
discrimination - the Fourteenth Amendment was passed to free the slaves after the Civil
War - and that communities that were trying to keep out chain stores were practicing illegal
discrimination. Tobacco and asbestos companies asserted that they had Fifth Amendment
rights to keep secret what they knew about the dangers of their products. With the exception
of the Nike case, all of these attempts to obtain human rights for corporations were successful,
and now they wield this huge club against government that was meant to protect relatively
helpless and fragile human beings.
Donald Trump, Pop Star (2008-12-05 09:25)
Donald Trump has always been good for coming up with creative rationalizations for his failures and his apparent successes. His creativity has been the foundation
of his career as a pop star. There has always been a serious question, however, whether he should be taken
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seriously as a business person. Trumps real estate empire, begun on an already substantial fortune built
by his fathers real estate exploits, has been for a considerable amount of time founded more on debt than
on his own assets. But he continues to draw front page attention, as in todays New York Times, which
discusses a lawsuit filed by Mr. Trump, the real estate developer, television personality and best-selling
author, in an effort to avoid paying $40 million that he personally guaranteed on a construction loan that
Deutsche Bank says is due and payable. Mr. Trump argues that he is excused from his obligation to
pay back the loan under a force majeure clause in the construction contract that allows the borrower
to delay completion of the building if construction is hampered by such things as riots, floods or strikes.
That clause has a catch-all section covering any other event or circumstance not within the reasonable
control of the borrower.
Would you consider the biggest depression we have had in this country since 1929 to be such an event?
I would, [Trump] said in an interview. A depression is not within the control of the borrower.
it is a ridiculous argument. Quite plainly an investor bears the risk of a downturn in the real estate
market. And one could hardly deem the downturn in the real estate market unforeseeable. People have
been claiming the real estate market was overheated for years. If Trump were to prevail, it should piss off
every foreclosed homeowner in the country, few of whom were as well positioned as Trump to genuinely
understand the risk of borrowing money that, in the event of a downturn in a market (an inevitable
event), they would be unable to repay.
But Trump gets his lawsuit and his front page coverage in the New York Times. Just wait, though:
sooner or later hell go into bankruptcy. Until now, hes had so much borrowed money his lenders could
not afford to let him go into bankruptcy it was better to lend him more money and keep him in business
than to risk losing what they would lose if Trump went into bankruptcy. But now the banks dont have
any more money to lend him. Stay tuned.
Friday Night Music Club: Tom Paxton: One Million Lawyers (2008-12-05 18:12)
[EMBED]
Living the life of an artist or stealing?
Coldplay faces the question once again
(2008-12-07 00:22)
The Chicago Tribune reports: A day after hauling in seven Grammy nominations, the members of Coldplay shouldve been celebrating. Instead they were served with a copyright infringement lawsuit Thursday
that claims they ripped off guitarist Joe Satriani to write one of their biggest hits, Viva La Vida.
And a comparison of the songs sure makes Satrianis allegations credible:
[EMBED] There must be something about that song. A band called Creaky Boards earlier this year
accused Coldplay of stealing Viva La Vida from them: [EMBED] As TechDirt subsequently reported,
however, the leader of Creaky Boards later not only retracted his accusation, but suggested that perhaps
both bands were actually inspired by the Fairy Theme in the Legend of Zelda. TechDirt also made
this, very important point:
. . . The thing is, part of the point we keep trying to make around here is that, for the
most part, thats true of just about everyone. Its the overly aggressive use of copyright law
that prevents that sort of goodness from showing up. Oh, and its also worth mentioning,
that this little story has definitely increased the profile of The Creaky Boards proving one
of the points we recently made about plagiarism. Even if the plagiarist is bigger than you,
the original creator can use that to their advantage aswell.
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Plagiarism, even unconsciously done, has gotten musicians in trouble. In Three Boys Music v. Michael
Bolton, a federal court of appeals upheld a jury award of $5.4 million against Michael Bolton and Sony
(the record company associated with him) for unconsciously plagiarizing the Isley Brothers Love is a
Wonderful Thing. As noted by the Columbia Law Library Music Plagiarism Project, the case is comparable to Bright Tunes Music v. Harrisongs Music, in which the court held that in his hit song My
Sweet Lord George Harrison had unconsciously misappropriated the musical essence of Hes So Fine.
The decision against George Harrison has been heavily criticized. It is important to note, though, that
plagiarism involves issues entirely different than the ones (contentious themselves) involving sampling.
Most importantly, it involves drawing those impossible lines between artistic influence, legitimate appropriation, and acts that are considered the equivalent of theft. Bob Dylan is without question one of
the most important artists of our time, but, as John Pareles has written in Plagiarism in Dylan, or a
Cultural Collage?
The absolutely original artist is an extremely rare and possibly imaginary creature, living
in some isolated habitat where no previous works or traditions have left any impression. Like
virtually every artist, Mr. Dylan carries on a continuing conversation with the past. Hes
reacting to all that culture and history offer, not pretending they dont exist. Admiration and
iconoclasm, argument and extension, emulation and mockery - thats how individual artists
and the arts themselves evolve. Its a process that is neatly summed up in Mr. Dylans
album title Love and Theft, which itself is a quotation from a book on minstrelsy by
Eric Lott. Hip-hop, ever in the vanguard, ran into problems in the mid-1980s when the
technique of sampling - copying and adapting a riff, a beat and sometimes a hook or a whole
chorus to build a new track - was challenged by copyright holders demanding payment even
for snippets. Although sampling was just a technological extension of the age-old process of
learning through imitation, producers who use samples now pay up instead of trying to set
precedents for fair use.
Check out the following. Led Zeppelin was covering Kansas Joe McCoy and Memphis Minnie, but Dylan
claims the authorship of and the copyright in his song. Of course, the copyright in the first song had
expired, so Dylans song is not an legally infringes nothing: [EMBED] [EMBED] [EMBED] I have made
it a point on this blog to point out that historically many Writers, like other artisans, considered their
task to lie in the reworking of traditional materials according to principles and techniques preserved and
handed down to them in rhetoric and poetics - the collective wisdom of their craft. In short, there is
nothing unusual about Dylans compositional methods. Thats not to say that Coldplay isnt in legal
trouble as a result of Satrianis lawsuit. Its to say that were in a cultural moment in which people are
ready to find theft and plagiarism where there may not be any. Is Coldplay making money that really
belongs to Satriani? Would Satrianis song have gotten a greater audience had Coldplays never been
released? ADDENDUM, from Wired:
Joe Satriani accused Coldplay of plagiarism for lifting elements of his song If I Could Fly
for its hit song Viva La Vida earlier this year. Now, videos depicting similarities between
the songs are disappearing from YouTube courtesy of Coldplays label, EMI, which claims
the videos infringe on its copyright. We found one thats still online, which you can view to
the right, for the time being. You can still hear the Coldplay song elsewhere on YouTube,
including in user-generated videos, so it seems likely that EMI is removing the comparison
videos due to embarrassment on the part of Coldplay and/or legal ramifications for the ongoing
Satriani suit, as Music Industry Blog posits. One imagines that a judge or jury would merely
need to see one of these videos to conclude that theres a striking similarity between the
songs... probably too striking. Its conceivable that the Chris Martin lifted the beat, chords
and melody from Satriani subconsciously. Its not uncommon for musicians to hear something
and regurgitate it later without realizing it. Coldplay has been accused of stealing someones
music before for the same song, no less. And another YouTube video has cast doubt on these
claims by showing that all three bands could owe a debt to some guy called Gnther. Were
not so interested in the spat between Satriani and Martin; plagiarism accusations abound
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in the music world. Whats interesting here is that EMI appears to be using copyright as
a way to remove one version of a Coldplay song while allowing other versions to remain
online. Its a useful reminder of the ways in which copyright law can be used for purposes
other than thwarting the infringement of copyright. In this case, its a somewhat useful tool
for downplaying plagiarism accusations directed at one of the worlds top acts. Many labels
have deals with YouTube that allow their works to appear in user-generated videos, because
doing so can net them more of YouTubes ad revenue (artists and labels sometimes can get
paid when someone synchs their music to user-created video on YouTube). Apparently, these
deals involve the ability to pull certain objectionable usages for reasons other than copyright,
although the message that appears on YouTube This video is no longer available due to a
copyright claim by EMI Music appears a bit disingenuous. If copyright were the issue, a
YouTube search for coldplay viva la vida wouldnt return 32,700 results.
Art & Money, Part X (2008-12-08 00:33)

From the Guardian: Lehman Brothers has won permission to release, and sell, $8m (5.4m) worth of
art that once adorned office walls at the bankrupt investment bank. Interestingly, [f]ormer Lehman
chief executive Richard Fuld and his wife Kathy put $20m worth of art up for sale at Christies in New
York recently. According to Bloomberg.com, the investment banks collection included 3,500 contemporary artworks that have been displayed in the investment banks offices around the world It apparently
also inherited 900 other works when it purchased purchased money manager Neuberger Berman in
2003. The investment banks collections have a long history, but in the end, for an investment bank
the works of art were nothing more than very expensive decorations that will be sold at fire sale rates:
Art adviser Janice Oresman was hired to build up Lehmans holdings in the late 1970s and early 1980s.
Lehman was a pacesetter, she said. Her acquisitions included a large Louise Nevelson
sculpture and paintings by Wayne Thiebaud, along with contemporary prints by Jasper Johns
and Frank Stella. Johnss prints have sold recently at auction for as much as $50,000.
The Lehman family name itself has a collecting legacy. Renoirs and Rembrandts owned
by Robert Lehman, grandson of the firms founder, are installed in the Robert Lehman wing
at New Yorks Metropolitan Museum of Art.
Neuberger founder Roy Neuberger bought art for his personal collection and installed it at
the money managers offices. . . . Arthur Goldberg, an art collector and now-retired partner
at Neuberger, was in charge of the companys art purchases from 1990 to 1998. They gave
me a budget and let me buy what I wanted, said Goldberg, who declined to speculate on
the current value of Lehmans collection. He bought works by Marlene Dumas and Damien
Hirst before those artists were well known. This week, a Hirst sculpture of a calf immersed
in formaldehyde sold for $18.6 million at Sothebys in London.
Neubergers corporate collection is fairly well known. A group of about 55 paintings, drawings and sculptures toured four museums, including the Henry Art Gallery in Seattle and the
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Tampa Museum of Art in Florida in 2003 and 2004. Works include a Jim Hodges spider-weblike sculpture and Candida Hofer photographs.
My hope is that the collection will continue, Goldberg said. But my pragmatic feeling
is that whoever acquires Neuberger and Lehman will look at the thing as an asset and not as
art.
Sorry, but your political enemies can use your copyrighted works (as long as their use
is fair use). (2008-12-09 05:37)
Many people believe that an artists rights in her work include the right to prevent the use of the work on
behalf of causes and beliefs she does not believe in. That may be true in Europe; it is not true in the U.S.,
provided that the use the artist is trying to deny does not exploit the markets created by the original
work. In other words, politicians with whom singers disagree may well have the right to use excerpts
from those singers songs. And the producers of movies that advance views with which the singers take
strong exception may not have any worry as long as they are using the songs they are using arent being
used merely to attract an audience to the movie by use of the song.
Times Higher Education explains the difference between European and Anglo-American law:
The later European view of copyright regarded a published work as the authors offspring as
much as his property, endowing him with inalienable moral as well as tradeable commercial
rights. The Anglo-American tradition in copyright, which is based firmly in the notion of
property and income, resisted this concept.
Thus, in June, a federal court in New York City denied Yoko Onos request for an injunction against
further showing and distribution of the movie Expelled, which, as I have previously written, criticizes evolution, promotes the teaching of intelligent design, and, in the process, uses 15 seconds of John Lennons
song Imagine.
As I wrote when Onos lawsuit was first filed, If the filmmakers had tried merely to capitalize on the
film as soundtrack material that would be attractive to an audience would likely not be fair use, but,
if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use,
regardless of whether Ono finds the users message objectionable. The court, apparently, thought similar
things (citations and footnotes omitted; hyperlink added):
Defendants use is transformative because the movie incorporates an excerpt of Imagine

for purposes of criticism and commentary. The filmmakers selected two lines of the song that
they believe envision a world without religion: Nothing to kill or die for/ And no religion too.
(Imagine lyrics) As one of the producers of Expelled explains, the filmmakers paired these
lyrics and the accompanying music to a sequence of images that provide a layered criticism
and commentary of the song. The Cold War-era images of marching soldiers, followed by the
image of Stalin, express the filmmakers view that the songs secular utopian vision cannot be
maintained without realization in a politicized form and that the form it will ultimately take
is dictatorship. The movie thus uses the excerpt of Imagine to criticize what the filmmakers
see as the navet of John Lennons views. The excerpts location within the movie supports
defendants assertions. It appears immediately after several scenes of speakers criticizing the
role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the
song by stating that they are merely a page out of John Lennons songbook. In defendants
view, Imagine is a secular anthem caught in a loop of history recycling the same arguments
from years past through to the present. We remind our audience that the ideas they just
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heard expressed from modern interviews and clips that religion is bad are not and have been
tried before with disastrous results. The filmmakers purposefully positioned the clip . . .
between interviews of those who suggest that the world would be better off without religion
and an interview suggesting that religions commitment to transcendental values place limits
on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump
all other authorities, including religion, pose a greater threat to human values than religious
belief.
Defendants use of Imagine is similar to the use at issue in a recent decision of the United
States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons.
There, the visual artist Jeff Koons copied photographer Andrea Blanchs photograph from a
fashion magazine without permission and incorporated a portion of it into one of his paintings. . . . As in Blanch, defendants here use a portion of Imagine as fodder for social
commentary, altering it to further their distinct purpose. Just as Koons placed a portion
of Blanchs photograph against a new background, defendants here play the excerpt of the
song over carefully selected archival footage that implicitly comments on the songs lyrics.
They also pair the excerpt of the song with the views of contemporary defenders of the theory
of evolution and juxtapose it with an interview regarding the importance of transcendental
values in public life. Plaintiffs contend that defendants use of Imagine is not transformative
because defendants did not alter the song, but simply cut and paste[d] it into Expelled.
As the foregoing discussion illustrates, however, this argument draws the transformative use
inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music
or lyrics of the song. Indeed, defendants assert that the recognizability of Imagine is important to their use of it. Defendants use is nonetheless transformative because they put the
song to a different purpose, selected an excerpt containing the ideas they wished to critique,
paired the music and lyrics with images that contrast with the songs utopian expression,
and placed the excerpt in the context of a debate regarding the role of religion in public life.
Plaintiffs also contend that defendants use of Imagine is not transformative because it was
unnecessary to use it in order to further the purposes defendants have articulated.
Determining whether a use is transformative, however, does not require courts to to decide
whether it was strictly necessary that it be used. In Blanch, although certainly Koons did
not need to use Blanchs copyrighted photo, as opposed to some other image of a womans
feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed
against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found
a transformative use in the defendants unauthorized inclusion of several of the plaintiffs
images-principally concert photos-in a coffee-table book about the musical group the Grateful Dead. Although the defendants manifestly could have proceeded without the plaintiffs ,
which constituted only a small part of the book, this posed no obstacle to a finding of fair
use.
As I said, I think the use of Imagine by the filmmakers without permission is legitimate fair use.
Nonetheless, Lennon, and Imagine in particular, are being misrepresented. Lennons song imagines a
world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But
thats not a view many can find tolerable, even in the U.S. of 2008, and theyll resort to misrepresentation
to support their intolerance. One day after the decision against Ono, the Wall Street Journal ran a story
with the headline The Case Against John Lennon. The quote that highlights the column?
Nothing to live or die for
what a nightmare.
Mike Thomas points out that the line is Nothing to kill or die for and asks:
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What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into
a negative reaction against John Lennon? The column itself is a mess. It is poorly written,
jumbled and fails to adequately explain how John Lennon or his song Imagine has anything
to do with what the column appears to be about. Here is the pertinent section that mentions
Lennon:
Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate
to call it The Case Against John Lennon. Or, more specifically, the case against Imagine,
Lennons anthem to a world with no countries . . . nothing to kill or die for/And no religion
too. For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, thats a vision that
smacks too much of the professed beliefs of the ex-Beatles near namesake, Vladimir Ilyich.
What the hell? Does he think hes being clever or something? Lennon sounds like Lenin.
Get it? So obviously they must be related or they must think alike or something right?
Nevermind that Lenin was actually an alias for Vladimir Illich Ulyanov, while the surname
Lennon dates back hundreds of years to old Ireland.
No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds
like Osama so they must be related too. Yeah. Thats the level of reasoning that the column
sinks to.
Absolutely pathetic.
And of course he never goes back and explains how V.I. Lenins brutal and dictatorial ways
have any similarity or correlation to Lennons ode to world peace. But fortunately for the
cretins who run the WSJ editorial pages, John Lennon is dead and cant defend his classic
work against their asinine columnists offhanded smear.
Heres Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, from
which I am currently on leave, speaking on intellligent design, evolution, and religion:
[EMBED]
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Moneys value is at bottom dependent on our belief in its value, and art that illustrates
this point is not counterfeiting (2008-12-09 14:27)
From Suite 101
Although the United States Treasury Department has very strict and serious laws about
the counterfeiting of currency, there is one law that is above them that they seem to recognize
and that is the artists freedom of expression.
J.S.G. Boggs (born Steve Litzner) is most famous for his hand drawn, one-sided United States
bills that he then exchanges for goods and services just like real money. His drawings show
the hand of a master draftsman so much so that he has been arrested for his counterfeiting
in England and Australia. Boggs was acquitted in both cases on the grounds that he was
creating art and not forging or counterfeiting currency and trying to pass it off as such.
But Boggs creations are as elusive as his philosophy about the art he creates. He does
not consider the drawn bank notes as money and they are commonly referred to as Boggs
Notes, Boggs Bills, and Boggs Dollars. Boggs considers the art part of his work when he
exchanges the bills, receives change, and receipt and goods. He then is willing to sell the
receipt, change and goods as the art, not the original bill. If a collector wants a hand drawn
Boggs Bill they will have to track down the lucky recipient themselves.
While Boggs art work could be considered hard to collect and esoteric he is taken seriously
by the art world. The proof? His work is in the collections of the British Museum, the Art
Institute of Chicago, the Museum of Modern Art, and the Smithsonian Institution.
One of my favorite books on the value of money is Lawrence Wechslers Boggs: A Comedy of Values.
Larry Lessig: How law strangles creativity (2008-12-10 00:41)

[EMBED]
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Involved in a lawsuit? Be ready to welcome the world into your life. (2008-12-10 07:55)
One of the downsides of engaging in litigation, even on behalf of a righteous cause, is the way in which
you must open much you consider private not only to your adversary but often also to the public. Your
motives, your finances, your personal relationships, and, in certain circumstances, your physical and emotional health will be subject to inquiry in the course of a lawsuit. Often, these questions and answers will
be part of the public record. Court records, after all, are public records.
Fortunately, unless you are considered newsworthy, most of the public will not go rooting through court
files. It is inevitable, though, that the new technologies and media outlets will be used to exploit the
exposure of personal matters.
So I am not surprised that, as reported in the ABA Journal, Outraged by deposition testimony in
a fraud suit against a Houston automobile dealership, a client of a Texas attorney arranged, with the
lawyers help, to post a six-minute excerpt on YouTube.
In this case, the judge ordered the post taken down (because the deposition was not yet part of the
public record in the case), but he refused to sanction the lawyer and client who had initially posted it.
However, the final salvo hasnt yet been fired in battle to publish the deposition excerpt on YouTube.
[The plaintiffs attorney] plans to file a written transcript of the deposition at the courthouse, as part of
the record in the case, and then post the full deposition on the site. Under those circumstances, says [the
defense lawyer] . . . , his client would be unlikely to protest.
Should we even consider foreign law in making our own? (2008-12-11 04:08)
Justices Scalia and Thomas have argued that the the Supreme Court
should not even refer to foreign law in justifying and explaining its decisions (except perhaps in interpreting treaties), because it would violate the original intent of the Framers. Scalia has even called invoking
foreign precedent a dangerous practice.
The refusal to even consider the views of foreign courts has always struck me as nonsensical. An arguments persuasiveness is measured by its persuasiveness. If an argument based on foreign law is
persuasive, why forbid its consideration except from some misbegotten xenophobia?
Paul Finkelman, in Foreign Law and American Constitutional Interpretation: A Long and Venerable Tradition, refutes Scalia and Thomas for three principal reasons summarized in the introduction to
his article. First, [i]f the Court is going to rely on history, then surely historians must push the Court
to offer the best history it can. It serves no good purpose when a justice claims adherence to history and
then ignores vast amounts of historical evidence that do not fit with his preferred outcome. Second, [t]he
history of the Court in the eighteenth, nineteenth, and early twentie
th
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centuries demonstrates that the Court often used foreign law to help it decide cases that did not involve
treaties. . . . Indeed, such use of foreign law might constitute a jurisprudential tool equivalent to stare
decisis-it has been legitimized because it has been used for so long and so often by so many different
justices. Finally, early in our history the Court often used foreign law to suppress liberties. Given this
fact, it would be jurisprudential hypocrisy for the Court to turn against the use of foreign law now, when
it might be used to protect or enhance liberty and fundamental rights.
Lawyers in movies, then and now (2008-12-11 15:32)

In Bad Lawyers in the Movies, Michael Asimow reflects on the ways movies have depicted lawyers over
the years:
In years past, film and television presented us with a set of lawyers who we
re decent people and honest, competent professionals - sometimes even heroes. In film, Atticus Finch, Paul Biegler, Clarence Darrow, Amanda
Bonner, or Judge Dan Haywood served as wonderful role models for everyone in the profession
from law students up to grizzled veterans. Today, its just the opposite. Most film lawyers are
bad role models. Lawyers on the big screen are teaching lawyers and law students that uncivil
and unethical behavior is rewarded in law practice. Law students are taught that they must
be Rambo with a briefcase to be successful; perhaps young people who find that model attractive are disproportionately choosing legal careers. While there is little or nothing that we can
do to alter the way lawyers are portrayed in popular culture, we can

make use of film and television to better understand the fundamental problems besetting our
profession. Do a lot of lawyers have alcohol or drug problems? Do many of them act in a
rude, uncivil manner? Do they chase ambulances? Do they treat associates and staff members
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exploitatively? Do lawyers work too many hours, thus wrecking personal relationships? Are
many of them deeply dissatisfied with their career choices? Is there a big firm, win-at-all-costs
mentality? Yes, to all these questions. These are the realities of law practice at the millenium.
We need to seriously address all of these problems and invest in finding solutions to them,
whether or not we ever succeed in improving our public image. Thinking about the way that
were portrayed in film can teach us a lot about ourselves.
Franz Welser-Mst is a snob, Donald Rosenberg is engaged in a seemingly futile

lawsuit, and Cleveland is no farmers village. (2008-12-15 01:44)
I am flattered and honored that people

whose opinions I enormously respect, including Jill Miller Zimon, have asked me to opine on this matter,
reported by the New Yorker:
The Cleveland Plain Dealer created a scandal when it demoted its staff classical-music
critic, Donald Rosenberg, to general arts-reporter status because of his overwhelmingly negative reviews of the Cleveland Orchestra-specifically its conductor, Franz Welser-Mst. Now
Rosenberg is suing the conductor, the Plain Dealer, the orchestra, and specific staff members
of both organizations, detailing a conspiracy in which the orchestra put massive pressure on
the newspaper. We give you the details, as listed in Rosebergs public suit.
A scandal it might be. As Sam Bergman writes on the Minnesota Orchestra website:
So whats really going on here? Well, Rosenberg, though widely respected as a writer
and critic, has had something of a bee in his bonnet ever since the Cleveland Orchestras
current music director, Franz Welser-Mst, took up his post in 2002. As Tim Smith, another
respected critic, put it on his blog, Don has judged that Welser-Mst is lacking in certain
abilities in certain repertoire, that he doesnt necessarily get the best out of music or the
eminent ensemble. As a result of this conclusion, Rosenberg has been handing out more
unfavorable notices than one would normally expect to read about an orchestra as august as
Clevelands.
Heres my take on the matter: I am shocked, shocked that a newspaper exercises influence over its
reporting, reviewing, and editorializing to advance the interests of its patrons.
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Dont get me wrong. The Plain Dealer might lose whatever credibility it has left in caving to
the Cleveland Orchestra to insulate it from Donald Rosenberg rigorous criticism. As Bergman puts it,
while the relationship between those who perform and those who write about performers will probably
never be anything but uneasy, it crosses a dangerous line for those on the performance side to exercise
backroom power to remove a writer they find inconvenient.
But Im a law professor, not a public relations consultant. My opinion is being sought, I presume, because Rosenberg filed a lawsuit. And Rosenbergs lawsuit may be even more futile than the
often harsh criticism he has directed at one of our citys hallowed cultural institutions.
In short, even taking Rosenbergs allegations to be true, the Plain Dealer reassigned him (unlike
the 21 % of its unionized newsroom staff that has been laid off) because the newspaper did not like what
he was writing about the Cleveland Orchestra. As far as I know, such a reassignment breaches no duties,
contractual or otherwise. That the Plain Dealer may lose credibility as an objective journalistic outlet
as a result is one thing; the newspapers loss of credibility, however, does not give rise to a reporters
right to recover damages.
Rosenbergs complaint (pdf) claims that on August 25, 2004, he wrote an article in the Plain
Dealer that quoted Franz Welser-Mst, the Conductor and Music Director of the Cleveland Orchestra,
stating that, among other disparaging remarks regarding Cleveland and the Orchestras donors,
Cleveland is as an island and an inflated farmers village with a world-class orchestra.
No matter how you evaluate legal questions, Welser-Msts comments were stupid and condescending. If Cleveland could recover damages for stupid and condescending comments, though, . . .
well, you get the drift. Wed be the Paris of the Great Lakes.
Rosenbergs complaint goes on to allege that in response to his story, the Orchestras public relations director told Rosenberg he would suffer consequences. These consequences, according to
Rosenbergs complaint, included a campaign to besmirch Plaintiffs reputation as a music critic,
efforts to tortiously interfere with his business relationship with the Plain Dealer, and the creation
of obstacles to his ability to function as a music critic. This retributive and punitive campaign of
vilification against Rosenberg, among other things, allegedly violated the public policy of the State of
Ohio, Plaintiffs employment rights, and promises that had been made to him by the Plain Dealer. In
addition, the campaign allegedly defamed Rosenberg.
What does this legalese mean? First, Rosenberg is claiming that the PD was out to discredit
him as a music critic. Second, he seems to suggest that criticizing a critic is somehow in violation of
Ohio law and public policy and of his contractual rights with the PD. Finally, he claims that the PD
knowingly lied about him.
There are several problems with Rosenbergs legal claims. First, any critic is himself fair game
for criticism. If the First Amendment (which Rosenberg brandishes in his support) means anything,
it means that we allow a free and open debate among opposing viewpoints. Rosenberg has often been
harsh in his criticism of the Cleveland Orchestra and especially of Welser-Mst. He can hardly claim to
any legal harm resulting from strong disagreement with his views, even from within his own paper. Has
anyone read the debates between, say, Kevin OBrien and Dick Feagler?
As to any breach of contract Rosenberg might be alleging, my best guess is that he is an employee at will, which means that he can be fired for any reason at any time. If the PD doesnt like what
hes writing, they can fire him. And they didnt fire him. They transferred him to a different beat.
Nor am I aware of any Ohio law or policy that forbids an employer or even a newspaper from firing or
transferring a reporter whos work they dont like.
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Finally, Rosenberg claims he has been defamed. That claim deserves a closer look. Defamation
is a false statement made, with knowledge of its falsity, for the purpose of injuring its victim. The
complaint Rosenberg filed specifies the following ways in which he was defamed: (1) a statement that the
credibility of the newspaper had been compromised by Rosenbergs withering reviews of Welser-Msts
conducting, (2) an assertion Rosenberg was attacking the orchestra, (3) a claim Rosenbergs reviews
were unfair, and (4) a statement that the Plain Dealers situation had become untenable as a result
of Rosenbergs negative reviews of the orchestra.
None of these statements are the kinds of factual assertions that are likely to support a finding
of defamation. If your employer claims your conduct is hurting its business because you have, undeniably, been expressing harsh views, can that be characterized as a lie? It is important to note that
Rosenberg is not claiming that the PD lied about what he said the entire dispute is about how to
characterize how to describe with adjectives what he said. A newspaper is a business. If its reporters
are not serving that business, the newspaper is no more obligated to keep employing the employee than
is a retail establishment required to keep employing an impolite salesman.
I may be overly cynical in the views I am expressing here. My journalist friends are concerned
with the ethics of this situation. But I dont understand why a newspaper is any more obligated to
employ someone it believes is undermining its message, as long as the newspaper is not lying about the
reporters behavior, than is any other employer. If the PD no longer liked Donald Rosenbergs reviews of
the Cleveland Orchestra, it had every right to relieve him of his duties to review the Cleveland Orchestra.
The Plain Dealers readiness to cow tow to the Cleveland Orchestra may damage the newspapers credibility, but that is another matter altogether. By all means, if you loved Donald Rosenbergs
reviews and feel the Plain Dealer has sold its soul to a snob who has no use for our farmers village
other than to exploit George Szells priceless legacy, stop going to see the Cleveland Orchestra. Of
course, that course of action may indeed reduce us to little more than a farmers village. Lord knows we
wont be manufacturing cars or auto parts any longer.
But Donald Rosenberg? He has no contractual, moral, constitutional, or other enforceable right
to force the Plain Dealer to allow him to continue to criticize Franz Welser-Mst in its pages. Maybe
hed like to start a blog. I know Carolyn Jack would welcome him aboard
ADDENDUM: Jack adds in the comments that Mr. Rosenberg is not an at-will employee. He
is a member of The Newspaper Guild and covered under the existing contract between the Northeast
Ohio Newspaper Guild and The Plain Dealer. He can be fired only for just cause. the point is well
taken, but, inasmuch as Mr. Rosenberg was not fired, I do not think it detracts from the central point
of my analysis. He still is employed as a journalist for the PD; the fact he is not covering the beat he
covered for so long does not, as far as I can know, create for him any legal right to recovery.
In these difficult times, artists will need to depend on artists to produce new and
innovative art. (2008-12-16 03:07)
Back in November, I wrote about conflicts between non-profit theaters and novice playwrights in connection with producing commercially unproven plays. I also suggested that the solutions to those conflicts
were not as profoundly difficult as some were suggesting. One such solution was to require the most
successful productions by non-profit theaters to underwrite newer productions.
Yesterday, the National Endowment for the Arts reported that nonprofit theaters in the United States
have seen unprecedented expansion across the United States. Nonetheless, while the research indicates
broad growth and generally positive fiscal health, it also reveals decreasing attendance rates and vulnerability during economic downturns.
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Among the reports findings were the following:
Individuals and foundations remain the biggest contributors to nonprofit theater. In 2002, individuals donated 40 percent of all contributed revenue, and foundation giving made up 22 percent.
Between 1990 and 2005, nonprofit theater revenues fluctuated sharply with business cycles in the
U.S. economy. After the 2001 recession, nonprofit theater revenue (including both ticket sales and
contributions) dropped nearly 12 percent in 2002. Revenue continued to decrease slowly from 2002
to 2005.
Audience trends are flat or in decline. The percentage of the U.S. adult population attending nonmusical theater has declined from 13.5 percent (25 million people) in 1992 to 9.4 percent (21 million
people) in 2008. The absolute size of the audience has declined by 16 percent since 1992.
Given our current economic meltdown, the report does not bode well for the future of innovative theater.
Individual and foundation giving are not likely to sustain theatrical experimentation, and new sources
of funding, including playwrights themselves, are going to have to be found. In short, the global crisis
in the markets and the resulting futility of depending on wealthy patrons makes all the more compelling
Lewis Hydes call for artists to support artists:
Potential profitability is not a criterion for funding awards at [our theater]; as with other
arts funders, we ask our panels to look for originality, risk-taking, mastery, and so forth; we
respond especially to projects that transcend traditional disciplinary boundaries. That said,
the principle of sharing the wealth is essential to [financing our productions]. It makes explicit
the assumption that all who have succeeded as artists are indebted to those who came before,
and it offers a concrete way for accomplished practitioners to give back to their communities,
to assist others in attaining the success they themselves have achieved.
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Mr. Potato Head, Esq. (2008-12-17 07:30)
E-Commerce Times reports that Hasbro has

dropped its lawsuit against the makers of a popular online version of board game Scrabble. As reported last summer by the New York Times, Looking to cut down its main competition and most
high-profile copycat in the growing market for social gaming, Hasbro . . . sued the two Indian brothers
behind the popular Web game Scrabulous, which has more than half a million regular users on the social
network Facebook.
Given the boost to Scrabble s sales provided by Scrabulous s popularity, many had wondered at the
wisdom of Hasbro s lawsuit. At the time, Josh Quitner wrote, [A]s a tech writer and life-long student
of what passes for Internet economics, I m baffled. Is Hasbro just a stupid Potato Head? Or is this a
brilliant game of Stratego?
Mike Masnick explains:
It s difficult to see how Hasbro could have handled the Scrabulous situation any worse.
Scrabulous, of course, was a Scrabble-like game made for Facebook, which quickly became
one of the most popular apps on that social-networking site. Hasbro, which owns the rights to
Scrabble in the U.S., didn t have its own version, and rather than recognize an opportunity,
it chose to shoot itself in the foot, suing the brothers who created it. The Scrabulous guys
eventually came back with a slightly modified game, which became quite popular as well,
while many angry Facebook fans organized boycotts of Hasbro products. Prior to that, of
course, the attention brought about by Scrabulous had resulted in a renaissance for the game,
leading many people to go out and buy physical Scrabble sets. Yes, Hasbro took a situation
that was driving more sales of the board game, and turned it into one where thousands of
people were boycotting its products.
Back when Hasbro filed the lawsuit, Barry Nagler, Hasbro s General Counsel, had explained that Hasbro
has an obligation to act appropriately against infringement of our intellectual properties.
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I ve said it before and I ll say it again: being a good lawyer isn t just a matter of knowing and enforcing the law. It s a matter of knowing and using the law to advance the best interests of your clients.
The mere fact your client s intellectual property is being infringed does not mean that your client s
best move is to go out and try to crush the infringer.
Piecing together coherence (2008-12-18 00:15)
Life is made up of a series of judgments on insufficient data, and if we waited to run down all our
doubts, it would flow past us.
Learned Hand, On Receiving an Honorary Degree 137 (1939).

We all always want to know more. The worst discussions I have in class are those that begin with a
suggestion from a student along the lines of, Well, the plaintiff might have done X, when there is no
more reason to believe X happened than to believe the laptops of every student in the class were being
used to take notes. In fact, the plaintiff might have done X, but the mere possibility is not enough on
which to base a judgment or decision. If, on the other hand, there are facts or reasoning within the case
that support a reasonable inference the plaintiff might have done X then perhaps X is worthy of being
taken into account.
Juries never have all the facts. Wouldnt it be nice if God could provide us his videotape, with all
the angles the networks apply to sporting events.
But we make judgments, and we make decisions, and without our capacity to decide reasonably well
based on a minimum of knowledge wed be utterly lost. Life would flow right past us. The other day,
writing about the reassignment of the Plain Dealers well-respected music critic, I wrote that [a]s far as
I know, such a reassignment breaches no duties, contractual or otherwise. Do I know that for a fact? Of
course not. I am not privy to the thoughts, discussions, or plans of any of the parties to the lawsuit. I
dont have a copy of the relevant contracts. But what do I know? If there had been a breach of a contract
or any other legal duty, Rosenbergs lawyer would have alleged that breach.
In short, non-facts things that dont happen are often as telling or even more telling than the
things that happen. Will Girl Talk be sued for copyright infringement? I have no special insight. Some
people are certain Girl Talk will be sued. Others believe Girl talk is protected by the doctrine of fair use.
Me? No one has sued Girl Talk yet. That speaks volumes. What else persuades me? Girl Talks
recordings use the samples they weave together to create works that can in no way be substituted for the
sampled works. In short, as aural collages go, Girl Talk and Negativeland are as good as they get, and if
I were interested in vindicating my right to charge for any sample of a recording I owned the copyright
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to, Id stay as far away as I could from a lawsuit against those two acts.
But no doubt there is data out there I am unaware of that sooner or later will make me look like a
fool. Thats simply the nature of human existence.
Roberto Bolao made a somewhat similar point in explaining the transmutation of lifes chaos into
the order of stories:
Lets say the story and the plot arise by chance, that they belong to the realm of chance,
that is, chaos, disorder, or to a realm thats in constant turmoil (some call it apocalyptic).
Form, on the other hand, is a choice made through intelligence, cunning and silence, all the
weapons used by Ulysses in his battle against death. Form seeks an artifice; the story seeks
a precipice.
Law is real, and so is art. (2008-12-18 16:43)

From Mirrors. Photographs from the Arkansas State Prison 1915-1937, found and printed by Bruce
Jackson, 8/19/2004 (with pointers from Jonathan Lethem and Julie Langsam):
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Negotiating with authorities as part of the art itself (2008-12-19 05:20)
From the Harvard Law Schools Project

on Negotiation:
Among the artists who most explicitly deal with business and law are Christo and Jean-Claude, whose
massive art installations, often using nylon or woven fabric to highlight buildings or works of nature.
Their most recent project (2005), The Gates, consisted of 7,503 16-foot-tall steel gates with suspended
swaths of saffron-colored nylon that snaked through 23 miles of paths in Central Park.
While art may not seem like an area rife with negotiation, the nature of Christo and JeanneClaudes large-scale works invariably requires coordinating with a variety of stakeholders including local, state, and federal officials, community groups, environmentalists, landowners,
and the general public.
The two received the 2008 Great Negotiator Award on Sept. 23 from the Program on Negotiation (PON) at Harvard Law School, which recognizes those who have made lasting contributions to the fields of negotiation and dispute resolution. . . .
Christo said that often the negotiating process itself infuses a project with importance.
In discussing the Wrapped Reichstag, the parliament building in Berlin that was veiled
by the artists in more than 1 million square feet of woven polypropylene in 1995, Christo
said the opposition to the effort by then-Chancellor Helmut Kohl only heightened the works
significance.
In an attempt to stop them, Kohl ordered a roll-call vote in parliament. To garner support, the artists canvassed the country talking to the parliament members constituents to
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plead their case. Ultimately, they persuaded 79 members of Kohls conservative party to vote
with them and approve the project.
The permitting process creates the identity of the work. ... It creates the dynamics, power,
identity. The process sometimes makes the work more important, much more important than
we could imagine.
Survival (2008-12-19 16:29)

John Kline and my father both were GIs in the106th Division during WWII. On December 19, 1944,
they both were captured by the Germans during the Battle of the Bulge. They were the lucky ones. The
106th Infantry Division, average age of 22 years, suffered 564 killed in action, 1,246 wounded and 7,001
missing in action at the end of the offensive. Most of these casualties occurred within the first three days
of battle, when two of the divisions three regiments was forced to surrender. You can read Klines diary
of his wartime experiences here.
My father swears he hasnt had a bad day in his life since his liberation. Hes a lawyer, which I suppose
is one possible way to justify this post. Another is that the friend with whom he huddled for warmth
during their first night of captivity was Jim Dew, a painter and professor at the University of Montana.
This is one of his works, entitled Placid, which resides in the Montana Museum of Art & Culture.
The art behind the bull (2008-12-22 11:07)
BAGnewsNotes makes an interesting connection between Bernie Madoff as con artist and Bernie Madoff as art collector:
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How fitting, and brilliant even, to grace his office and his media portrait with Lichtensteins
1973 lithographic series of this animal, in which the bull, just like Madoffs own presentation
of financial reality, reflected the same morphing into abstraction.
Of course, just as I pointed out recently in connection with the Lehman Brothers vast art collection,
Madoffs art collection is now nothing but one more asset to be sold off along with the office furniture.
And the impact of Madoffs monumental financial fraud on the art world is not limited to his own
collection. According to ArtInfo, a number of major art patrons have lost hundreds of millions of dollars
with the collapse of the Ponzi scheme.
RIAA to stop suing over illegal downloads (2008-12-22 12:57)

From the ABA Journal:
Ending a controversial enforcement effort in which it appeared to be fighting something

of a losing battle, the Recording Industry Association of America says it will stop suing consumers over illegal music downloads via the Internet.
The decision represents an abrupt shift of strategy for the industry, which has opened legal
proceedings against about 35,000 people since 2003, reports the Wall Street Journal. Critics
say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And
it created a public-relations disaster for the industry, whose lawsuits targeted, among others,
several single mothers, a dead person and a 13-year-old girl.
Instead of using lawsuits as leverage to try to protect music copyrights, the RIAA now plans
a more practical enforcement effort concerning illegal downloads. With the help of Internet
service providers, those who repeatedly download music illegally and ignore ISP warnings
are expected to have their Internet service first slowed down and then stopped entirely, the
newspaper explains.
Bush v. Gore lives, as it should. (2008-12-23 09:31)

As the New York Times observes today, one of the most controversial parts of the Supreme Courts 2000
decision in Bush v. Gore was the Courts pronouncement that the decision would have no precedential
effect: Our consideration is limited to the present circumstances, the majority famously said, for the
problem of equal protection in election processes generally presents many complexities.
In our legal system, courts are bound to follow decisions of, among others, the Supreme Court. The
principle, known as stare decisis, is fundamental to the common law system we adopted from England.
The Supreme Court in Bush v. Gore, therefore, was stating that for that case only, stare decisis would
not apply.
Why did the Court make this unprecedented pronouncement? Many believe it was because the equal
protection grounds supporting the Courts decision, if applied in future cases, would open the doors to
lawsuits that never before had been considered viable. The requirement of equal protection of the law is,
to put it mildly, a complicated subject. Quite plainly, the law makes legitimate discriminations between
groups every day. Accordingly, a legitimate claim that a law denies equal protection requires some sort
of reasonable belief that the law might have been enacted to discriminate on illegitimate grounds.
The Supreme Court in Bush v. Gore had no reason at all to believe that the Florida Supreme Courts
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recount order it was reviewing had been intended to give greater weight to one preferred class of voters
over another. Thus, the Supreme Court did not want the equal protection principles it was applying to
supply legal arguments in future cases it was not prepared to hear I seriously doubt, for example, that
a states decision to locate most of its waste disposal facilities in areas that are predominately populated
by minorities or the rural poor would satisfy any existing equal protection analysis. But if Bush v. Gores
reasoning does apply, who knows?
The New York Times observes that despite the Supreme Courts proclamation, courts are beginning
to apply the reasoning of Bush v. Gore. That in itself is interesting. What I find more interesting is that
there was not more outrage on the point at the time. Stare decisis is generally understood to control
courts by limiting their rulings to the principles enunciated in earlier decisions.
But stare decisis also provides a control over the court that makes a decision.
less, later courts will say so and overrule it. The Supreme Court could not face
later incarnation of itself, declaring that the equal protection principles applied
baseless. Accordingly, it tried to declare that any future consideration of whether
off limits.
If its decision is baselater courts, or even a

in Bush v. Gore were
they were baseless was
Right wingers often, and falsely, declare that liberal judges are activists who make law and conservative judges merely apply the law as it exists. But I can think of no more activist decision than Bush v.
Gore, where the Court tried to declare this is the law for this case, and something else will be the law
for another case.
The e-book will open a new front in an ongoing legal revolution. (2008-12-24 11:39)
The New York Times reports today that [f]or a decade, consumers mostly ignored electronic book devices, which were often hard to use and offered few popular items to read. But this year, in part because
of the popularity of Amazon.coms wireless Kindle device, the e-book has started to take hold.
An e-book that works well is a dream of mine. At any given moment, I literally am reading 25 different books. Whenever I travel, one of my toughest choices is which 2 or 3 Ill bring with me. Not only
are my infinitely wide, but my moods change constantly.
But as the e-book takes hold, expect a new wave in the copyright wars. With more and more books
being published in electronic form, theyll be as easy to copy and disseminate as music is now. So illegal
copying and distribution will be inevitable.
In addition, the cutting and pasting of portions of books will create a whole new set of questions regarding fair use. We will witness the resurrection of the commonplace book:
Commonplacing is the practice of entering literary excerpts and personal comments into
a private journal, that is, into a commonplace book or, to use a 17th century synonym, a silva
rerum (a forest of things). Typically the excerpts were regarded as exceptionally insightful
or beautiful or as applicable to a variety of situations, and so as such they are often especially
quotable. . . . The practice of commonplacing can be traced back in the European tradition
to the 5th Century B.C.E. and the Sophist Protagoras.
Historically commonplacing has played an important role in education, and it has served
as a vital tool of erudition.
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Boys ... had to keep notebooks or commonplace books in which to record, and then learn,
idioms, quotations, or figures useful in composition or declamation. Not a little of that wide
learning and impressive range of quotation adorning Elizabethan literature comes from these
commonplace books. Schools in Tudor England, by Craig R. Thompson (Washington: Folger
Shakespeare Library, 1958): p. 16, cf. 44.
Students with literary tastes, in days when books were hard to come by, kept commonplace or notebooks into which they copied out verses or prose extracts that particularly
appealed to them. The Intellectual Life of Colonial New England, by Samuel Eliot Morison
(Ithaca: Cornell University Press, 1965; reprint of the 2nd ed., 1956): p. 49.
Norman Elliott Anderson, Commonplacing in the Spiritual Traditions
Will a professors commonplace book require permission for the reprinting of every excerpt? There inevitably will be questions about when the excerpts are too long, though I would imagine a collection of
excerpts that are small enough and together comprise a wholly new work (a literary collage) should be
considered transformative enough to constitute fair use. Inevitably, though, there will be lawsuits arising
in particular situations.
Charges of plagiarism, no doubt, will also increase. I strongly suspect that some of the recent incidents of plagiarism involving respected writers were the results of the inevitable errors that creep into
works that require an enormous amount of research. A quotation taken during research from one work
is mistaken at the writing stage as a paraphrase and ends up verbatim in the finished product. Someone
spots the quotation (a process that will be even easier when the texts themselves are all electronic), and,
voil, charges of plagiarism fly through the blogosphere and plague the historian for the rest of her career.
These legal problems are inevitable. Ive said it before and Ill say it again. Law is a product of the
material circumstances in which it arises, not an abstract set of truths brought down and imposed on
reality. When the material circumstances change, the law will have to change. We are living through the
most profound change in the availability of information since Gutenberg. The law will change, and it will
be a very interesting ride.
Its way later than 1984. (2008-12-24 17:28)
Heres a creative new toy for law enforcement RFID dust. RFID devices are those tiny electronic
devices embedded in the things we buy, in our currency, in our passports, in more and more of everything
weve got. The devices electronically store information that can be read with an RFID reader. Dr. David
J. Atkinson, at Our Weird and Wonderful Future, wonders about the creative and creepy ways these new
RFID particles, measuring 0.05 x 0.05 mm, will be used:
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At 5 microns thick, the RFID chips are easily embedded in sheets of paper. But since
existing tags are already small enough to embed in paper, it leads one to wonder what new
applications might be enabled.
Used in paper currency, for example, the chips could serve as a guarantee of authenticity.
Gift certificates are another benign application. What about identification? Tracking?
With 128k ROM (not much memory, but enough) imagine how this stuff might be used.
What if police dusted a crowd at a demonstration participants could be rounded up later.
Sprinkle a little bit on hubby, then see if it shows up where it should not. Dust on hands,
transferred during handshakes ...where would it go? Who would pick up the dust? The
potential of RFID to shred our last bits of privacy is huge. And where needs be, it will
happen.
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MERRY Christmas! (2008-12-24 19:35)
Its not my holiday, but its a holiday, and to

everyone I wish a merry day. We need merriness as often as we can get it.
Incidentally, there is no war on Christmas, though it is true that the Puritans themselves banned
the celebration of Christmas in Boston for 22 years. They frowned on merriness:
The Puritans who immigrated to Massachusetts to build a new life had several reason for
disliking Christmas. First of all, it reminded them of the Church of England and the oldworld customs, which they were trying to escape. Second, they didnt consider the holiday a
truly religious day. December 25th wasnt selected as the birth date of Christ until several
centuries after his death. Third, the holiday celebration usually included drinking, feasting,
and playing games - all things which the Puritans frowned upon. One such tradition, wassailing occasionally turned violent. The older custom entailed people of a lower economic
class visiting wealthier community members and begging, or demanding, food and drink in
return for toasts to their hosts health. If a host refused, there was the threat of retribution.
Although rare, there were cases of wassailing in early New England. Fourth, the British had
been applying pressure on the Puritans for a while to conform to English customs. The ban
was probably as much a political choice as it was a religious one for many.
Buying art? Buyer beware! (2008-12-26 11:43)

I teach Contracts. One funny thing about the topic is that the law that applies to any given transaction is the contract itself. In other words, if the words of the agreement (which can be written and/or
oral) determine the outcome of a given situation, those words almost always control. There are very few
immutable contract rules that is, rules that cannot be changed by agreement of the parties to the
contract.
Thus, much of teaching contract law concerns the interpretation of contracts and default rules that
is, rules that apply to situations the parties have not agreed about. Perhaps that is why I so often like
using cases involving the sale of art in my classes they so often require the understanding of the default
rules. As Joshua Kaufman, a lawyer in D.C., recently pointed out in a talk at the Smithsonian Museum,
art transactions typically involve the least paperwork of any sort of commercial transaction:
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The art business is unique, Kaufman said, in terms of paperwork and due diligence.
It has the least amount of paper of any commercial transaction. That means you go into a
gallery, buy what you like, and the dealer hands you a receipt for your purchase. Perhaps you
even get a little paper describing the provenance. But buyer beware! The art market is filled
with complexities, especially when it comes to auction houses.
Defamantion and Anonymity (2008-12-29 13:27)

From the Washington Post:
In a First Amendment case with implications for everything from neighborhood e-mail
lists to national newspapers, an Eastern Shore businessman argued to Marylands highest
court yesterday that the host of an online forum should be forced to reveal the identities of
people who posted allegedly defamatory comments. . .
The businessman, Zebulon J. Brodie, contends that he was defamed by comments about
his shop, a Dunkin Donuts in Centreville, posted on NewsZap.com. The shop was described
as one of the most dirty and unsanitary-looking food-service places I have seen. . . .
For advocates of strong protections for anonymous speech and the Internet, online chat rooms
are the 21st-century successors to the town square and the political pamphlet.
Theres a long tradition in U.S. history of at least anonymous political speech, and certainly when you contemplate the Internet and the new opportunities it offers, this is the way
a lot of speech happens, Sam Bayard, assistant director of the Citizens Media Law Project
at Harvard Law School, said in an interview.
At the same time, however, many argue that the First Amendment should not become a
shield for those responsible for defamatory remarks. The reach of the Internet has allowed
anonymous speech to potentially influence more people than ever, compounding the harm of
a false claim.
This may be a far tougher and more important issue than it first appears. Weve lost touch with a lot of
the public square-type of feeling that once existed. Our newspapers are losing all capacity to cover the
deeds of the corporate sphere. The editor of the Manchester Guardian writes in the New York Review
of Books of the Guardians struggles against one of Europes most powerful corporations over claims of
defamation in a story worthy of detailed attention:
News organizations in the Western world, struggling with declining audiences and revenue,
are shedding journalists, closing down foreign operations, and cutting costs. But they are
also increasingly inhibited by efforts-of government officials and of private corporations-to
prevent them from protecting sources or from carrying out difficult investigations. Many
minds are rightly focused on the regulatory, economic, technological, and legal issues that
news organizations committed to serious journalism should be addressing.
We understand already that anonymous comments, because of their anonymity, are unreliable. Yet we
also know that people feel comfortable expressing themselves online particularly because of their ability
to remain anonymous. If we allow too much reach to people suing for being defamed, we will inevitably
cause people to pull back from making even anonymous comments on any controversial matter involving
a powerful person or company. Theres simply too much risk and too much cost in being alleged to have
defamed someone to bother.
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So, should we allow someone to defame a particular Dunkin Donuts anonymously online, or should
we allow a Dunkin Donuts to sue someone who might be correct in what they say but unable to defend
the truth of their position? That seems to me the choice: to either allow unjustified and unreliable speech
or to shut down reliable and damaging speech.
Knowing liars (2008-12-30 10:12)

Lawyers should be good at spotting fraud, but they often arent. Same thing with historians. But this
time the historians got it right:
About that fabricated (and now canceled) Holocaust memoir, by Herman Rosenblat, which
David Mehegan writes about at Off the Shelf ... Lesson: sometimes professors know what
they are talking about.
Deborah Lipstadt called it a year ago. Heres Lipstadt, a professor of Modern Jewish and
Holocaust Studies at Emory, writing on December 7, 2007: There is a Holocaust story making the rounds on the Internet which is clearly not true. At this point, she seems to think
its just a bit of Internet flotsam: If you get this email do NOT send it on to other people.
Delete it.
If its too good to be true, its too good to be true. (2008-12-31 12:12)
Yesterday i wrote about recognizing lies. It is also fundamental to anyone who deals with contracts that
they recognize that the higher a price one gets, the higher a risk one is taking. So, if you buy junk bonds,
you are getting a high interest rate, but along with the high interest rate comes a high risk youll get
paid nothing at all. Thats why they are called junk bonds theyre the bonds of high-risk borrowers.
If you want to lend to those borrowers, you might get a lot back, but you might get nothing. You can
assume, therefore, that if you are told you cant lose that youll always make money, that the risk
you are taking is infinite.
These are the fundamental points Ben Stein made in this last Sundays New York Times when he connected the Bernie Madoff fraud, the sub-prime mortgage crisis, and the 80s rise and fall of Drexel
Burnham Lambert, the investment bank that specialized in the junk bond market:
ABOUT two years ago, a little delegation from a major investment bank arrived at my
home in Beverly Hills. These nice young people were from the banks wealth management
division. I told them straight away that I didnt have anywhere near enough wealth to make
their trip worth their time, but they smilingly insisted that we could help each other.
They told me that if I invested a certain sum with them, they would make sure that a
large chunk of it was managed by a money manager of stupendous acumen. This genius, so
they said, never lost money. He did better in up markets than in down markets, but even in
down markets he did well. They said he used a strategy of buying stocks and hedging with
options.
I protested that a perfect hedge would not allow making any money, because money made on
the one side would be lost on the other. They assured me that this genius had found a way
to spot market inefficiencies and, indeed, to make money off a perfect hedge.
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I thanked them for their time and promptly looked up Bernard Madoff online. Nothing I
saw was even a bit convincing that he had made a breakthrough in financial theory. . . .
My point is not that I was so smart. I am not and I was not. Mistakes are a big part
of my life. My point is that, as humans, we seem unable to learn from our mistakes very well.
I have never heard of an entity that could make money in all kinds of markets consistently,
year in and year out. Yet we continue to believe that there will be one.. . .
The same goes on a much larger scale for the debacle of subprime mortgages. In essence,
it is a much larger version of the Drexel Burnham Lambert junk-bond debacle of the 1980s.
Back then, investors were charmed by the idea that the lower-ranked the bond, the more
money it would make. It seemed like a great idea: theres this little corner of the market that
the big boys turn up their noses at. But in this little corner, huge money is made. Its almost
like the myth that you get great bargains in poor parts of town.
In fact, the Drexel episode should have taught us to be wary, indeed, of poorly rated debt.
But it didnt. The new version of the myth was so alluring that it drew in not just billions of
dollars from lenders and mortgage bond buyers, but much more in derivatives linked to the
myth.
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154
Chapter 2
2009
2.1
January
Righting wrongs the American way (2009-01-06 09:51)

One of the ways our legal system adjusts is that old process we remember from our first elementary school
courses (and perhaps think of as trite and archaic): the system of checks and balances. I grew up at a time
when the federal courts were a substantial check on state legislatures, state courts, and local police forces.
Since my childhood, though, the political system has grown increasingly conservative, and by now the
federal courts too have become conservative. Last year, as the New York Times explained yesterday, the
Supreme Court made it much harder for people to challenge discrimination in employment, education,
housing and other fields. Lilly M. Ledbetter lost her sex-based pay discrimination case at the Supreme
Court in 2007, a decision that other courts have cited in rejecting lawsuits. Congress may overturn the
ruling.
The Court held that employment discrimination claims must be be filed within 180 days of the the
alleged unlawful employment practice - the initial decision to pay Ledbetter less than men performing
similar work. Previously, courts had held that each paycheck after the initial discriminatory act (each of
which would have been for less money than if the discrimination had not been committed), constituted a
new act of continuing discrimination. Thus, as long as the employee filed her claim within 180 days of
a paycheck reflecting the impact of the discriminatory employment decision, her claim could be heard.
The decision was roundly criticized at the time and quite plainly cut off an enormous number of discrimination claims (whether the unlawful action had been discovered within the 180 days or not). Now
it seems Congress is ready to right this judicial wrong. The bil it is is considering states that a violation
occurs each time a person receives a paycheck resulting from a discriminatory compensation decision.
President Bush threatened to veto the bill, but Mr. Obama is eager to sign it.
Representing clients in a changing world (2009-01-06 12:48)

This item, from Techdirt, should give some pause to lawyers who represent copyright holders: the top
selling MP3 download on Amazon last year was Nine Inch Nails Ghosts I-IV album. As Techdirt explains, this means, [i]n other words, you could go on pretty much any file sharing system out there and
legally download the music for personal use... and yet it was still the top selling downloadable album
(this is on top of all the money earned by Reznors other business models associated with this album).
A lawyers job is to represent the best interests of his client. It may well be that the best interests of
copyright holders in an environment where digital information can instantly be duplicated and instantly
be disseminated world-wide is to find new business models, not to persist in the 20th Century habit of
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filing infringement lawsuits. It seems silly, for example, (as IP Watchdog points out) for Gatehouse Media
to be suing the New York Times alleging copyright infringement by the New York Times because one
of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by
Gatehouse Media. Gatehouses allegations of infringement are based on the fact that the links, though
they provide attribution to Gatehouse, are deep links that is, they are links to the articles themselves
that, therefore, bypass Gatehouses homepage (and, presumably, the advertising on the home page).
The court in Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-07654 (CD Calif. Mar. 27, 2000)(pdf),
found that deep linking was permissible. Tickets.com had provided deep links to pages on Ticketmasterrs
website to guide readers precisely to the spot the could purchase tickets for specific shows. Ticketmaster
wanted readers and customers to come through Ticketmasters homepage. The Court stated:
The customer is automatically transferred to the particular genuine webpage of the original author. There is no deception in what is happening. This is analogous to using a librarys
card index to get reference to particular items, albeit faster and more efficiently.
The court concluded the deep links provide by Tickets.com did not constitute copyright infringement.
Nevertheless, other deep linking cases (discussed by Gayle Campbell and Patty Steib here) make clear
that the legality of the practice (like so much in copyright law) has not been finally determined.
But Gatehouse Medias lawsuit seems intended to stop a practice that can only benefit Gatehouse Media
by bringing more traffic to its site. And what good are links if, for example, I left you wandering through
a webiste trying to find the right page rather than sending you straight to it?
For some lawyers, unfortunately, a right is only something to be vindicated, not just one factor among
many that need to be taken into account in seeking the clients best interests.
Scrabble v. Scrabulous redux (2009-01-07 17:10)

There are many examples of what I wrote about yesterday lawyers prosecuting a lawsuit on behalf of
a client who in fact would be better off not suing even though his claim might be a legitimate one but
there are few better than the one I wrote about here in November: Hasbros lawsuit against the creators
on Facebook of Scrabulous, brought because, in the words of Hasbros lawyer, Hasbro has an obligation
to act appropriately against infringement of our intellectual properties. As Eric Eldon wrote yesterday
in Venture Beat, Hasbro owns the Scrabble copyright for the U.S. and Canada and forced Scrabulous to
go offline in those countries at the end of July; Mattel owns the rights to Scrabble everywhere else and
followed in Hasbros footsteps a month later. The problem is that now Hasbros product on Facebook and
the product newly produced by the creators of Scrabulous are splitting a smaller audience on Facebook
than Scrabulous alone had on Facebook even as Facebooks participation climbs precipitiously. Eldon
suggests it wouldve been much wiser for Hasbro and Mattel to have entered into a partnership with the
creators of Scrabulous to produce a Facebook-based Scrabble game. Instead, the lawyers took over, and
everyone is worse off:
This is exactly how not to build a Facebook app. Facebook is designed to help people
share information with those they care about - geography-based licenses from another era
have just gotten in the way of making something people want to use.
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You dont have to sue defamation and exposure (2009-01-08 11:07)

Another key to representing a client well is to ignore things better forgotten. From CNet: a chiropractor
sued an individual who had posted a negative review of the chiropractor online. The chiropractors attorney is quoted as saying that the issue in the case is whether the review stated facts or the reviewers
opinions:
[My client] has no problem with people expressing their views and opinions about his
service, . . . [b]ut there is a line where if someone, even on . . . on the Internet, publishes
a false statement of fact as opposed to an opinion, then that person can and should be held
responsible for their words.
But a bigger issue may be that the chiropractors billing practices are at the center of the defamaion lawsuit, and all the defamation lawsuit has done so far is highlight the fact the chiropractor bills insurance
companies more for his services than the prices he quotes to patients.
Litigation is a public event. Court files are open to the world. When you sue someone, you often
open up to inquiry a lot you never thought might see the light of day. You and your lawyer need to
consider these possibilities seriously before you sue. No matter how good a lawsuit you have, you dont
need to sue, and it might turn out that even if the lawsuit alone seems to have an upside, the downside
it poses to your life makes it not worthwhile.
Art exposing law: Pirates of the Amazon (2009-01-09 10:45)

Heres some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech
reported that a Firefox plug-in named Pirates of the Amazon had been developed that allowed its users
to immediately identify free alternative online sources for any product they found on the Amazon.com
website. Within a day, Amazons lawyers had filed a takedown notice. Subsequently, someone put up a
website stating that the plug-in had been created as an art project meant to illuminate issues raised by
todays media culture:
Pirates of the Amazon was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning
Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface
design, information access and currently debated issues in media culture. We were surprised
by the attentions and the strong reactions this project received. Ultimately, the value of
the project lies in these reactions. It is a ready-made and social sculpture of contemporary
internet user culture.
One day after publishing we received a take down request by the legal department of Amazon.com.
This work was made as a trimester assignment in our study course, under the supervision
of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now
the documentation of our study work as required by the course.
To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was simply a post-release attempt by the plugins author to cover his legal posterior. I would suspect, though,
that the project really was an art school endeavor. Denis Jaromil Rojo is an artist and a FOSS hacker.
. . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a
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programmer, he is author of several free software that present new possibilities for online radios. Jaromil
is identified as a tutor for the 2008-09 academic year on the Piet Zwart Institutes web site, and Florian
Cramer is identified on the same site as the course director of the Media Design M.A. programme.
ADDENDUM: Florian Cramer writes in the comments to thank me for the balanced coverage and
to add that the indication the site was an art project was made clear on Pirates of the Amazon from the
beginning.
Guilty until proven innocent (2009-01-12 12:27)
Gerry Spence offers some much needed balance regarding Illinois Governor Rod Blagojevich, Prosecutor
Patrick Fitgerald, and the presumption of innocence:
Our collective public mind has been molded by the movies and television to accept the
notion that the common good permits, indeed, encourages cops and prosecutors to violate
the law in order to protect us. We see the police battering down doors of suspects to illegally
obtain evidence. We witness the cops bugging phones and forcing confessions. We want the
police to win, because they are the heroes of the drama and such crimes are serious and
threaten our security. But this sort of lawless bludgeoning of the law does terminal damage
to our system of justice. By destroying the rights of any accused none of us are ever safe from
the law that once stood to protect us.
Mr. Fitzgerald has selected and then dumped out pages of unsworn, untested, evidence
before governor has even been charged. We already know that what the prosecutor provides
is only part of the story, only the juiciest excerpts that will cause the governor the most harm.
The grand jury has not yet met. Every potential member of the grand jury and later every
trial juror who will sit in judgment of the governor has already been stained with prejudice
against him. The presumption of innocence has been reduced to a cruel joke. Why have a
trial? Mr. Fitzgerald has already convicted the governor in the media. One wonders if the
governments case is so legally flimsy that the prosecutor must revert to these tactics in order
to assure a conviction.
. . . What we witness without a whimper from the media, the courts, or the bar is a
prosecutor charged with the highest professional duty to see that every accused, no matter
how guilty, obtains a fair trial, and who, instead, in this historical instant, has voluntarily
taken steps to see that such a right becomes little more than a sad, distant echo of a justice
system that once set the standard for the world.
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Judging Puce (2009-01-12 17:06)
Ernie the Attorney states precisely something Ive tried to get

across about a lawyers need to decide and act in a world filled with ambiguity:
As a lawyer, Im perfectly comfortable with conflicting information. The remedy for

conflicting information is not to try to eliminate flawed sources, but to think critically
about all sources of information that you encounter.
And then he illustrates his satisfaction with Wikipedia by discussing its definition of the color puce,
making clear all the while that he understand theres some dispute whether the color Wikipedia
calls puce really is puce.
Lawrence Lessig on The Colbert Report (2009-01-13 00:25)

[EMBED]
Law is, first and foremost, human drama. (2009-01-14 12:29)

Today in Contracts class I tried to get my students to understand they have to understand the reality of
the case law theyre reading, not merely the rules the cases articulate. The rules only go so far. There
are a lot of reasons understanding rules alone is a woefully inadequate way to understand the workings
of any legal system, but I did try to get across that if the students would envision choosing, preparing,
and questioning the witnesses described and quoted in the case they had read for today, they might
understand why one witness in particular had been so effective.
The case was Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y.
1960), a case memorable in part because the Judge starts his opinion out like this: The issue is, what is
chicken? The case really does turn on the definition of chicken. A U.S. exporter had contracted with
a European buyer for the delivery of a large shipment of what the parties had described in their conversations and in the documents they exchanged as chicken. The seller delivered, in part, older stewing
chickens rather than younger roasters or fryers. The latter are not only younger; theyre also tastier and
more expensive. The buyer sued for the difference in price between the young chicken he thought he had
bought and the old chickens he received.
The seller won. Among the witnesses was Defendants witness Weininger, who operates a chicken
eviscerating plant in New Jersey[. He] testified Chicken is everything except a goose, a duck, and a
turkey. Everything is a chicken, but then you have to say, you have to specify which category you want
or that you are talking about. I tried to get across how effective Weininger must have been. I explained
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he might well have been like a guy out of The Sopranos an everyday kind of New Jersey guy who runs a
slaughterhouse grunting out in a loud and low voice this funny and telling line. All the students wanted
to talk about was that the rule of construction ut magis valeat quam pereat ought to control.
Wrong. Rules dont decide cases, and Latin rules of interpretation definitely dont decide cases. Human beings decide cases, and human beings are swayed by vivid drama far more than they are swayed
by technicalities. Even when we speak of disputes between institutions of finance that are decided by the
testimony of accountants we are swayed by drama. There will be a lot of these kinds of cases (decided by
the testimony of dueling accountants) in the near future. But there always have been. Back at the end
of the last century, Nick Leeson the self-described rogue trader whose unchecked risk-taking caused
the biggest financial scandal of the 20th century was the center of legal action against accountants
forced to explain how their audits of Barings failed to spot Leesons creation of a financial abyss capable
of bringing down Britains oldest merchant bank. BNet at the time almost breathlessly explained:
This situation is by no means unique. Accountants from rival firms regularly square up to
each other across the courtroom and in the offices of City law firms. The accountancy giants
have been regularly pitched against each other in protracted legal battles since the 1970s.
If one realizes the pitched battles between accountants representing rival financial institutions and financial regulators can be described as high drama, one ought to explain that anything legal can, and is, high
drama.
One shouldnt be surprised, therefore, that even at the beginning if the last century the New York
Times recognized that trials scenes are, almost inevitably, a regular occurrence in almost any kind of
play.
Law as performance (2009-01-14 18:41)
The courtroom as theater is such a commonplace notion that it has even been the subject of installation art, including the installation pictured here, Set:
Room 302, a collaboration between Judy Radul and Geoffrey Farmer. Commenting on the piece, Richard
Fowler, a lawyer, makes explicit some of the ways both the artists and he himself as a lawyer treat a trial
as, literally, a performance:
Room 302 uses a courtroom to convey, through performance and the setting itself, ideas
about truth and reality. The roles of the lawyer, witness, guard and court reporter are enacted
and observed reading from scripts. Occasionally, two unseen voices can be heard directing the
performers. With the court reporter overseeing the performance, scenes are redone, sounds
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and events recreated. In essence, a real event is recreated by the performance to produce a
new reality; we judge the past by what we are shown in the present.
Trials are a process by which we attempt to recreate the past in the present so that judges can
decide what happened. Rules of evidence guide the process and ensure the integrity of the
recreation. For example, evidence must generally be a first hand account - the witness must
have seen or heard the event themselves. Rumour, gossip, stories passing from one person to
another, inferences, opinions - the ingredients of real life - are not admissible. Conventions
and formalities govern the performances of the lawyers. The process is grounded in solemnity
and dignity: the judge and lawyers wear robes, the judge is my lady, and opposing counsel
my learned friend. . . .
The courtroom is like any theatre and the trial like any performance. The lawyers learn
their lines and practice their performances. Witnesses are given advice about how to play
their roles. Court clerks guide the performance, directing witnesses, introducing the judge
and providing some narrative of events. Sheriffs usher the audience, provide security, and
open and close the room.
It is within this context that I, as a defence lawyer, defend people. The prosecutor directs her
witnesses to describe an account of a past event; I attempt to throw doubt on that account.
Does the witness account make sense, is it reliable, is it exaggerated, or is the witness lying?
I attempt to unravel the carefully prepared performances of the witnesses, to move them from
their script. The witness is now improvising. Without a script frailties of perception and
cognition are soon revealed, sources of contamination exposed, and bias or prejudice indicated. The judge relies on these raw ingredients to adjudge the performance; was it genuine,
impartial, reliable, credible or exposed as exaggerated, embellished, unreliable and incredible?
My difficulty is convincing my students law isnt just the rules, but a performance constrained by the
rules, and that they have to not only learn the rules, but also then learn how to integrate the rules into
meaningful depictions of the real life they and everyone else live outside the classroom
Colbert, remixed! (2009-01-14 22:59)

[EMBED]
Law in Art/Law as Art (2009-01-15 01:50)
Ive taught in law schools for 13 years. Before that I practiced in New
York City for over 11. What Ive largely found is that lawyers have little use for law professors, and
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law professors have little use for lawyers. Where I am this year, the University of Detroit Mercy Law
School, is an exception to this rule, and a rare one. The far more common, if strange, disconnect between
the academic world and the world of practice is illustrated by the academic field known as Law and
LIterature. Wikipedia accurately describes Law and Literature as both the study of law in literature
and of the literary characteristics of legal writing.:
The law and literature movement focuses on the interdisciplinary connection between law
and literature. Believed to have originally begun as a subcategory of jurisprudence, the
movement encompasses the complementary ideas of law in literature and law as literature.
The problem, as Daniel J. Kornstein, a writer and a lawyer, is that the law and literature movement has
had no impact on the practice of law:
The greatest shortcoming in Law and LIterature to date has been its failure to reach
and engage the practicing lawyer. For the most part, Law and Literature has remained
firmly entrenched in legal academia, its realm of origin. The shirtsleeve lawyer is essentially
untouched.
I have from the start intended for this blog in large part to remedy this lack of connection between
literature, and other arts, and the practice of law. Just as the Law and Literature movement examines
both law in literature and law as literature, I try to focus on law in creative endeavors and law as a
creative endeavor. I suppose part of what drives me to do so is that I have taught primarily first year
law students, and they, like most people, have given very little thought to the art they have encountered
and only begin under my watch to understand that, perhaps primarily, I am training them to be artists,
not technocrats.
Someone must have traduced Maher A. . . . (2009-01-15 01:52)
Scott Finet, in one of the most frequently cited law review

articles ever published Franz Kafkas The Trial as Symbol in Judicial Opinions wrote in 1988 of
literature in law. Specifically, he discussed the ways judges use references to The Trial, concluding that
in writing opinions they used the novels depiction of Joseph K.s encounter with an utterly arbitrary and
incomprehensible legal system to illustrate their own systems rationality and fairness:
162
This article will show how judges make references to The Trial in published decisions as
a symbol of their commitment to the shared value of rational choice. Their references to
The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the
ideology of an orderly, rational legal decision making process and the sometimes incongruent
workings of that process. This is not to say that the decision making process is or is not always
predictable and based on rational choice, but that judicial decision makers, in an effort to
legitimize themselves and the process, attempt to convince those affected by their decisions
that the process is predictable and based on the shared value of rational choice.
Thus, Finet described one way judges frequently use The Trial to discuss someone who is faced with
the need to find the reason for his predicament. For example, a criminal defendant might be seeking the
reasons for his prosecution, something Joseph K. was never able to discover:
In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the
information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to
demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared
value of rational choice and that they will provide a resolution to the supplicants search.
Finet article is now over 20 years old. I wonder what hed make of the predicament faced by Guantanamo
detainees, some of whom, were told, are too dangerous to release but can never be prosecuted because
no U.S. court will allow the admission of evidence obtained by torture. Even more to the point, perhaps,
is the case of Canadian Maher Arar, arrested by U.S. officials on a stopover in New York, sent (via
rendition) to Syria, and tortured there for a year before it was realized he was an innocent Canadian.
And last year a U.S. court established that Mr. Arar could not sue in U.S. courts to establish that U.S.
officials acted illegally by removing him to Syria so that Syrian authorities could interrogate him under
torture. The Trial is not so much a contrast here; Mr. Arar found himself in New Yorks Kennedy airport
in a situation much like Joseph K. did at the very beginning of Kafkas novel:
Someone must have traduced Joseph K., for without having done anything wrong he was
arrested one fine morning.
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Whos the good guy? (2009-01-16 02:39)
When they begin studying law my students most of my students, like children and cartoons, divide the world into good and evil. They believe
that most cases can be explained by figuring out whos the good guy and whos the bad guy. To the
beginner, every explanation is a strained effort to demonstrate why someone in a case has lied, cheated,
or stolen. I try to explain to them that cases involving evil doers victimizing innocents are the easy ones.
More importantly, perhaps, theyre the rare ones. The tough stuff to understand and explain are the vast
majority of feuds, the feuds in which each side believes it is acting in good faith and for the best.
Life inevitably results in misunderstandings, accidents, mistakes, death, and failures (of investments,
businesses, buildings and bridges, operations, etc.). Doing justice is most sensibly and correctly resolving
the fights that result from those inevitable, though regrettable, events.
Justice, therefore, is blind.
So I am particularly disturbed by the willingness of people to cast aside the law on the grounds that
certain lawbreakers meant only to do good. Charles Fried, Solicitor General under Reagan, for example
(whose scholarship on Contracts I very much respect), condemns torture without qualification and yet
argues we cant prosecute people who decided to break the law and order torture because well, . . .
unlike actual criminals the people who justified and ordered torture meant well:
But should the high and mighty get off when ordinary people committing the same crimes
would go to prison? The answer is that they are not the same crimes. Administration officials
were not thieves lining their own pockets. Theirs were political crimes committed by persons
whose jobs were to exercise the powers of government on our behalf. And the same is even
truer of the lower-level officers who followed their orders.
They are the same crimes breaking the law in the belief that breaking the law is justified. Then why
should Dick Cheney and the lawyers who lied about the law to justify torture get off?
Michael Mukasey is the Attorney General, and this week he apparently made the decision not to prosecute
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a former Justice Department lawyer who quite plainly could be indicted and tried for breaking federal
law:
[A] former senior Justice Department official, Bradley Schlozman, set out to hire so-called
Right-Thinking Americans, including members of the Federalist Society and other Republicans, for what were supposed to be apolitical career positions. He then gave them plum
assignments on civil rights cases when he was helping to run the Civil Rights Division, beginning in 2003. . . . Mr. Schlozman . . . gave false statements to Congress when he repeatedly
denied factoring politics and ideology into his hiring decisions.
The . . . case against Mr. Schlozman relies heavily on his words, from e-mail and phone messages to colleagues and underlings. His disdain for the traditional independence and mission
of the Civil Rights Division is palpable. He spoke brazenly about reshaping the division by
doing away with pinko and crazy lib lawyers and others he did not consider real Americans.
As long as Im here, adherents of Maos Little Red Book need not apply, he wrote in
one e-mail message. The report found that Mr. Schlozman transferred three lawyers out
of the division because they were viewed as liberals who opposed his political agenda. The
transfers, the report found, violated federal civil service law and constituted misconduct.
All three lawyers brought federal discrimination claims and returned to the division after Mr.
Schlozmans departure.
Yet, without explanation, the Justice Department has decided not to prosecute Mr. Schlozman.
Charles Fried and Michael Mukasey can identify with federal officers and lawyers. They are or were
federal officers and lawyers. They know even when people try hard things sometimes go wrong. But that
doesnt mean people who set out to do wrong things for even good reasons are above the law.
Fried and Mukasey know that, but somehow that knowledge escapes them when the defendants look
and act just like them. Thats not the rule of law. Its the rule of an aristocrats watching out for each
other.
Business and law adjusting to our new world (2009-01-22 13:45)

Its become almost trite to suggest that the new material underpinnings of the music marketplace demand
new legal and marketing models, but getting people past their convictions that existing business and legal
models are eternal is not an easy thing. We can point to different models in the past artists were once
dependent not on the marketplace to make a living but, rather, on patrons.
But Corey Smith is proof that there are new and profitable models to follow. His model is based on
the widespread distribution of his music for free. As Dave Kusek reports:
Coreys whole business model is based on giving away lots of music for free and building
relationships with his fans. Last year he grossed $4.2 million with a team of seven people. He
does it primarily through touring and developing seriously close relationship with his fans.
[EMBED]
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Good lawyers understand they are poets. (2009-01-22 22:41)

I wrote last week that lawyers are artists, not technocrats. Tim Nolan, a lawyer in Minnesota clearly
agrees, and in an article focused on Wallace Stevens one of the greatest American poets of the 20th
Century and an insurance lawyer for the entirety of his professional life goes on at length about the
similarities of writing poetry and practicing law:
Writing poetry and practicing law bear similarities that are not often examined. In litigating a lawsuit, a lawyer is often overwhelmed with facts, documents, statements, memories
(good and bad), emotions, a hovering concept of justice (good and bad), time lines, bullet
points, visual aids, legal precedent, practical precedent, clients, judges, jurors. From all of
this, the lawyer must draw out a story, with a cast of characters (sometimes stock characters),
themes, partial resolutions and final outcomes. The good lawyer is able to not only marshal
all these resources, but draw out and suggest the final conclusion for the good of his client.
The poet, facing a blank piece of paper, has a similar task. From endless possibilities,
what must be said? What words will be used to say it? What images will convey what needs
to be said? What kind of intent or insight will the music and sounds evoke? . . .
There is physical and intellectual malleability to both pursuits. As a lawyer, you can push
facts and precedent around, or embrace them, or ignore them. You know there must be at
least one jurist in some obscure court who thinks exactly as you do and supports your position.
As a poet, you can push lines around, invent language, make the reader laugh or cry, speak
in a voice that is yours or is imagined entirely.
It is a mistake to think that the law is objective or scientific and poetry is merely subjective. Young lawyers, especially it seems those who clerk for appellate courts, often feel
they can objectively predict what the courts will do. Experienced lawyers understand that
while possible outcomes can be identified, the facts, the desires of the parties, the collective
wisdom of the jury, the predilections of the judge, all wonderfully defy clear prediction.
The young poet thinks no one has ever felt this before; no one has ever said this so eloquently; the reader will be enthralled. With time, the poet comes to know that centuries
worth of better writers have been mining the same territory, and while not much can be truly
new, ones own peculiar slant has never been here before.
Both poetry and the law involve the effort to move from the objective to the subjective
from fact to feeling from observation to intuition. In a jury trial, how the lawyer presents
his case is in some ways more important than what is presented. This is what drives the
general public crazy about lawyers how could they argue either side convincingly? What
shamelessness! Lawyers know it is not difficult at all.
A lawyer and a poet must both be advocates and possess a strong sense of service toward the
client or the reader. Accompanying this sense of service, there must be a generosity of spirit,
a readiness to be empathetic. The lawyer must empathize with the client. The poet must
have true empathy with the reader.
For both a lawyer and a poet, the imagination must always be present. Stevens, in reviewing
an insurance claim, used the same imagination at work in his poems to determine whether or
not to pay the claim.
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Here is what a lawyer and poet must both be able to do pick up a fact or image of nearly
total insignificance a mere marble along the way and make it significant by the imaginative effort of paying attention. I am not advocating that lawyers or poets make up facts
or images. Rather, I am saying that if the lawyer or the poet pays enough attention, he can
learn that what seems insignificant hardly ever is, and, indeed, the outcome of the entire case,
the meaning of the poem itself, may ultimately turn on it.
Are lawyers and artists completely different and atagonistic? (2009-01-23 14:32)
Wendy Duong of the University of Denver Sturm School has written an article entitled Law Law is Law
and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.
Its a fascinating article and well worth dowloading and reading, but here Id like to take issue with
one of her principle points. As she puts it in the abstract to her article:
The two disciplines, Law and Art, remain divergent and incompatible in three core aspects:
(i) the mental process of creation and the utilization of facilities, (ii) the work product or
output, and (iii) the raison detre of law versus art. The Article points out that the mental
process and utilization of facilities inherent in law has little to offer the creation of art, and
the two creative processes are antagonistic to each other. In fact, the rationality and logic
properties of law the objective of rendering certainty to uncertain future outcomes so as to
achieve and maintain order will interfere with, and can even destroy, the creation of art.
I will confess that I would not generally consider the product of legal practice art and it would be a
stretch to fit even certain extraordinary legal products art Perhaps the Declaration of Independence?
The Constitution? Certain influential legal opinions?)
But does law render certainty to uncertain future outcomes? I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong
attributes to art.
Life is infinite. Each case courts decide are intended first, of course, to resolve the specific cases they
are resolving. But to the extent they render opinions, they are only contingently trying to address the
future, and they know those contingent efforts are subject to irrelevance under new circumstances.
Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always
striving to govern. In doing so, it is constantly striving to envision the future material conditions the law
might apply to and to anticipate those conditions in making law. Lawmakers then do not decide with a
certainty what law they want to impose from above on the future; they collaboratively work out the best
approach to whatever they can envision, knowing all the while that the law may well have to change in
the future.
The practice of law too is the constant telling of stories stories to persuade, stories to inspire, stories to justify visions of the future. In doing so they are as constrained as artists in the realities
available to them. Lawyers are artists. They may have to make decisions, but that doesnt mean that in
getting to those decision-making points they are not as creatively engaged as artists.
Finally, if lawyers arent engaging in the same mental facilities as artists, I dont have a clue what
mental processes artist and lawyers engage in. I suspect if those ways of thinking are entirely divorced
from one another, the lawyers arent practicing law well and the artists are not producing good art.
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And if artists visions are irrelevant entirely from decisions people make in life (You must change your
life.), what is it?
Oppositional figures? (2009-01-26 17:26)
Art and law are ways of exploring, defining, and even creating
the world. They are also often romanticized as methods of expressing opposition opposition to the
ruling order, opposition to the status quo, opposition to conventional wisdom. Princeton will soon be
hosting a symposium on The Art of Opposition. The promotional materials state:
Throughout history artists have created works as a form of opposition, whether to a

dominant political order or to familiar social mores and conventions. This polemical mode
of conceiving and interpreting art continues: artists frequently present their own work as
a challenge to the status quo, while scholars and critics of contemporary art reinforce the
notion that for art to be relevant it must at some level present a critique of prevailing habits
and attitudes. For art historians, the concept of art as a form of protest or a challenge
to established convention remains a frequent point of departure for research, particularly in
relation to certain artists or in the study of specific historical junctures.
Art too, of course, has a long history of reinforcing the status quo, of glorifying the powers-that-be.
Virgils Aeneid is at least in significant part pro-Augustan propaganda. And you dont exactly find the
worlds greatest art (or most art) in the more pedestrian places. Patronage has its price.
Law as well has its long history of opposition. Our entire system of litigation is founded an adversarial process. More to the point, however, lawyers have often been at the forefront of progressive social
movements. As in the case of artists, however, it is not skill and creativity that frees one from the mass
of humanity, or even from the forces that crush the most noble parts of humanity. It is the use to which
one puts that skill and creativity.
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Copying or transforming? (2009-01-26 19:14)
Brian Sherwin of myartspace>blog is very upset with

Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image
by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to
the photographer and, of course, never compensated him. I dont share Sherwins umbrage. The photo
on the right is a generic image that is indistinguishable from photos seen constantly the world over these
last several months. The image on the left became a resonant symbol. The photo could not begin to be
considered a substitute for the poster. I think the poster is in fact transformative of the photo.
A funny thing happened on our way from the Cold War (2009-01-27 20:41)
Who wouldve thought it? We win the Cold War, but unfettered free markets dont lead to prosperity and peace. We sanctify property, but we find property rights dont promote productivity. Nature
Biotechnology reports that a new survey shows scientists consider the proliferation of intellectual property
protection to have a strongly negative effect on research.
When does appropriation serve creativity? Quite often, in fact. (2009-01-27 21:49)
A commenter to yesterdays post on Shepard Faireys Obama poster

has suggested that I dont believe in copyright because I believe that, even though Fairey created his image
by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization
within the campaign poster might well be sufficiently transformative to make his work non-infringing fair
use. In fact, Id go so far as to say I genuinely believe Faireys image is a creative work in its own right
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even though it derives from another work.

In that regard, its worth noting that Henry McKervey and Declan Long, in Makers and Takers: Art
and the Appropriation of Ideas, write::
[I]t is the expression of an idea which is subject to legal protection. While perhaps this
has meant that an artist such as Gillian Wearing can be faced with difficulties over the
unattributed re-application of her work, the law also could be said to give artists a relative
amount of freedom to take and re-use material in any number of subtly different ways without
the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordons 24 Hour
Psycho, for instance, there is in one sense very little of the artists own work (Hitchcocks
classic thriller being merely re-played at a radically slowed-down pace) yet Gordons intervention makes for a powerful, transformative artistic statement. The question of knowing
originality when you see it is almost beside the point in cases such as this: artists strategies
of appropriation prompt questions of originality to become thematically intriguing on, one
level, while also being critically irrelevant and, on occasion, inappropriate, on another.
Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in
copyright. It means, rather, that I believe that copyright should serve the only purpose it constitutionally
is meant to serve: increased invention and creativity.
And did anyone notice that the John Williams composition played at the inauguration, Air and Simple
Gifts, borrowed heavily from Aaron Coplands Appalachian Spring, which itself appropriated a Shaker
hymn?
One artists take on issues related to Shepard Fairey (2009-01-28 21:23)
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And still another take on appropriation and originality (2009-01-28 21:46)
Heres an old film that fueled my imagination (2009-01-28 21:53)

Its a good day for feisty working women. (2009-01-29 11:31)
On January 6, I wrote about Writing Wrongs the American Way in connection with the travesty of the
Supreme Courts decision in the Lily Ledbetter case and the pending legislation intended to correct that
wrong. Well, today President Obama signs the Lilly Ledbetter Fair Pay Act into law. In todays New
York Times, Gail Collins explains clearly and concisely the injustice Ledbetter suffered:
Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama.
How, when she neared retirement, someone slipped her a pay schedule that showed her male
colleagues were making much more money than she was. A jury found her employer, the
Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But
the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetters
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case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid
her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your
co-workers salaries within the first six months on the job.) Until the Supreme Court stepped
in, courts generally presumed that the 180-day time limit began the last time an employee
got a discriminatory pay check, not the first.
Ledbetter, unfortunately, will not benefit from the new law. The Supreme Court decision in her case was
a final judgment that cannot be undone. But Collins does her some justice in celebrating her willingness
to fight for her rights. And Im glad to see too that Collins recognizes the importance of lawyers in the
fight for justice too:
Its a good day for the feisty working women who went to court to demand their rights and
the frequently underpaid lawyers who championed them. Theyre strangers to one another;
most of them made their stands and then returned to their ordinary lives. But theyre a
special sorority all the same.
How the Stimulus Bill will become law. (2009-01-30 13:35)

With Obamas stimulus bill wending its way through Congress, there seems no better time to review the
legislative process, and I have never found a better way than Schoolhouse Rock to do exactly that:
The Lonesome Death of Hattie Caroll and the recent death of her killer.
(2009-01-30 23:46)
William Zantzinger, a Maryland man who became the subject of 1964 Bob Dylan song The Lonesome
Death of Hattie Carroll, died earlier this month at the age of 69.
2.2
February
Economic pressures motivate
law firms to try innovative billing practices
(2009-02-01 02:20)
There is nothing new in lawyers trying to find ways to price their services in ways other than the
standard practice of charging a price for each billable hour of work performed for a client. Each lawyer,
of course, is billed to a client by her firm at a different rate, the precise rate per lawyer depending
primarily on her experience. When I began practice in 1984, my firm billed my work to it clients at
about $100 per hour. By the time I left practice to teach, the hourly rate my firm billed my time out to
clients was $315 dollars per hour. I can only imagine that had I continued in practice, by now, twelve
years later, my hourly rate would be in the ballpark of $500 an hour. According to the New York Times,
Cravath, Swaine & Moore in New York is one of a number of large firms whose most senior lawyers bill
more than $800 an hour.
Lawyers have always also used pricing schemes other than billing per hour. Certain types of
transactions are generic enough that lawyers can charge a flat rates for representing a clients in such a
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transactions. And, of course, firms that represent clients with modest to poor economic means suing
wealthy clients have regularly charged contingent fees, collecting a percentage (typically 25-40 %) of any
recovery achieved as a result of the lawsuit. Those firms finance their losing cases with the windfalls
they earn in winning cases. And their clients benefit because without the contingent fee arrangement
they could not possibly afford to pay for the lawsuit. The most typical types of cases employing these
billing methods are personal injury and malpractice lawsuits.
But in most other situations the billable hour has been the standard way to price legal services.
There always have been severe criticisms of the practice. Its potential defects are plain. Some firms
break the hour into 15 minute segments; others into 6 minute segments. If you perform one minute of
work by, say, making a brief telephone call on behalf of a client, you might well record an entire billable
segment (6 or 15 minutes) for the call. Everywhere I worked I had the discretion to choose not to record
time for such brief tasks. So I wouldnt. I couldnt justify the cost the minimal effort would cost the
client. If, for example, an attorney makes a one minute telephone call, the attorney records that call as
fifteen minutes of billable time, and his firm bills his work out at an hourly rate of $300 dollars, that one
minute phone call would cost the client $75.
But the fact I wouldnt bill a quarter of an hour for a one minute phone call could hurt me in a
very real way. It reduced the amount of time I recorded as billable hours.
And the number of hours a lawyer bills over the course of a year plays a significant part in the
firms evaluation of his performance. The lawyers conducting the evaluation may understand that
the sheer number of billable hours bears little relationship to the quality of a lawyers work, but any
overburdened organization engaged in evaluation tends to put a lot of weight on hard numbers that bear
little relationship to the qualities being evaluated. So my failure to bill a quarter hour for one minute of
work could work against me in my efforts to advance within my firm.
The system also biased the evaluations against better lawyers. I always prided myself on my research and writing skills. I felt I could identify, analyze, and research a disputed issue faster and more
effectively than any of my colleagues. I also felt I wrote better and more quickly than my colleagues.
Yet colleagues who were slower at the same work I did billed more hours for that same work, and that
higher number of hours accrued to their benefit, at least in part, when our performances were evaluated.
I was exceedingly fortunate in not suffering from these potential defects in the billable hour system. I worked regularly with a close-knit group, so we knew each others work well. Our work, therefore,
could be evaluated direrctly on the basis of its quality. But the larger the firm and the more a lawyer is
shuttled from colleague to colleague as he works on new matters, the less the firm will evaluate his work
based on its intrinsic quality and the more the firm will rely on the number of his billable hours. And
some firms, naturally enough, dont care why a lawyer might bill more hours than a better performing
colleague. The higher number of hours mean more money for the firm.
I certainly felt the constant pressure to bill as many hours as possible. Over my 12 years of
practice I billed between 1900 and 2400 hours a year. 1900 billable hours seemed a livable amount of
work (and seemed to be the minimum an associate could get away with), but it hardly amounted to
what most people would consider a reasonable work schedule. For one thing your billable hours are
not the hours you work. They are only the hours you work on matters that can be billed to clients.
The hours spent on administrative work on behalf of the firm, on pro bono work, on training younger
attorneys, and on the necessary interludes from the demanding work are not billable hours. In my last
years of practice, as a partner, when I was still a relatively young but experienced commercial litigator,
I generally was in the office from 8:30 a.m. until sometime between 7 and 8 p.m. I also worked regularly
on weekends for 3 to 8 hours. During my busiest times, which occurred with regularity, I could easily
bill something on the order of 110 hours a week. I dont know how I did it. There are only 168 hours in
a week.
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The system provides an incentive to the firm itself, and not merely its lawyers, to maximize the
number of hours billed to a client. The more time a firm spends on a matter, the more money the firm
will make. That makes for a perverse incentive clients want matters resolved as quickly and cheaply as
possible. But it is in lawyers short term financial interests to resolve matters in the most complex and
drawn out ways possible. As the New York Times points out, In litigation, firms that charge by the
hour can suffer if they are too successful and end a lawsuit - and the stream of payments from continuing
work - too quickly. One law firm that recently collapsed, Heller Ehrman, was hurt in part because a
number of cases had settled.
The defects inherent in billing by the hour began to become an issue to clients in the late Eighties as a consequence of the economic difficulties set off by the 1987 stock market crash and the Savings
and Loan debacle. Money was tight, so clients would scrutinize more carefully the prices they were being
charged and the ways those prices had been arrived at. It doesnt surprise me, therefore, that the New
York Times suggests that todays rough economic climate is making clients more demanding, leading
many law firms to rethink their business model.
One change demanded by a client I worked for back in the late Eighties and early Nineties was
to produce a detailed budget in advance of his decision to have our firm represent his company in a
lawsuit. The budget would provide an estimated cost of the representation, with the ultimate cost
limited no more than a fixed amount above the estimated total cost. The budget would lay out in
detail the work that would have to be done work that would include, among a myriad of other things,
drafting pleadings, drafting and arguing any and all pre-trial motions, conducting discovery (including
the oral examination of witnesses under oath in depositions, the review of documents, and our own
independent investigation into relevant matters), any and all legal research that might become necessary
in the course of the case, the retention and preparation of any experts that might be required, and the
preparation of our own witnesses for both deposition and trial testimony.
The time and effort necessary to conduct these tasks is to a great degree unknowable in advance
of a lawsuit. Moreover, unforeseeable complexities are almost inevitable. It is virtually impossible to
calculate the number of new claims that might be asserted in a lawsuit, the number of new parties who
might be drawn into it, the number of new legal issues that will inevitably arise in the course of the
case, and the amount of work each of these and other unforeseen complications will require. Preparing
these budgets was one of the most difficult things I ever did as a lawyer because so much of their content
seemed largely the result of guesswork.
It was not, however, a senseless product I was producing. Essentially, the budget set forth our
best estimate of a fixed fee for all the work required to conduct the lawsuit through trial. In the event
the case settled before trial , our fee would be limited to the amount the budget had allocated for the
work we had actually done.
With the recovery of the economy in the Nineties and the enormous sums earned by corporate
America, the motive to impose such novel billing methods waned, and the billable hour managed to
maintain its role as the foundation of large firm billing practices.
But, as Fridays New York Times stated:
The evidence of a shift away from billable hours is, for now, anecdotal, as few surveys exist.
But partners at a half-dozen other big bellwether firms and lawyers at corporations, who
sometimes engage outside counsel, say they are more often seeing different pay arrangements.
One such novel scheme was followed by Morrison & Foerster, and in fact resulted in the firm earning a
much higher fee than if it had charged by the hour:
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In one case, he said, Morrison & Foerster negotiated a fixed fee for defending a company
in court, covering work up to the point of a motion for summary judgment.
On top of the fee, if the case settled for less than what the company feared having to pay if
it lost in court, the law firm got a percentage of the amount saved. The arrangement made
sense when the goal was to resolve the dispute quickly, Mr. Leonard said.
Lawyers on the case negotiated a settlement for much less than the clients worst-case number,
Mr. Leonard said. The effective hourly rate was something like 150 percent of our hourly
rates, he added. We made money, the client was happy.
What other types of pricing will clients and lawyers develop? It remains to be seen. But since the financial crisis seems more dire than any weve experienced in the last seventy years, law firms might have to
engage in the first comprehensive overhaul of their pricing systems since at least the Sixties.
Finally, let me emphasize that there are good lawyers and bad lawyers, just as there are good and
bad people in every profession. The people I worked closely with were kind, generous, hardworking, and
dedicated to serving our clients as efficiently and effectively as possible. We would not bill a quarter of
an hour for a one minute phone call. The founder of one firm I was a member of for many years, Gene
Anderson, made sure the firms lawyers put our clients first in everything we did. Any business air travel,
for example, had to be made in coach class. Every lawyer I knew at comparable firms would fly First or
Business Class. Doing the least expensive and most efficient work for the client was, in short, the ethic
of almost every lawyer I personally worked with.
But I have encountered many a lawyer whose ethic is to extract from his every cent he can. The
principal way to maximize ones fees is to fight as long and hard as possible on any and every issue that
can be made into a fight. The truly sad part of this phenomenon is the belief among many, many people
that the most effective lawyer is the nastiest lawyer. Those people get their nasty lawyers. They also
make the cost of their representation as high as possible.
Nastiness is bad lawyering.
How do we promote creativity? (2009-02-03 15:46)

One common theme that runs through my views regarding intellectual property is that there is way too
much treatment of intellectual property as the equivalent of real property (that is, land). I can fence off
my land and keep everyone off of it. Therefore, too many feel, I can fence off my intellectual property and
prevent anyone from doing anything with it that I dont give them permission to do. One commenter on
my post last week regarding Shepard Faireys Obama campaign poster manifested this confusion about
the differences between real property and intellectual property. I think the authors who didnt want their
books to be accessible for word searches via the Google Library Project did as well.
My greatest knowledge about intellectual property concerns copyright. The first thing to know is that
copyright is a relatively recent legal creation and that tall U.S. copyright law exists by virtue of and
within the limits of 27 words in Article 1. Section 8 of the U.S. Constitution:
The Congress shall have Power . . . To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.
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In other words, copyright law exists to promote invention and creativity, and to the extent it discourages
invention and creativity it is unconstitutional. Works that are genuinely creative in their own right but
appropriate copyrighted works (Girl Talk and Shepard Fairey, among many others) therefore have a very
strong claim to legitimacy as long as they do not exploit the market created by the original work. Indeed,
thats exactly what the fair use doctrine is intended to allow and is beginning to reflect.
My views are shaped to a considerable degree by my belief that all creativity is grounded in previous work, and that the more leeway the law gives to appropriation the more creativity we will have. Of
course there are limits. You cannot entirely rob the artist of the financial profits of his work. But using
that first artists work in an altered way that creates something people want for reasons entirely different
than the reasons they wanted the original work does not rob the first artist of the fruits of his labor.
Rather, it allows someone else to sprout new fruit.
Apparently, IBM shares this attitude with respect to inventions it could patent. As Securing Innovation reports:
IBM used the occasion of the recent announcement of its 2008 patent record to introduce
plans to help stimulate innovation and economic growth. The company plans to increase by
50 % to more than 3,000 the number of technical inventions it publishes annually instead
of seeking patent protection.
Why? According to IBMs press release:
Publication of technological information is one means to promote the Progress of Science

and useful Arts the phrase in the U.S. Constitution giving the Congress the power to enact
patent laws. Publication protects inventors from allegations of infringement by placing the
intellectual property into the body of prior art. Publications also improve patent quality, since
they can be cited by patent offices in limiting the scope of patent applications. Publication
also helps spur follow-on innovation that ensures dynamic business growth.
While IBM will continue to seek patents and will protect its intellectual property, its planned
increase in publishing inventions will focus on those technology areas that will increase the
build out of a new, smarter infrastructure. The evolution of IBMs policy builds on prior
efforts to stimulate innovation by pledging not to assert certain patent rights in the area of
open source software, health care, education, the environment, and software interoperability.
A happy and grateful welcome to A + E: Art + Environment / Architecture +

Engineering / Aesthetics + Ethics (2009-02-03 16:04)
And speaking of promoting creativity, Im thrilled that Pavel and Alex Getov, the principals of Studio
Antares A+E, have joined the the Geniocity collaborative with a new blog, A + E: Art + Environment
/ Architecture + Engineering / Aesthetics + Ethics.
Shepard Fairey,
Creator of Iconic Obama Image,
Speaks About His Art
(2009-02-04 01:34)
Detroit Mercy is one of the most innovative law schools in the U.S. (2009-02-04 13:03)
Many people (more often lawyers than law professors) believe law school education is in dire need of
innovation. I am very proud to note that the school where I am teaching this year, the University of
Detroit Mercy Law School, was featured in the current issue of National Jurists PreLaw Magazine as
one of the ten most innovative law schools in the U.S.
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The fight is on: AP sues Shepard Fairey. (2009-02-05 00:26)

Brian Ledbetter has the news and a comprehensive set of links to various views on a dispute Id love to
see resolved in a court (even the Supreme Court): AP has sued Shepard Fairey, claiming that his Obama
poster infringes APs copyright in the photo Fairey stenciled before altering its colors, its background,
and Obamas suit jacket and tie to create the poster that became an iconic symbol of the presidential
campaign. I hope Fairey sticks to his guns and fights this out without settling. I think his poster so profoundly transforms the impact of the image from the photograph that his poster is not an infringement.
And AP has been known to assert blatantly silly infringement claims. Of course, not everybody feels
the way I do. So Id very much like to see the matter decided, and I suspect Fairey, unlike many of the
victims of copyright overclaiming, has the resources to take the case to trial and through appeal.
ADDENDUM: I am not alone in my conviction regarding the tranformative way Faireys poster alters the AP photograph. Submitted to a Candid World Writes:
Part of the law thats grown up around these simple factors is the doctrine of transformative use, whereby a copyrighted work appropriated but utterly transformed in meaning
and substance provides the original artist with no valid copyright claim. Oddly, to satisfy
this doctrine, artistic transformation of an artistic work may not be enough, even if the effect
of the transformation is to invert the works meaning. The law requires more than a different
perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).1
But Faireys case is a significantly greater reinvention: here, Fairey took an image intended
for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obamas historic candidacy and unique promise. In the process
of creatively altering the image from the purely representational to the artistically abstracted,
he added meaning and value, and he crossed expressive genres in the process, depriving the
AP of any legitimate claim of lost revenue. This may just be over the border of fair use,
but fair use it is. The AP should back off.
Let us regain the understanding that law is to do Justice. (2009-02-05 10:44)

There are many, many changes Id like to see the Obama administration implement and encourage in
the law, and todays collective effort to comment on our hopes for the new administration in each of our
respective areas of expertise will spur me to address many of these specific matters in the coming days
and weeks. But for today, I would like to address a topic particularly dear to my heart: the art of legal
interpretation.
Over the last 30 years or so, there has been a relentless drumbeat from the right attacking judges deemed
too liberal for being too activist, for making law, not merely applying it. The judges we need, its
been said, are strict constructionists who apply the law as it is written, not as the particular judge
might wish it to be.
This rhetoric has obscured what judging is. It is not a controversial proposition to state that interpretation of legal language is not merely a matter of applying words to facts. Words are too ambiguous,
and the world is so complex that the legislators who write the words of statutes cannot possibly foresee
every possible situation to which the statutes will apply. Judges, thus, must make judgments. Judgments
require weighing different possible interpretations and different possible implications and different possible intentions.
Worst of all, however, I fear weve lost sight of the fact that judges are part of a justice system. Their
efforts to properly interpret and apply the law should always be guided by the effort to achieve justice.
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Weve lost sight of the fact that judges are people whose judment we must trust to do justice. As
Euripides put it, you must judge a tree from its fruit, not from its leaves.
The infamous Lily Ledbetter case is a perfect example of what has gone wrong. As Gail Collins recently summed up the facts of the case:
Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama.
How, when she neared retirement, someone slipped her a pay schedule that showed her male
colleagues were making much more money than she was. A jury found her employer, the
Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But
the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetters
case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid
her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your
co-workers salaries within the first six months on the job.) Until the Supreme Court stepped
in, courts generally presumed that the 180-day time limit began the last time an employee
got a discriminatory pay check, not the first.
The operative language of the statute provided that A charge under this section shall be filed within
one hundred and eighty days after the alleged unlawful employment practice occurred. Interpretation
of a statute is typcially described as an effort to determine the intent of the legislature that passed the
statute. Could Congress have intended to outlaw discrimination in employment on the basis of sex and
yet have provided that someone who could not have found out about a discriminatory decision until long
after it had intitially been made could not recover. Such an interpretation seems absurd. Thus, it is no
surprise that prior to the Supreme Courts decision courts had typically held that each new paycheck
for an amount less than it would have been in the absence of the discrimination constituted an alleged
unlawful employment practice. Thus, the employee could sue for disrimination within 180 days after the
most recent pay check that resulted from the discrimination.
These decisions made perfect sense. As I said, it would be absurd to believe Congress intended people like Lily Ledbetter, who had no knowledge until she neared retirement that her pay was lower than
that of her male colleagues merely because she is a woman, should not have an opportunity to sue over
that unlawful discrimination.
Yet, Justice Alito held that that absurdity was precisely what the statute required the Court to find.
As Justice Ginsburg explained , joined by Justices Stevens, Souter, and Breyer in her dissenting opinion,
Alitos reading was a cramped one that flew in the face of what Congress plainly had intended:
[U]nder the Courts decision, the discrimination Ledbetter proved is not redressable under
Title VII. Each and every pay decision she did not immediately challenge wiped the slate
clean. Consideration may not be given to the cumulative effect of a series of decisions that,
together, set her pay well below that of every male area manager. Knowingly carrying past
pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor,
were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for
substantially similar work. The Courts approbation of these consequences is totally at odds
with the robust protection against workplace discrimination Congress intended Title VII to
secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 (The primary purpose of Title
VII was to assure equality of employment opportunities and to eliminate ... discriminatory
practices and devices ... . (internal quotation marks omitted)); Albemarle Paper Co. v.
Moody, 422 U. S. 405, 418 (1975) (It is ... the purpose of Title VII to make persons whole
for injuries suffered on account of unlawful employment discrimination.).
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This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statutes broad remedial purpose. See . . . 1 B. Lindemann & P. Grossman,
Employment Discrimination Law 2 (3d ed. 1996) (A spate of Court decisions in the late
1980s drew congressional fire and resulted in demands for legislative change[,] culminating in
the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress court. As
in 1991, the Legislature may act to correct this Courts parsimonious reading of Title VII.
Congress did fix the Courts wrong, and on January 29 of this year President Obama signed into law the
Lilly Ledbetter Fair Pay Act. But it should never have gotten to that point. Judges should judge, should
bear the fruit of justice. To say so is not to argue that judges should ignore what the law says. But it
is to say that judges should be open to what the law does as well, and that what the law ultimately is
supposed to do is justice.
Thus, I would like the Obama administration to appoint judges whose judgement we can respect and
trust, and to push hard to re-educate the public about what law and justice are to, in other words,
begin to redress the cultural tide of the last 30 years that has learned to fear critical judgment and to
ignore justice.
Why AP has little chance of success against Shepard Fairey (2009-02-06 20:20)
Let me explain in greater detail why I not only think Shepard Fairey will prevail in the lawsuit
AP has brought against him for copyright infringement, but also why I think it isn t even a close case.
The case, of course, involves Fairey s poster (pictured on the left), which Fairey created by first stenciling
the AP photo wire photo pictured on the right.
As the Stanford Copyright & Fair Use site explains, determining whether a work that appropriates all or part of a copyrighted work is no easy thing:
The only guidance is provided by a set of fair use factors outlined in the copyright law. These
factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one
important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing
the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to
navigate.
The four factors and my evaluation of their significances in this case are as follows:
(1) The Purpose and Character of Your Use: As the Stanford Fair Use & Copyright site makes
clear, this factor turns to s large degree on the following two questions:
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(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?(b) Was value added to the original by creating new information, new aesthetics,
new insights and understandings?
As I ve already made clear, I am convinced of that Fairey s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are
plainly images of Obama and that in both his expression and the tilt of his head are the same, the two
images are entirely different. They are so different, in fact, that for many, many months no one, much
less AP, was even able to identify the image from which Fairey started from. The physical changes
Fairey has rendered to the image are plain. He has changed elements, and, through his painting style,
simplified the elements significantly. In one image, you have all the complex information of a photo; in
the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could
not possibly have become an iconic image of the presidential campaign. The Fairey poster did.
(2) The Nature of the Copyrighted Work: The AP photo is a generic wire service photo. While
photography is, of course, a creative endeavor, some images are more creative than others, and the AP
photo of Obama is about as generic as they come. First, it s an image of the most recognizable face in
the world. Second, there is nothing special about it. This generic nature of the work is emphasized by
the fact, as I pointed out above, that it took months before someone (not from AP), after scouring the
internet on a search for the source of Fairey s image, finally found the right one. AP had not even known
its copyright image was part of a poster that was visible all over the country and in all the media.
(3) The Amount and Substantiality of the Portion Taken: In fact, this might be the factor that
counts most seriously against Fairey, but even this factor is, I believe, a close call. As i explained above,
about all Fairey s image ultimately uses is the expression and the tilt of Obama s head. The very nature
of the image is changed from that of a photograph to that of a semi-abstract painting. The background
is changed. The color of the tie (a generic tie on a generic suit) is changed. The circular Obama symbol
on the suit s lapel is added. And, of course, the word HOPE is added.
(4) The Effect of the Use Upon the Potential Market. This factor, which in the past has been
referred to as the most important factor, isn t even close. Fairey s image has obviously had NO negative
impact on the market for the AP photo. The only possible effect, a likely one, is that it has substantially
increased the value of AP s copyrighted image.
The Stanford Copyright & Fair Use site also points out that Fair use involves subjective judgments and are often affected by factors such as a judge or jury s personal sense of right or wrong.
The fact that Fairey s image was produced as his contribution to a political campaign would, I believe,
weight the case even more heavily in his favor. The courts give great leeway to political speech, which is
at the very core of the First Amendment s values.
ADDENDUM: Brian Ledbetter kindly quotes substantially all of this post and expresses agreement with most of it, but also expresses two reservations: (1) cross-media copying like Fairey s
whether it be from photograph to painting, painting to statue, photo to Hallmark card-does not necessarily fall under fair use exceptions of Copyright law and (2) modern technology makes alterations
to photos like the ones Fairey made to the AP photo so easy that we ll have to begin to believe that
anyone can create art.
My response, reproduced from the comments to his post:
Cross-media copying is not fair use only to the extent that the result is a derivative use. What
constitutes a derivative use may be as obscure as any other matter on this topic, but it cannot possibly
mean any work that is derived from a copyrighted work. Every fair use is derived from a copyrighted
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work.
So what is a derivative work? I would submit it is something that exploits at least in part the
market created by the original work. Thus, for example, a Snoopy mug would be a derivative work, as
would a cover song. I would submit that this mashup, though quite entertaining, is a derivative work in
that all it does is exploit the market created by Charles Schulz and OutKast:
The trivia book based on Seinfeld was a derivative use because its targeted market was the audience created by the sitcom. The bio of Salinger that was enjoined was a derivative use because it used
such large portions of unpublished Salinger letters that it at least in part was intended to exploit the
market for people hungry for anything new by Salinger (he hadn t published in decades).
But [Brians } Tom Daschle photo.isnt exploiting any market created by the original. And you
know what? The more and more such things get turned out, the less and less theyll have an impact.
Theres no denying that Faireys image, while simple, is a powerful one, or at the very least that it
resonated as one with a huge portion of the public. I dont think [Brians] Daschle workup would. And
if so, so what? Does that hurt the original photographer? Are we to stifle your creativity to protect
some right of the photographer not to have his photograph used in ways he doesn t want it used? There
is no such right. Instead, there s the First Amendment, which, in the absence of copyright (created to
PROMOTE creation) would allow us to use anything.
Again, lets give more attention to individual justice and less devotion to abstract
rules (2009-02-09 10:24)
The hope for the Obama administration I expressed in my post last Thursday was that it would promote
a legal culture in which courts would begin to pay more attention to the justice required in individual
cases rather than, as has been increasingly true over the last thirty years, feel increasingly bound to
abstract interpretations of language that lead to plainly unjust results. My focus in that post was on
statutory interpretation, but the same sentiment applies to the interpretation of contract language, as
Ralph James Mooney made clear in The New Conceptualism in Contract Law, 74 Or. L.Rev. 1131, 11701171 (1995). Mooney also noted, as I implied in last Thursdays post, that the new focus on abstract
rules and language at the expense of just results in individual cases invariably favors moneyed corporate
interests:
Just as they have in contract formation disputes, American courts recently have embraced
far more conceptualist approaches to contract interpretation issues. They [exalt] the written
word over the parties actual . . . agreement. They exercise their pre-modern faith in
the objectivity of language, and overturn jury verdicts, by applying classical interpretive
rules like plain meaning, four corners, and interpretation as a matter of law. In general,
American courts the past dozen years have moved noticeably away from the most fundamental
theorem of contract interpretation, that the law should enforce the parties intention, toward
a more abstract, disembodied inquiry, resembling, what should the parties have meant when
they signed this form contract? In addition, this intellectual regression once again has had
important political consequences. . . . Notice that, as in formation cases, it is almost
invariably a seller, a bank, an employer, or . . . an insurer that benefits from the New
Conceptualism in contract interpretation. This judicial tilt away from underdogs, back toward
the privileged beneficiaries of classical contract law, is, of course, the New Conceptualisms
most troubling feature of all.
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Now Shepard Fairey sues AP (2009-02-10 01:25)

The AP/Shepard Fairey showdown continues. The New York Times reports:
In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against
The Associated Press, asking a federal judge to declare that he is protected from copyright
infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign
poster image of President Obama. . . .
Mr. Faireys lawyers, including Anthony T. Falzone, the executive director of the Fair
Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey
used the photograph only as a reference and transformed it into a stunning, abstracted and
idealized visual image that created powerful new meaning and conveys a radically different
message from that of the shot Mr. Garcia [the photographer] took.
Further complicating the matter is the fact that Mr. Garcia contends that he, not the Associated Press,
owns the copyright for the photo. Mr. Garcia also states, If you put all the legal stuff away, Im so
proud of the photograph and that Fairey did what he did artistically with it, and the effect its had.
Mr. Garcia might want to put the legal stuff away, but, as Ive written, the legal stuff is precisely
what Mr. Garcia is talking about when he talks about what Mr. Fairey did artistically with the photo
and that the effect his artistic transformation of the photo had. That Fairey so transformed the photo
into something that changed the stencil of a generic wire service campaign photo into an iconic image is
a huge part of why legally what he did is perfectly legitimate. So, while Mr. Garcia might not condone
people taking things, just because they can, off the Internet, what Mr. Garcia condones or does not
condone is really what is not the legal stuff.
I think the answer is yes. (2009-02-11 00:04)

James R. Elkins asks:
My question is this: Is there a way to make use of the imagined spaces in which we readread as students of law, read novels for pleasure-and perceived chasm between pleasure and
work? Is there a middle ground of reading, a strategy for reading, that would allow a student
of law to think about reading law cases as literature and reading novels as if they might be of
central importance in the way one becomes a lawyer? Is there a way to read law for pleasure
and novels as instructive vocational texts? If so, we may find in lawyers and literature, that
well need to redefine pleasure and purpose; we redefine what it means to be a reader of law
and of literature.
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The Great Emancipator, 200-year-old mashup artist (2009-02-12 02:23)
Reflecting on Abraham Lincoln s 200th birthday, I ve made the startling discovery that he was not only an
inventor but that he espoused ideas that constitute one of this blog s principal themes
that innovation
and progress require the technical capacity and the legal freedom to exploit existing knowledge.
I hadn t learned in school or in the many books I ve read about him since that Lincoln is the only
President to have applied for and received a patent. It was for a device to lift boats over shoals. In
fact, throughout his life Lincoln was fascinated by mechanical devices. William H. Herndon, his law
partner, wrote that Lincoln evinced a decided bent toward machinery or mechanical appliances, a trait
he doubtless inherited from his father who was himself something of a mechanic and therefore skilled in
the use of tools.
On February 11, 1859 (on the eve of his 50th birthday and precisely 150 years prior to the moment
at which I am writing this post), Lincoln delivered a lecture on Discoveries and Inventions in Jacksonville, Illinois. Published as the Second Lecture on Discoveries and Inventions, Lincoln described the
U.S. as the embodiment of a youthful vitality that caused some to think it conceited and arrogant but
also made it the inventor and owner of the present, and sole hope of the future.
Lincoln attributed this extraordinary national role to America s capacity for innovation:
The great difference between Young America and Old Fogy, is the result of Discoveries,
Inventions, and Improvements.
But Lincoln didn t consider America s talent for innovation to be the product of some unprecedented
national genius. Instead, its inventiveness resulted from the recognition that innovation requires using
and building on earlier innovation. Thus, speaking of the invention of the steam engine, Lincoln made
clear that his comparison of Young America to Old Fogies was ironic:
[W]as this first inventor of the application of steam, wiser or more ingenious than those
who had gone before him? Not at all. Had he not learned much of them, he never would
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have succeeded probably, never would have thought of making the attempt. To be fruitful
in invention, it is indispensable to have a habit of observation and reflection; and this habit,
our steam friend acquired, no doubt, from those who, to him, were old fogies.
Furthermore, while humans instinctively exchange knowledge, the progression from speech to writing to
printing was indispensable to facilitating all other inventions and discoveries :
When man was possessed of speech alone, the chances of invention, discovery, and improvement, were very limited; but by the introduction of each of these, they were greatly
multiplied. When writing was invented, any important observation, likely to lead to a discovery, had at least a chance of being written down, and consequently, a better chance of
never being forgotten; and of being seen, and reflected upon, by a much greater number of
persons; and thereby the chances of a valuable hint being caught, proportionally augmented.
By this means the observation of a single individual might lead to an important invention,
years, and even centuries after he was dead. In one word, by means of writing, the seeds of
invention were more permanently preserved, and more widely sown. And yet, for the three
thousand years during which printing remained undiscovered after writing was in use, it was
only a small portion of the people who could write, or read writing; and consequently the
field of invention, though much extended, still continued very limited. At length printing
came. It gave ten thousand copies of any written matter, quite as cheaply as ten were given
before; and consequently a thousand minds were brought into the field where there was but
one before. This was a great gain; and history shows a great change corresponding to it, in
point of time. I will venture to consider it, the true termination of that period called the dark
ages. Discoveries, inventions, and improvements followed rapidly, and have been increasing
their rapidity ever since.
It is easy to imagine, then, that Lincoln would revel in the capacity of today s technology to copy and
disseminate information world-wide in mere moments. Without the technological capacity to pass knowledge across time and space, [i]t is very probable almost certain that the great mass of men . . .
were utterly unconscious, that their conditions, or their minds were incapable of improvement. They
not only looked upon the educated few as superior beings; but they supposed themselves to be naturally
incapable.
But it was knowledge, not intelligence, they lacked. Lincoln knew innovation is not the product of
individual genius towering above the mass of humanity. It is a collaborative enterprise that grows from
one person s creative use of someone else s invention, which itself appropriated another s discovery that
was inspired by something written across the world in an earlier century. To think it could be otherwise
is to enslave humanity not on a plantation but in ignorance:
To emancipate the mind from this false and under estimate of itself, is the great task
which printing came into the world to perform. It is difficult for us, now and here, to conceive
how strong this slavery of the mind was; and how long it did, of necessity, take, to break its
shackles, and to get a habit of freedom of thought, established.
It is even more difficult for us, for whom the printing press seems the equivalent of cuneiform. But if we
are to overcome the challenges we face, we must embrace the full potential of the technology that makes
it so easy to improvise on the creations of others. It is improvisation and reworking and remixing that
leads to innovation and progress.
Who knew that Remix Culture is merely an appropriation of Abraham Lincoln s thinking, that the
Great Emancipator believed that for humans to be truly free knowledge must be free too?
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Courts are supposed to do justice even if doing so costs individuals a lot of money.
(2009-02-13 06:21)
Joe Nocera writes in the New York Times that to even suggest that maybe, just maybe, deals that stop
making sense ought to be called off, or at least rejiggered, especially in the middle of a once-in-a-lifetime
financial crisis - invites withering scorn, especially if you say it to someone on Wall Street or in the legal
profession.
Ive worked in the legal profession on Wall Street, and I like to think that when what the law seems
to compel makes no sense the law has the capacity to adjust, to do justice instead of nonsense. My
thinking isnt purely the product of naivete and idealism. There really is a legal (or, rather, for the
lawyers among my readers, an equitable) argument to stop the particular deal Nocera is writing about.
Moreover, that argument is precisely that the deal makes no sense to an interest the public much
more important than the individuals who would profit mightily from the deal.
Heres the deal: Last summer, the Dow Chemical Company won a heated auction for a well-run, highly
valued specialty chemical company called Rohm & Haas. . . . The price it agreed to pay was high: $78
a share in cash, a 74 percent premium, for a total of about $15.3 billion. The problem is that in light of
the global financial crisis and a collapse of the chemical business, if the deal goes through the resulting
Dow/Rohm & Haas entity could be badly damaged, saddled with high-priced debt in a horrible business
environment, and a junk bond credit rating.
What does that mean? It means that if the deal goes through Dow would need to strip itself to the
bare bones to survive or would collapse altogether. This while Dow Chemical employs around 45,000
people; Rohm & Haas employs more than 15,000. This while the American chemical industry - which
was suffering even before the financial crisis because of the rise of commodity chemical companies in
China and elsewhere - is going to be in a bad place for the foreseeable future. This [a]t a time when
every job matters, and when the economy is holding on for dear life . . .
In return, the shareholders of Rohm & Haas will get $15.3 billion. According to Answers.com, the
Haas family, descendants of one of the companys two founders, continue to control a substantial ownership interest of nearly 30 percent of those shares. So the the Haas family and the other Rohm & Haas
shareholders are suing for specific performance of the contract with Dow; that is, they are asking a
Delaware court to order Dow to go through with the deal to buy Rohm & Haas for $15.3 billion.
Im not sure why theres withering scorn for the suggestion that a court might refuse to enforce a
deal that threatens 60,000 jobs and, as Nocera writes, would probably destroy billions of dollars of
value. Its no stretch to suggest that at a time of global economic collapse and at a time when President
Obama is fighting to inject billions of dollars into the economy, the deal is not in the public interest.
Why am I willing to defy the withering scorn of the Wall Street experts? Because specific performance,
the remedy Rohm & Haas is asking the court to grant, is an what is known as an equitable remedy.
In order to show it is entitled to equitable relief, Rohm & Haas must show that the outcome makes
sense even after the court balances all the equities involved. In other words, the court must determine
whether, considering all of the interests at stake in the lawsuit, ordering the deal to go through would
be more fair than unfair. The public interest plainly is one of those interests the court must consider.
Because the deal poses such a great threat to the public interest, the equities do not favor the deal; the
equities, in fact, weigh heavily against enforcing the contract between Dow and Rohm & Haas.
In legalese, Corporate and Commercial Practice in Delaware confirms that this is the law in Delaware:
[I]f specific performance of a contract would cause significant public harm, then the Court
has discretion to deny such relief, even where a breach of contract and substantial harm to
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plaintiff have been established . . .

1-12 Corp & Commercial Practice in DE Court of Chancery 12.03 (Matthew Bender 2008), citing Alro
Assoc., L.P. v. Hayward, CA 19544 (Del. Ch. Oct. 31, 2003), mem. op. at 22-26 (holding that where
plaintiff had established breach of contract by Delaware Department of Transportation and where Court
had assumed irreparable harm to plaintiff, specific performance was not appropriate due to a balance of
equities weighing strongly in favor of public interest).
Courts really are supposed to do justice notwithstanding the fact Wall Street expresses withering scorn
at the thought.
Collage is art, not theft. (2009-02-16 09:03)

From Negativeland, whom Ive previously mentioned as a precursor to Girl Talk:
[F]rom an artistic point of view, it is ponderously delusional to try to paint all these new
forms of fragmentary sampling as economically motivated theft, piracy, or bootlegging.
We reserve these terms for the unauthorized taking of whole works and reselling them for
ones own profit. Artists who routinely appropriate, on the other hand, are not attempting
to profit from the marketability of their subjects at all. They are using elements, fragments,
or pieces of someone elses created artifact in the creation of a new one for artistic reasons.
These elements may remain identifiable,

or they may
be transformed to varying degrees as they are incorporated into the new creation, where there
may be many other fragments all in a new context, forming a new whole. This becomes
a new original, neither reminiscent of nor competitive with any of the many originals it
may draw from. This is also a brief description of collage techniques which have developed
throughout this century, and which are universally celebrated as artistically valid, socially
aware, and conceptually stimulating to all, it seems, except perhaps those who are borrowed
from.
No one much cared about the centuries old tradition of appropriation in classical music as
long as it could only be heard when it was played live in front of your ears. But now all
music exists as a mass produced, saleable object, electronically frozen for all time, and seen
by its owners to be in continuous, simultaneous economic competition with all other music.
The previously interesting idea that someones music might freely include some appropriated
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music of another has now been made into a criminal activity. This example is typical of
how copyright laws now actually serve to inhibit or prevent the creative process, itself, from
proceeding in certain interesting ways, both traditional and new.
This has become a pressing problem for creativity now because the creative technique of
appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed
mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner
litigations of such appropriation based works because the commercial entrepenours who now
own and operate mass culture are apparently intent on oblitering all distinctions between the
needs of art and the needs of commerce. These owners of mass produced cultural material
claim that similarly mass produced works of appropriation are a new and devastating threat
to their total control over the exclusive profits which their properties might produce in the
same mass marketplace. They claim that, art or not, an unauthorized appropriation of any
kind can not be allowed to directly compete in the appropriated materials avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique
nature and needs of art practice do not play any part in this thinking is more than slightly
insane.
Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use,
as well as gain permission from each and every owner. Consider how this puts a stop to
all independent, non-corporate forms of collage in music, and how those corporately funded
collage works which can afford the tolls had better be flattering to the owner in their usage.
. . .
Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists
will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture
from which both they and this new work spring. The owners of such artifacts and icons are
seldom happy to see their properties in unauthorized contexts which may be antithetical to
the way they are spinning them. Their kneejerk use of copyright restrictions to crush this
kind of work now amounts to corporate censorship of unwanted independent work.
Happy . . . er, Washingtons Birthday? (2009-02-16 12:17)

Under Federal Law, today is officially Washingtons Birthday, even though George Washingtons birthday is February 22. Todays holiday popularly became known as Presidents Day when the celebration
of Washingtons birthday was moved to the third Monday of February and began to commemorate both
Washington and Lincolns birthdays. Approximately a dozen states declare the third Monday of February a state holiday named Presidents Day or Washington and Lincolns Birthday, while some states
celebrate an entirely different day as Presidents Day.
Justice Roberts: I am the best qualified to do what I do. (2009-02-16 17:23)

From the New York Times:
For the first time in its history, every member of the United States Supreme Court is
a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and
surprising talk a couple of weeks ago, said that development may be a good thing.
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Over the life of the Supreme Court, its members were quite likely to be former governors,
legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds
and expertise might strike some as valuable, but the chief justice suggested that it tended to
inject policy and politics into an area properly reserved for the law.
As late as 1972, when Chief Justice Robertss predecessor, William H. Rehnquist, joined
the court as an associate justice, former federal judges were in the minority.
As a consequence, Chief Justice Roberts said, the practice of constitutional law - how
constitutional law was made - was more fluid and wide ranging than it is today, more in the
realm of political science.
Im not sure I could disagree more strongly. As Ive emphasized in recent weeks (here, here, and here),
I think judging is first and foremost doing justice. A variety of viewpoints (including those of former
governors, legislators, cabinet members, law professors and practicing lawyers) is far more likely to lead
to justice as it is defined in the real world than the abstractions of appellate judges.
In fact, I think one of the principal weaknesses of the Supreme Court as it is presently constituted
is the lack of experience the Justices have with the real world even with the real world in a legal sense.
The judges were not trial lawyers for regular everyday people; they were not trial judges. All appellate
judges ever see are written documents (the arguments of lawyers, the documentary and physical evidence
submitted in trial courts, and transcripts of testimony in lower courts). They dont see witnesses. The
only people they see in their professional lives outside their own chambers are lawyers during oral argument. Very few cases, in fact, get appealed. The vast majority have too little at stake to make any
appeal financially practicable.
In short, a Court consisting only of people whose principal occupations have been as corporate lawyers,
government lawyers, and appellate judges is a Court about as divorced from real life as possible. Is that
really the ideal Court? Of course, Justice Roberts would think so. Ive always believed that the vast
majority of people who succeed in any given system believe that system is a true meritocracy. If Justice
Roberts was an appellate judge, and if the Supreme Court consists of only appellate judges, is it really
any surprise he thinks appellate judges make the best Supreme Court Justices?
Are we not men of laws? (2009-02-17 14:47)

No. We are, apparently, Devo.
Im with Glenn Greenwald on this one. In todays Washington Post, David Rivkin and Lee Casey
argue that there should be no domestic efforts to prosecute U.S. officials for any crimes they may have
committed (under domestic law and under treaties to which the U.S. is a party) in purported furtherance
of the War on Terror. As Greenwald points out, Rivkin and Casey have previously criticized international efforts to prosecute U.S. citizens for crimes committed in purported furtherance of U.S. interests
because [I]t is up to American . . . authorities to determine whether any offense was committed.
The logical inference to draw from these arguments is that U.S. officials are entirely unencumbered
by any legal restraint as long as they believe they are carrying out what they consider the best interests
of the nation. Greenwald writes:
The implication of their argument which is now the conventional Beltway view is too
obvious to require much elaboration. If our political leaders cant be held accountable for
their war crimes and other serious felonies in foreign countries or international tribunals, and
must never be held accountable in the U.S. either (because to do so is to pour acid into our
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democratic machinery), then it means that American political officials (in contrast to most
other leaders) are completely and explicitly exempt from, placed above, the rule of law. That
conclusion is compelled from their premises.
At least to me, its just endlessly perplexing how anyone let alone our political class in
unison could actually endorse such absolute lawlessness for political leaders. Didnt our
opinion-making elites learn in eight grade that the alternative to a nation of laws was a
nation of men i.e., the definition of tyranny? Those are the only two choices. Its just so
basic.
Remix America, I salute you! (2009-02-18 15:57)

I am thrilled to have found Remix AmericaAmericas Digital Public Square. Im no technical wiz. Im
always looking for easy ways to do technically difficult things. One thing Ive searched for and asked
friends about for a couple of years is a Friedman-friendly way of mixing and mashing up video and audio
clips. Ive wanted the contemporary equivalent (and therefore the multi-media) analog to the mix tapes I
used to make on a cassette tape deck, and I need it to be as easy as making a mix tape on a cassette tape
deck. My technically intelligent friends have had suggestions, but none have seemed accessible enough to
me to be worth the investment of time and/or money they seemed they might require. But now Im in
techno-idiot heaven. As Remix America explains:
RemixAmerica.org is a multi-partisan, non-profit website that uses digital technology to

give everyone the chance to own the words, the music, the images and sounds of America in
digital form; to remix those expressions and ideas with their own; and to send the products
of our communitys creativity out to the world... where others will come back to us and start
it all over again...
And it works! I have a long way to go before Ill be able to create a mashup that deserves to be posted,
but, thanks to Remix America, that day is in sight. And Im flattered beyond words that Erika Johansson, Producer and Program Coordinator for the site, paid me the compliment of writing to me that
weve got similar interests and aims.
Despite the fact she runs circles around me when it comes to actually using the technology, Ms. Johansson is right that our interests and aims are similar. I approach the innovation and creativity that is
the subject of this blog as a lawyer, a role not typically considered innovative, creative or artistic. But
its plain that being a lawyer requires fluency in the technical realities and practicalities one addresses as
a lawyer.
I believe the law governing any particular set of circumstances expresses societys conceptions of what
constitutes justice and fairness in those circumstances . In stark contrast, many lawyers and law professors believe law is the product of abstract notions of justice and fairness applied to the world as we find
it.
If I am going to write persuasively about any given set of laws, my approach requires that I understand as well as I can the material reality those laws apply to. To understand contract law, I need to
understand commercial practices and expectations. To understand market regulation, I need to understand how the financial markets run. To understand copyright law, I need to understand the technical
details concerning the production and dissemination of information.
A necessary implication of my approach is that when the material conditions underlying any field change
profoundly, the laws that govern that field should change profoundly. And in the last twenty years weve
experienced a profound change in the material conditions that govern the way we produce, reproduce,
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and disseminate information. So the law governing the production, reproduction, and dissemination of
information has to change otherwise were stuck with the inevitable injustice that arises when you apply
rules developed for one set of facts to an entirely different set of facts. Theres a revolution going on, but
a lot of people dont even recognize the revolution. And you cant begin to understand the revolution
unless you understand the the technical details that the revolution consists of.
So Remix America is a godsend to me. It gives me the means to create for myself (very crude) approximations of the mashups and remixes and collages I find so compelling and creative but that many
consider theft. If I can understand and actually engage in an approximation of those creative acts, I can
understand better and communicate better why those works are genuinely creative works, not merely
ripoffs of original works that technology has unlocked.
I salute and give a gracious thank you to Remix America and urge you to go there yourselves, see
the works Remix America is making possible, and maybe start remixing and mashing up and creating
your own original works.
Justice? (the remix) (2009-02-20 05:30)
Bob Marley: I Shot the Sheriff (2009-02-20 21:08)

[EMBED]
The law firm of the future? (2009-02-23 10:15)

The Toronto Globe and Mail reports on Richard Susskinds predictions regarding the future of lawyers
and law firms. Susskind is no one to be ignored; in 1996, when he predicted that lawyers would soon send
legal advice and most legal documents via e-mail, he was derided and even considered dangerous. I can
testify first hand to the resistance law firms had to the internet. Even earlier, in 1994, I lobbied my firm
for an extra telephone line so I could attach my personal laptops modem to the dialup connection for my
Manhattan-based ISP (the innovative and much-missed Pipeline). My firm hemmed-and-hawed and
finally refused my request, worried somehow that the connection threatened their own internal computer
network. Try as I could to explain that the phone line and the network had no connection to one another
and that, therefore, the access through the phone line could in no way provide access to even the most
sophisticated of post-Soviet criminal hackers, I was unable to get permission.
Its hard to believe that was only fifteen years ago.
Now, Mr. Susskind predicts for the near future:
Small law firms that dispense customized legal advice will be pushed out of business
by technology-savvy and more nimble firms that dispense run-of-the-mill advice and legal
documents through websites. Larger law firms will evolve into commercial enterprises with
vast stables of legal, accounting and other experts geared to preventing and managing clients
legal risks. These big firms will outsource basic legal services to cheaper quasi-legal experts
and they will build retail kiosks or websites that allow clients to download regulatory expertise
and draft legal documents any hour of the day.
And, of course, it is already happening. Linklaters LLP, a London-based law firm, has long had a Webbased service called Blue Flag that allowed clients to research regulation and compliance standards around
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the globe. Other firms use online document drafting services to download within minutes financial term
sheets, employment contracts and other standard documents. In addition, a pair of retired U.K. judges
recently launched an Internet startup that allows lawyers to quickly generate judicially approved directives and motions for the courts. Just last November, Toronto lawyer Michael Carabash launched an
online legal service called Dynamic Lawyers that charges lawyers a modest annual fee of $30 to connect
with individuals who privately post legal questions on the website.
On another point, already addressed on this blog, Mr. Susskind predicts a radical shakeup of law
firm billing practices that charge clients according to hours of service provided. The days of billable
hours are numbered, he said, because it rewards inefficiency by handing the largest pay for the most
time spent on an assignment.
What will the next great innovation be in online legal representation? Stay tuned.
The Associated Press seems bent on waging an unwinnable war. (2009-02-24 11:29)
The Associated Press has made a number of moves in recent times that demonstrate a indefensibly broad
reading of the rights of copyright holders to protect their content. Techdirt explains that the AP now
threatens to require payment for access to its online content. Not only does it seem the AP has a remarkably narrow reading of the law; it also has a tin ear when it comes to navigating the new world of
information. Putting its content behind a pay wall open up the field of wire service reporting to competitors who would not do so if APs online content remained free (including CNN, which is apparently
eager to do so). Doing so would also be a stupid business move not only would internet users likely not
pay to get APs online content (just ask the New York Times).
As Techdirt points out, all of these moves seem to be the result of the APs fundamental misunderstanding of what the internet is used for communal sharing and commenting on the news:
The paywall itself is what takes away much of the value by making it harder for people to
do what they want with the news: to spread it, to comment on it, to participate in the story.
Until newspaper execs figure this out, theyre only going to keep making things worse.
Do we really want to treat teenagers singing Winter Wonderland like shoplifters?

(2009-02-24 16:34)
The Electronic Frontier Foundation suggests you contact them if something like this happens to you. I
agree, but I really do think you shouldnt be afraid in the first instance to file a counter-notification with
YouTube asserting your right to have your video posted. Theres good reason to believe the response
to your counter-notification will be reposting of your video. The lawyers for outfits like YouTube and
Facebook run scared: if someone files a DMCA takedown notice, theyll take down the video at issue. If
the person whos video is taken down shows she has enough belief in her right to post the video, theyll
take a closer look and, if the video is fair use, repost it. If the person who first posted the video doesnt
respond to the takedown notice, however, the lawyers figure that theres been nothing lost in taking the
video down and that theres no risk of any infringement action either. Whats the downside for them?
Nothing. So this is the way they behave. Lawyers like to minimize risk. Thats not going to change.
Mark Twain: we are sewing machines re-weaving old threads. (2009-02-25 07:31)
Mark Twain on originality:
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Old Man: Whatsoever a man is, is due to his make, and to the influences brought to bear
upon it by his heredities, his habitat, his associations. He is moved, directed, commanded by
exterior influences - he originates nothing, not even a thought.
**
Old Man: Shakespeare created nothing. he correctly observed, and he marvelously painted.
he exactly portrayed people whom g-d had created; but he created none himself. let us spare
him the slander of charging him with trying. Shakespeare could not create. he was a machine
and machines do not create.
Young Man: Where was his excellence, then?
Old Man: In this. He was not a sewing-machine, like you and me; he was a gobelin loom. the
threads and the colors came into him from the outside; outside influences, suggestions, experiences (reading, seeing plays, playing plays, borrowing ideas, and so on), framed the patterns
in his mind and started up his complex and admirable machinery, and it automatically turned
out that pictured and gorgeous fabric which still compels the astonishment of the world. If
Shakespeare had been born and bred on a barren and unvisited rock in the ocean his mighty
intellect would have had no outside material to work with, and could have invented none;
and no outside influences, teachings, moldings, persuasions, inspirations, of a valuable sort,
and could have invented none; and so Shakespeare would have produced nothing. In turkey
he would have produced something-something up to the highest limit of Turkish influences,
associations, and training. In France he would have produced something better-something up
to the highest limit of the French influences and training. In England he rose to the highest limit attainable through the outside helps afforded by that lands ideals, influences, and
training. You and i are but sewing-machines. We must turn out what we can; we must do
our endeavor and care nothing at all when the unthinking reproach us for not turning out
gobelins..
Law Firms and Layoffs (2009-02-25 14:50)

Law firms, like most businesses in these dire days, are laying off a lot of people. In doing so, like any
business, they have to consider the threat of lawsuits by individuals who have been laid off. Catherine
Padalino, the worldwide employment practices liability manager for the Chubb Group of Insurance Cos.,
has some wise advice for businesses of all sorts, including law firms, on how to minimize these threats:
First (of course, given the source) have insurance against the risk.
Evaluate the overall anticipated impact of the layoff, including the potential for litigation as well as public scrutiny.
Use quantitative criteria such as tenure and performance, rather than soft criteria such as
social situations and financial hardship, to determine which employees to let go. Be consistent
in applying the criteria, which should be communicated to all employees.
Review the demographics of the staff that will be laid off to eliminate any appearance
of discrimination. Consider the status of each employee, including whether he or she recently
requested a leave under the Family Medical Leave Act or filed a workers compensation claim.
Use outside counsel to evaluate employment practices and severance policies. Law firms
should refrain from self-diagnosis.
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Most important, said Padalino, remember to treat all employees-those who will be laid
off and those who will stay-with dignity. Laying off employees is unpleasant, but firms that
try to do the right thing can help mitigate the potential for an even more unpleasant EPL
lawsuit.
Authors audio rights and the accelerating changes in technology (2009-02-25 17:09)
Roy Blount complains in todays New York Times that the new Amazon Kindle 2 poses a problem for
authors: Kindle 2 can read books aloud. And Kindle 2 is not paying anyone for audio rights. He notes
that sort of technology is improving all the time. He is writing as president of the Authors Guild,
whose mission is to sustain book-writing as a viable occupation.
Ive said it again and again. With changes in technology, were going to have to change both our laws and
our business models. I dont blame Blount for feeling ripped off by the Kindles ability to convert text to
speech without authors earning any royalties for audio rights, but these problems are just going to arise
again and again. The old business models and the old laws were based on different material conditions.
The material conditions change, and the business models and the laws must change too.
U.S. Journalism is nothing but he says, she says (2009-02-26 15:47)

What has happened to journalism in this country? All journalists do is quote one side of an issue and
then quote the other side. Rarely do they engage in meaningful analysis, and when it comes to legal
matters theyre often just plain wrong. In this Wall Street Journal article, the reporter quotes one law
professor who says that Shepard Fairey has nothing to fear in his lawsuit against AP in connection with
Faireys Obama Hope poster, while a lawyer thinks AP will prevail.
Ive said before: I dont even think its a close case. Fairey will win. You can call me on it if it
turns out Im wrong.
The Wallflowers: Lawyers, Guns, and Money (2009-02-26 15:53)

Shepard Fairey did not infringe APs copyright because AP could not have had a copyright in anything Shepard Fairey used in his Obama Hope poster. (2009-02-27 01:59)
I have discovered another reason Shepard Fairey did not commit copyright infringement when he stenciled
APs photograph of Obama to begin the creation of his Obama Hope poster nothing Fairey copied is
even entitled to copyright protection.
In Meshwerks v. Toyotoa Motor Sales, Inc. (2008), the 10th Circuit Court of Appeals dismissed the
copyright infringement case brought against Toyota by Meshwerks, which had created digital models
of Toyota cars for use in Toyotas advertising. (My friend and former student Brian Wassom was lead
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counsel for Toyota.) The digital models are useful because if the art director wants the position of car
changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the
digital model around on a computer screen within the digital photograph of the background. Thus, the
Toyota Solara in the photograph to the right is likely a digital model of a Toyota Solara superimposed
upon and moved within the photograph of the picturesque background.
The court noted the obvious difficulties of applying existing law to new technologies (a theme I hammer
again and again), but found its solution in the ways, since the invention of photography in the 19th Century, courts have figured out how to determine what photographs (or what portions of photographs) are
entitled to copyright progection. Thus, the court explained that a photographer is entitled to copyright
solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that
art-form. The court noted that it is these elements the ones created by the photographer that are
entitled to copyright protection:
Decisions rendering the photograph a protectable intellectual invention included: the

posing and arrangement of [the subject] so as to present graceful outlines; the selection
and arrangement of background and accessories; the arrangement and disposition of light and
shade; and the evocation of the desired expression. Courts today continue to hold that such
decisions by the photographeror, more precisely, the elements of photographs that result from
these decisionsare worthy of copyright protection. See, e.g., Rogers v. Koons (Elements of
originality in a photograph may include posing the subjects, lighting, angle, selection of film
and camera, evoking the desired expression, and almost any other variant involved.) (citations
omitted).
There is nothing in the AP photographer arranged or posed in his photograph that Fairey copied in the
Obama Hope poster. The image is a stock wire service photograph shot in the midst of a presidential
campaign. It is so unworthy of note that it was many months after the Obama Hope poster became a
sensation that anyone even identified the photograph as Faireys original source (and it was neither AP
nor the photographer who made that identification). In short, Faireys poster duplicates nothing that was
original enough in the first place to merit copyright protection. There is likely no copyrightable material
in the photograph, in fact, that he could have infringed.
ADDENDUM: Brian Ledbetter suggests in the comments that my argument is that none of the elements in the AP photograph are copyrightable. That is certainly not what I am arguing. Rather, I am
arguing that none of the elements Fairey copied in his poster were copyrightable.
Faireys poster was not a copy of the photograph. It used one element, the angle of Obamas face,
and changed everything else from the photograph. I doubt the choice of the angle was a creative choice
on the part of the photographer. First, I would be surprised if the angle was not forced on him by the
place the photographic pool was required to be, and, second, the angle is so generic that I can hardly
imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply
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painted a copy of the photograph, Id agree that it was an infringement. But he didnt. He changed
everything except the angle of the head. And surely the choice of subject matter for the photograph was
not a creative one.
As William Patry points out in his treatise (Patry on Copyright, section 3:18) In most cases, the
photographer chooses a particular subject and either poses the subject or selects the angle and lighting from which to best capture the subject. But that often is not the case. In Time, Inc. v. Bernard
Geis Associates, Abraham Zapruder, a Dallas dress manufacturer, was taking home movie pictures with
his camera, when, by sheer happenstance, he captured President Kennedys assassination on film. In a
challenge to the pictures copyrightability, the court rejected the defendants claim that the photographs
were news, observing that if Zapruder had made his pictures at a point in time before the shooting,
he would clearly have been entitled to copyright.
What is copyrightable in the AP photograph includes things like the selection of lighting, shading,
timing, angle, and film. Leigh v. Warner Bros., Inc, (11th Cir. 2000). As I wrote above, the only one of
these elements one could conceivably say that Fairey copied is the angle, and that angle is so ordinary a
perspective and so unlikely to have been chosen specifically by the photographer that I cannot imagine
what Fairey copied that was copyrightable.
ADDENDUM II: Fairey was interviewed by Terry Gross on Fresh Air. From the interview:
Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and
said, you know, lets figure out how to work this out amicably, which I was vey open to and
said, you know, Im glad to pay the original license fee for the image. For all the reasons Ive
already given you, I didnt think that I needed to, but Im glad to do it because, you know,
Id rather just make this easy for everyone.
And then they said no, we want damages. And then they ran a piece in the National Press
basically saying I stole the photo, which as an artist that works from references frequently,
you know, I feel that theyre calling into question the validity of my method of working as
well as the hundredsif not thousands of other artists that made grassroots images for Obama
working in a similar way, or people that made things, you know, against the Bush agenda
that had a likeness of him. These are all things that were created by people who probably
dont have the resources to license an image.
Wiki contract drafting - wow, I wish Id thought of that. (2009-02-27 16:57)

This is a very interesting innovation in contract drafting. Facebook has announced the following to its
users:
We are giving you a greater opportunity to voice your opinion over how Facebook is
governed. Were starting this off by publishing two new documents for your review and
comment. The first is the Facebook Principles, which defines your rights and will serve as the
guiding framework behind any policy well consider or the reason we wont consider others.
The second document is the Statement of Rights and Responsibilities, which will replace the
existing Terms of Use. With both documents, we tried hard to simplify the language so you
have a clear understanding of how Facebook will be run. Weve created separate groups for
each document so you can read them and provide comments and feedback. You can find
the Facebook Principles here and the Statement of Rights and Responsibilities here. Before
these new proposals go into effect, youll also have the ability to vote for or against proposed
changes.
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Friday Night Music Club: Luna: Bonnie & Clyde (2009-02-27 17:18)
Take less risk and earn less; youll be richer in the end. (2009-02-28 15:05)
Risk is a part of Gods game, alike for men and nations. - Warren Buffet
I teach contracts. I litigated over contracts for almost twelve years. One of the hardest lessons
to get across to students and clients alike is that the value of a contract does not depend on the amount
that the contract promises will be paid if it is breached. Rather, it is the amount that can be collected
that determines the value. If someone lacks the ability to pay what he owes under a contract, he cant
be forced to, even if he loses a lawsuit and is under court order to pay. You cant squeeze water from a
stone. There is thus always a risk you will not be able to collect what youre owed for breach of contract
even if the breaching party has all the desire in the world to pay: he may simply be unable to. This
lesson is central to todays post.
I expressed a blanket condemnation of journalists the other day. The generalization, like any
generalization, was a gross misrepresentation of reality. Joe Nocera of the New York Times is an
outstanding journalist, and he works in a field particularly difficult to write about effectively financial
reporting. Most financial reporters (in newspapers, online, and on television), like most legal journalists,
have a very difficult time explaining their subject matter in terms that are clear to reasonably intelligent
human beings not educated in the subject matter about which they write. To be effective, they cant get
by merely spouting jargon like credit-default swaps and cliches like the one thats been going around
that even the Wall Street gurus couldnt understand the complex financial instruments that were central
to our dire financial situation.
The incomprehensibility of the transactions and the jargon is a myth propagated by people who
profit by our ignorance; they myth is passed on by journalists and stockbrokers and experts of all sorts
who dont understand what theyre being told or that theyre being used.
Nocera is an unusual exception to the ignorance of most journalists in this specialized area full of
jargon intended to mystify . His column today is an exceptionally lucid explanation of the disastrous
decisions that led to AIGs ruin and the necessities that require we taxpayers pay the billions or trillions
of dollars AIG owes.
First, there were the mortgage-backed securities (the main type of asset now described as toxic)
bought in disastrously huge numbers over the last several years because they seemed to offer a very
high interest rate with little risk. When you are offered to buy something with that combination, run!
Investors in Bernie Madoffs fraudulent fund have certainly learned that lesson. But the rule holds
even for legal, non-fraudulent investments, investments like mortgage-backed securities.
In essence, each mortgage-backed security constituted a tiny fraction of a group of mortgages
originated by mortgage companies in conjunction with home loans. Through a chain of transactions, the
rights of the mortgage lenders that is, the right to be paid the monthly mortgage payments were
packaged together into securities and sold by investment banks to investors (including individuals,
banks, pension funds, mutual funds, investment banks, major universities, etc. including, astoundingly,
AIG).
In addition, however, the investment banks that put together and sold the mortgage-backed securities entered into agreements with AIG under which AIG insured the securities. In other words, the
buyer of a mortgage-backed security knew that he would be paid by AIG even if the home owners
whose loan payments funded his security failed to make those payments. This insurance that AIG
sold to the investment banks to guarantee payment on the securities the investment banks were selling
to investors is what is called a credit-default swap. It is, in essence, a guaranty that if the people
responsible for paying the money owed to you under a mortgage-backed security you own fail to pay, the
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guarantor (in this case, AIG) would.

The investors thus felt they had no risk. If all else failed, AIG would pay the money they had
purchased the rights to. Among many other investors, banks had purchased enormous numbers of these
mortgage backed securities.
The investment bankers who had packaged the underlying mortgages into mortgage-backed securities and marketed them to investors had it made because of the seeming riskless securities they were
selling, they were selling a lot of them and raking in huge fees for their work.
Finally, AIG had it made it made money for selling the credit-default swaps that guaranteed
payment to the buyers of mortgage backed securities. It could even buy mortgage-backed securities and,
astonishly, did.
The problem is that this structure hinged on the assumption that there was no real risk a large
enough number of home owners would fail to make the mortgage payments on which the structure
depended. Home prices continued to go up. Even people who had bought houses they could not afford
could always re-finance their homes when they needed the money because their homes were worth more
than they were when the previous mortgage had been sold.
Then the underlying assumption failed. House prices plummeted. Defaults on mortgage payments rose to numbers unimagined by AIG, the banks, and the investors in mortgage-backed securities.
The investors were not being paid the money owed them by home owners. Thus, AIG was obligated to
pay that money to those investors pursuant to the obligations AIG had assumed under the credit-default
swaps.
AIG did not have the money to pay these obligations. This fact is rather remarkable given that
AIG is the worlds largest insurance company and maintains reserves it calculates are required to pay
off expected losses on the typical forms of insurance it sells liability insurance to businesses, etc. Even
apart from the fact of its lack of reserves, the number and amount of defaults on the mortgage-backed
securities were enormously higher than AIG had anticipated. So AIG became insolvent it owed more
than it owned.
The banks that had purchased so many of the mortgage-backed securities became insolvent too
because those securities they held were now worthless. How could it be that the they were legally allowed
to put an amount of the money they held into such risky investments? Because under the so-called
regulations put into place during the Clinton administration (part of the complete abandonment of the
federal governments oversight of Wall Street), the banks had reported the face value of the securities as
assets but reported that there was zero risk of a loss in their value. The banks didnt think there was
any risk AIGs credit-default swaps guaranteed the face value of the securities would be paid!
There is always risk. The problem is that people focus on some risks and ignore others. They
often ignore the risk someone simply will not be able to pay his debt. Especially, if the person owing
the debt seems as sound as AIG.
The more you pay for a product, the less risk you are taking that it is defective. The higher
rate of interest a lender is paying, the higher the risk the borrower is taking. It makes perfect sense. If
youre invested in something secure (like Treasury Bonds backed by the U.S.), you know it is almost
certain youll be paid the principal and interest the bond promises. If, on the other hand, youre invested
in an enterprise that poses a high risk of failure, you will be paid a higher rate of interest in return for
taking that risk. The potentially higher return makes up for the chance of total failure.
Im one of those whos expected an economic disaster (though not of these proportions) for sev197
eral years, but I knew we were doomed when I heard last year on the radio some business executive
extolling a huge deal his company had just made. His company had purchased the division of another
company. The executive explained ebulliently that the deal was one on which his company could not
lose. The reason, he explained, was that if the purchased division did not meet certain performance
benchmarks, the selling company had contractually bound itself to buy the division back.
I nearly drove off the road in astonishment at the level of stupidity being expressed. What if the
selling company didnt have the assets to buy back the company? What then? The buying company
would be stuck with having overpaid for an under-performing asset.
There is always risk. Typically, the higher the risk of the investment, the higher the interest rate
it will pay. The high interest rate paid by those of these high risk securities that retain their value make
up for the number of these high risk securities that will be unable to pay. Bonds of this sort are called
junk bonds for a reason.
But people are greedy. If someone they know is making more money than they are in their savings, they want to invest in their friend is investing in. So people flock to securities that promise greater
value. They lose sight of the risk, especially when underlying values are rising and the people who
remember these lessons have largely died off.
Whats the lesson? If someones offering you a much higher return on an investment than youre
earning on a safe investment, turn it down unless you can afford to lose it all. Resist the temptation
even if all your friends think theyre making out like gangbusters in those higher paying investments.
Dont buy snake oil. It didnt go out of circulation with the death of the Wild West.
More on Money (2009-02-28 19:37)

[EMBED]
2.3
March
Hard cases make GOOD law. (2009-03-04 15:50)

The U.S. Supreme Court ruled today that Wyeth is liable to Diana Levine (pdf) for $7 million, the
amount (reduced from $7.4 million by the judge) that a Vermont jury had awarded her (and that the
Vermont Supreme Court had affirmed) based on the jurys conclusion that Wyeth had been negligent
under Vermont tort law in failing to provide a strong enough warning against intravenous injection of
the drug Phenergan. As a result of being injected with Phenergan, an anti-nausea drug manufactured
by Wyeth, Levines right arm had to be amputated. Wyeths warning warning regarding the safety of
injecting Phenergan stated:
When administering any irritant drug intravenously, it is usually preferable to inject it

through the tubing of an intravenous infusion set that is known to be functioning satisfactorily.
As Justice Stevens observed in his majority opinion, The evidence presented during the 5-day jury trial
showed that the risk of intra-arterial injection . . . can be almost entirely eliminated by administering
the drug by IV rather than by injection. The jury concluded Wyeth was negligent, that Phenergan was
a defective product as a result of inadequate warnings and instructions, and that no intervening cause
had brokenthe causal connection between the product defects and the plaintiffs injury.
The principal argument Wyeth made is that since the warnings it provided along with the drug were
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in compliance with the FDAs requirements, the Court should have concluded that there can be no enforceable state law that requires stricter requirements. The argument would mean that as long as Wyeth
had satisfied the FDA it had done everything right, no one could sue Wyeth, not even if, as the jury in
Levines case concluded, Wyeth had been negligent and that negligence had caused the loss of Levines
arm. In legalese, this argument is that the Federal regulation of these warnings preempts any state
regulations on the same subject.
Whether federal law preempts state law turns on whether, in the Courts opinion, Congress intended
the federal law to do so. As Justice Stevens explains, there is good reason to believe Congress intended
state tort law to supplement FDA regulation of drug safety, and there is very good reason that should
be the case. Over the decades Congress has enacted laws governing the FDA, it has made clear its
understanding federal regulation of drugs has needs to be supplemented by state tort law. Nevertheless,
Congress has sometimes intended certain FDA regulations to preempt state law on those occasions
Congress expressly so stated in the legislation regarding those regulations. Thus, it is reasonable to
conclude that congressional silence on preemption in the legislation at issue in Levines case indicates no
intent to preempt.
Moreover, it would be foolish to shift exclusive responsibility for all responsibility for drug safety to
the FDA. The FDA does not have the resources to make all determinations necessary to maintain drug
safety. The drug makers do. Without state tort liability, the drug companies would be absolved of any
responsibility for the safety of drug labeling. Thus, Stevens points out that
Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility
for drug labeling. Yet through many amendments to the FDCA and to FDA regulations,
it has remained a central premise of federal drug regulation that the manufacturer bears
responsibility for the content of its label at all times.
Stevens even points out that the FDA has traditionally been in favor of having state law complement
their own regulation of drug safety:
The FDA traditionally regarded state law as a complementary form of drug regulation.
The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers
have superior access to information about their drugs, especially in the postmarketing phase
as new risks emerge.
The dissenting opinion, written by Justice Alito on behalf of himself, Chief Justice Roberts, and Justice
Scalia, opened with a variation on one of my most hated legal clichs Hard cases make bad law. Alitos
cute variation? This case illustrates that tragic facts make bad law.
Why do I hate this sentiment? As Ive written before, the ultimate point of our justice system is to
do justice. The clich that hard cases make bad law expresses the idea that one harms the law if one
goes out of ones way to interpret it in favor of someone you know should, if real justice rather than law
applied, prevail. The jury concluded that Wyeth should have given a stronger warning against injection
of Phenergan and that its failure to do so caused Levine to lose her arm. Those determinations could not
have been overturned by the Supreme Court they are the type of determinations left to the jury who
saw the evidence. So, in the absence of explicit Congressional statements that the statute is intended to
preempt state law and thus shield Wyeth from any liability, justice would seem to require Wyeth to be
responsible for the harm its negligence caused to Levine.
Since the dissenters concluded the law requires otherwise, they believe, despite their stated sympathy
for Levines tragedy, that the Courts hands have been tied and, sadly, it must find that Levine is not
entitled to sue Wyeth.
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Typically, as in this case, such reasoning rejects perfectly reasonable reasons to find that the tragic
victim should prevail. Thus, it seems, typically when a court hauls out that old hard cases line, it is
really not acting in the interests of either law or justice, but, rather in the service of a cause that remains
largely hidden.
That cause, in this case, is the conservative campaign against state tort lawsuits (in the name of tort
reform).
Why do we have such safe drugs? Such high standards in the quality of our medical care? Cars enormously safer now than just a couple of decades ago?
Because the people and organizations most responsible for that safety and most capable of maintaining it are held responsible if they dont provide for that safety. Tort regulation isnt perfect, but its a
lot better than governmental regulation alone. (No regulation at all, of course, would lead to drugs we
could have no confidence in.)
But Alito, Steven, and Scalia are clearly acting in the service of the interests that would get rid of
state tort suits in this case, the pharmaceutical industry. This case isnt a result of the majoritys effort
to make people happy for Levine; its a case that both does justice to her and is consistent with existing
law and sound national policy that Stevens has persuasively explained. Alito isnt sorry that Levine lost
her arm. Hes sorry Wyeth can be sued for its negligence.
You hang yourself with your own words. (2009-03-05 17:42)
One thing I learned well as a lawyer is that you could almost always hang an adversary with his own
words. When deposing the opposing party or a witness for the opposing party, my strategy was always
to get the person to talk as freely and voluably as possible. Id ask open ended questions, nod agreeably,
follow up with words like Really? to prompt even more loggorhea, and, invariably, when the transcript
came back Id find one piece of testimony after another that was damaging to my adversarys case.
Conversely, when I prepared witnesses to testify in response to the questions of adversarial lawyers, the
advice, pounded in with a hammer, was to answer the question and SHUT UP. If a yes or a no answered
the question, just say yes or no and SHUT UP.
Heres an amusing example (pdf): in a prosecutors opposition to a defense attorneys request for a
delay in the defendants trial, the prosecutor explains that the defense attorney is a partner in a large
law firm (over 325 attorneys) and presumably has daily access to a horde of eager, smart, hard working
associates to assist in this case. Thats not all that bad an argument about why there should be no delay
in the trial, but it doesnt have all that much bite. But her footnote points out that the defense attorney
touts himself as a Super Lawyer on his website. Ouch. Surely a Super Lawyer shouldnt need more
time given the other points the prosecutor has made.
The threat ones own words pose to oneself is one of the things that scares me most about writing
so much on the internet. Shoot me if I ever refer to myself as a super lawyer. But how can I? A recent
commenter wrote that something in a recent post of mine wasnt worthy of a First Year, much less a
professor of law. And, after all, considering what the prospect for a hanging does to ones mind, being
wary of being hanged by my own words probably not the worst thing to consider when Im spouting off.
(hat tip to Southwest Virginia Law Blog, via Brian Ledbetter)
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Chief Justice John Roberts on legal writing (2009-03-06 18:08)

Bryan Garner is the most commercially successful of legal writing teachers. On his companys web sites,
he has numerous short videos with judges from around the country as well as onger interviews with the
Supreme Court Justices. Here is his interview with Chief Justice John Roberts on, among other things,
the centrality of writing in legal practice:
Friday Night Music Club: Joan Baez sings Percys Song (2009-03-06 18:21)
Joan Baez sings Percys Song, Bob Dylans song about an injustice visited upon a friend of his. This clip
is from Dont Look Back.
Is Shepard Fairey a hypocrite? (2009-03-09 16:43)

Ive written that I believe strongly that Shepard Faireys Obama Hope poster does not infringe the copyright of the AP photograph he stenciled to begin his work. First, I think the poster is a fair use of the
image, and, second, I think the poster doesnt take anything that can be copyrighted from the photo.
But Faireys practices have often raised questions about the originality of his art.
There are also questions about his possible hypocrisy. MYARTSPACE today focuses on the fact Fairey
is trying to assert he has a trademark in the term OBEY. The blog also discusses two potential claims
of copyright infringement by Fairey against other artists.
Ill stick to the copyright claims. They involve two works that borrow significant elements from two of
Faireys works. In fact, they borrow everything except the mask over the face of the image on Faireys
poster:
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Both images copy far more of Faireys original than Faireys Obama poster borrowed from the AP photograph. Nonetheless, theres a very good argument that they are parodies of Faireys original, and thus
constitute fair use. A parody uses the original work to comment on the original work rather than using
the original work to express a point of view independent of the original work. That isnt to say using
the original in non-parody ways isnt fair use; its only to say that the amount of copying permitted
for commenting on copyrighted material is considerably greater than if the appropriating work is not
commenting on the copyrighted work.
Faireys company sent a cease-and-desist letter to Baxter Orr (the creator of the image above). Orr
nonetheless continues to sell his painting online, and Fairey has not followed up with any legal action.
Nor has he taken any action at all as far as I know against Dan Nolan, the creator of the poster on the
right.
I hope he doesnt take any further action on Orrs poster or any on Nolans. Nonetheless, the ceaseand-desist letter might be an instance of copyright overclaiming. Most people, I think, would have taken
the image off the internet rather than do what Orr has done.
Dont look back? (2009-03-10 12:11)

Londons Times Online today has an interesting article on the fact that MBA grads, especially those who
got their degree from Harvard Business School, are the swollen class of jargon-spewing, value-destroying
financiers and consultants [who] have done more than any other group of people to create the economic
misery we find ourselves in:
Harvard Business School alumni include Stan ONeal and then of course, theres George
W Bush, Hank Paulson, the former US Treasury secretary, and Christopher Cox, the former
chairman of the Securities and Exchange Commission (SEC), a remarkable trinity who more
than fulfilled the mission of their alma mater: To educate leaders who make a difference in
the world.
It just wasnt the difference the school had hoped for.
The articles author, Philip Delves Broughton, goes on to point to the fact that the Harvard MBA curriculum used to include such notorious entities as Enron and Royal Bank of Scotland in case studies
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as successful and innovative business models, at least until those businesses imploded under the weight
of reckless and criminal conduct. At that point, though, Harvard didnt revisit and criticize its earlier
enthusiasm for what turned out to be fraudulent businesses. Rather, the school simply disappeared those
case studies from its curriculum. But its even broader than that despite the centrality of Harvard
MBAs in the creation of our financial disaster, there is no looking back, no reflection on what might
have been wrong in the schools approach:
You would think after failing on so many levels, the school that provides more business
leaders than any other might feel some remorse. Not in the least. Its onwards and upwards,
with the very people who blew apart the worlds financial plumbing now demanding to fix the
leak.
I suspect the same criticism might be leveled at law schools, or at least that faction of the law schools
that has become so influential in the 28 years since I entered the University of Michigan Law School
the libertarians, the free-marketers, the Law and Economics folk, the Federalists. Their criticism of what
has gone on has almost always been directed at the federal government or at any type of regulation. The
Volokh Conspiracy, for example, is the home of people mostly of the laissez-faire persuasion who likely
fit within some or all of the groups named above. It is also the most popular law blog there is. Yet
upon searching the Volokh Conspiracys archives, all I can find in connection with the banking system,
credit default swaps, financial derivatives, and mortgage backed securities are criticism of Fannie Mae
and Freddie Mac, of former Clinton administration officials and their involvement with Fannie Mae and
Freddie Mac, and of regulation that tried to limit the ability of banks to make predatory loans (otherwise known as loans that were doomed to default because they were on terms the borrowers could not
possibly afford). At least one of the conspirators recognized the stupidity that was embedded in the
mortgage-backed security market, but none of them came close, as far as I can tell, to suggesting that the
legal system might play a role in controlling that stupidity, much less role law might play in controlling
what has been described as the greed and phenomenally excessive risk taking by these Masters of the
Universe at our prestigious financial institutions . . . .
I havent studied this question in depth; nor can I be confident that my searches through the Volokh
Conspiracys archives were exhaustive, but it does seem there were an awful lot of law professors and
lawyers arguing against the types of regulation and investigation that might have been helpful. Good
god, the SEC was told at least 3 times that Bernie Madoff had to be a fraud, and Chris Coxs agency just
continued to give him gold stars. And, as Broughton doesnt think the MBA types have reflected back
on the role their ideas played, I dont think these legal types have reflected back and examined whether
their ideology might be flawed and might have been one element in the creation of our financial crisis.
The making of a lawyer (2009-03-12 11:57)

Most law schools are odd places. I suspect most people outside the law believe a law schools principal
mission is to train lawyers. I am a law professor, and I happen to believe that too. But I am a very odd
duck within law school academia. Practice for twelve years and partnership in a top nationwide firm is
of very little value as a qualifaction to be a law professor. Rather, the valuable assets among law school
faculty are articles published in journals edited by students and rarely read by lawyers. Most law school
classes address theory (or doctrine) in a manner remarkably removed from its real world application.
Qualifying for law school rests to a significant degree, perhaps primarily, on an applicants score on the
LSAT test, which may correlate to success in law school but bears little relationship to one effectiveness
as a lawyer. To add to the gap between law school and legal practice, the principal criterion underlying
the rankings on which law schools and applicants rely to rate the quality of a law school is the median
LSAT score of the schools students. Those rankings provide a tremendous incentive for a law school
to act in ways intended to accept applicants with higher LSAT scores scores that dont correlate to
effectiveness as a lawyer at the expense of acting in ways that increase the effectiveness of its graduates
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as lawyers.
So I am thrilled to read in yesterdays New York Times that professors at the University of California, Berkeley, have studied what makes lawyers (not law students or law professors) effective and have
come up with a test that they say is better at predicting success in practicing law than is the LSAT. The
study concluded, as Ive long been convinced, that LSAT scores . . . were not particularly useful in
predicting lawyer effectiveness. . . What does the new test consider factors that contribute to lawyerly
effectiveness?
[T]he ability to write, manage stress, listen, research the law and solve problems.
I am also not surprised to read that the new test is no better than the LSAT at predicting how well
participants would do in law school. As I wrote above, there is far too great a gap between most law
school instruction and the actual practice to consider a test that measures effectiveness in the latter able
to test effectiveness in the former.
I wish all my students would read this post. Theyve been dealing with a considerable degree of stress
of late that they blame on me and the problems Ive given them to try to solve problems that are
down and dirty real life problems lawyers face and theyve been complaining a lot. One student in my
Contracts course yesterday complainied that online discussion boards made clear to him that students
at other schools were covering a lot more theory than I am. I looked at him a little in surprise. Thats
the whole point of my teaching. And its the whole point of the rather unusual curriculum at the school
where I am a visiting professor, the University of Detroit Mercy Law School, where it has been recognized
that theory and practice are inextricably intertwined and that each can only be understood in the law in
relation to one another. Thus, the school offers a revolutionary new curriculum . . . [that] complements
traditional theory- and doctrine-based coursework with practical learning, providing a solid transition
between law school and a legal career.
But its hard to teach students to manage stress, listen, and solve problems. First, it mean subjecting
them to the stress of solving problems they do not know the solutions to in advance because what lawyers
do is solve problems they dont know the solutions to in advance. No one enjoys stress. I like to think
that the students realize the stress I am subjecting to them is not one intended to or that will break them.
Its school. As Ive always told them, in law school we hurl you into the water to see if you can swim, but
the waters only about 4 feet deep, so when you cant swim, you just get on your feet, come back, try to
figure out what went wrong, and then try again. Its when youre a lawyer trying to solve problems you
dont know the solutions to in advance that the stress can be truly overwhelming, especially if you have
not been at all prepared for it.
Good lawyering means remixing (2009-03-12 12:35)

Gerry Spence on one of the secrets of his enormous success:
[EMBED]
The financial institutions and their lawyers could not see the big picture, redux
(2009-03-12 17:18)
Ive written before of the failure of our financial geniuses to see the big picture when they created their
house of cards built of mortgage backed securities, credit default swaps, and the assumption that housing
prices wouldnt crash. But theres a piece of the picture other than the inevitability of falling markets
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those geniuses failed to consider what is required to foreclose on the homes that are the underlying
asset giving the mortgage backed securities their value.
In order to foreclose, the owner of the mortgage has to be identified. But no one knows who owns
mortgages that have been packaged into mortgage backed securities.
The mortgages packaged into mortgage backed securities werent packaged whole. In other words, if
you are the owner of a mortgage backed security, you were not holding the right to collect on the loans to
one or more specific homeowners. Instead, you were holding the right to collect a portion of an enormous
number of loans made to an enormous number of homeowners. Thus, each homeowners mortgage is
owned in by an enormous number of buyers of mortgage backed securities, to each of whom some fraction
of his loan is owed.
For example, the day after I financed my house my mortgage company sold its rights to collect on
my home loan to one of the companies who put together these mortgage backed securities. Then that
company likely took its right to collect on my loan, split it up in littlet pieces, and put those each of those
little pieces into different mortgage backed securities along with little pieces form other loans. Theoretically, if I owed $1000 per month on my mortgage, there could be one thousand people to whom I each
owe one dollar, or one hundred thousand people to whom I each owe one cent, and so on. Could anyone
tell me who owns my mortgage? Maybe 1,000 or maybe 100,000 different individuals and institutions.
Could anyone identify them to a court hearing a foreclosure case against me?
I doubt it.
Thus, as the Foreclosure Defense Group puts it:
In Ohio and other states, the inability of the Lender or Mortgage Servicer [the company in the above example who purchased my mortgage the day after it was created and
subsequently packaged it into mortgage backed securities] to produce the original note and
mortgage, combined with their inability to produce the documentation regarding the assignment or sale of the loan has resulted in de-linking the mortgage from the security interest
in the home and the cancellation of the note giving the borrower free and clear title to the
property that was subject to the original loan transaction.
Its hard to train good lawyers. Students just want the law. But practicing law isnt just a matter of
knowing the law. Knowing the law or, as is more often the case, knowing where to find the law, is of
course necessary, but its the easy part. The hard part is making sure your clients make good business
decisions based in part on the law and in part on all the other constraints the clients operate within
(including financial constraints, constraints established by the clients aversion or lack of aversion to risk,
constraints imposed by market and social conditions, etc.).
In order to do that you always have to have in mind the big picture, the implications of any specific
decisions to the clients long-term interests. Lawyers might have reviewed every single possible regulation
pertaining to securities when they approved the mortgage backed securities. What they apparently didnt
think to look at, however, were the requirements the states impose on foreclosure actions. Without the
power to foreclose, the mortgage backed securities have no mortgages to back them.
The next time someone starts talking about financial geniuses (which I hope at least wont be for some
years), run!
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Shepard Fairey, lightning rod (2009-03-13 16:32)

Ive pointed out both that I believe strongly that Shepard Faireys use of an AP photograph to create his
Obama Hope poster does not infringe the pohotographs copyright and that Fairey has been the target of
frequent criticism in the art community regarding his originality and regarding his apparent hypocrisy
in asserting infringement claims against artists who had appropriated his images.
It has come to my attention that some criticize the Fair Use Projects decision to take up Faireys
cause in the case of the Obama Hope poster and think Fairey should be taken down because of his apparent hypocrisy.
As a lawyer, I strongly disagree with this position. If, as I zealously believe, the Obama Hope poster
is fair use, it would be self-defeating to those of us who support the explicit application of the fair use
doctrine to transformative appropriation art and various other methods of remixing pre-existing works,
regardless of our view of Fairey himself, if we failed to support Faireys position in connection with the
Obama Hope poster.
I cannot help but recall last years lawsuit brought by Yoko Ono, Sean Ono, and Julian Lennon seeking
to require the makers of the documentary Expelled from using a 15 second excerpt of John Lennons
song Imagine in their documentary. As I wrote at the time, I believed the lawsuit was misbegotten and
that the films use of the excerpt constituted fair use despite my love of John Lennon and my contempt
for the film, which purports that theorists of Intelligent Design have unjustifiably been expelled from
the conversation regarding evolution and the development of life. The court hearing the case agreed with
my position and dismissed the case. Not coincidentally, the Fair Use Project represented the producers
of Expelled in that case.
Fair use is fair use, and if we believe in it we should support it wherever it exists, even if we despise the
people asserting fair use. I supported the right of Nazis to march in Skokie, Illinois, a community full of
Holocaust survivors, because I believe that the right to demonstrate in public is protected by the First
Amendment regardless of how vile the message being conveyed may be. The Supreme Court agreed.
That doesnt mean we cant criticize Fairey when he seems to want his cake and eat it too. (Though it
may be that Faireys thoughts have evolved on these issues while he sent a cease-and-desist letter to
Baxter Orr for Orrs appropriation of one of Faireys images, Fairey never followed that letter up with
any other action despite Orrs continued use of the image.)
You may not like Fairey. But that does not mean we shouldnt support his position when he happens to
be right. To fail to do so would be to cut off our noses to spite our faces.
The ACLU on the Nazis right to march in Skokie, Illinois (2009-03-13 18:21)
[EMBED] [EMBED] [EMBED] [EMBED]
Friday Night Music Club: Warren Zevon, Mr. Bad Example (2009-03-13 19:45)
[EMBED] Of course I went to law school And took a law degree And counseled all my clients To plead
insanity...
Dow v. Rohm & Haas, settled (2009-03-15 20:08)

One of the more controversial pieces I have written on this blog was in connection with the lawsuit
brought by shareholders of Rohm & Haas to force Dow Chemical to complete its purchase of Rohm &
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Haas pursuant to a contract entered last summer that pegged the purchase price at $78 per share of
Rohm & Haas. My principal point was in response to an article written by Joe Nocera in the New York
Times that to even suggest that maybe, just maybe, deals that stop making sense ought to be called off,
or at least rejiggered, especially in the middle of a once-in-a-lifetime financial crisis - invites withering
scorn, especially if you say it to someone on Wall Street or in the legal profession.
My point was that when something stops making sense, the law, if it is working properly, should not
force the nonsensicle result.
Responses varied from the grateful to the withering.
The outcome, however, makes remarkable sense. Last week, Dow and Rohm & Haas settled their dispute
over the $15.3 billion merger. Pursuant to the settlement agreement, Rohm & Haass shareholders will
get the $78 per share Dow originally promised. But hedge fund manager John Paulson and the Haas
family shareholders will in essence re-invest their proceeds from the sale for preferred stock in Dow. Doing
so gives Dow enough room to purchase Rohm without immediately running aground. Dow had earlier
refused to close the merger, saying its business would be hurt if it had to draw heavily on risky short-term
debt.
In essence, Paulson and the Rohm & Haas family shareholders are helping Dow finance the purchase,
protecting the deal they had negotiated for the rest of the Rohm & Haas shareholders. In exchange,
Paulson and the Haas family get great value in return. Moreover, if I read the situation correctly, there
may be tremendous tax advantages for the Haas family. If the transaction is treated as an exchange of
Rohm & Haas stock for Dow preferred stock, it will not be a taxable event. Moreover, upon transfer to
the Haas family heirs via testamentary disposition, those heirs would be considered to have a tax basis in
those shares equal to their value upon that testamentary disposition. In short, whatever gain the Haas
family earned in the Dow transaction and whatever gain is earned in the future in the Dow stock they
received in exchange will never be taxed to the Haas family or its heirs.
Everyone comes out ahead, and Dow was not forced to go through with the deal it had originally contracted for and so many thought would have to be enforced.
A rant (2009-03-17 21:49)

I need to look a lot more closely at these bonuses AIG is paying to some of its employees. There has
been considerable discussion on various law professor listservs I lurk on regarding the legality of various
means of getting this money back. There also, of course, is the sheer political pressure. Congress cannot
abrograte contracts, but that lack of legal power didnt stop the economic realities from forcing the UAW
to make major concessions on existing contracts.
Thats one big reason I am repelled that Wall Street types and compensation consultants agree with
the president {at being outraged by the payment of these bonuses]. But from their point of view, the
fundamental value in question here is the sanctity of contracts.
So the sanctity of contracts is inviolable for investment bankers who make millions and who work for the
company that more than any other is responsible for the financial disaster we are living through. But
they dont say anything about the sanctity of contracts when it comes to unionized auto workers.
Why do people need several million dollars a year to live?
And I love this rationale:
The jobs are terrible, said Robert M. Sedgwick, an executive compensation lawyer at
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Morrison Cohen who represents a number of employees of banks that have taken government
money. You have to read about yourself in the paper every day. These people are leaving as
soon as they can.
Those poor, poor investment bankers. By that reasoning factory workers in China should be getting
million dollar bonuses.
There of course is the power of shame. Id love to identify who the recipients of the bonuses are and have
their names and faces plastered everywhere all over the internet so they couldnt help but be recognized
and reviled wherever they go.
Im sorry. Im pissed off tonight.
A better solution to the mortgage crisis, the federal governments bailout policies, and
AIGs failures to meet the obligations it took the risk of not meeting (2009-03-18 08:27)
I have several thoughts about the AIG bailout apart from what I consider the justifiable outrage over
multi-million dollar bonuses being paid to the very people who set up the house of cards AIG had constructed.
First, I cant understand why anyone would be surprised, much less outraged, that AIG paid much
of the bailout money it received to other financial institutions. Those institutions (Goldman Sachs, for
example) owned mortgage backed securities and had purchased from AIG the credit default swaps that
were, in essence, insurance that the owners of the mortgage backed securities would not earn from those
securities what they were supposed to. Goldman Sachs had not received what they were owed on the
mortgage backed securities because the crash in the housing market meant that homeowners were not
making the mortgage payments that made up the pools of money out of which the owners of mortgage
backed securities were to be paid. Thus, when Goldman Sachs was not paid what it was supposed to be
paid from the homeowners, Goldman Sachs turned to AIG and asked to be paid pursuant to the insurance
policies it had purchased from AIG (that is, the credit default swaps).
AIG had never planned for such a shortfall in mortgage payments. It had essentially sold the credit
default swaps to earn easy money (the premiums for the sales) that it did not believe it would ever
have to pay out on. Thus, when in fact it did have to pay out on those credit default swaps, AIG was
threatened with bankruptcy because its obligations to the owners of mortgage backed securities far exceeded its assets.
The U.S. could not afford to let that happen. AIG is the worlds biggest insurer. Its failure would
set off massive insecurity in every single aspect of life in which people and institutions depended on the
availability of its insurance. Neither could the U.S. afford to let the financial institutions fail. That would
mean a collapse of our banking system, an even greater and more profound impact on the functioning
of our credit markets and other aspects of our economy in short, a Depression on the order of The
Depression.
Heres what I dont quite understand. The underlying problem was that too many homeowners were
unable to make their mortgage payments. Why not readjust everyones mortgage payments (by, say,
automatically cutting mortgage rates to the current low rates). The owners of the mortgage backed
securities would not make as much as they otherwise would have had the original rates been paid, but
too many of the original rates werent paid to make enough of the mortgage backed securities assets with
any material value. The owners of the mortgage backed securities would make some of the money they
had expected. They would still be able to look to AIG under the credit default swaps for the difference
between what they had expected to make under those securities and what they made under the readjusted, low rates, but AIGs exposure would have been considerably lower not the entire value of the
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mortage backed securities but, rather, the difference between what those securities earned under the new
adjusted mortgage rates and what they originally were supposed to have been paid. To the extent that
obligation still threatened AIGs existence, the government could make up the shortfall, but the amount
of federal dollars required to do so would have been far less.
One objection, of course, is that wed be rewarding those homeowners who took the risk of assuming mortgages they couldnt afford. The problem with that argument, of course, is that the owners of
mortgage backed securities took the risk they wouldnt get paid either through the securities from the
pools of mortgage payments or from AIG, but were bailing them out. And AIG, of course, took the risk
in selling its credit default swaps that it would not be able to meet its obligations under them, but were
bailing them out. Were doing so because we have to.
But we have to bail out the homeowners too. The very existence and health of our cities depends
on us doing so. Why are the homeowners any more to be the victims of moral hazards than the financial institutions.
Everyone wins. Homeowners stay in their homes at todays mortgage rates. The lenders dont get
what they contracted for, but they get what, given the circumstances were in, is a perfectly reasonable
rate of return. More importantly, the lenders dont fail as a result of mortgage defaults and the insufficiency of foreclosure as a remedy to make up the loss resulting from the default. The banks that own the
mortgage backed securities are made whole (or almost so), and AIG is made whole (or almost s0).
Could anyone tell me what Im missing here? I do not claim to be an expert on these matters, but
I am smart enough to follow the money and the trails of contract obligations, and Im not quite sure
where my logic fails. Im sure it must, but where?
Best bonds: AIG? Greatest Fascist Dictator: Adolf Hitler? Best Law School: ?????
(2009-03-19 11:35)
What is it with the human thirst for numerical rankings, for judging one thing better than another even
when the comparisons are known to be completely arbitrary or, at best, based on judgments so subjective regarding criteria so limited as to render the rankings nothing more than crude subjective judgments
disguised as hard data?
Woody Allen fittingly complained:
Whats with all these awards? Theyre always giving out awards. Best Fascist Dictator:
Adolf Hitler.
But its not just the thirst for the rankings. Its basing ones actions on rankings as if they have profound
meaning despite their lack of meaning.
As I wrote recently, US News and World Reports rankings of law schools are determined largely by
the LSAT scores and undergraduate grade point averages of the students each law school admits even
though those scores and averages bear no correlation to success as a lawyer; rather, they correlate only
to success in law school, which, again, bears no meaningful correlation to success as a lawyer (as would
not surprise most lawyers but, I would guess, would surprise most non-lawyers, including law students
and law professors who have not practiced extensively).
Yet an overwhelming number of law applicants rely on the US News rankings. Even more depressingly,
an overwhelming number of law faculties make their educational decisions to improve those rankings, not
to improve the way they educate law students to be lawyers. (As I also pointed out, Detroit Mercy, where
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I am currently a visiting professor and where I will continue in that capacity next year while remaining
on leave from Case Western Reserve, is a rare exception to this rule.)
And today, reading in the New York Times about Moodys, I realized another reason the US News
rankings are so useless and their importance so poisonous to legal education. It is because the US News
rankings are accepted, followed, and never questioned in a way meaningful enough to threaten their influence. There is therefore little incentive to make judgments on a law schools quality based on judgments
independent of those rankings.
Moodys is one of the private companies that rate corporate bonds. When a corporation sells bonds
to raise money (simply put, they borrow money from the purchasers of the bonds and pay back the
loan at the interest rate called for by the bond), Moodys issues grades to the bonds that predict the
likelihood the corporation will pay back the loan. Junk bonds are so-called because they are bonds
issued by companies that are at high risk of being unable to pay the purchaser of the bond when payment
is due. In other words, junk bonds are sub-prime bonds. Why do people loan money to companies
or homeowners despite the high risk the borrowers will default? Because those borrowers have to pay
a higher interest rate. The high interest rate on the loans that are repaid makes up for the loans that
arent paid back.
The unconscionable innacuracy of Moodys rankings, however, has played a major role in our financial crisis. As the Times points out:
Moodys rated Lehman Brothers debt A2, putting it squarely in the investment-grade
range, days before the company filed for bankruptcy. And Moodys gave the senior unsecured
debt of the American International Group, the insurance behemoth, an Aa3 rating - which
is even stronger than A2 - the week before the government had to step in and take over the
company in September as part of what has become a $170 billion bailout.
Moodys and the other major ratings companies also put their seals of approval on countless subprime
mortgage-related securities now commonly described as toxic.
There are numerous reasons to the ratings companies were bound to fail, but the Times article brought
up an interesting one I had never considered before. There is little incentive to question anyone who is
paid to judge the the quality of something unless and until the accuracy of those judgments is put to the
test. As Frank Psrtnoy, a law professor at the Universitiy of San Diego and a former derivatives trader,
explains it:
Imagine if you had a rabbi and said, All the laws of kosher depend on whether this rabbi
decides if food is kosher or not. If the rules say You have to use this rabbi, he could be
totally wrong and it wont affect the value of his franchise.
In other words, if you wanted kosher food, youd buy food approved by that rabbi and never question his
judgment unless and until the accuracy of his judgments was threatened in a meaningful way. US News
is that rabbi. It has become the principal judge of law school quality and it doesnt matter whether its
judgments are legitimate or not. Students buy its rankings guides, law faculties and deans make decisions driven solely by the desire to meet the criteria US News employs, and applicants and legal academia
continue to make their educational decisions based on the criteria employed by US News rather than on
their own judgments.
Its a terrible situation, and particularly ironic when it comes to legal education. Lawyers every day,
every moment, make judgments and decisions based on incomplete, subjective, and biased information.
You can only consider the circumstances under which those decisions are made inadequate, however, if
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you believe it is ever possible to have all the information you would want and if all that information
could be stripped of the distortions inherent in the limitations of human perception. Making decisions
based on incomplete, subjective, and biased information is what life is about. That doesnt mean there
arent better and worse judgments; it merely means that one can never be certain, that there is always
risk, that almost every important decision one makes in ones life cannot be reduced to a choice between
black and white, right and wrong, #1 and #2. Lawyers make their living making such difficult decisions
and judgments. The legal situations where there are clear answers dont require lawyers, and if lawyers
become involved they certainly dont make much of a living answering those questions.
Yet law school applicants and law professors act as if the judgment that one law school is better than
another can be reduced to a comparison of hard numbers, and that, therefore, those numbers should be
the determinant of their actions. Theyre being as stupid as the investors in Lehman Brothers and AIG
were in relying on Moodys.
And the Times article mentions one other fact that bears on this point. Warren Buffett the man
known as the Oracle of Omaha, the daddy we turn to to guide us out of our financial pit, the closest
thing that the United States economy has to a life coach owns 20 % of Moodys. But you know what?
In making his investment decsions he doesnt rely at all on Moodys ratings. He has his own research
department. He makes his own judgments. I wish more college graduates did the same. And it maddens
me beyond measure that most law professors dont.
War is Peace, or They can sue, but you cant. (2009-03-20 00:59)
There is wisdom and responsible citizenship, and then there is mindless use of law to advance whatever
selfish interests one has when one has them. May my students know the difference, and may they not
serve clients who want the latter at the cost of the former.
In November 2006, the Committee on Capital Markets Regulation issued a report arguing for cutting back
on regulation of financial markets, for limitations on private lawsuits and on lawsuits by state attorneys
general, and for increased restrictions on the ability of the Securities and Exchange Commission to issue
new rules. The Committee on Capital Markets Regulation was a private group, but it had prominence.
Its co-chairs were R. Glenn Hubbard, the dean of the Columbia University Graduate School of Business, and John L. Thornton, the chairman of the Brookings Institution, its formation was endorsed by
then-Treasury Secretary Henry M. Paulson Jr., and a significant part of its funding came from the Starr
Foundation, started by Maurice R. Greenberg, who had in 2006 recently been deposed as Chairman of
AIG.
Greenberg and AIG were notoroius for their hostility to lawsuits. It figures AIG is (was?) an insurance company, and liabilities are what insurance companies are supposed to pay for. As the founder
of one law firm I worked for, Gene Anderson, always says, Insurance companies are in the business of
collecting premiums and denying claims.
Now, though, Greenberg no longer heads AIG and AIG showed itself incapable of paying for the liabilities it had collected premiums to insure. So their minds seem to have changed. Greenberg has become
a lawsuit enthusiast, most recently suing AIG for for securities fraud based on alleged material misrepresentations and omissions that caused him to acquire New York-based AIG shares in his deferred
compensation profit-participation plan at an artificially inflated price.
And I just read that AIG commenced a lawsuit last month against the federal government seeking a
return of $306 million in taxes it claims it should not have paid. The claims include taxes paid in connection with AIGs financial products unit (the once high-flying division that has been singled out for
its role in A.I.G.s financial crisis last fall), and AIG offshore entities whose function centers on executive compensation and include C. V. Starr & Company, a closely held concern controlled by Maurice R.
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Greenberg and the Starr International Company.

As the New York Times puts it:
A.I.G. is effectively suing its majority owner, the government, which has an 80 percent
stake and has poured nearly $200 billion into the insurer in a bid to avert its collapse and
avoid troubling the global financial markets. The company is in effect asking for even more
money, in the form of tax refunds. The suit also suggests that A.I.G. is spending taxpayer
money to pursue its case, something it is legally entitled to do. Its initial claim was denied
by the Internal Revenue Service last year.
And if you think corporations should be liable to individuals for damages their products cause, that taxes
should be raised on the people who earn more than 95 % of our citizens, and that we should tax the
inheritances of heirs who have done nothing to earn that money, youre accused of engaging in class
warfare? Ive got news for you: they struck first.
We can work it out? (2009-03-20 19:10)

[EMBED]
Taking care of people and keeping standards high (2009-03-26 17:50)

In reviewing Philip K. Howards Life Without Lawyers: Liberating Americans from Too Much Law, Anthony Lewis points out that those, like Howard, who bemoan U.S. tort law, particularly in the seemingly
random way it sometimes rewards people for damages caused by corporations or doctors, ignore a specific
part of the socio-political realities of our country: we dont have the safety nets other countries provide.
So when a patient sues a doctor after an unsuccessful medical outcome, a jury naturally enough is going
to sympathize and lean toward the injured person regardless of the doctors competence to give the
patient money is to give him something with which he may be able to pay for the medical needs created by
the bad medical outcome. In addition, juries are smart enough to know the award comes from insurance,
not from the doctor herself. In countries which have universal health care, theres no need to worry that
the patient will be cared for. In ours, there is. The same thing goes for anyone arguably injured by a
corporations product. Better that injured person has the money to pay for the care hell need than not,
even if that cost is spread among all the corporations customers (through higher prices):
Nor does Howard dig deep enough to explain the excesses of American tort law and the
eagerness to seek vast damages for civil injuries. He blames the overreaching of Earl Warrens
Supreme Court in its sympathy for the little man, and the mood of antipathy to large institutions starting in the 1960s. He does not explore deeper social causes.
his country is notoriously lacking in safety nets that are taken for granted in other advanced
societies. Medical care is guaranteed by the state, by one method or another, in Canada and
all European countries; in the United States upward of 40 million people have no medical
insurance. Around 46 percent of employed Americans get not even one day of paid sick leavewhich is guaranteed by law in 145 other countries. Lawsuits are often a substitute for safety
nets.
There is a historical example that makes the point: workers compensation. Employees injured on the job used to have to bring tort actions against their employer; that required proof
of negligence, and complicated doctrines were developed by some courts to deny the claims
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of plaintiffs. Early in the twentieth century a movement led by Louis D. Brandeis-then a

reformist private lawyer in Boston, later a Supreme Court justice-sought a system that would
compensate the injured without regard to negligence, and in return would bar lawsuits. By
1949 every state had a workers compensation law. It is a perfect example of a safety net that
assures limited compensation without the gamble of litigation.
Do doctors really want to reduce malpractice problems in a way that will satisfy everyone? Then create
a patients compensation law that provides relief to patients injured by adverse medical outcomes regardless of fault. Doing so effectively, however, will require there to remain some incentive to provide another
wonderful product of our torty system: medical care in this country is provided at a higher standard
than anywhere else. Funny how Howard doesnt mention that positive result of tort law. How do we do
motivate employers to maintain safe work places despite the fact workers compensation schemes have
substantially relieved them of the burden of tort liability for failures to maintain safe work places? Two
ways: (1) employers finance workers compensation schemes, and (2) the Occupational Safety and Health
Administration regulates and enforces workplace safety.
Of course, people like Howard have also argued for years that the financial system should be freed
from the burdens posed both by tort law and state regulation. We can see where those very successful
arguments have gotten us.
Is Michael Murphy another Shepard Fairey? (2009-03-26 18:27)
Do you think that if we ever discover the photo from which Michael Murphy derived the image for this
shadow portrait of Obama in urethane Murphy will be accused of copyright infringement? I do, but I
dont think its infringement.
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I never thought Id agree with John Ashcroft. (2009-03-26 18:42)

Mark Danner has a remarkable article on the Bush administrations torture policies in the current issue
of the New York Review of Books. Those policies not only were disgusting (and always plainly so to
anyone paying attention), but also enormously damaging to our countrys interests both in reducing our
moral stature in achieving any chance of genuinely bringing those responsible for 9/11 to justice. I cannot
but help save a special contempt, however, for the lawyers who it is obvious to me in looking at the
purported justifications for their conclusions were obeying orders to come up with any justification, no
matter how baseless, for what their bosses wanted to do. As Danner writes:
[In] the spring and summer of 2002, the administration was devising what some referred
to as a golden shield from the Justice Department-the legal rationale that was embodied
in the infamous torture memorandum, written by John Yoo and signed by Jay Bybee in
August 2002, which claimed that for an alternative procedure to be considered torture, and
thus illegal, it would have to cause pain of the sort that would be associated with serious
physical injury so severe that death, organ failure, or permanent damage resulting in a loss
of significant body function will likely result. The golden shield presumably would protect
CIA officers from prosecution. Still, Director of Central Intelligence George Tenet regularly
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brought directly to the attention of the highest officials of the government specific procedures
to be used on specific detainees-whether they would be slapped, pushed, deprived of sleep or
subject to simulated drowning-in order to seek reassurance that they were legal. According
to the ABC report, the briefings of principals were so detailed and frequent that some of the
interrogation sessions were almost choreographed. At one such meeting, John Ashcroft, then
attorney general, reportedly demanded of his colleagues, Why are we talking about this in
the White House? History will not judge this kindly.
Is republication of Mark Cubans tweet on Twitter non-infringing? Almost certainly

it is. (2009-03-30 12:15)
Mark Cuban asks:
Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet
copyrighted by default when its published ? Can there possibly be a fair use exception for
something that is only 140 characters or less ?
Well, sure, a tweet might be protected by copyright. The more creative it is, the more powerful is the
protection. Cuban wouldnt be wondering whether a 140 character poem by William Carlos Williams
could be protected by copyright.
The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I
strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would
require consideration of the specific message Cuban is talking about and application of the specific facts
in dispute under the appicable analysis:
(1) What is the nature and character of the allegedly infringing use? The more creative it is in its
own right or the more it is an instance of the type of expression protected by the First Amendment
(journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The
fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner
of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in
legitimate journalism . . . , but
(2) What is the nature of the copyrighted work? The more creative or journalistic or political the
expression, the less likely use of it without permission will be fair use. And the fact the work is available
anyway would cut in favor of ESPNs use of it being a fair use. This factor is almost impossible to
determine based on Cubans hypothetical question. There can be 140 words that are as creative and
expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might
be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly
lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without
examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would
be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter
to everyone that follows him indicates that he doesnt have that strong an interest in controlling the use
of the words.
(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I
suppose this factor cuts against ESPNs claim of fair use, but, of course, the brevity of the entirety
(under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is
one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One
can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably
very different than 140 characters written by Mark Cuban in a tweet, but they might not be.
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(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a
market for Mark Cubans tweets? Its hard to believe there might be.
In short, Id advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets.
If he really thinks hes got something so worthwhile he should have the exclusive right to its commercial
value, he shouldnt have put it out on Twitter in the first place.
2.4
April
The rise of the conservative legal movement (2009-04-01 13:18)

Over at Firedoglake there is an interesting discussion going on in the comments to a blog post between
readers and Steven M. Teles, the author of The Rise of the Conservative Legal Movement.
There is no question in my mind that this countrys legal community has become enormously more
open to arguments that assume the wisdom of unregulated free markets and the primacy of property
rights in the 28 years since I began law school. Law and Economics, an ill-defined legal movement that
exclusively applies economic criteria to legal decision-making has gone from being a set of arguments
to consider on issues that plainly were economic in nature to an all-encomp0assing explanation of legal
decision making in any and all situations. The Federalist Society, an enormously well organized and well
funded organization that coordinates the activities and thoughts of its members from cradle (their first
days in law school) to grave (lifetime appointments on the Supreme Court), has gone during that time
from non-existent to enormously influential. As the post explains:
Legal academics shape the ways in which judges think and in which bureaucrats administer programs. Judges for their part play an active political role, making decisions that define
the contours of politics, often telling elected politicians what they can and cannot do. And
lawyers often become politicians. Hence, the law is a key arena of political battle. A generation ago, conservatives were badly out-gunned in this arena. They were badly outnumbered
and intellectually underpowered. Now, they are in a position of considerable importance. Republican appointees are a majority on several key appelate courts. Conservative ideas about
the limits of politics and the vital importance of markets have reshaped the laws intellectual
basis. And the US Supreme Court has shifted sharply to the right.
Thus, as Rachel Morris puts it, Teles book explains the conservative impact on our legal system not as
some sinister right-wing plot but, rather, as an intellectual movement:
The story of how conservative lawyers extracted themselves from the wilderness is often
cast as a sinister tale, as if the Federalist Society were an affiliate of the hooded and robed
cabal that Tom Cruise infiltrates in Eyes Wide Shut. Steven Teles, a political scientist at
Johns Hopkins University and a fellow at the New America Foundation, offers a more rational
take in The Rise of the Conservative Legal Movement, and in a new article in Studies in
American Political Development. However, with Alberto Gonzaless blank stare lingering in
the minds eye, Teless assessment still sounds quite outlandish: he suggests that the real
secret of the movements success was its thirst for ideas and intellectual debate.
Ill follow the discussion with Teles closely. I highly recommend it.
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I think we should shoot puppies! (2009-04-02 10:15)

There that headline should ensure I never can be confirmed for federal office.
Dawn Johnsen, a law professor at the University of Indiana, is President Obamas nominee to head
the Justice Departments Office of Legal Counsel, which provides authoritative legal advice to the President and all the Executive Branch agencies. Its the office that produced the torture memos, those
shockingly ill-reasoned legal fig-leafs for the Bush administrations policies regarding the treatment of
detainees in the War on Terror. Ms. Johnsen was an unsparing critic of those memos. As a result,
Senate Republicans are threatening to filibuster her nomination. But thats not the reason they are
expressing. What is their pretext? Twenty years ago in a footnote of a brief she wrote in a lawsuit in
which she represented the National Abortion Rights Action League, she wrote that forcing a woman
to bear a child when she had no desire to do so was disturbingly suggestive of involuntary servitude.
Thus, the Republicans threatening filibuster say, she has equated abortion with slavery and is therefore unqualified to fill those posts once occupied by John Yoo and Jay Bybee (currently a tenured law
professor and a federal court of appeals judge, respectively), who purported to provide legal justification
for the waterboarding and beatings of U.S. prisoners. (The torture, of course, ensured that we can never
bring the terrorists subject to it to justice since no U.S. court would ever consider the evidence obtained
by torture reliable enough to convict those terrorists.)
The Republicans are also threatening to do all they can to block the nomination of Harold Koh to
be legal counsel to the State Department. Koh is the dean of Yale Law School. Why is he unqualified
to fill the job hes nominated for? Because, purportedly, he thinks Sharia law could apply to disputes in
U.S. courts. This stuff is actually taken seriously. Even though none of it is true.
Im flabbergasted. Effective persuasion and argument require being open to all sorts of ideas, but it
also requires constraints one cannot persuade with unpersuasive arguments. But whether justifying
torture or opposing perfectly reasonable people who happened to oppose the justification of torture, there
seems to be a remarkable willingness to rely on the hope that whatever one says, no matter how empty
or absurd, will have an impact. It reminds me of the Obama pals around with terrorists line. Since
he had professional connections with Bill Ayers 30 years after Ayers days in the Weather Underground,
we were supposed to imagine Obama hangs out on his off days with his friends from Al-Qaeda. I would
expect the U.S. Senate could have as much sense as the entire electorate demonstrated last November in
rejecting those ridiculous arguments. So far, it seems, Im wrong about the Senate.
Who
should
most
influence
the
creation
and
intepretation
of
our
laws?
(2009-04-02 13:28)
Where did our laws go wrong and help create the current financial crisis? My own experience over the
28 years since I began law school has been that at the intellectual level we have become more and more
enamored of the idea that the free market is the best measure of all value and that at the professional
level we have become more and more obeisant to the financial industry. Markets do a lot of good, but
it boggles my mind when complex legal problems involving competing values and belief systems are in
facile ways reduced to a weighing of measurable quantities. And the investment bankers I worked among
during my years as a lawyer in New York City were bright, but they were no smarter than the lawyers,
painters, non-profit fundraisers, contractors, social workers, doctors, nurses, teachers, writers, and engineers I knew.
As Simon Johnson, a Professor at MITs Sloan School of Management and former chief economist of
the International Monetary Fund, points out in the Atlantic, it might precisely be our willingness to defer
politically to the people we referred to as financial wizards that got us in this mess:
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Top investment bankers and government officials like to lay the blame for the current crisis
on the lowering of U.S. interest rates after the dotcom bust or, even better in a buck stops
somewhere else sort of way on the flow of savings out of China. Some on the right like to
complain about Fannie Mae or Freddie Mac, or even about longer-standing efforts to promote
broader homeownership. And, of course, it is axiomatic to everyone that the regulators responsible for safety and soundness were fast asleep at the wheel.
But these various policies lightweight regulation, cheap money, the unwritten ChineseAmerican economic alliance, the promotion of homeownership had something in common.
Even though some are traditionally associated with Democrats and some with Republicans,
they all benefited the financial sector. Policy changes that might have forestalled the crisis
but would have limited the financial sector s profits such as Brooksley Born s now-famous
attempts to regulate credit-default swaps at the Commodity Futures Trading Commission, in
1998 were ignored or swept aside.
The problem is that, as Joan Walsh points out, the Obama administrations efforts to fix the financial
industry seem to perpetuate the misplaced reliance on the financial industry that the Democratic Party
started back in the Clinton administration and that continues, unabated, to this day in the actions of
Tim Geithner and Charles Schumer, the Democratic senator from New York.
Perhaps, though, were in on the beginning of a trend in a direction other than the one weve taken
in the 30 or so years of my professional life. With the demise of investment banks well no longer see the
best and the brightest of our college graduates flowing into investment banking and financial consulting
jobs. At a recent job fair at Columbia University, Kevin Long, a recruiter for Environ, which provides
international consulting services on environmental sustainability, cleanup and other issues, was quoted as
follows:
Were delighted. In the past, we have had to compete with investment banks, hedge funds
people that were pulling the best engineers and scientists out of these schools. And this
year, because of the conditions of the economy, were getting an opportunity to go after those
students.
Who knows? If the people we consider the smartest are engineers and medical providers and social
workers, maybe well pass laws that enrich them rather than laws that enrich investment bankers. And
maybe that will be better. Certainly it will bring in a broader range of views. I dont mean we should
ignore the financial industry, but we should realize when someone tells us by making laws and policy that
are intended to directly enrich them we will indirectly be doing ourselves the greatest good, we should
perhaps start checking our wallets.
The financial crisis is an opportunity for innovation in legal practice and law schools.
(2009-04-02 17:47)
This blog is supposed to be about law and innovation both the ways law affects innovative and creative
endeavors and the ways creativity informs the practice of law. Im not sure where I go t the nerve to
believe I have something worth saying on these matters, but it is gratifying when I find out that Im
not entirely empty-headed. The New York Times yesterday published an editorial observing that the
economic downturn is hitting the legal profession just as profoundly as it is hitting any other occupation.
As the Times notes, The American Lawyer is calling it the fire this time and warning that big firms
may be hurtling toward a paradigm-shifting, blood-in-the-suites future. The thrust of the editorial,
though, is that crisis is an opportunity for change and that the legal profession is much in need of change:
The silver lining, if there is one, is that the legal world may be inspired to draw blueprints for the 21st
century.
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I am not at all happy with the job market, especially for my students. They are talented, well educated, and hard working people who will do a lot of good for their clients. But I am gratified that the
types of changes the Times are ones Ive long believed are important. I do believe the U.S. legal system
is a brilliant embodiment of practical justice, but its biggest defect in achieving justice is its cost. It is
appalling that achieving any sort of justice against any adversary willing to fight you (regardless of the
merits of his cause) will invariably cost you enormously. The fact someone whose position has little or no
merit can make you expend enormous amounts of money to prove the demerits of his claims undermines
justice by tilting the entire system radically in favor of the more wealthy members of our society. The
internet has brought home this phenomenon to artists who want to make their work available and to
people who want to post their family videos, but it will be one familiar to anyone who has called upon
the legal system or been dragged into it, whether through divorce, the need to obtain payment from ones
customers, the need to get relief from economic or physical threat, or any of the myriad other ways one
might need to call upon legal process to attain justice.
Two ways the economy will force down the costs of using lawyers are (1) the salaries of lawyers at
the top end (which the Times notes begin at $160,000 at the wealthiest law firms) will have to be reduced
and (2) the reduction of money available to spend on lawyers will mean more leverage to push . . . for
successful outcomes on the part of those who have traditionally been less well financed.
Moreover, law firms will have to change their billing practices, replacing the billable hour, Law firms
also, of course, will have to come up with more efficient ways of delivering their services.
The Times also suggests the economic crisis might require law schools to become more serious about
curricular reform, in particular by including more focus on practical skills. I could not agree more
making clear the inextricable bond between legal theory and legal practice has been central to my work
as a law professor. I dont understand how you can teach law without understanding how it works. My
conviction is evidenced, I hope, by the school ive chosen to teach at this year and (at least) next, the
University of Detroit Mercy Law School.
But I am skeptical of the power of the economy to change law schools. Lawyers and judges have for
a long time called for law schools to focus more on training lawyers (rather than teaching legal theory
in a way that makes sense primarily to law professors, not lawyers or judges), and still the changes have
been very, very slow and very, very minor. Law schools do not look to their success at training lawyers
to guide their curriculur decisions; rather, they principally look to a rankings system that rewards law
schools that admit students most like the students at the schools that are already the highest ranked.
Thats a formula to entrench the status quo, not a formula for change. Nor does the critique from within
law schools of the most influential rankings system really do much to solve the institutional deference to
the status quo. Brian Leiter, a law professor at the University of Chicago, publishes his own rankings
and regularly critizises the most influential rankings, but even he relies principally in judging law schools
on the scholarly reputation of faculty (which is largely based on where the professors teach and the law
reviews in which they publish, both of which are merely indicators of how well those professors fit the
prevailing view of quality) and student undergraduate grade point averages and LSAT scores (both of
which correlate to success as law students, not as lawyers).
It cannot hurt, though, that the New York Times has joined the chorus calling for law schools to
focus their curricula more on the practice of law.
Greenberg v. AIG: the evidence and the truth (2009-04-03 12:27)

The difference between journalists and lawyers? Journalists, at least as they practice their craft these
days in this country, practice a pretended objectivity by giving voice to both sides of a dispute. I presume the purpose is to leave the reader to be the judge. Its a way of going about thet job that gives the
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impression of being as fair as it is possible to be. Fox News has grounded its entire image in precisely
this perception of what is most fair: We report, you decide.
Ive bemoaned before the absence of critical thinking that goes into this style of reporting. The New
York Times is at it again today, this time on a subject far more important than whether a hot artists
most valuable products infringe the copyrights of other creators how AIG got our country into the
financial mess its in and whether we ought to trust the people who brought us here to lead us out.
Hank Greenberg, the long-time head of AIG who was deposed in 2005, testified yesterday to Congress
and claimed that the Obama administration should have let AIG go bankrupt, that the administrations
policies have deprived AIG of its most valuable assets by driving off the people who led AIG into its
catastrophic state, and that Mr. Greenbergs policies which included the creation of the credit default
swaps that insured the mortgage backed securities that were doomed to failure had nothing to do with
the eventual failure of AIG. He might not have provided reserves to allow AIG to afford the liabilities it
had assumed when it sold the credit default swaps (thereby earning itself enormous amounts of money,
profits that of course contributed to the fortunes made by Mr. Greenberg and the other geniuses who
our government has driven away), but, he says, he would have set aside reserves to meet those liabilities
(thus averting the necessity of the bailout) had he been allowed to stick around.
The story does give the other side of the story, quoting a spokesperson for the current management
of AIG contradicting Mr. Greenberg and asserting flat out that he lacks any credibility:
Hank Greenberg continues to deny his role in allowing [AIGs Financial Products Division]
to write the multisector credit-default swaps which sowed the seeds for AIGs troubles, the
company said, referring to the financial products unit. It went on to denounce Mr. Greenberg
as evading questions and lacking credibility as a business strategist.
He refuses to acknowledge that he approved entry into the credit-default swap business,
approved more than $40 billion of swaps written on C.D.O.s containing subprime loans, and
didnt hedge or put up reserves against them, the company said. Collateralized debt obligations are securities made from pools of loans and other forms of debt.
We dont understand how he can be viewed as having any credibility on any AIG issue.
My problem with this type of journalism is that it doesnt make judgments that can be made. It often
may be difficult to tell right from wrong with certainty, but there are often clear judgments to be made
about which position is better and which worse. Mr. Greenbergs self-interest in these matters, his lifetime of self-promotion in the interests of building an immense personal fortune, and his rank hypocrisy
are legendary. A journalist is capable of giving both sides of an argument and of understanding context
and making judgments. To fail to do so leaves the reading public to do that work themselves, something
that people simply dont have the time to do.
Lawyers, on the other hand, do contend always with adversaries setting forth evidence that seems to
contradict the evidence they are presenting on behalf of their own clients. But setting forth the evidence
is only part of a lawyers job. The lawyer also structures that evidence into arguments on behalf of
his clients position, explaining specifically how that evidence should be viewed. Then decision makers
(juries, judges, arbitrators, etc.) decide. The lawyer doesnt rely on the decision-maker to figure out how
to explain the evidence. The lawyer gives the decision-maker the means of understanding it.
I dont know why journalists dont do so more often.
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We have lost too, too much. Dont let history disappear. (2009-04-03 15:28)
I am not sure at all that my students understood that Wednesday morning last November that we were
living in an extraordinary historical moment, that I could not have imagined growing up that a black
would be elected President. I try too to explain to my son how horrific a year 1968 was to me as a
boy of almost 9. 41 years ago tomorrow Martin Luther King was killed. Two months before Kings
assassination, the Viet Cong began the Tet Offensive, which made plain to to most Americans that
winning the Vietnam War would require more resolve than it was worth. Less than one month after
Kings assasination, a combination of a nationwide workers strike and student uprisings led to street
fighting in Paris that verged on genuine revolution. One month after that Bobby Kennedy was shot dead
just moments after winning the Democratic primary in California, thereby appearing to have gained the
electoral momentum to get the partys nomination and, I think likely, to be elected President on a strong
anti-war platform. But the Democrats imploded later during their convention in Chicago, where Mayor
Daly loosed his police force on anti-war protestors, whom the cops outnumbered 5 to 1. In August,
Soviet tanks rolled into Prague and crushed the brief brigtht moment known as the Prague Spring, a
moment that the SolVidarity uprising 21 years later in Gdansk echoed, an echo that made anyone who
remembered 1968 skeptical that 1989 would be any different. In November of 1968 Richard Nixon was
elected President, which resulted in an escalation and expansion of the war in Southeast Asia (and the
straight line from there to the Khmer Rouges genocide in Cambodia) and an administration which used
its governmental powers to silence people it explicitly identified as its enemies and engaged in criminal
enterprises to ensure it would remain in power. It was a very scary time. Today is no golden age, but
its much, much better than 1968. We need to remember that. And, believe it or not, historical memory
is an important issue in arguments over the rights of copyright holders to control the use of their works.
Curly takes the stand. (2009-04-03 17:52)

Hat tip to Minor Wisdom.
Dont let history disappear, redux. (2009-04-04 13:06)

Last week one of my most engaged students came to me and said, The New Deal didnt help the recovery
from the Depression. It was entirely World War II. I sighed. The reason he might believe what he said
is true is because hes a Republican and he has been listening to the arguments for their near unanimous
congressional opposition to the Obama administrations efforts to help the economy. As the New York
Times reports today:
For more than half a century, Americas political leaders - Republican and Democrat have sought to wrap themselves in the legacy of Franklin Delano Roosevelt, the man credited
with replacing fear with hope and ending the Great Depression. But in recent years some
writers and economists have been telling a version of this story that is quite different from
the one generally taught in school or seen on the History Channel.
In this interpretation Roosevelt is a well-meaning but misguided dupe who not only prolonged the Depression but also exacerbated it. For many people, its like hearing that Little
Red Riding Hoods grandmother and not the wolf is the rapacious killer.
Since the financial crash this fall, the revisionist look at the Great Depression has attracted
new attention . . . . But more than that, it has become an intellectual banner for Republican
opponents of the Obama administrations ambitious bailout and stimulus proposals.
Amity Shlaes, a syndicated columnist who works at the Council on Foreign Relations, helped
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ignite this latest revisionist spurt with her 2007 book, The Forgotten Man: A New History
of the Great Depression.
The deepest problem was the intervention, the lack of faith in the marketplace, she wrote,
lumping Herbert Hoover and Roosevelt together as overzealous government meddlers.
The current financial crisis, as well as continuing praise from conservatives, helped propel
the book back onto the Times best-seller list in November. Jonathan Alter, an editor at
Newsweek and the author of The Defining Moment: FDRs Hundred Days and the Triumph of Hope - which has also benefited from the renewed fascination with the 1930s - calls
Ms. Shlaess book a taste badge, flaunted by Republicans looking for a way to oppose the
administration.
Todays article didnt do much but explain there is this revisionist view and that it is the intellectual
basis of the Republicans current political positioning. Intead, it more or less gave a he said, she said
account of the competing theories about the Depression and the New Deal as they were articulated at
a conference at the Council on Foreign Relations New York headquarters, co-hosted by the Leonard N.
Stern School of Business at New York University, and partly organized by Ms. Shlaes.
There are plenty of good critiques of Ms. Schlaes, including Eric Rauchways in Slate, and, on a regular
basis, Paul Krugman (here, for example). Even political allies, like Megan McArdle, find the fashionable
right wing view Shlaes popularized and the Republican party has adopted as its own to be gross caricature:
The problem is that Shlaes way, way, way overstates her case. There is an academic
argument that the National Recovery Administration prolonged the Great Depression . . .
. But the Great Depression is complicated, and its hard to make the case that government
intervention was the main problem with the economy. As economic history, the book is
interesting if one sided. But as an argument, it leaves a lot to be desired.
But reading political rhetoric is a poor substitute for an immersion in history. I am lucky that my father
at 85 is as sharp, energetic, and passionate as ever, and his memories of growing up poor in the Thirties
and the profound differences FDR made are vivid. Reading books rather than mere opinion pieces is
important too. I recommend strongly David Kennedys Freedom From Fear: The American People in
Depression and War, 1929-1945 (Oxford History of the United States).
Maybe its that were a sound bite culture. I dont know. But in my adulthood, which more or less
began with Ronald Reagans flip dismissal of all governmental action as the problem, not the solution,
Ive continually been shocked at the frequency with which people are ready to accept without question
that premise and its counterpart that unregulated markets are wiser than any human institutions can
ever be and always are the best solution.
Free Speech, Copyright, and Fair Use: We can express ourselves any way we want,
even in ways that steal your own forms of expression, unless theres a good reason
to stop us. (2009-04-04 20:48)
Calling the right a creator has in his or her work intellectual property is misleading. It conveys the
imipression thatthe work is property in the same way a television of a piece of land is property. You can
fence in land. You can stop anyone from using your television. But intellectual property is not personal
property the way things are and it is not real property the way land and the buildings attached to land
are. Artists often think otherwise. In an interview on myartspace.com, for example, Steven Bogart, asked
about his position on copyright, says simply, Artists have a right to control their images and the right
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to be credited.
He might wish it so, but it isnt so. Plainly, the lawsuits that result in findings that the use of copyrighted works are non-infringing fair use of copyrighted works all involve uses over which the artists have
no control. If they had control, thered be no lawsuits. Nor does fair use require crediting the artist
whose work is used without consent.
There are many, many reasons underlying the fact U.S. law does not treat the product of creative expression like it treats personal or real property. Among them may be some comprehension that creativity is
not the individual act of divine inspiration that Romantic poets believed and that in fact resulted in the
rise of copyright as we know it.
But another, and very American reason U.S. law does not treat the products of creative expression
the same ways it treats land holdings or the products of manufacturing is that the use of creative expression, authorized or not, is itself expression, and the freedom of expression is at the very core of
what it means to be American. The fair use doctrine, which allows the use of copyrighted materials in
certain circumstances without the consent of the owner of the copyright, is based squarely on the First
Amendements guarantee of the freedom of expression.
Accordingly, in determining whether the unauthorized use of copyrighted work is non-infringing fair use,
courts look at, among other things, whether the challenged use has a negative impact on the commercial
market for the copyrighted work. While the commercial damage to the copyrighted work is a significant
factor, Christina Bohannon, a law professor at the University of Iowa, believes that the importance of the
right to free speech should require that it should be required in order for a court to find infringment. As
she explains in the abstract to her paper, Copyright Harm and First Amendment, a showing of harm
is required in every single other constitutional restriction on free speech and there is no justification for
treating copyright differently:
Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First
Amendment sometimes protects even harmful speech, it virtually never allows the prohibition
of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of
publicity laws, require demonstrable evidence that the defendants speech causes actual harm,
copyright law does not make harm a requirement of infringement. Although copyright law
considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is
not always required and is so poorly defined that the concept has become circular. Moreover,
the defendant ordinarily bears the burden of proof to show the absence of harm. As a result,
courts often find liability for infringement (and therefore burden speech) where harm is purely
speculative.
Potential explanations for copyrights anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does
not come close to justifying its aberrant treatment. Moreover, copyrights role in encouraging
creative expression does not obviate First Amendment concerns. Rather, it provides a way
to reconcile copyright law and free speech. Drawing substantially from First Amendment
cases holding that speech restrictions must be justified by a governmental interest, this article
argues that the First Amendment requires real proof of harm to the copyright holders incentives in order to impose liability for copyright infringement. It also explores the types of harm
that might arise in copyright infringement cases and considers whether the First Amendment
permits recognition of these types of harm. The article concludes that although demonstrable
market harm is cognizable under First Amendment principles, recognition of harm to the
reputation of copyrighted works, the authors right not to speak or associate, or the copyright
holders privacy interests is generally not compatible with the values of free speech.
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Of course, I could say in response to Professor Bohannon the same thing I say to those who say artists
do have the right to control their work and to attribution for any use of their work. You may wish it
were so, and there may even be reasons to believe your position merits my sympathy, but that assertion
isnt the law and doesnt make it the law.
Why do we enforce contract promises? (2009-04-06 11:42)

Over the course of my professional career, Law and Economics has grown from one school of thought
among many to one so dominant that many of its postulates have virtually become unquestioned premises
from which legal reasoning begins. The Law and Economics school of thought is wide-ranging, but might
fairly be described the way Wikipedia puts it: Law and Economics is an approach to legal theory that
applies methods of economics to law. It includes the use of economic concepts to explain the effects
of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be
promulgated.
One of the most influential premises of Law and Economics is that contractual promises are enforced
purely because of their capacity to maximize the society-wide allocation of resources. Thus, it is said
that the contractual promise has no moral value over and above its economic value. This view both
explains why typically someone suing for breach of contract can recover only the financial equivalent of
the benefit they would have received had the contract been performed. There is no additional quantum
of damages added to provide an incentive not to breach.
Thus, it is said, a contractual promise is in fact a promise either to fulfill the promise or to pay the
damages that result from breach. This view, it is argued, has long been the view of the common law,
as exemplified by Oliver Wendell Holmes late 19th Century statement that the duty to keep a contract
at common law means a prediction that you must pay damages if you do not keep it, and nothing else.
Thus, the thinking goes, if someone who has made a contractual promise can make out better by breaking
the promise, paying damages for breach, and entering a different deal, that result is not merely tolerable
it is to be desired. Such a breach of promise is known as an efficient breach because it theoretically
results in an increase in overall resources: the party injured by the breach is supposed to get everything
he was supposed to get under the contract, the breaching party is getting something better, and the new
party with whom the breaching party contracts is getting a deal he would not otherwise have gotten.
The Law and Economics view is by no means the only one current in the theorizing about the basis
for enforcing contractual promises (and the interpretation Law and Economics devotees put on Holmes
statement is disputed). As a contracts professor and litigator, though, my experience is that the idea
that the contract promise has no moral value over and above its economic value is a very, very influential
one.
It is a view, too, that is of a piece with the rise to virtual unquestioned dogma that unregulated free
markets always result in the highest social good. One problem, though, is that unregulated free markets
entrench the power of the wealthiest. So people bound by promises (the promisor) can force the person
to whom they are bound (the promisee) to change the terms of the promises if the promisor has greater
financial ability to force the promisee into a legal resolution that is unacceptable to the promisee.
The disparity in economic power the theory of efficient breach does not account for is on display in
the power corporations hold to renegotiate employment contracts. Since an employee can only recover
for breach whatever damages are available to him through law, the threat of being limited to that remedy
can be a powerful one. Thus, as the New York Times pointed out last week,
Contracts everywhere are under assault.

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The depth of the recession and the use of taxpayer dollars to bail out companies have made
it politically acceptable for overseers to tinker with employment agreements.
But, as David Skeel, a law professor from the University of Pennsylvania quoted in the article points out,
We run roughshod over some contracts and not over others. . . . Right now, employment
contracts seem to be the type of contract that is viewed as eminently rewritable.
So we have Larry Summers, President Obamas Chief Economic Adviser, arguing in connection with the
bonuses paid to AIG employees that the contractual promises are too sacred under the law to undo: We
are a country of law. . . There are contracts. The government cannot just abrogate contracts. Every
legal step possible to limit those bonuses is being taken by Secretary Geithner and by the Federal Reserve
system. On the other hand, the UAWs agreement to give up rights under its contract with the auto
companies was required by the government as a condition of the federal monies the automakers received.
So, are contractual promises sacred in some way, or are they only worth whatever the parties to them
can extract given their relative financial strength and political influence? I dont think I know.
AP doth protest too much, methinks. (2009-04-07 17:27)
Its interesting how often the people who scream the loudest about a problem are the ones who in fact
are vulnerable to precisely the criticism they are voicing. Im no psychologist, though you clearly need
no professional degree to understand that zealotry apparent certainty can betray insecurity. AP has of
late been rather extreme in its rush to protect its rights in copyrighted material. Now AP seems poised
to take on Googles contention that it is engaged in non-infringing fair use when it engages in its regular
practice of displaying the headline and lead paragraph, along with credit and a direct link, of the news
stories published by, among others, AP.
As Larry Dignan points out on ZDNet, AP regularly a lot, every day reports stories that are based
purely on other public sources without either acknowledging or linking to those sources. He concludes
that once folks figure out they can damn near replicate most of the AP just by finding source material
things are going to get ugly quickly.
There is nothing new under the sun? (2009-04-08 08:40)
What is creativity? What is originality?

225
How creative does a work need to be to win the Brit Insurance Design Award?
(2009-04-08 12:46)
The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama
Hope poster. Nominations for the award were made by a group of internationally respected design ex226
perts, curators, critics, practitioners, enthusiasts.

Do you think the Design Museum considered Faireys poster a sufficiently creative transformation of
the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you
think AP is spending its money wisely in challenging Faireys right to use the photograph?
Edward Morris: Fairey is not plagarizing or stealing! Get with the program on appropriation art,
ok!
Fix the law, but dont forget what the law has already tried to fix. (2009-04-09 09:27)
Opinions about law tend to focus on its defects, and there are plenty of those. What too many of those
opinions ignore, however, is that law is rarely arbitrary or one-sided. There are imperfections, but those
imperfections are flaws in an effort to address real problems. To fix the flaws in existing law without
attending to the problems that law addresses is to trade one set of problems for another, often bigger,
one.
The U.S. legal system is an immensely complex product of decisions made in courts, legislatures, and
administrative agencies at the federal level as well as the state and local level. When one considers the
monumental number of individual decisions that make up the workings of those tens of thousands of
jurisdictions and the fact that law persists over time until it is changed, it is plain that the law is the
product of a massive collective wisdom.
That is not to say the system is perfect it is far from perfect, and its complexity is in no small
part directed at perpetually refining the defects that perpetually appear as new problems arise in new
contexts that include new ways of looking at things. Not only do we continually face new facts, but what
we think and feel about those facts always changes. As Nicholas Kristoff points out this morning, for
example, new industrial farming methods and new ideas about the morality of ignoring the suffering of
animals is has produced a broad push in Europe and America alike to grant increasing legal protections
to animals.
But my point today isnt about new law its about the efforts to fix existing law. If one is going
to do so in an effective way, it is not enough to identify a problem and eliminate it. One must also figure
out what the existing law is trying to do. Medical malpractice is a lottery, giving big awards to certain
injured plaintiffs while leaving most uncompensated. It also does a less than optimal job at distinguishing
between negligent doctors and non-negligent doctors who, after all, practice a profession in which perfect
performance will not necessarily lead to a good outcome. It also likely increases the costs of health care
by forcing doctors to practice defensive medicine.
But if one produces a solution that merely solves these problems without recognizing the problems
the system is trying to address, one is merely serving one set of interests.
There are two major reasons the medical malpractice system operates the way it does. Patients suffer major harm from medical procedures, and they cant afford to pay for the care that harm requires. In
addition, the threat of liability has made the standard of care in U.S. health care the highest in the world.
(Its an interesting instance of selective vision, I think, that political opposition to medical malpractice
and to universal health care come from the same political sector and the opposition to universal health
care is based on a promotion of the superior quality of U.S. health care, as if that quality has nothing to
do with the incentives imposed by the threat of medical malpractice.)
Thus, I wrote recently in connection with Philip K. Howard s Life Without Lawyers: Liberating Ameri227
cans from Too Much Law, that if doctors really want to reduce malpractice problems in a way that will
satisfy everyone . . . [they should] create a patients compensation law that provides relief to patients
injured by adverse medical outcomes. I am gratified to realize I am not alone in my thinking. Writing
today in the New York Times in response to Mr. Howards one-sided solution to the problems of the
malpractice system, Clifford Allo points out that the biggest problem the one the existing system is
an imperfect remedy for and that Mr. Howard ignores is that patients who suffer hard resulting from
medical procedures (a risk we all face all the time no matter how perfect our doctors might be) are not
provided the financial means to live with that harm:
The biggest reason for bringing the most expensive malpractice claims - for example, adverse incidents at birth - is to find some source to pay for long-term care. A single-payer
system would provide that care without threatening any doctors personal wealth.
We use the courts to allocate yesterdays fault so that tomorrows bills may be paid. If
tomorrows care were assured, care review could focus on quality assurance rather than on
fault. We need to overcome the ideology that prefers private profit to universal security.
And Jerry Frankel, a doctor, writes that Sweden already has a system like the one I described:
The problem with the proposal advocated by Philip K. Howard is that its very difficult
in most injuries to discern negligence from an unfortunate complication or complications.
Honest, objective medical experts often cant agree about what is the standard of care, much
less whether a complication was negligence or not.
In Scandinavia, anyone who suffers a major medical injury is compensated by a no-fault
system where the compensation has been set based on the type and severity of injury. This
eliminates our lottery system, where few patients are compensated at all.
Physician report cards are maintained to protect the public from bad doctors, but no-fault
liability payments are not part of doctors evaluations.
Patients in this system have the ability to opt out and sue, but if they lose in court, they lose
their no-fault option. Few, if any, opt out.
Richard Prince, Patrick Cariou, and Appropriation Art (2009-04-09 19:17)

Back in January photographer Patrick Cariou sued Richard Prince, alleging that the collages Prince had
exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians
Cariou had taken and published in his book Yes Rasta in 2001. A few days ago Prince filed his answer,
claiming his use of the photographs constituted fair use.
As Brian Sherwin explained at myartspace.com last January, if the case is not settled, the court decision
in it could have a profound impact on the art world, either clarifying that the widespread acceptance
in the art world of appropriation art is legally legitimate or opening the door to an increased number
of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any number of
other genres that have become increasingly easy to engage in with the digitalization of media and the
rise of the internet:
[Carious] case could be groundbreaking in that it will establish some order concerning
fair use either for or against it. If the court sides with Cariou and his demands are honored
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it would mean that there will be drastic changes in the art world. Gallerists, curators, and
publishers may think twice before promoting an artist with a history of copyright infringement
allegations.
Prince has been engaged in a particularly confrontational style of appropriation since the 1970s. As
Randy Kennedy has written:
Since the late 1970s, when Richard Prince became known as a pioneer of appropriation
art - photographing other photographs, usually from magazine ads, then enlarging and exhibiting them in galleries - the question has always hovered just outside the frames: What
do the photographers who took the original pictures think of these pictures of their pictures,
apotheosized into art but without their names anywhere in sight?
Most civil lawsuits the vast, vast majority (over 90 %) settle, of course. And it seems likely Carious
lawsuit will settle too. Prince is very, very succesful, and there likely will be some amount of money he is
willing to pay and Cariou is willing to take for them both to avoid a decision that, if it goes against Prince,
almost undoubtedly would be appealed and the outcome of which may be very much debatable. So its
unlikely well end up with the legal clarification the art world might desire. The fact the development
of judge-made law is entirely dependent on the outcomes of individual lawsuits is precisely why such
questions can remain so long unresolved. The fact such questions remain unresolved, however, may
not be a problem. It is, perhaps, a better thing for artists who appropriate and artists whose work is
appropriated as well as the world of critics, museums, galleries, collectors and patrons that exists as a
result of those artists to slowly work to a solution of these questions themselves.
Requiring McDonalds to disclose the calories in the Big Mac: good for consumers,
or treating customers like idiots? (2009-04-10 11:48)
Todays Wall Street Journal Law Blog has a post that nicely summarizes the varyious views on the impact of individual lawsuits on corporate behavior. Referring to an article in the Wall Street Journal by
Nathan Koppel (subscription only), the blog explains that a surge in litigation against food companies
for allegedly selling unhealthy products and for misrepresenting their products nutritional value has led
the food companies to adopt a host of health-promoting steps, like reducing their use of trans fats, limiting marketing of sugary products to children, and toning down boasts about their products nutritional
value.
Thus, for example, in New York Restaurant Association v. New York City Board of Health (pdf), the
United States Court of Appeals for the Second Circuit upheld a New York City law requiring restaurant
chains to post calorie information on their menus. In doing so, the court rejected the argument that the
fact the restaurants already satisfied the federal regulations on required disclosures issued by the FDA
meant that the citys regulations were pre-empted.
As I mentioned last month, the U.S. Supreme Court recently rejected arguments by a pharmaceutical company that having satisfied FDA labeling requirements, it should not also be subject to state law
that imposed even stricter requirements on the company regarding what it must warn about in selling its
drugs. The Supreme Court in that case emphasized the important role litigation plays in supplementing
federal regulation, pointing out that regulatory agencies are limited in what they can do and should not
be relied upon to alone police an industry unless Congress makes it clear that the agency is supposed to
have that exclusive authority:
The FDA traditionally regarded state law as a complementary form of drug regulation.
The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers
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have superior access to information about their drugs, especially in the postmarketing phase
as new risks emerge.
A lawyer in the New York Restaurant Association case argues, though, that such lawsuits are part of a
larger paternalization of society, adding that such litigation in effect, says the masses arent intelligent
enough to understand what they are buying. He is not alone in his sentiments, even if he lost his most
recent case. Michael Doyle, a reporter for McClatchys Washington Bureau, wrote in the aftermath of
the decision that the calorie police have won another one.
Is it time to get on from where we are and stop returning art stolen by the Nazis to
the heirs of its original owners? (2009-04-13 13:01)
My friend and former student John Kelley who now is Compliance Manager for Baystate Health but
has had extensive experience in the art market points me to an article in the German magazine Spiegel
Online, which discusses British art connoisseur Sir Norman Rosenthals call for an end to the return
of artworks looted by the Nazis to the heirs of the original owners. Although it was not until the late
1990s that an international consensus was reached that artworks should be restored to the families of the
people from whom the Nazis had stolen them, since then, according to the article, the idea has seemed
undisputed; after all, [w]ho would challenge the legitimacy of the claims of the heirs of Nazi victims to
their family property?
But, as the article points out, Museums have at times disputed their obligation to return such works
on the grounds that they acquired the works in question legally and in good faith. Individual owners
have made the same argument. More recently, though, at least one prominent German member of the
art world has argued that the practice of returning the art to the families of the original owners should
stop because the families have been motivated by money, not by their love of the artworks:
The best-known opponent of restitution in Germany is Bernd Schultz, 67, the director of
the Berlin auction house Villa Grisebach. In a speech at the Chancellery two years ago, Schultz
accused the heirs of having a purely financial interest in looted art: They say Holocaust, but
they mean money. He has never retracted the statement.
That argument seems on its face, to me, a bit disingenuous. The works that are fought over, of course,
are works that are worth an enormous amount of money. If they werent, the issue would not be the
huge one its been. Why shouldnt a family who, but for the Nazis, would have had a work of art or the
right to dispose of it as they had seen fit not have a better claim to it than someone who succeeded to
the claim of someone who succeeded to the claim of the original thieves and murderers?
But Sir Normans argument is different: [h]is motives include the desire for reconciliation and the
desire to settle issues that leave current owners who have no reason to doubt the legitimacy of their
ownership rights subject to claims. It does indeed seem that at some point the sheer passage of time
ought to settle ones rights. But have we reached that point? And are we really at a point at which the
vast majority of current owners have no reason to doubt the legitimacy of their rights?
The fact Sir Norman, who is himself the child of survivors and has no desire to downplay the importance
of Nazi crimes, may well mean where getting closer to the day when, in his words, we must get on from
where we are and [w]e can no longer wipe history clean.
Germany: well still return art stolen by the Nazis. (2009-04-14 16:46)
In connection with yesterdays post regarding art looted by the Nazis, the Art Law Blog announces that
Germany has rejected Sir Norman Rosenthals call for an end to Nazi restitution cases.
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Wind of Change: new problems require new laws and new political alignments.
(2009-04-16 09:00)
One consistent theme in this blog is that law is not a fixed

set of rules applied to new situations as those new situations come up. Rather, as new situations arise, the
law changes. This relationship between change and the law is frustrating to a lot of people. Politicians
decry the activism of judges who dont merely apply the law as it is written. And my students feel
sometimes as if Im trying to trick them. Most come to law school thinking that what will be really hard
is that theyll have to spend so much time learning so many rules. I tell them over and over again that it
is indeed hard to spend so much time reading law. But thats the easy part. The hard part is when you
realize how open-ended and fluid the rules are and begin to understand that the really, really hard part
is developing the creatvity and expressive powers necessary to effectively deal with law in an infinitely
complex and ever-changing world.
So, for example, I have tried again and again to make clear that there is nothing in our copyright laws
that is a necessary and immutable part of treating creators fairly. Rather, what is fair changes as the
underlying material reality of creation changes. Our copyright laws our the product of a particular time,
including the technologies of creation, the means of disseminating created products, and the intellectual
fashions of that time. Since we have experienced and continue to experience a revolution in information
technology, our copyright laws are bound to change. So an artist who claims he has control over any
use of her images is not only wrong; she is also fighting a fight she may not be able to win without the
sacrifice of the benefits of our new technologies benefits we never had before and that wed really prefer
not to sacrifice for the sake of her exclusive control.
So we should not be surprised that changing energy technologies are beginning to realign our entrenched
expectations. Ted Kennedy, of course, has long been known as the liberals most effective liberal, not
least because, in the words of the Nation, he has been his remarkable capacity to form warm, genuine
friendshipsmore than mere working allianceswith GOP senators.
But two years ago, when Kennedy worked in the Senate to block Cape Wind, a windmill farm in Nantucket
Sound, environmental groups launched an aggressive advertising and lobbying campaign to persuade
Democrats to abandon Kennedy and called Kennedys maneuver a backroom deal. The premise of the
attacks, of course, was that Kennedys maneuver was motivated by the location of the legendary Kennedy
compound on Hyannis Port, just 8 miles from the Cape Wind project. Kennedy counter-attacked, arguing that his position was the environmentally sound one. He also asserted that the wind farm would
hurt tourism, one of the areas key industries.
Putting aside the merits of Kennedys position, it seems plain that developing wind power will cre231
ate rifts between environmentalists. On the one hand, of course, wind farms are clean, generating no
waste as a direct result of energy production. On the other hand, wind turbines of sufficient size and
sufficient number to make a real impact on energy production cannot help but have effects that not
everyone will accept willingly.
I would not necessarily have guessed, however, that wind farms would already and directly be coming into conflict with laws established specifically to protect the environment. But that conflict is quite
real in connection with migratory birds, as detailed by John Arnold McKinsey, a lawyer in Sacramento
and former nuclear power plant operator on submarines in the U.S. Navy, in Regulating Avian Impacts
under the Migratory Bird Treaty Act and Other Laws: the Wind Industry Collides with One of its Own,
the Environmental Protection Movement, 28 Energy L.J. 71 (2007) (pdf).
As McKinsey explains, his article explores the complexity, and perhaps irony, of the avian impacts
facing the wind industry. The impact, current and potential, of wind turbines on birds (and bats) is not
only an awkward issue for the environmental protectors that promoted wind energy, but is also subject
to a number of federal laws . . . [that] have created a growing issue with no resolution in sight. Thus,
McKinsey believes, [h]ow well the wind industry deals with avian impacts may determine the ability of
the industry to continue its amazing success.
Unfortunately, while there is a growing recognition that fatal collisions between birds and wind turbines seem inevitable, according to McKinsey, it is not well understood how many birds or bats collide
with wind turbines and it is [e]ven less understood how many birds or bats will collide with a future
wind project that exists only on paper. And until recently no one has even considered avian impacts in
determining where to place wind farms. Im no expert on wind farms, but I am a litigator trained to see
risks where no one else does, and it never occurred to me in thinking about a wind farm in Lake Erie
just off the Clevelands coast that such a facility might, as now seems plain, have a big effect on birds.
Thus, of course, we not only will have laws and political alignments we never expected, we will also
have new jobs we never expected. It is only in the course of my professional career that the representation of waste management companies has become a major area of legal specialization. Now we have the
beginnings of an avian impact assessment industry, as McKinsey explains:
Companies exist that are nearly exclusively studying avian impacts for wind projects.
Businesses have started up solely to provide radar survey services for wind projects. Evaluating avian impact risk has become an accepted practice in developing wind energy projects.
Such efforts can be very expensive, depending in part on what level of effort is required. In
general, avian impact risk evaluation is people-intensive. The various activities all involve
individuals watching, catching, and/or counting birds or inspecting the ground for clues as
to what birds or bats might utilize the project location. Night time surveys are also costly.
Radar surveys alone, must factor in the cost of radar equipment as well as the operator or
operators.
And now the impact on birds, even if it is not yet accurately measurable, is beginning to have an effect
on the design and placement of wind turbines. Some think newer and larger wind turbines, with their
slower more visible motions, might reduce collisions. Studies suggest using radar to steer off birds or
placing lights at selected locations to avoid impacts. But were still working largely in the dark. Its been
thought that the use of echo-location by bats would allow them to avoid impacts, but [b]ats continue to
puzzle researchers. Some projects have a very large bat kill whereas others have minimal bat kill.
There are many federal laws on the books that could affect the wind industry precisely because of bird
kills. The most important of them, according to McKinsey, is the Migratory Bird Treaty Act (MBTA),
which was originally enacted in 1918 and provides that it shall be unlawful at any time, by any means or
in any manner, to pursue, hunt, take, capture, kill . . . any migratory bird . . . . The MBTA protects
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more than 800 species of birds. Intent to kill a bird is not required to violate the act, which imposes
criminal penalties. Unknowing violations of the MBTA can receive fines up to $15,000 per violation and
prison terms up to six months. Knowing violations are felonies and receive fines of $250,000 to $500,000
per violation and up to two years in prison.
Interestingly, though, McKinsey highlights the conflicts that can arise not only with respect to what
the law is but with also with respect to how the law is enforced. He suggests that the MBTAs potential
impact is managed largely by being ignored, the approach the U.S. Fish and Wildlife Service adopted
as official policy in 2003 in a policy memorandum euphemistically describing its approach as selective
enforcement.
But the federal agencies that administer our regulatory system largely abandoned their jobs under the
Bush administration. I have been unable to determine whether the Obama administration has reversed
this policy in connection with enforcement of the MBTA, though it quite plainly has been called upon
to do so. Already weve seen a shift away from selective enforcement of our laws governing workplace
safety. But simply returning to strict enforcement of the MBTA might create conflicts no one considered
before.
What seems plain, however, is that former allies in the environmental movement will be opposing one
another on wind power projects. Altamount Pass, east of San Francisco, was developed as a wind farm
in the early 1980s. At the time, locating wind turbines was a function almost exclusively of wind availability. That can no longer be the case:
Altamont Pass, it turned out, while an excellent wind resource area, was also a challenging
location to avoid avian impacts. Worse, this area of rolling hills was a primary hunting ground
for large birds of prey, raptors. The end result was numerous dead raptors. Actual numbers
have never been agreed upon by the various sides in the Altamont Pass confrontations, but
a significant number of study efforts have taken place. Estimates often claim that more than
1000 eagles, hawks, and owls are killed each year.
Wind of Change:
Education and democracy are the ways to wind power.
(2009-04-17 00:19)
Legal disputes may be arguments over the meaning of laws, but they are even more importantly disputes
over different views of what is right, what is just, what is fair. And the practice of law is, above all
else, the practice of problem solving and dispute resolution. The laws and the procedures are really only
vehicles for solving the problems created by those disagreements about values. There may be no more
concise a way to sum up why yesterday I wrote that the most difficult part of practicing law isnt learning
the laws and the procedures but, rather, learning how to apply the law in an infinitely complex world.
So I could pretend that theres some deep significance in the fact that four weeks ago an appellate
court in New York rejected the lawsuit instituted by the Wind Power Ethics Group (WPEG) a citizens
organization based in upstate New York in an effort to stop the proposed construction of a series of
wind-powered generators by St. Lawrence Windpower, LLC. According to WPEG, the project is one
of a four wind projects that, if completed, will create a continuous swath approximately 25-30 miles
east to west . . . where wind turbines will be ubiquitous. The result, WPEG continues, amounts to
an unacceptable sudden and uncontrolled environmental transformation of an entire region of New York
State driven by corporate greed and questionable ethics. The court rejected WPEGs claim (opinion,
pdf) that the local zoning board had been mistaken in ruling that St. Lawrence Windpowers project
qualified as a utility and that the project therefore was a permitted site plan use in that district.
More specifically, the court ruled that the classification by the [zoning board] of the series of windpowered generators as a utility within the meaning of section 315 of its Zoning Law is neither irrational
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nor unreasonable, and that the determination is supported by substantial evidence. But if you think
that the important parts of this court case were the meaning of the word utility, how courts distinguish
between rational and irrational classifications, and how much evidence is substantial evidence, youre
sadly mistaken. Im not at all suggesting that lawyers dont need to understand these matters; rather,
what Im suggesting is that these legal issues are merely vehicles in which what really is being decided
is the justice of placing a series of wind power projects in an area extending 30 miles in one of the most
beautiful parts of our continent. In short, the real issue (which might have been, but likely was not, most
readily shown through the events leading up to and resulting in the zoning boards decision) is whether
the opponents of the wind power projects should (as a matter of justice) prevail over the proponents of
the projects.
It is plain that one source of opposition is the NIMBY syndrome. People will protest and sue
to keep whatever they fear and loathe away from where they live. But they will also protest and use the
law to fight whatever is imposed on them without any consideration of their views.
The Danish Wind Industry Association has looked closely at attitudes to wind power, observing, in
a paper entitled Public Attitudes Towards Wind Power (pdf), that in general opposition to wind power
comes from people who do not think it is a practical solution to our energy problems because it is too
expensive and unreliable (because of its dependence on the wind) and because wind turbines are ugly and
noisy. Supporters of wind power, on the other hand, believe it is a practical solution to our energy needs,
that climate change poses risks that must be addressed, and that wind power is limitless, non-polluting,
and safe.
But when confronted with the prospect of wind turbines in their own neighborhood, supporters tend
to lose their enthusiasm:
There is a great difference between wind energy as an idea and wind turbines as acceptable
structures in the landscape. As we have seen people support the general idea of renewables
and wind power. But when it comes to actual projects in a local area, the acceptance of wind
power seems to vanish. This pattern is called the Not In My Back Yard syndrome or in
short just the NIMBY syndrome (Paul Gipe, 1995). The basic theory is that people support
wind energy on an abstract level but object to specific local projects because of the expected
consequences concerning primarily noise and visual impact. The NIMBY syndrome is not a
special feature for wind power. It can be detected in many other situations. New highways,
bridges, tunnels, hospitals, airports, nuclear power plants, and other energy generating plants
all face resistance at the local community level.
Nevertheless, the support returns among people who actually do live with wind turbines in their back
yards. The latest study done in Denmark (Andersen et al., 1997) . . . shows some interesting results.
The study was conducted in the town of Sydthy, which has a population of 12,000. 98 % of Sydtheys
energy iis provided by wind power. Many of Sydtheys turbines date from the early 1980s and therefore
are smaller and noisier than more modern turbines. The study shows that people with a high degree
of knowledge about energy generation and renewables tend to be more positive about wind power than
people with little knowledge.
First, proximity to turbines has no significant correlation to support or opposition to them (though,
surprisingly, the people with wind turbines almost literally in their back yards are more positive about
wind power than people living further away):
The distance to the nearest turbine has no effect on peoples attitudes towards wind
turbines in general. This indicates that people living close to wind turbines do not consider
noise and visual impact to be significant problems. As a matter of fact people living closer to
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the nearest wind turbine than 500 meters tend to be more positive about wind turbines than
people sited further away from the turbines.
In addition, the visibility of turbines seemed to have no effect on attitudes toward wind power (but
increased numbers of turbines seem as surprisingly attractive as turbines next door: people who could
see between 20 and 29 turbines tended to be more positive about wind energy than people being able
to see only a smaller number of turbines.) Perhaps confirming the stereotypical rural contempt for the
tendency of city dwellers to romanticize nature, people living in a city zone (defined by speed limits)
tend to be more negative than those living in a country zone. Four out of five Sydthey residents do
not feel bothered at all by noise made by turbines, and [a]s expected, the longer people live near the
turbines the fewer experience noise inconveniences. Finally, middle-aged people are most sensitive to
the noise of turbines, men perceive the noise to be louder than do women, and people who have a more
favorable view of the utility of wind power feel less inconvenience.
One might conclude that the solution to the NIMBY problem, then, is increased information, but the
Danish Wind Industry Association recognizes that inference may be too simplistic or, at least, incomplete. As is apparent from WPEGs assertion, mentioned above, that its opposition to the wind power
projects in the Thousand Island region is based on its opposition to corporate greed and questionable
ethics,
people in areas with significant public resistance to wind projects are not against the
turbines themselves, they are primarily against the people who want to build the turbines.
Often the local people are kept out of the decision making process. Some have hostile attitudes
against the developers, the bureaucracy or the politicians on beforehand. Those factors have
a significant effect on public attitudes in a specific area. Attitudes towards concrete projects
are site specific. They are primarily formed by the interaction with central actors and the
extent of involvement of local interests are a major explanatory factor.
So the answer is no merely to educate people on the practicality, aesthetic quality, and relative quiet
of wind turbines. It is to get people involved. Another recent study shows that 85 per cent of the
population wants to be kept informed about plans for new windpower. . . . 49 per cent said they would
definitely go to public meetings if such meetings were arranged.
Unfortunately, wind power developers may not have yet gotten the message. [I]n less than 50 percent of German wind power projects local inhabitants were given opportunities to articulate their opinion
during planning phase. And in only 8 per cent of the cases where people were actually heard, did the
developers hold information meetings. In one out of three cases the public had actual influence on the
siting process typically through legally prescribed access to present formal objections.
As Steffan Damborg, the author of the Danish Wind Industry Associations article concludes, Decision making over the heads of the local people is the direct way to protests. I would add only this:
decision making over the heads of people affected by the decisions is the direct way to lawsuits. The
lawyers representing the parties to the lawsuits probably dont mind, but the rest of us should.
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Wind of Change Music Club: Donovan, 1964 Catch the Wind (2009-04-17 11:33)
Wind of Change: Forget the jet pack! I want a wind turbine in my backyard instead.
(2009-04-20 00:27)
Small wind is a concept with which I was unfamiliar until

beginning to do reading in connection with the the Wind of Change series Geniocitys bloggers are now
engaged upon. Small wind refers to turbines individual turbines, typically producing fewer than 100 KW,
that as described by the Ontario Ministry of Agriculture, Foord, and Rural Affairs are installed at
homes, farms and small businesses either as a source of backup electricity, or to offset use of utility power
and reduce electricity bills. The New York Times one year ago reported that wind turbines, remarkably,
are becoming more common in heavily populated residential areas as homeowners are attracted to ease
of use, financial incentives and low environmental effects. Because new technology allows homeowners
who generate more electricity than they use to sell the excess back into the grid, the systems use the
electricity from utilities as backup power, removing the need for large and expensive battery-based backup
systems. The ability to switch between turbine and utility-generated power is also effortless. For all of
these reasons, there has been an explosion in these home systems over the past four years. The American
Wind Energy Association publishes several small wind success stories. I am amazed to learn too that
small wind was invented by and is still dominated by the U.S.:
America pioneered this renewable technology in the 1920s when farmers not connected
to the power grid attached generators to what used to be simple water-pumping windmills.
Unlike utility-scale large wind turbines or solar photovoltaic panels, small wind turbines are
the one renewable energy technology that the US still dominates.
Perhaps the biggest problem facing more widespread use of plug-and-play home turbines, however, is
local opposition. As Joe Schwartz, editor of Home Power magazine, explained to the New York Times
(and as my post on Friday pointed out), few people who havent lived next door to a wind turbine want
to:
Turbines work in rural areas with strong wind, Mr. Schwartz said. But in urban and
suburban areas, neighbors are never happy to see a 60- to 120-foot tower going up across the
street.
Thus, local zoning laws pose one of the biggest legal barriers to real growth in home-based small wind.
These local laws could be prevented by legal action at either the state or the federal level. State laws
pre-empt local laws. That is, if a municipalitys laws conflict with the laws of the municipalitys state,
the states laws control. And federal laws pre-empt state law, so that, if state law conflicts with federal
law, federal law controls.
It is almost inevitable that if our states and the federal government do not step in to this area, local zoning laws will prevent huge growth in small wind. Until a majority of homeowners want their own
wind turbines or, at least, most homeowners have had experience living near small wind turbines, most
homeowners will not want home turbines in their own neighborhoods. Local zoning laws are enacted
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by people concerned purely with their own neighborhoods city council members are legislating only
for, literally, their own neighborhood. Larger legislative bodies, on the other hand, naturally have larger
visions, and are much more likely to balance state and national policies and interests into any judgment
over whether to even allow home-based small wind. It seems necessary, therefore, that if one is interested
in a future that includes home-based small wind, that states or the federal government act to prevent
local governments from using their zoning laws to stop home-based small wind.
Shepard Fairey, AP, and Dirty Hands (2009-04-20 15:51)

While here at Geniocity today Im wishing my family had our own backyard wind turbine, Remix America
asked me to weigh in as a guest blogger on the latest from the copyright and fair use dispute between
Shepard Fairey and AP.
Good lawyers are not terrorists. (2009-04-22 10:47)

There is a pronounced tendency among non-lawyers to believe the best lawyer is the most belligerent
lawyer, the one most willing to make things difficult for the other side. A certain segment too of beginning
law students believe their professional role will be to make their adversaries lives as difficult as possible
not by being smarter and more persuasive but, rather, by being more of a pain in the butt.
First, this attitude is very wrong-headed. Mindless aggression can be effective, but only when matched
against mindlessness. A smart lawyer can calmly run circles around mindlessly aggressive lawyers. Fortunately, as well, the court system has its limits. The Blog of the Legal Times reports that a court ruled
that Robert Fastov, a D.C. art dealer who also happens to be a Stanford Law School graduate, must
pay more than $630,000 in attorney fees and expenses to Christies for a suit a judge said only served to
harrass the auction house after it refused to sell a painting . . . .
Typically, and almost always, both plaintiffs and defendants in U.S. lawsuits pay their own costs of
litigating, win or lose. In fact, this rule is known as the American Rule. The English Rule requires the
losing party to pay the winning partys costs. Thus, in England, far fewer individuals sue corporations
because the individuals know the corporations can afford to pay the plaintiffs costs, while the plaintiff
cannot afford to pay the corporations costs of defense.
But, as the Fastov case indicates, someone can act so egregiously in U.S. courts that he will be charged
with the costs of his adversarys lawyers. The interesting part of the decision is that the court does
not discuss the merits of the plaintiffs lawsuit (which were plainly non-existent); rather, the decision
affirmed a trial court decision that focused on the enormous size of the briefs and the enormous number of
documents the plaintiff submitted in the case, making the point quite clearly that the mass of materials
was useless merely because it was such a mass. As the trial courts decision (pdf) explains:
In response to defendants motion for summary judgment, plaintiff has attempted to file a
59-page opposition, a 90- page declaration in support of his opposition, a 461-page statement
of disputed and undisputed facts, and three volumes of exhibits totaling approximately 1,500
pages. A first-year law student is taught that a filing in support of or in opposition to any
motion should be tailored to achieve the paramount goal of assisting the Court in rendering
its decision. Plaintiffs filing does the opposite. It is an abuse of the litigation process.
The crucial point: A first-year law student is taught that a filing in support of or in opposition to any
motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision.
A lawyers job is to give the judge the tools to rule in his clients favor. Your job is not to give the court
a bunch of information from which the court can derive its own decision and reasons. If you explain to
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a court in a convincing fashion why your client should win, the court is likely to adopt your reasoning
and rule for your client. I have even had courts cut and paste my brief into their opinions. When theyve
done so I havent felt plagiarized; Ive felt vindicated.
Neither is your job to so overwhelm the other side they want to give up. That, plainly, was Fastovs
intent. After Christies had refused to sell a painting Fastov owned, he sent Christies a 79-page letter,
with hundreds of pages of attached exhibits, threatening to sue for damages in excess of $265,000 and
punitive damages in an amount to be determined, but considerably in excess of $1,000,000. He also
explained that the cash outlays that Christies will, to a legal certainty, have to make (and will not recover, even if Christies wins) to defend the litigation will be approximately $221.3K (very conservatively
understated) or (more realistically) well in excess of $300K. He went on to threaten dire consequences if
his demands werent met:
[I]f you decide for tactical purposes to delay your response beyond my three week deadline,
Christies costs of settlement will increase appreciably. If you decide to wait to see if I actually
file the suit before approaching me to discuss settlement, you will find that the chances of
achieving settlement are virtually nil, unless Christies is prepared to reimburse me for all of
my costs to date of settlement and pay all of my compensatory damages, which will be well in
excess of $265K, and an extremely high percentage of the amount of punitive damages prayed
for in the complaint, which shall be in the millions of dollars. . . . Do not bet against my
inclination, will, ability, experience, and tenacity to file and successfully maintain [Fastov v.
Chrities] through to its successful conclusion. It will be the worst and most costly conclusion
and bet of your life. The settlement proposals and the purposes of this letter are inherently
pacific in nature. If you and Christies force me to go to war, those who have litigated for,
with, and against me will tell you that I am extremely tough, intelligent, and tenacious. I
give no quarter and ask none, and above all, I will take any and all actions, both within and
without the courtroom, that do not violate the rules of professional conduct, necessary to
achieve Christies unconditional surrender.
When Christies failed to give in to his threats, Fastov filed a 225 page (!) complaint. The complaint
begins the lawsuit. The motion for summary judgment (in connection with which he filed approximately
the 2,100 pages referred to above) is an effort to dispose of the case before trial. If you need that much
paper to convince a court youre right, youre either inept or your merely engaged in terror. More likely,
youre both inept and engaging in terror, as was Mr. Fastov. Your job in a lawsuit is to get the court
on your side, not to destroy the opposition. If clients and lawyers understood this was the purpose of
litigation we all, lawyers and clients, would be better off.
There still is nothing new under the sun. So what is originality? (2009-04-23 08:33)
Is Coldplay original? As Paste reports, Back in December, . . . guitarist Joe Satriani was accusing
Coldplay of plagiarizing his song, If I Could Fly, with their undeniably catchy, monster hit, Viva La
Vida. Coldplay has now responded, claiming Satrianis song is not original enough to be infringed. Of
course, Satrianis lawyer disputes the legitimacy of this defense:
Coldplay and its lawyers saying Satrianis song doesnt even deserve protection because it
lacks originality. So, theyre basically saying that because the song blows in the first place,
it doesnt deserve shielding of the law. Fair enough.
But thats a straw mans argument, says Satrianis lawyer Howard E. King, replying that
this sort of response is typical in copyright infringement cases. According to King, Satriani
would like this matter settled out of court, but Coldplay isnt ready to budge.
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It is not, of course, the first time Coldplay has been accused of stealing the tune to Viva la Vida, and
it is not the first time Coldplays apparent plagiarism has been explained as the coincidental replication
of a common pool of pop music moves. Because we so worship the creative artist, though, we tend to
recoil from the idea that so much genuine artistry is merely the repackaging of formulas with which we
are familiar and comfortable. The KLF, though, understood the formulaic foundation of pop music,
publishing The Manual (How to have a Number One the Easy Way), a how to? guide to the method
they used to construct British pop hits. As they explained:
Thus, they instructed the pop star wannabe:
The first of the component parts you are going to need to find is the irresistible dance
floor groove.
Before we go any further we had better define groove. It is basically the drum and bass
patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .
Black American records have always been the most reliable source of dance groove. These
records down through the years have inevitably laid so much emphasis on the altar of groove
and so very little into fulfilling the other Golden Rules that they very rarely break through
into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation
is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not
only by the business but by all the artists that have followed on from them. This is because
the copyright laws that have grown over the past one hundred years have all been developed
by whites of European descent and these laws state that fifty per cent of the copyright of any
song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove
doesnt even get a look in. If the copyright laws had been in the hands of blacks of African
descent, at least eighty per cent would have gone to the creators of the groove, the remainder
split between the lyrics and the melody. If perchance you are reading this and you are both
black and a lawyer, make a name for yourself. Right the wrongs.
As the Authorship Collective in the English Department at Case Western Reserve explains (footnotes
omitted):
With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, nonEuropeans, artists working in traditional forms and genres, and individuals engaged in group
or collaborative projects, to name but a few. Exposure of these exclusions the recovery of
marginalized creators and underappreciated forms of creative production has been a central
occupation of cultural studies for several decades. But the same cannot be said for the law.
Our intellectual property law evolved alongside of and to a surprising degree in conversation
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with Romantic literary theory. At the center indeed, the linchpin of Anglo-American
copyright as well as of European authors rights is a thoroughly Romantic conception of
authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual
property regime. In patent it survives today both in figurations of the inventor and in the
emphasis, which this body of law shares with copyright, on the transformative moment in
the creative process.
The Authorship Collective goes on to cite examples of biopiracy, the appropriation by pharmaceutical
companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the
plants effective ingredients and profit from the sale of the new drug. For example:
The Hoodia cactus, native to South Africa, has recently come to the fore of the debate
surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to
the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes
of the region (in the past they were commonly referred to as Bushmen, although now this
designation is recognized as being pejorative, inaccurate and outdated). The San peoples
have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions
in the desert. Scientists from the South African Council for Scientific and Industrial Affairs
learned of the Hoodias properties and began to study the cactus. In scientific tests, animals
given the cactus lost weight rapidly without any apparent negative side effects. According
to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the
Hoodia works by mimicking the effect glucose has on the nerve cells in the brain, in effect
telling us were full...thus curbing the appetite. (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.st m) Scientists at the CSIR dubbed the appetite suppressant molecule
in the Hoodia P57. Recognizing the enormous potential market for the Hoodia outside
South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American
pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however,
the San peoples were completely unaware of what was occurring.
So, is Viva la Vida merely a reworking of old formulae? It sure seems it might be:
So maybe Coldplay is not a group of plagiarists; rather, it is a group of pop hacks working on tropes that
the entire pop music industry since the 1950s has stolen from elsewhere. Originality is a tricky thing.
Just ask Shepard Fairey.
Wikipedia should know better/Addendum: it does, and the problem is solved, though
Wikipedia really didnt have to be quite so heavy-handed. (2009-04-24 05:47)
Determining whether the use of someone elses trademark is a non-infringing fair use does
not involve an analysis identical to determining whether the use of someones copyrighted work is a fair
use, but there are significant similarities. One is that the absence of any exploitation of the commercial
value of the intellectual property is a significant reason to find that use of the trademark is not infringing.
Another is that the property interest one has in the intellectual property has to be balanced against the
constitutional right to free speech. Thus, owning a trademark no more gives you total control over use
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of the trademark than owning a copyright gives you total control over the copyrighted work.
The Electronic Frontier Foundation therefore is disturbed that Wikipedia, whom the EFF has represented, is trying to stop a group of artists from using the name wikipediaart.org as the domain for a
site that documents a Wikepedia article they had established last year. The article was intended to
comment on the nature of art and Wikipedia. But Wikipedia editors did not take kindly to the project,
and it was shut down within fifteen hours for being insufficiently encyclopaedic.
But since the site is non-commercial and is a critical commentary on Wikipedia, Wikipedia has no
right to shut it down. The artists are not attracting paying customers who stumble upon the site because
they are looking for Wikipedia. And you cant shut someone down just because they are criticizing you.
As the EFF cogently sums up the issues:
Wikipedia should know better. There is no trademark or cybersquatting issue here. First,
the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law.
. . . Moreover, even if U.S. trademark laws somehow reached this noncommercial activity,
the artists use of the mark is an obvious fair use. Wikipedia Art uses the Wikipedia mark
to refer to the project: a critical comment on Wikipedia and creativity. The disputed site
describes the project, provides links to media coverage of the project, and so on. It does
not use any more of the Wikipedia mark than need be; for example, it doesnt even use
the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything
like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work.
Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First
Amendment.
ADDENDUM: asdfghjk in the comments states that the EFFs description of events is somewhat incomplete at best, and points to a post by Mike Godwin, General Counsel of Wikimedia Foundation,
that explains that Wikipedias only concern was that wikipediaart.org would be mistaken by visitors as a
site affiliated with Wikipedia and that, once the creators of wikipediaart.org have posted the prominent
disclaimer now visible on the site, Wikipedia considered the matter resolved, and amicably so. Im glad
to hear it. Its dispute resolution, folks, and when people get upset and have disputes all you need to
do is resolve them. Its just not so easy all the time. Heres to wikipediaart.org for responding with the
disclaimer and to Wikipedia for backing off once its legitimate concern had been addressed. And thank
you, asdfghjk, whoever you are and wherever you may be. But Ill take exception to one point you made
I do not believe the EFF was played by a bunch of performance artists. Even without the disclaimer,
their non-affiliation with Wikipedia seemed clear. And it does not seem far-fetched for EFF (or me) to
have mistaken the meaning of communications, in which, Mr. Godwin now claims, no litigation [against
wikepediaart.org] was threatened or commenced. On April 9, Doug Isenberg, a lawyer for Wikimedia,
wrote Wikipedia Art a letter that sure sounds like it threatened litigation:
Wikimedia appreciates your offer to explore an amicable resolution to this matter. Accordingly, I think it would be helpful to draw your attention to a recent domain name dispute
between Wikimedia and the registrant of the domain name <visualwikipedia.com>. The registrant of that domain name was using it in connection with a website that described itself as
a visual, intuitive, and interactive web interface to encyclopedic knowledge/information. The
registrant of that domain name refused to cooperate with Wikimedia, after which Wikimedia
filed a complaint pursuant to the Uniform Domain Name Dispute Resolution Policy (UDRP),
resulting in a published decision ordering the domain name transferred to Wikimedia. See
WIPO Case No. D2009-0139, available at http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0139 .html. . .
In light of the above, Wikimedia suggests that Mr. Kildall select a domain name that does not
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include any of Wikimedias trademarks and that Mr. Kildall transfer the <wikipediaart.org>
domain name to Wikimedia. Doing so would allow Mr. Kildall to continue to freely express
himself without raising the same concerns that Wikimedia has asked me to investigate. If Mr.
Kildall is willing to do so, please let me know by April 16, 2009.
But all is well that ends well. The disclaimer removes any possible claim of visitors to wikipediaart.org
would believe the site is affiliated with Wikipedia, and Wikipedia Art, despite Mr. Isenbergs suggestion,
keeps its domain name. Perhaps next time Mr. Godwin should not delegate to outside lawyers the writing
of letters he does not intend to contain threats of litigation.
New Orleans Jazz & Heritage Festival, Neil Young on May 3, and May 4, 1970
(2009-04-24 06:58)
My colleague Carolyn Jack today is blogging about the New Orleans Jazz & Heritage Festival, a stirring
example of arts power to give vitality to a troubled city. It isnt easy to figure out an angle that ties
the Jazz Fest to law, but I dont need to. One of my favorite lawyer/bloggers is Ray Ward, who blogs
as Minor Wisdom (the name a paranomasia apparent to any lawyer). Ray lives in New Orleans, and for
him the night before Jazz Fest is Like Christmas Eve. Hes my source for all things Jazz Fest, from the
proper gear to all the performance schedules. Im looking forward to his reports from the scene. He will
be my link between law and Jazz Fest. But, most of all, I wish I were there.
I would love to see Neil Young on May 3. One amazing thing about that show on that date is its
proximity to May 4. Im not sure how many people think each year about May 4. I do. I was 10 years old
on May 4, 1970. I remember coming home from school and hearing that Ohio National Guardsmen 45
minutes away from my house had shot students who had been protesting the Vietnam War. I was young,
but I was a dark kid, and I felt destroyed by the thought that in this land of free speech, where protest
is considered an inalienable right, students could be shot dead for protesting a war, much less that war.
That Neil Young soon after gave voice to my utterly inarticulate despair forever made me devoted to
him.
I love good lawyers because you can disagree with them and they wont take your
disagreement as a personal attack. (2009-04-24 16:00)
In the New York Times, Maira Kalmans And May it Please the Court is a wonderful graphic narrative
of her musings on, among other things, law, a visit to the Supreme Court, and Ruth Bader Ginsburg. One
panel of the piece does not begin to do it justice, but the one below makes a wonderful point that I try all
the time to get across to my students when you and your adversary treat each other as professionals,
practicing law is a joy. There is no point in doing it any other way. You cant take your adversarys
disagreement personally she is paid to disagree with you, and its her professional duty to do so. But
when your adversary doesnt treat you professionally, you have to fight back too. Not by descending
to her level, but by being tough, better prepared, and smarter. At any rate, I am glad Ms. Kalman
saw the legal practice at its best on that day she visited the Court. And I wish more people I know,
especially those who have law degrees and consider themselves legal experts, would realize disagreement
is not hostility. I guess I shouldnt be surprised that Ms. Kalman wonders how people handle the idea
that their adversaries are not their enemies.
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You need to understand your teachers interests; a librarians job is necessarily one
that requires a narrow view of copyright. (2009-04-27 10:15)
Lawyers know someone can be very clear and compelling and even dead-on accurate about his clients
legitimate view of the world without telling the whole truth.
A librarian sent the video available from the Copyright Clearance Center at this link to my colleague
Carolyn Jack, explaining that it explains copyright in a clear and engaging way. Theres no doubt shes
right about that. Its very well done. But it is very much a librarians take on copyright. Librarians
control access to scholarship in print and behind subscription-only paywalls. They certainly cant bypass
those paywalls simply by re-posting material, which seems to be a practice the offending librarian is
surprised to learn is a problem. Moreover, a librarians job is to maintain and ease access to the material
in the library. There may be ways portions of the material are republished to create more useful means
of finding and accessing them, but it would be difficult to imagine those methods would risk infringement. Plainly, though, the sheer volume and value of the material in a librarians control and the need
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to educate a librarys users on not abusing it is going to make librarians very risk averse.
Therefore, this video leans heavily on the side of copyright holders. Thats not to say its inaccurate
(and its very well done), but one has to walk away from it thinking using copyrighted works is rarely
okay. It certainly doesnt even allude to transformative uses, and, while accurate, its gloss on fair use
is so cursory (and the subject
so complex) that one cant walk away from it with an idea of what would be fair use. It definitely is a
librarians piece their interests are in making sure nothing is done wrong. I dont blame them; Im just
not sure that the video in the end does much more than say, Be careful, and when in any doubt dont
do it. Im not sure thats useful to, say, artists or those who would comment on the laws of copyright,
among others.
Thus, I dont think this video does what the Copyright Clearance Center, according to the librarian
who sent the video to Geniocity, claims it is doing: CCC is making the video available for free for
anyone who wants to use it for educational purposes. Since corporate librarians are so often called on to
educate folks on copyright matters, we thought youd be interested . . . .
ADDENDUM: Context is everything, and I want to note the very valid comments a couple of librarians have added to this post. Larisa points out that librarians are dedicated to providing, not restricting
access to information, and suggests that my critique might be better aimed at corporate rather than
public librarians. Rob emphasizes both the quality of the video (it teaches someone with no knowledge of
copyright an awful lot in 6 minutes) while acknowledging the issues such a brief introduction inevitably
leaves hanging. Hes worth quoting in his entirety:
Your comments are eminently reasonable in respect of this well-done video and its brevity.
While incompletely exploring the issue of Fair Use, in the range of most modern-day attenition
spans, it does provide a basic grounding in copyright for the unititated in organizations and
institutions(i.e. most corporate executives and their respective staffs, a majority of faculty).
In addition, it engagingly presents an opportunity to raise questions such as those here:
archivist? preservationist? public/academic/corporate librarian? Fair use? - and presents
ample opportunity for informed and intelligent discussion among those suitably interested.
Finally, one cannot come away from the 6+ minutes of this charming video without being forever better informed than 6 minutes previously. How many things have we seen or
heard lately about which we can say that? Too few, Id wager.
There is nothing new under the sun. (2009-04-28 12:19)
From BestActEver.com: The Long War: Music Piracy in 1897 (NYTimes):

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Without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling - without influences great and small, in other words - there is no creating.
(2009-04-29 03:24)
From Jonathan Lethem, The Ecstasy of Influence: A Plagiarism:
In a courtroom scene from The Simpsons that has since entered into the television canon,
an argument over the ownership of the animated characters Itchy and Scratchy rapidly escalates into an existential debate on the very nature of cartoons. Animation is built on plagiarism! declares the shows hot-tempered cartoon-producer-within-a-cartoon, Roger Meyers
Jr. You take away our right to steal ideas, where are they going to come from? If nostalgic
cartoonists had never borrowed from Fritz the Cat, there would be no Ren & Stimpy Show;
without the Rankin/Bass and Charlie Brown Christmas specials, there would be no South
Park; and without The Flintstones-more or less The Honeymooners in cartoon loincloths-The
Simpsons would cease to exist. If those dont strike you as essential losses, then consider the
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remarkable series of plagiarisms that links Ovids Pyramus and Thisbe with Shakespeares
Romeo and Juliet and Leonard Bernsteins West Side Story, or Shakespeares description of
Cleopatra, copied nearly verbatim from Plutarchs life of Mark Antony and also later nicked
by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more
plagiarism.
From Open Source:
Nearly every word of [Lethems] essay about cultural borrowing and reworking was stolen
- er, appropriated - from some other source and then cobbled together with a big dose of
Lethem magic to form a cohesive whole. Even the Is arent Jonathan Lethem; theyre
Jonathan Rosen writing in The Talmud and the Internet about John Donne, or William Gibson in a Wired article about William Burroughs, or David Foster Wallace on a grad school
seminar, or Brian Wilson in a Beach Boys song.
But this is more than a stunt. Its a passionate salvo in the copyright wars, a crowd of
voices coralled together to say, basically: without borrowing, stealing, cribbing, remixing,
mashing-up, collaging and compiling - without influences great and small, in other words there is no creating. No hip hop, sure, but also no blues, no Disney, no Shakespeare. No
Lolita or I have a dream. Wed be reduced to staring at campfires and barking at one another.
So how to think about the joys, perils, and contradictions of influence in our intellectual
property age? Lethem wonders himself:
The dream of a perfect systematic remuneration is nonsense. I pay rent with the price
my words bring when published in glossy magazines and at the same moment offer them for
almost nothing to impoverished literary quarterlies, or speak them for free into the air in a
radio interview. So what are they worth? What would they be worth if some future Dylan
worked them into a song? Should I care to make such a thing impossible?
Here is a podcast (mp3) of a discussion between novelistJonathan Lethem, author Siva Vaidhyanathan,
and musicians Mark Hosler (of Negativland) and Mike Doughty (of Soul Coughing) about the politics of
plagiarism and originality.
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Online markets may be doing more to reduce the looting of antiquities than the always
feuding museum directors. (2009-04-30 13:58)
Archaeology reports on the unforeseen consequences of the emergence of eBay, the Internet auction site that, among other things, lets people sell
looted artifacts. The looting of archaeological sites has always been a problem, but before the internet
reduced the costs of showing, selling, and transporting the loot, archaeologists could at least take some
comfort that [the market in illegal artifacts] was largely confined to either high-end dealers on one end of
the economic spectrum or rural flea markets on the other. Thus, the new technology raised the specter
the democratization of trafficking and, as a result, widespread looting. This seemed a logical outcome of
a system in which anyone could open up an eBay site and sell artifacts dug up by locals anywhere in the
world. We feared that an unorganized but massive looting campaign was about to begin, with everything
from potsherds to pieces of the Great Wall on the auction block for a few dollars.
But instead, looting has diminished. Why? The short answer is that many of the primary producers of the objects have shifted from looting sites to faking antiquities.
The economics of these transactions are quite simple. Because the eBay phenomenon has
substantially reduced total costs by eliminating middlemen, brick-and-mortar stores, highpriced dealers, and other marginal expenses, the local eBayers and craftsmen can make more
money cranking out cheap fakes than they can by spending days or weeks digging around
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looking for the real thing. It is true that many former and potential looters lack the skills to
make their own artifacts. But the value of their illicit digging decreases every time someone
buys a genuine Moche pot for $35, plus shipping and handling. In other words, because
the low-end antiquities market has been flooded with fakes that people buy for a fraction
of what a genuine object would cost, the value of the real artifacts has gone down as well,
making old-fashioned looting less lucrative. The value of real antiquities is also impacted by
the increased risk that the object for sale is a fake. The likelihood of reselling an authentic
artifact for more money is diminished each year as more fakes are produced.
Another economic factorrisk of arrestis also removed by eBay fakes, since you cant be
arrested for importing forgeries. Should you import what you think is an illegal antiquity but
it turns out to be a fake, you run little risk of prosecution. The risk from lawsuits or criminal
charges is effectively removed from the sale of antiquities when they are not really antiquities,
a fact that reduces the cost and risk to both buyer and seller.
Transport cost is also dramatically reduced by commerce on the Web. One vendor on eBay
advertises a Greek marble head dated to around 300 B.C. For this rare artifact, the shipping
costs from Cyprus are a whopping $35 to anywhere in the United States. This is a far cry
from the old days when a real illegal antiquity had to be couriered by a specialist who not only
knew how to care for the piece, but how to doctor it up to avoid being arrested at customs.
The same is true for objects from just about every well-known ancient culture in the world.
Chinese, Bulgarian, Egyptian, Peruvian, and Mexican workshops are now producing fakes at
a frenetic pace.
I have written previously of James Cunos Who Owns Antiquity? Museums and the Battle over our
Ancient Heritage and the ongoing debate over the ownership of antiquities, particularly those antiquities
housed far from their origins in the museums of the Western powers. Cuno has published another volume
addressing the issues, Whose Culture? The Promise of Museums and the Debate Over Aniquities, a
collection of essays by other art historians arguing in favor of housing these treasures in Encyclopedic
Museums charged with the stewardship on behalf of all of humankind. Cuno would argue that, for example, artifacts produced by the Hittites belong no more to the Turks, in whose territory those artifacts
are found, than they do to the entirety of humanity.
Hugh Eakin reviews both of Cunos books, discussing many of the issues I raised in my earlier post.
But he also makes the important point that recent moves by U.S. museum directors make many of these
difficult questions far less important as a practical matter, despite the passions inevitable in the conflict
between those who claim to be defending their national heritage against those who claim to stand up for
the sanctity of art and its preservation.
Last year the directors of the leading art museums of the United States agreed to limit their acquisitions of antiquities to works that have left their country of probable modern discovery before 1970, or
that were exported legally after that date. Eakins points out the importance of this agreement:
[I]n choosing 1970 as a cutoff date-the symbolic year of a UNESCO convention against the
illicit circulation of material deemed by particular nations to be their cultural property-the
museums have eliminated the possibility of acquiring most of the ancient art available for
sale today. In effect, the museum directors have made it clear that, for American museums,
collecting antiquities has largely come to an end; and with it the system of private collectors
and dealers that has sustained it since the late nineteenth century. (emphasis added)
There are several implications to the end of large-scale collecting of antiquities by U.S. museums. First,
many antiquities (most likely looted) are in the hands of wealthy private collectors, precisely the patrons
on whom major museums depend for donations. Now that museums have adopted rules that prevent
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the acquisition of many ancient objects still in private hands, they must find other ways of retaining that
support.
In addition, countries that have asserted ownership over any art found within their borders have to
face the failures of those laws, which primarily have worked to drive the trade in looted antiquities even
further underground.
And now we know too that the trade in antiquities is being squeezed by the trade in fakes.
2.5
May
Wind of Change: Obama implementing offshore wind projects (2009-05-01 03:11)

From Remix America, President Barack Obama announces the first U.S. program to authorize offshore
projects to generate electricity from wind and ocean currents:
Wind of Change: Mayday! Flock of Seagulls at 10 OClock! (2009-05-01 13:01)

Two weeks ago I wrote about the indeterminate but real impact wind power has on migrating birds and
the resulting conflict between former allies in the environmental movement over the intensified development of wind power. But now comes word from the Guardian of at least one technological cure for this
rift a Texas wind farm, which opened late last month, uses radar systems originally developed for
Nasa and the US Air Force to detect approaching birds from as far as four miles away, analyse weather
conditions, and then determine in real time whether they are in danger of flying into the rotating blades.
If they are, the turbines are programmed to shut down, restarting once the birds are safely on their way .
. . . Those conservationists who prioritize the safety of migrating birds over the environmental benefits
of wind power are skeptical. They argue that wind farms should still be sited away from migration
routes in the first place, and that the technology does nothing to solve the problem of installations that
disturb bird and animal habitats and nesting grounds.
No doubt skepticism about easy technological fixes to genuine problems is healthy, and Im certain I
couldnt afford a NASA/USAF radar installation for the single wind turbine I want in my back yard, but
this bird vs. wind power debate seems one that can be resolved with planning, cooperation, investment
in technology, and the kind of mutual respect necessary to any progress. Lets hope these qualities prevail
over the tendency to demonize and belittle those who disagree with us. Sometimes that tendency seems
worst, doesnt it, between former allies?
Friday Night Music Club:
Theres no business like stealing bits from others
(2009-05-01 17:33)
Let me repeat the immortal (and utterly unoriginal) words of The KLF as memorialized in The Manual
(How to have a Number One the Easy Way):
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And I presume youve heard Happy Xmas (the War is Over):
We really should give the last word to Negativeland:
Stop those dangerous . . . er, player pianos! (2009-05-01 20:09)

Copyright legislation throughout history has primarily consisted of congressional efforts to preserve financial interests threatened by new technologies. We are, of course, living through a technological revolution
right now, so we are living through copyright wars.
But who knew the 1909 Copyright Act (in effect until the current one was enacted and signed into
law in 1976) was a response to the threat posed by . . . yes, PLAYER PIANOS!
Music publishers, who had secured their rights in sheet music, were freaked out at the thought there
might be mechanical reproductions of their music they wouldnt be paid for. As Mike Masnick explains
it at Techdirt
The big innovation of the 1909 copyright [Act] was compulsory licensing on mechanical
rights. This was put into place for one reason: fear about player pianos and how they would
dominate the market and destroy the need for musicians. Within a matter of decades, the
player piano market was effectively gone... and yet, these massive changes designed solely
to deal with the player piano have stuck around ever since. Now apply that same story to
basically every other technological innovation, and that gets you copyright law.
You dont have to look far to find a current example that proves Mikes point. Amazons Kindle2 ebook
hit the market with the capacity to read the electronic texts loaded into it aloud in a computer-generated
voice. As afterdawn reports, the Authors Guild saw this feature as aperformance when used and pressured Amazon to allow publishers to decide on an eBook-by-eBook basis whether to enable the feature
or not. Whether this new technology represents a genuine threat to the existing financial interests of
publishers and/or authors is pure speculation, but the Authors Guild is adamant:
We will not . . . surrender our members economic rights to Amazon or anyone else. The
leap to digital has been brutal for print media generally, and the economics of the transition
from print to e-books do not look as promising as many assume. Authors cant afford to start
this transition to digital by abandoning rights.
Of course, the Authors Guild was the lead plaintiff in the lawsuit directed at shutting down a much vaster
and more revolutionary technological advance, the Google Library Project. As I have written, I never
understood what good they possibly have been doing themselves if theyd stopped that project. Nor can
I understand their efforts to stifle the transition we plainly are going through into electronic books.
But now I know: you see a machine that can reproduce your property, and all you can think is youve
got to stop that machine. Even if it is just a player piano.
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Wind of Change: Wind turbines on Lake Erie soon? (2009-05-02 11:10)

From todays Plain Dealer:
St. Louis has the Gateway Arch. Seattle has the Space Needle. Cleveland has . . . wind
turbines on Lake Erie? Thats the iconic vision that could lead to a new industry in offshore
wind and possibly thousands of new jobs, leaders of a Cuyahoga County energy task force
say. . . . Thats according to a yearlong feasibility study the task force released Friday in a
media briefing at the Great Lakes Science Center.
The task force would like to see the turbines constructed

within 3 years. The study demonstrated that neither ice nor migrating birds will pose obstacles to the
project. Migrating birds fly at heights above the turbines, and the design would divert ice floes.
Not only would the project give Cleveland the lead in developing wind power projects in the Great
Lakes Region, it would also be an enormous boost to local manufacturing. Timken, the Canton-based
manufacturer of ball bearings and alloy steel, already earns tens of millions of dollars supplying bearings
to turbine makers, and, according to the task force, Ohio has hundreds of companies supplying parts
to the wind industry.
In short, as Norman Tien, the dean of the engineering school at Case Western Reserve University stated,
the project has the potential to dramatically change the economic landscape of the region.
And even more good news for a wind powered Cleveland future: according to the Chicago Tribune,
investors are bullish on wind energy. Wind has jumped ahead of other green energy sources because
innovations in turbine technology (think: windmills) have improved the efficiency and made systems the
most cost effective alternative.
Make Cleveland Better! (2009-05-04 09:51)

Cleveland Ideas is a new site dedicated to harnessing Clevelanders creativity to make Northeast Ohio a
better place. Have an idea? Let them know. All they ask is that you keep it positive:
Have an idea you think can make northeast Ohio a better place to live and work? Let s
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see it. Post it here. Others will see it, comment on it, build on it. No bashing. Just brainstorming.
Short on ideas? Just view others, comment, and vote. We ll put the top vote-getting ideas
in front of business and community leaders and you might just see one of your ideas come to
life.
My first idea? Redevelop Burke Lakefront Airport as a residential and commercial neighborhood with
a lakefront park. Ive written about the idea before, and the fact the city has often studied it. But
nothing has ever come of the thought, and to this day I have no idea why.
Lessigs Conversation of Remix - fair use?
Warner Music doesnt think so.
(2009-05-04 14:51)
Lawrence Lessigs lecture on remix culture, posted to YouTube, was the subject of a DMCA takedown
notice by Warner Music. As Lessig explains, Apparently, YouTubes content-ID algorithm had found
music in the video that they claimed ownership to. The uploaders protest to the takedown notice was
apparently successful, which reinstates the video while Google reviews the legitimacy of the fair use claim
against Warner Musics copyright infringement claim. Lessigs blog post, along with the entirety of his
lecture, is here. Below is the segement that was blocked and is, for now, restored:
Heres more on DJ Danger Mouses Grey Album. And more on Girl Talk here, here, and here.
We have to pay it all back sooner or later. (2009-05-05 13:02)

Margaret Atwood as wonderful a novelist as we have has written a book on debt, Payback: Debt
and the Shadow Side of Wealth . John Grays review of the book reminds me of what my grandfather,
an immigrant who landed in Cleveland after a genuine odyssey, always said: everything we have we only
borrow; in the end we give it all back. And he never had much. As Gray writes:
If Atwoods Payback contains a lesson it is that debts must be repaid. The type of political economy that operated in the US over the past twenty years, which some imagined would
spread throughout the world, was based on the belief that this old-fashioned maxim no longer
applied. A new era had arrived, in which sophisticated techniques of financial management
could transform debt into a means of wealth creation from which even the poor could benefit.
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The new era turned out to be short-lived, or else nonexistent. America was able to live
on credit only by borrowing from other countries, above all China. With the bursting of the
bubble it has become less clear whether Americas creditors will continue to commit funds on
the required scale, while the claim of American finance capitalism to be a universal economic
model has collapsed. Along with other governments, the Obama administration is faced with
the task of dealing with the danger of recession turning into something worse. A large-scale
monetary and fiscal stimulus will be administered in order to stave off depression. We must
hope the stimulus has the desired effect. Whether or not it succeeds, it involves a redistribution from savers to borrowers that does not square with traditional values regarding the
payment of debt. In order to resume economic growth, past debts will be devalued and new
debts incurred.
That does not mean payback will be avoided. Returning to the levels of consumption of
the recent past means running up an ever-larger environmental bill. As Atwood argues, there
must eventually be a reckoning; the ancient conception of a link between human society and
the natural world has not been rendered obsolete. If humanity is unwilling or unable to pay
back its debts, the planet will surely collect.
I am also reminded of the following poem by a Nobel Prize winner:
Nothings a Gift
Wislawa Szymborska
Nothings a gift, everything is borrowed. Im drowning in debts up to

my ears. I will be forced to pay for myself with myself, to give my
life for my life.
It has been appointed that the heart must be
returned, and the liver, too, and each individual finger. Its too
late to cancel the contract. Debts will be extracted from me along
with my skin. I wander this earth amid a throng of fellow debtors.
Some are burdened by the obligation of paying off their wings. Others,
like it or not, are charged for their leaves. The Debt side encumbers
each tissue in us. There is no eyelash, no petiole to keep
forever.
The register is meticulous and its evident that we are
to be left with nothing. I cant remember where, when and why I
consented to open this account. The protest against this account is
what we call the soul. And it is the only thing not on the list.
-translated by Walter Whipple
Tweets on Law Practice (2009-05-06 10:07)

Matthew Homann, at the [non]billable hour, has published 100 Tweets: Thinking About Law Practice
in 140 Characters or Less (pdf). His advice is terrific. Here are some of my favorites:
1. My lawyer can beat up your lawyer is not a marketing strategy. My lawyer will call
me back before yours will is.
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8. The most significant advantage you possess over lawyers whove come before you is that
you dont believe what they do.
16. The confused mind always says no.
28. You should never have a bigger monitor or more comfortable chair than your secretaries do.
53. Never confuse your desire to explain something with yourability to do so.
84. Trying to learn client service in ethics class is like trying to learn to ride a bicycle
by watching lots of bike accidents.
By the way, on Twitter, Im @pbfriedman.
Do your own American remix! (2009-05-06 18:32)

From my friends at Remix America, a site that provides free, online editing software that gives you the
tools to remix the great words of our forefathers with the hot-button issues of today:
Lincoln on legal practice (2009-05-07 11:50)

From The Writings of Abraham Lincoln, Notes for a Law Lecture, from July 1, 1850:
DISCOURAGE LITIGATION. Persuade your neighbors to compromise whenever you can. Point out
to them how the nominal winner is often a real loser-in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be
more nearly a fiend than he who habitually over-hauls the register of deeds in search of defects in titles,
whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the
profession which should drive such men out of it.
The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be
claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer.
When fully paidnbeforehand, you are more than a common mortal if you can feel the same interest in the
case as if something was still in prospect for you, as well as for your client. And when you lack interest
in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee
and take a note in advance.
Then you will feel that you are working for something, and you are sure to do your work faithfully
and well. . . .
This idea of a refund or reduction of charges from the lawyer in a failed case is a new one to me-but not
a bad one.
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Yes, Kevin, empathy is part of judging well, and Oliver Wendell Holmes thought so
too. (2009-05-07 13:22)
Kevin OBrien of the Plain Dealer expresses the view of many who mock President Obamas desire that
his Supreme Court nominee have empathy:
I have scoured my pocket copy of the Constitution. Couldnt find a single reference to
empathy, though. I tried searching an online version, too, but when I typed empathy in
the search window, the only answer I got back was, Did you misspell something?
I looked up the oath of office that Souters successor will take. I dont see empathy there,
either, . . .
OBrien and his ilk have a stunted view of what it means to be a judge. Applying the law is not like
doing algebra; instead, it is far more often (at least in cases so contested they get to the Supreme Court)
a matter of making difficult judgments that involve weighing values and consequences in the real world.
It hardly is ridiculous to consider empathy a valuable quality in making these judgments. One need not
look far into the past to see a case where an inability to empathize with what Congress plainly intended
led to a ridiculous (and soon overturned) outcome.
But you need not take my word for it. Oliver Wendell Holmes, Jr., Supreme Court justice and one
of the most influential intellects in U.S. legal history, made clear in The Path of the Law that it is a
fallacy to think judges can apply only logic to the law and that a keen sense of the social impact of ones
decisions is fundamental to sound judging (emphasis added):
The fallacy to which I refer is the notion that the only force at work in the development
of the law is logic. . . . The danger of which I speak is not the admission that the principles
governing other phenomena also govern the law, but the notion that a given system, ours, for
instance, can be worked out like mathematics from some general axioms of conduct. . . .
This mode of thinking is entirely natural. The training of lawyers is a training in logic.
The processes of analogy, discrimination, and deduction are those in which they are most
at home. The language of judicial decision is mainly the language of logic. And the logical
method and form flatter that longing for certainty and for repose which is in every human
mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the
logical form lies a judgment as to the relative worth and importance of competing legislative
grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and
nerve of the whole proceeding. You can give any conclusion a logical form. You always can
imply a condition in a contract. But why do you imply it? It is because of some belief as
to the practice of the community or of a class, or because of some opinion as to policy, or,
in short, because of some attitude of yours upon a matter not capable of exact quantitative
measurement, and therefore not capable of founding exact logical conclusions. Such matters
really are battle grounds where the means do not exist for the determinations that shall be
good for all time, and where the decision can do no more than embody the preference of a
given body in a given time and place. We do not realize how large a part of our law is open to
reconsideration upon a slight change in the habit of the public mind. No concrete proposition
is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencers
Every man has a right to do what he wills, provided he interferes not with a like right on the
part of his neighbors.
. . . There is a concealed, half conscious battle on the question of legislative policy, and
if anyone thinks that it can be settled deductively, or once for all, I only can say that I think
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he is theoretically wrong, and that I am certain that his conclusion will not be accepted in
practice semper ubique et ab omnibus [always, everywhere, and for everything]. . . .
I think that the judges themselves have failed adequately to recognize their duty of weighing
considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground
and foundation of judgments inarticulate, and often unconscious, as I have said. . . . I cannot but believe that if the training of lawyers led them habitually to consider more definitely
and explicitly the social advantage on which the rule they lay down must be justified, they
sometimes would hesitate where now they are confident, and see that really they were taking
sides upon debatable and often burning questions.
Richard Posner too knows empathy is a component of good judging. (2009-05-07 15:06)
Richard Posner is considered to be one of the most respected judges in the United States, and although
generally considered a man of the right, Posners pragmatism, his qualified moral relativism and moral
skepticism, and his affection for the thought of Friedrich Nietzsche set him apart from most American
conservatives. Posner is a judge on the U.S. Court of Appeals for the 7th Circuit, and he quite plainly
recognizes that empathy is a fundamental component of good judging. As he writes in How Judges Think
(at 117; emphasis added):
Another . . . major factor in judicial decisions in the open area [that is, where the
language of the law does not prescribe a clear answer] is good judgment, an elusive faculty
best understood as a compound of empathy, modesty, maturity, a sense of proportion, balance,
a recognition of human limitations, sanity, prudence, a sense of reality and common sense. .
. . It is another of the means that people have for maneuvering in situations of uncertainy.
If law were logical, good judgment would not be an admired quality in judges - as it is even
by legalists.
Melissa Harris Lacewell on Empathy, its importance to social cohesion, and more on
its importance to good judging. (2009-05-07 17:34)
Wisdom from Melissa Harris Lacewell on the centrality of empathy in creating a United States:
[W]e are participants in a nation only to the extent that we imagine ourselves to be part
of a community or a people. Empathy is an important part of what allows us to engage in
that imagined sense of linked fate, shared identity, and common purpose. Without empathy
we cannot enter into a social contract whereby we are willing to subjugate some of our selfish
impulses in order to abide by the rule of law and the dictates of a civil society.
As Laura E. Little points out in Adjudication and Emotion, 3 Florida Coastal Law Journal, 205,
210 ( 2002) , Empathy . . . may actually facilitate the process of understanding competing points
of view so necesssary to quality adjudication. As Judge Richard Posner argues, empathy enables a
judge to integrate into her decsionmaking remote human interests that are not immediately before the
judge, but are possibly affectetd substantially by the judges decsions. Posner praises empathy for its
cognitive character, suggesting that the emotion more likely reflects an evaluation of beliefs, rather than an
ungrounded emotional reaction that short-circuits reasoning. [Citing Richard Posner, Emotions versus
Emotionalism in Law, The Passions of Law (Susan A. Bandes, ed. 1999).
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The Question: existing copyright laws do more harm than good. (2009-05-08 13:07)
The Economist this week is sponsoring online a good old-fashioned debate, with the two sides lined up
on either side of the question: existing copyright laws do more harm than good.
Leonard Cohen: The Law (2009-05-08 13:08)

The Monopoly game is over. (2009-05-11 05:18)
Heres one reversal of Bush administration policy no one will mistake: the New York Times reports that the Justice Departments
Antitrust Division will strengthen antitrust rules and aggressively enforce the nations antitrust laws
against corporations that use their market dominance to elbow out competitors or to keep them from
gaining market share. Remarkably, [d]uring the Bush administration, the Justice Department did not
file a single case against a dominant firm for violating the antimonopoly law. Many smaller companies
complaining of abusive practices by their larger rivals were so frustrated by the Bush administrations
antitrust policy that they went to the European Commission and to Asian authorities.
When the Bush Administration, [r]eflecting deep skepticism of the role of government in the marketplace, made its lax enforcement of antitrust laws official policy in 2008, three of the four commissioners
at the Federal Trade Commission denounced the guidelines, calling them a blueprint for radically weakened enforcement against anticompetitive practices.
The Obama Administration, in contrast, believes it was a major mistake to relax enforcement of the
antitrust laws during the the early years of the Great Depression, a policy believed to have enabled
many large companies to engage in pricing, wage and collusive practices that harmed consumers and
took years to reverse. The new policy is expected to hit tech companies especially hard, but is also
aimed at agriculture, energy, health care, . . . and telecommunications companies.
In a related note, embedded below, from Silicon Alley Insider, is a copy of a PowerPoint presentation Google is showing around Washington, D.C., marked up with comments by Consumer Watchdog.
I have to give Google some credit for this last item it came to my attention via a Google News Alert.
The MPAA explains how to show DVD clips in the classroom (the easy way?)
(2009-05-11 06:03)
More lobbying to ridicule! From Ars Technica comes a video shown by the Motion Picture Assocation of
America to the U.S. Copyright Office as part of the triennial DMCA exemptions review.
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In the video, the MPAA suggests that teachers who want to use movie clips as part of
their curricula should use a camcorder to record the movie off of a TV set, and that this is
an acceptable way to use video clips without breaking a DVDs copyright protections.
Jury service the avoidance thereof and the devotion thereto. (2009-05-12 09:54)
Supreme Court Justice Byron White, in Taylor v. Louisiana, 419 US 522, 530 (1975) (citations omitted):
The purpose of a jury is to guard against the exercise of arbitrary power to make available
the commonsense judgment of the community as a hedge against the overzealous or mistaken
prosecutor and in preference to the professional or perhaps overconditioned or biased response
of a judge. . . . Community participation in the administration of the criminal law, moreover,
is not only consistent with our democratic heritage, but is also critical to public confidence in
the fairness of the criminal justice system.
The hatred of jury service may be a symptom of problems with our democratic system, but it is a common
attitude. As Lowering the Bar reports, Nobody really likes jury duty, but probably nobody doesnt like
it as much as Daniel Ellis. Ellis wrote on his jury questionnaire (reviewed by the judge and attorneys
as the first step in deciding who should serve) that he was biased against (for example) homosexuals and
blacks. The judge subsequently questioned Ellis:
JUDGE: You say on your form that youre not a fan of homosexuals.
ELLIS (interrupting, hoping to be jailed more quickly): [And t]hat Im a racist.
ELLIS (finding himself still not in jail yet): Im frequently found to be a liar, too. I cant
really help it.
JUDGE: Im sorry?
ELLIS: I said Im frequently found to be a liar.
NICKERSON: So, are you lying to me now?
ELLIS: Well, I dont know. I might be.
JUDGE: I have the distinct impression that youre intentionally trying to avoid jury service.
ELLIS: Thats true.
The report concludes: Judge Nickerson ordered Ellis taken into custody. Ellis was later released but
could well face charges of perjury, among other things.
Meanwhile, in Bozeman, Montana, Erik Slyes response to a jury summons stated the following:
Apparently you morons didnt understand me the first time. I cannot take time off from
work. Im not putting my familys well-being at stake to participate in this crap. I dont
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believe in our justice system and I dont want to have a goddam thing to do with it. Jury
duty is a complete waste of time. I would rather count the wrinkles on my dogs balls than
sit on a jury. Get it through your thick skulls. Leave me the f k [sic] alone.
The Bozeman Daily Chronicle reports that Slyes wife, Jennifer, wrote the note out of frustration that
the court summoned her husband after he had told the court he couldnt afford to take time off work.
Erik Slye was called to court and asked by the Judge whether Slye considered him a moron. Slye said
no and apologized, and the judge excused Slye without a warning.
There is a lot to criticize about our jury system, from the disruption it causes to jurors lives to the
sometimes questionable verdicts jurors render. My students at the University of Amsterdam (where I am
blessed with the opportunity to teach for a couple of weeks each year) think its laughable.
But the right to a jury is so bound up with my belief in what is best about the U.S. that I find it
difficult to accept the criticisms as grounds for a major overhaul of the system. Even when they seem to
get things wrong, juries often do justice. Doctors rightfully criticize medical malpractice for the lotterylike nature of its awards to patients and for the questionable ability of jurors to evaluate the quality of
medical care, but when they do so they rarely mention two significant purposes malpractice serves that
would otherwise be neglected. First, few patients, insured or uninsured, can afford the astronomical costs
of care for bad medical outcomes (whether or not there was malpractice). Is it any wonder jurors lean
toward the injured patient as against the malpractice insurer? Second, the U.S. has the highest standard
of medical care in the world. It isnt because the medical profession allows any independent regulation
of those standards. Its because of the threat of adverse jury verdicts in malpractice cases.
In short, juries are a safeguard against the laws tendency oftentimes to lose touch with real life. The late
Judge David Bazelon, who sat on the U.S. Court of Appeals for the D.C. Circuit, made exactly this point
in The Adversary Process: Who Needs It?, 12th Annual James Madison Lecture, New York University
School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971)):
Its easy for the public to ignore an unjust law, if the law operates behind closed doors
and out of sight. But when jurors have to use a law to send a man to prison, they are forced
to think long and hard about the justice of the law. And when the public reads newspaper
accounts of criminal trials and convictions, they too may think about whether the convictions
are just. As a result, jurors and spectators alike may bring to public debate more informed
interest in improving the criminal law. Any law which makes many people uncomfortable is
likely to attract the attention of the legislature. The laws on narcotics and abortion come
to mind and there must be others. The public adversary trial thus provides an important
mechanism for keeping the substantive criminal law in tune with contemporary community
values.
Im pretty fond of Beckys take on jury service at Wedded Bliss:
Jury Duty can be described as a commentary on society. I tend to forget how ridiculous
people are when I havent been outside my little cross-section of the world in a while. Major
reality check on that one on Friday, as well as an interesting peak into our judicial system.
To start I have to say that while I agree with the inconvenience of the whole jury duty thing
I have a difficult time buying into the idea that my time is more important than the possible
future of the person that is on trial and so I just cant blow off jury duty as many people can.
Call me naive, but it is who I am. While I recognize the flaws in the system (its pretty hard
to miss while you are sitting in a room for 8 hours on a workday), I also honestly think that
weve got about the best system Ive seen and so if Im not willing to be part of a jury then
Im not really willing to be part of the society that at this age Ive chosen to be part of (kind
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of the same way I feel about voting - responsibility of being a member of this society people,
get your butt in gear and deal with the fact that with rights comes responsibilities).
Stuck on a problem? Move! (2009-05-15 09:41)

Stephanie West Allen at idealawg is fascinated with a topic Ive always had an interest in: the ways our
bodies affect our minds. Im a long distance runner, and Ive always thought the stamina running provides me is a huge part of what intellectual productivity I have. Allen has previously discussed embodied
cognition, the ways moving our bodies can help us think through and solve problems. And today she
points to scientific support for the idea. As one of the authors of the study Allen discusses explains:
[B]y directing the way people move their bodies, we are - unbeknownst to them - directing
the way they think about the problem.
A poliitician would be an excellent replacement for Souter. (2009-05-15 11:04)

Gordon Silverstein has a terrific column explaining why President Obama should appoint a politician to
the Supreme Court vacancy created by Justice Souters retirement. I think hes spot on in understanding
why, as Obama explained, its important that the future Justice understands that justice is also about
how our laws affect the daily realities of peoples lives. Silverstein explains that many of the Courts
cases involve the Constitutions impact on political and legislative functions, that none of the current
justices has any legislative experience, and that it would make sense to have someone on the Court who
really understands what the real-world consequences of its decisions:
Someone with the appropriate legal experience who also has faced voters and listened to
constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the
American political system, its institutions, and how they actually work, on the ground, in the
21st century.
I agree too with Silverstein that most law professors would not identify these as the Courts needs. But
there is too much abstraction on the Court these days too much concern with doctrinal purity and
not enough with the practical consequences of that doctrine. Take campaign finance for example. Many
opponents of campaign finance regulation ground their stance in the belief that the right to free speech
forbids restrictions on the right to give money to political campaigns. They equate money and speech.
But if the ways unregulated spending affects political speech is in fact to restrict the access of multiple
viewpoints (by, fo example, crowding out of what in essence is a limited range of communication the
interests of less well funded voices), then the equation of money with speech makes no sense if it limits
the voices heard, unregulated campaign finance limits free speech. A politician will certainly have a
better sense of the reality of the situation than any sitting member of the Court.
Like most legal questions, we cannot definitely answer this question without considering its practical
effects. I hope, therefore, that Obama strays from the style weve seen for too long: appellate judges and
lawyers with strong academic support. A politician would be a great alternative.
Girl Talk on Remix Culture (2009-05-15 23:25)

Gregg Gillis, a/k/a Girl Talk, spoke with fans online via the Globe and Mail on his work:
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I believe in what Im doing, so at this point, the fact that there has been no problems
feels great. Some of those national publications like to write stories and make it seem like
me or Illegal Art are a bunch of idiots, like we just dont give a fuck and thats why were
releasing the music. Completely ignoring the whole idea of Fair Use. Its definitely not under
the radar any more. That was the point I was trying to make. But times are changing. The
way the general public views intellectual property in 2009 is much different than in 1999.
Look around the internet. So much content comes from pre-existing media. Were used to it
now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then
turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly
exchanging ideas and building upon previously existing material. So the idea of a remix being
a real artform is being validated in our culture every day.
What gives money or art its value? Ask J.S.G. Boggs. (2009-05-18 09:39)
From Suite 101:
Although the United States Treasury Department has very strict and serious laws about
the counterfeiting of currency, there is one law that is above them that they seem to recognize
and that is the artists freedom of expression.
J.S.G. Boggs (born Steve Litzner) is most famous for his hand drawn, one-sided United States
bills that he then exchanges for goods and services just like real money. His drawings show
the hand of a master draftsman so much so that he has been arrested for his counterfeiting
in England and Australia. Boggs was acquitted in both cases on the grounds that he was
creating art and not forging or counterfeiting currency and trying to pass it off as such.
But Boggs creations are as elusive as his philosophy about the art he creates. He does
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not consider the drawn bank notes as money and they are commonly referred to as Boggs
Notes, Boggs Bills, and Boggs Dollars. Boggs considers the art part of his work when he
exchanges the bills, receives change, and receipt and goods. He then is willing to sell the
receipt, change and goods as the art, not the original bill. If a collector wants a hand drawn
Boggs Bill they will have to track down the lucky recipient themselves.
While Boggs art work could be considered hard to collect and esoteric he is taken seriously
by the art world. The proof? His work is in the collections of the British Museum, the Art
Institute of Chicago, the Museum of Modern Art, and the Smithsonian Institution.
One of my favorite books on the value of money is Lawrence Wechslers Boggs: A Comedy of Values.
Creative Math from Craig Damrauer (2009-05-18 10:02)

New Math collects Craig Damrauers creative equations, many relating quite directly to the issues regarding creativity I address here.
Hat tip to Matt Homan.
To catch a thief . . . crowdsourcing? (2009-05-18 14:20)

BostonHerald.coms Blog is using crowdsourcing in an effort to solve the 1990 theft of 13 paintings
and other artworks from the Isabella Stewart Gardner Museum. Now, the blog reports, a twitter.com
user named GardnerTheft has been posting links to our articles and others. Check out the info-tweets
at twitter.coms web site (search: GardnerTheft). With just a click youll see frequently updated news,
insights, ideas and blog posts.
As the Boston Herald Blog explains, its effort to capture the collective effort of interested internet users
was inspired by the success of an earlier online effort in connection with the case.
When medical illustrator Nicole C. Wolf produced her digital paintings to update the
renderings of the two Gardner thieves, the public got the best images of the robbers ever
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produced. Wolfs work, done in anonymous collaboration with one of the Gardner guards on
duty during the theft, has led to dozens of new leads for the museums investigator, Anthony
M. Amore.
With those tips in mind, its time to provide more information about the two thieves physical
descriptions. Each detail is aimed at jarring the memories of people who know the behavior
patterns of many in the criminal underworld.
In 2005, the Boston Globe ran its own detailed review of what was known about the Gardner art heist,
summing up the events as follows:
Museum officials say they take heart in the fact that some masterworks stolen from other
museums have surfaced after many years. But like the investigators, the museums leaders are
baffled by how little progress has been made since thieves entered the museum in the early
morning hours of March 18, 1990, as St. Patricks Day festivities in the city wound down.
They are baffled especially because the thieves, though bold and clever, were hardly meticulous professionals. They took no great pains to avoid being seen, nor were they careful to
avoid damaging the masterpieces they were stealing.
They posed as Boston police officers, and even though they flashed badges and wore insignias, their long coats were not part of any official uniform. The Globe located several
passersby who remember seeing them sitting quietly in a red hatchback near the museums
side entrance, perhaps waiting for a St. Patricks Day party in a nearby apartment building
to break up before making their move. And their disguises left their faces uncovered, giving
the guards a good look at them.
Once inside, the thieves ripped a Vermeer, three Rembrandts including his only seascape
five Degas drawings, and a Manet from their wall placements, smashing them out of their
frames and leaving shards of glass and remnants of canvas behind. The thieves took some of
the museums greatest treasures but left behind some even more valuable objects.
When they were done for the night, they made two trips to their car with the loot. Then they
vanished.
Where the paintings were, empty frames now fill the museums walls.
Woody Allen settles for $5 million for commercial use of his image. (2009-05-18 16:01)
New York State is unusual in giving people a right to deny the use of their image (or voice or name) for
commercial purposes). Under Section 51 of New Yorks Civil Rights Law, anyone whose name, portrait,
picture or voice is used within this state for advertising purposes or for the purpose of trade without the
written consent first obtained may sue to enjoin the use and for damages.
Thus, the only real legal issue in Woody Allens lawsuit against a clothing company that used an image
of him from Annie Hall without on billboards without permission was the amount of damages Allen
would be able to provehe had suffered. Thus, though Allens complaint sought $10 million, he settled
today for $5 million. There were, however, other issues that would have come up. As the New York
Times reports, a trial that could have dredged up potentially salacious details about him and his wife,
Soon-Yi Previn. Nonethless, the parties continued their dispute in the court of public opinion after the
settlement:
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Threats and press leaks by American Apparel designed to smear me did not work, and
a scheme to call a long list of witnesses who had absolutely nothing to do with the case was
also disallowed by the court, Mr. Allen said outside the federal courthouse, reading from a
statement.
I suspect this dose of legal reality led to their 11th-hour settlement, he added.
Mr. Charney [founder and CEO of the defendant], who spoke to reporters afterward, said he
did not regret using the image of Mr. Allen dressed as a Hasidic Jew, and that his insurance
company had forced him to settle.
Im not sorry for expressing myself, he said. I wish him the best with his career, and
I am looking forward to his next film.
Mr. Charney seemed to argue that his First Amendment rights to free speech justified his conduct, and
hes right that if he has a constitutional right to do what he did the state statute could not prevent him
from doing so. But it seems likely to me the state has a legitimate interest in protecting its citizens against
the commercial exploitation of their own identities, and therefore the free speech rights in connection with
commercial use of ones identity are likely similar to the fair use rights of copyrighted works. Since the
image is unmistakeably Mr. Allens, since the use is as commercial as they come, and since Allen likely
could have proven some financial harm, it seems to me unlikely any First Amendment argument could
have helped the defendant in this case.
The Case of the Twittering Witness (2009-05-19 08:39)

From Law.com: Miami-Dade Circuit Judge Scott Silverman declared a mistrial in a civil fraud case
Wednesday after being informed a witness on the stand in his courtroom had engaged in text-messaging
while the judge spoke with attorneys during a sidebar conference. Techdirt is right in suggesting that
the intersection of the new media with our old institutions is going to raise more and more problems
like this one:
It seems as though very few people have really thought through the implications of the
many channels of communication that every individual now has with them, and how that
changes common assumptions about how people can and will communicate, even in constrained areas.
The Law is always evolving. What is Kosher, and who decides? (2009-05-19 12:09)
The chief rabbi of the Torah and Land Institute in Israel has reversed the ruling he made last week and
now has determined that strawberries are kosher despite the presence of tiny insects and insect parts on
them:
During a class he gave last Thursday at the hesder yeshiva in Karnei Shomron, Rabbi
Amar explained that the Torah prohibits the consumption of insects that can be seen with
the naked eye, and does not ban eating bugs that can only be spotted through a microscope.
The term Chief Rabbi, incidentally, has no significance beyond the particular group of Jews who choose
to give it significance. The Torah and Land Institute has its followers, but plainly it is not the final word
on what is and what is not kosher. No one is.
The decisions of the Israeli High Court of Justice, on the other hand, are binding on all Israelis. And last
week that court ruled that the state cannot discriminate against Reform Jewish institutions in connection
with conversions.
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Is peer-to-peer music downloading fair use? I doubt it. (2009-05-19 13:13)

In defending an individual against liability for downloading music via peer-to-peer networks, Harvard
Law Professor Charles Nesson apparently is going to argue that his clients activities constitute fair use
of the copyrighted music. His arguments dont seem terribly persuasive to his peers, and I confess that it
is not clear to me at all what his argument is. Ars Technica even asks, Is Harvard Law professor Charlie
Nesson crazy?
Nesson seems likely to argue that there is no remedy for non-commercial music downloading in the
absence of proof of actual economic harm. If that is the basis of his argument for fair use, at least it
makes some sense (even if it seems unlikely to prevail).
More effective, perhaps, will be Nessons efforts to convince the court that a jury should decide his
clients fate. As he explains:
Fair use is recognized as a common law, perhaps a constitutional concept, not defined
by but merely recognized and continued by the statute (Sony, Harper); that the statutory
four factors are illustrative and not exhaustive; that analysis must be case by case; and the
question is a jury issue.
But Im not sure hes entirely right about that. Both an influential treatise (4-13 Nimmer on Copyright
Section 13.05, n. 17) and the courts suggest that whether certain acts constitute fair use is a mixed
question of law and fact. A question of law is one a judge determines; a question of fact is one a jury
determines. A mixed question of law and fact is one in which a jury determines what happened, and the
judge determines the legal effect of those facts. See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir.
1986) Im not sure how Nesson is going to persuade jurors who might be sympathetic to his client to find
the historical facts he needs to convince the court his clients music downloading was fair use.
Captain Kirk reads the Constitution. (2009-05-19 16:29)
Jesse Ventura on torture. (2009-05-19 17:36)

[EMBED]
Profits in online radio? (2009-05-20 08:57)

Im always arguing with my father over the fall of the old media he doesnt understand how its necessary
functions (like reporting on governmental and corporate corruption) will be replaced, especially how they
will be paid for. Honestly, I dont have the answer. Im left with my old new technology requires new
business models mantra. So Im happy to see that Wired News is reporting that Pandora, one of my
very favorite things produced by the new media, is expecting to turn a profit next year. Unsurprisingly,
perhaps, Pandora started including audio ads in addition to banners recently. It is also encouraging to
note that is optimistic it will work out a deal to resolve those royalty payments that once threatened to
drive Pandora out of business.
Nightmare clients - get rid of them before the nightmares become real.
(2009-05-20 15:53)
I wouldnt want to represent Courtney Love if there is truth in one-tenth of the allegations of what Ms.
Love has said and written about the plaintiff-fashion designer who apparently had the temerity to charge
265
Ms. Love for the dresses designed for her. The First Amended Complaint filed by the Plaintiff is available
from J.D. Supra. I would quote from it, but there is so much, and much of it is so over the top that it
just makes me feel sad.
The thought of representing Courtney Love (and risking what happened to the clothing designer she
had pursued and then turned on) reminds me of another posting by J.D. Supra: 10 Actions Every
Lawyer Should Take in 2009, and, in particular, number 4:
Eliminate your worst clients. You know which ones I mean - the ones that dont listen
to you, dont respect you and/or dont pay you. Youre not obligated to work for free, and
clients that dont take your advice, dont cooperate, arent honest with you or dont pay you
create conflicts and take you away from your best clients. Change your retainer agreement
if you have to, make a motion to the court to be relieved if you must, but get out of client
relationships that suck you dry.
The advice reminds me of the maxim of a law professor I once knew: a lawyer is not a bus; you need not
take on everyone who gets on board. Choose, and retain, your clients wisely.
How online video creators can make remixes, mashups, and other common online
video genres. (2009-05-20 16:23)
American University Professors Pat Aufderheide and Peter Jaszi, have produced the video below in their
capacity as principals in American Universitys Center for Social Media and AUs Program on Information Justice and Intellectual Property. The video was produced in collaboration with Stanford Law
Schools Fair Use Project, and explains how online video creators can make remixes, mashups, and other
common online video genres with the knowledge that they are staying within copyright law. (Professor
Jaszi happens to be a favorite scholar of mine.)
Is Nesson crazy?
Statuory damages need not relate to actual damages.
(2009-05-21 10:27)
As I explained the other day, the merits of Professor Charles Nessons argument that peer-to-peer file
music file sharing constitutes fair use entirely escapes me (and, apparently, others). But Nesson seems to
be making another argument as well that if the plaintiff cannot show actual damages it is not entitled
to the alternative remedy under the copyright statute, up to $150,000 in statutory damages per infringement:
He will argue that statutory damages only apply to commercial infringers. The law offers
rightsholders the chance to seek either statutory or actual damages, but that the two are
meant to be equivalent. If the two remedies are equivalent, and if individual noncommercial
copying results in no provable actual harm to the copyright harm holder, then actual damages
would be zero-and so would statutory damages.
As he also has been quoted:
It would be a bizarre statute indeed that offered two completely unrelated remedies, he
writes, one which granted actual damages and lost profits, and the other of which granted
plaintiffs the right to drive a flock of sheep across federal property on the third day of each
month.
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It doesnt strike me as so bizarre. Statutory damages often serve the purpose of providing a remedy for a
proven violation of law where the lawmakers have concluded it would be too burdensome to also require
proof of damages, particularly in cases in which damages might be difficult to prove. It does not seem
bizarre to believe that Congress in enacting the Copyright Act concluded that situations precisely like
the one Nesson is defending blatant individual infringements that cumulatively could have an impact
on an industry but the individual effects of which are difficult to ascertain should be subject to some
liability. In addition, even if the statutory remedy bears no relationship to actual damage it can still serve
a legitimate function: deterrence. And, indeed, my very brief research on the question has demonstrated
the courts are quite aware of these arguments. In Pret-a-Printee, Ltd. v. Allton Knitting Mills, 218
U.S.P.Q. 150 (S.D.N.Y. 1982), the court stated:
An award of statutory damages is appropriate where the measure of actual damages is

difficult to ascertain. See Peter Pan Fabrics v. Jobela Fabrics, Inc., 329 F.2d 194, 196 (2d
Cir. 1964). Moreover, [t]he broad discretionary power given the courts to make such an
award serves the dual purposes of the Copyright Act: to compensate copyright owners and
to provide a deterrent to would-be infringers. Lauratex Textiles Corp. v. Allton Knitting
Mills, 519 F. Supp. 730, 733 (S.D.N.Y. 1981), citing Lottie Joplin Thomas Trust v. Crown
Publishers, 592 F.2d 651 (2d Cir. 1978).
So where is Nesson coming from. I confess: I cant tell. Perhaps he believe damages divorced from
damage somehow violate the Copyright Clause of the Constitution because they discourage rather than
encourage innovation. Such arguments, however, have failed in far more compelling circumstances.
ADDENDMUM: In effect, subject to the limits the statute places on maximum and minimum awards,
this gives to the court or the jury the power to simply pick a sum of money to be awarded as damages
instead of any other monetary remedies without any proof of monetary loss by the copyright owner.
Howard B. Abrams, 2 The Law of Copyright 17:11 (2008) (emphasis added).
ADDENDUM 2: The question may be more complicated than I originally believed, and a statutory
damage award entirely divorced from any relationship to damages might raise due process concerns. So
the court stated in Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574, 587-588 (6th Cir.), cert.
denied, 128 S. Ct. 2429, 171 L. Ed. 2d 229 (2007). Nonetheless, the court in Zemba affirmed an award of
statutory damages that were 44 times greater than actual damages and emphasized the extreme deference
appellate courts must give in reviewing trial courts awards:
This review, however, is extraordinarily deferential even more so than in cases applying
abuse-of-discretion review. Douglas v. Cunningham, 294 U.S. 207, 210, 55 S. Ct. 365, 79 L.
Ed. 862 (1935) (Congresss purpose in enacting the statutory-damage provision of the 1909
Copyright Act and its delineation of specified limits for statutory damages take[] the matter
out of the ordinary rule with respect to abuse of discretion); Broad. Music, Inc. v. Star
Amusements, Inc., 44 F.3d 485, 487 (7th Cir. 1995) (interpreting the modern Copyright Act
and noting that the standard for reviewing an award of statutory damages within the allowed
range is even more deferential than abuse of discretion).
In Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278, 282 (D. Conn. 2008)(citations omitted),
the court, without addressing the question, observed that [th]e defenses which have possible merit include:
(1) whether the amount of statutory damages available under the Copyright Act, measured against the
actual money damages suffered, is unconstitutionally excessive . . . .
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Shepard Fairey, dishonest Fascist? I dont think so. (2009-05-21 22:41)
Another artist is upset with Shepard Fairey. 20 years ago Ed Nachtrieb took the photo on the left of an
armed Chinese soldier at the onset of martial law in Beijing in 1989. Faireys reworking of the image,
conveying its own message, is on the right.
268
Nachtrieb criticizes Fairey for stripping the image of its context, which was the first appearance on the
Beijing streets of lethal weapons and, thus, a the first sign of what would happen in Tiananmen Square.
Nachtrieb explains that [i]mages stripped of their context but retaining strong emotional elements are
hallmarks of fascist and Soviet propaganda styles, drains them of meaning, and is dishonest. And, of
course, he thinks that Mr Fairey [should] credit those whos materials he uses to inspire him.
Nachtrieb has a point: Faireys image plainly does strip Nachtriebs original image of its meanings.
But it is precisely the fact Faireys image does transform the meaning of Nachtriebs that makes it fair
use of Nachtriebs photograph (credit or no credit). But is Faireys image dishonest or, even worse,
fascist?
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Faireys image actually does seem a pretty interesting combination of Soviet Socialist Realism and symbols evoking Yippie demonstrations from the 60s, hardly the type of thing Socialist Realist painters
would have depicted. In short, its neither dishonest nor fascistic. Its just not what Nachtrieb wants
done with his image, but, as Ive made clear again and again, artists dont have the right to control the
uses of their images if those uses are non-infringing. Nachtrieb doesnt even accuse Fairey of copyright
infringment, and rightfully so its pretty damn clear Faireys use of Nachtriebs photo is fair use.
ADDENDUM: In the comments, Banksy (or someone impersonating him) writes: Youre an idiot.
Im not sure precisely which aspect of my idiocy he is referring to, particularly with respect to my post.
I doubt he considers Faireys piece an infringing one. Perhaps my superficial art criticism and the association between Socialist Realism and Yippie symbolism offended him. I do know that one of his pieces,
War and Peace, does not seem entirely out of place in this post:
Lets hear it for the KLF! (2009-05-22 19:07)

The KLF became heroes of mine last year when I used one of their songs as the basis of a fictional
lawsuit that itself became the inspiration for my blog What is Fair Use? The song was K Cera Cera,
270
a medley, performed by the Red Army Choir, of Que Sera Sera and Happy Xmas (the War is Over).
The blog contains not only all the relevant documents to the law school assignment (briefs pertaining to
the fictional lawsuit), but also several months worth of posts regarding issues pertaining to copyright,
fair use, and the particular artists involved in the case. I became a big fan of Jimmy Cauty and William
Drummond; their insights into the intersecting worlds of art and commerce are as sharp as any Ive seen.
Ive often, in fact, referred back to them in this blog, but you can begin to get a taste of their sensibilities
here. Their insights into the banking industry, published back in 1988, are as on the money a critique of
the financial mess weve found ourselves in as any Id read prior t0 2008.
But they started their careers as pop music sensations in the U.K., and I dont know mamy people
my age or younger who dont remember Doctorin the Tardis:
Doctorin the Tardis is predominantly a mash-up of the Doctor Who theme music and Gary Glitters
Rock and Roll (Part Two), with sparse vocals inspired by The Daleks and Harry Enfields Loadsamoney character. Also credited on the record was Ford Timelord, Cautys 1968 Ford Galaxie American
police car (claimed to have been used in the film Superman IV filmed in the UK). Drummond and Cauty
declared that the car had spoken to them, giving its name as Ford Timelord, and advising the duo to
become The Timelords.
Memorial Day (2009-05-25 08:49)
Normandy, France
The argument against Proposition 8 result due in a few hours. (2009-05-26 08:23)
Today, the California Supreme Court announces its decision on Proposition 8, the voter initiative passed
in November that outlawed same-sex marriage. In May 2008, the court, held that prohibiting same-sex
marriages violated the Equal Protection Clause in Californias Constitution.
The briefs filed in the case are all available here.
The essence of the argument advanced against proposition 8, as I understand it, is as follows: the state
constitutions requirement of equal protection requires that same-sex couples be permitted to marry.
The state Supreme Court is the final arbiter of the meaning of the state consitution. Thus, a voter
initiative that by a mere majority declares that same-sex couples are not permitted to marry usurps
the constitutional role of the state supreme court in interpreting the states equal protection clause. Its
an interesting argument if the voters want someone other than the Supreme Court to interpret the
state constitution, they must revise the constitution to alter the role of the Supreme Court. Leaving
interpretation of constitutions, however, has been firmly embedded in U.S. jurisprudence since Marbury
271
v. Madison, in which, of course, Chief Justice John Marshall stated:
It is emphatically the province and duty of the judicial department to say what the law
is. . . . If two laws conflict with each other, the courts must decide on the operation of each.
Thus, the argument in California goes, the electorate usurped the role of the state Supreme Court in voting by a majority that the equal protection clause does not allow same sex marriage. Here, in summary,
is the way the argument was articulated by the Petitioners in their Petition for Writ of Mandate (pdf):
13. Proposition 8 alters Article 1 of the California Constitution by adding SEC. 7.5.
Only marriage between a man and a woman is valid or recognized in California. By its
terms, Proposition 8 purports to strip a constitutionally protected minority group of the
fundamental right to marry even though that right was previously conferred by the equal
protection clause of the California Constitution.
14. Proposition 8 is invalid under the California Constitution because the initiative power
does not permit voters to divest a politically unpopular group of rights conferred by the equal
protection clause. A transfer of the final authority to enforce the equal protection clause from
the judiciary to a political majority can only occur by revision. The Constitution, however,
has never been revised to remove final autohority to enforce the equal protection clause from
the judiciary.
Forge ahead, and youll find a way, if not the one you were looking for. (2009-05-26 19:04)
My sister, Amy Friedman, is the author of author of 2 memoirs, 100s of essays and stories, and a forthcoming book on her marriage to a man in prison, an aspect of which was featured not long ago in the
New York Times About Love column. In an interview with Write on! Online, she covers a lot of ground,
but one of my favorite lines, and the one I can relate to most after the nearly 10 months Ive been writing
this blog daily (or as near thereto as I couldve dreamed possible), is this:
But I love writing . . .; I love the fact that I dont know where Im going, that the story
sometimes feels so elusive, that what Im trying to say usually slips away and I discover Im
saying something altogether different from what I thought when I began.
What in Gods name is wrong with same sex marriage? (2009-05-26 20:34)
What in Gods name is wrong with same sex marriage? I truly cannot comprehend it, and the failure to
recognize it in most of the country has led to genuine pain and hardship to families who should not have
to experience that discrimination in the U.S.A.
The case for allowing same sex marriage was made quite well by the Supreme Court of California last
year, in the decision California citizens felt so threatened by they just had to pass Proposition 8. I quote
below from it at some length. Page numbers reference the pages in the pdf copy of the opinion:
At 7: [T]he substantive right of two adults who share a loving relationship to join together
to establish an officially recognized family of their own - and, if the couple chooses, to raise
children within that family - constitutes a vitally important attribute of the fundamental
interest in liberty and personal autonomy that the California Constitution secures to all
272
persons for the benefit of both the individual and society.

At 11: [T]the purpose underlying differential treatment of opposite-sex and same-sex
couples embodied in Californias current marriage statutes - the interest in retaining the
traditional and well-established definition of marriage - cannot properly be viewed as a
compelling state interest for purposes of the equal protection clause, or as necessary to serve
such an interest.
At 11-12: First, the exclusion of same-sex couples from the designation of marriage
clearly is not necessary in order to afford full protection to all of the rights and benefits that
currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to
the designation of marriage will not deprive opposite-sex couples of any rights and will not
alter the legal framework of the institution of marriage, because same-sex couples who choose
to marry will be subject to the same obligations and duties that currently are imposed on
married opposite-sex couples. Second, retaining the traditional definition of marriage and
affording same-sex couples only a separate and differently named family relationship will, as
a realistic matter, impose appreciable harm on same-sex couples and their children, because
denying such couples access to the familiar and highly favored designation of marriage is likely
to cast doubt on whether the official family relationship of same-sex couples enjoys dignity
equal to that of opposite-sex couples. Third, because of the widespread disparagement that
gay individuals historically have faced, it is all the more probable that excluding same-sex
couples from the legal institution of marriage is likely to be viewed as reflecting an official view
that their committed relationships are of lesser stature than the comparable relationships of
opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite
sex couples and providing only a separate and distinct designation for same-sex couples may
well have the effect of perpetuating a more general premise - now emphatically rejected by
this state - that gay individuals and same-sex couples are in Some respects second-class
citizens who may, under the law, be treated differently from, and less favorably than,
heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find
that retention of the traditional definition of marriage constitutes a compelling state interest.
Accordingly, we conclude that to the extent the current California statutory provisions limit
marriage to opposite-sex couples, these statutes are unconstitutional.
47, n. 27: If a comprehensive domestic partnership law had not been enacted in California, and if plaintiffs had brought a constitutional challenge to the California marriage
statutes and our court had concluded that those statutes were unconstitutional because they
did not afford same-sex couples rights and benefits equal to those available to opposite-sex
couples under the marriage statutes, we might well have further concluded - as other state
courts have determined in similar situations - that the appropriate disposition would be
to direct the Legislature to provide equal treatment to same-sex couples, leaving to the
Legislature, in the first instance, the decision whether to provide such treatment by a revision
of the marriage statutes or by the enactment of a comprehensive domestic partnership or
civil union law. (See Baker v. State, supra, 744 A.2d 864, 886-889; Lewis v. Harris, supra,
908 A.2d 196, 221-223.)
Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to same-sex couples virtually all of the substantive legal
rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of
the burden of successfully prosecuting a constitutional challenge to obtain those substantive
rights and benefits. Thus, in this proceeding, we are faced only with the narrower question
that logically ensues: whether, in light of the enactment of Californias domestic partnership
legislation, the current California statutory scheme is constitutional.
273
57: As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized family with the person of
ones choice, and, as such, is of fundamental significance both to society and to the individual.
(footnote omitted)
At 66: In light of the fundamental nature of the substantive rights embodied in the
right to marry - and their central importance to an individuals opportunity to live a happy,
meaningful, and satisfying life as a full member of society - the California Constitution
properly must be interpreted to guarantee this basic civil right to all individuals and couples,
without regard to their sexual orientation. (footnote omitted).
At 69-70: In light of this recognition, sections 1 and 7 of article I of the California
Constitution cannot properly be interpreted to withhold from gay individuals the same
basic civil right of personal autonomy and liberty (including the right to establish, with the
person of ones choice, an officially recognized and sanctioned family) that the California
Constitution affords to heterosexual individuals. The privacy and due process provisions of
our state Constitution - in declaring that [a]ll people . . . have [the] inalienable right[] [of]
privacy (art. I, 1) and that no person may be deprived of liberty without due process of
law (art. I, 7) - do not purport to reserve to persons of a particular sexual orientation the
substantive protection afforded by those provisions. In light of the evolution of our states
understanding concerning the equal dignity and respect to which all persons are entitled
without regard to their sexual orientation, it is not appropriate to interpret these provisions
in a way that, as a practical matter, excludes gay individuals from the protective reach of
such basic civil rights.
At 79: Accordingly, we conclude that the right to marry, as embodied in article I,
sections 1 and 7 of the California Constitution, guarantees same-sex couples the same
substantive constitutional rights as opposite-sex couples to choose ones life partner and enter
with that person into a committed, officially recognized, and protected family relationship
that enjoys all of the constitutionally based incidents of marriage. (footnote omitted)
At 103: [W]we conclude that in the present context, affording same-sex couples access
oly to the separate institution of domestic partnership, and denying such couples access to
the established institution of marriage, properly must be viewed as impinging upon the right
of those couples to have their family relationship accorded respect and dignity equal to that
accorded the family relationship of opposite-sex couples.
At 105: [W]e conclude that the distinction drawn by the current California statutes
between the designation of the family relationship available to opposite-sex couples and the
designation available to same-sex couples impinges upon the fundamental interest of same-sex
couples in having their official family relationship accorded dignity and respect equal to that
conferred upon the family relationship of opposite-sex couples.
At 106: In the present case, the question before us is whether the state has a constitutionally compelling interest in reserving the designation of marriage only for opposite-sex
couples and excluding same-sex couples from access to that designation, and whether this
statutory restriction is necessary to serve a compelling state interest. In their briefing before
this court, various defendants have advanced different contentions in support of the current
statutes, and we discuss each of these arguments.
109: We disagree with the Attorney General and the Governor to the extent they
suggest that the traditional or long-standing nature of the current statutory definition of
marriage exempts the statutory provisions embodying that definition from the constraints
274
imposed by the California Constitution, or that the separation-ofpowers doctrine precludes a

court from determining that constitutional question.
On the contrary, under the constitutional theory of checks and balances that the
separation-of-powers doctrine is intended to serve (Superior Court v. County of Mendocino
(1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the
California Constitution imposes upon legislative measures, and a court would shirk the
responsibility it owes to each member of the public were it to consider such statutory
provisions to be insulated from judicial review.
At 111: By the same token, the circumstance that the limitation of marriage to a
union between a man and a woman embodied in section 308.5 was enacted as an initiative
measure by a vote of the electorate similarly neither exempts the statutory provision from
constitutional scrutiny nor justifies a more deferential standard of review.
At 113: Although defendants maintain that this court has an obligation to defer to
the statutory definition of marriage contained in section 308.5 because that statute - having
been adopted through the initiative process - represents the expression of the peoples
will, this argument fails to take into account the very basic point that the provisions of the
California Constitution itself constitute the ultimate expression of the peoples will, and that
the fundamental rights embodied within that Constitution for the protection of all persons
represent restraints thatthe people themselves have imposed upon the statutory enactments
that may be adopted either by their elected representatives or by the voters through the
initiative process. As the United States Supreme Court explained in West Virginia State
Board of Education v. Barnette (1943) 319 U.S. 624, 638: The very purpose of a Bill of
Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them as legal principles
to be applied by the courts. Ones right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental rights may not be submitted
to vote; they depend on the outcome of no elections.
At 116-119: After carefully evaluating the pertinent considerations in the present case,
we conclude that the state interest in limiting the designation of marriage exclusively to
opposite-sex couples, and in excluding same-sex couples from access to that designation,
cannot properly be considered a compelling state interest for equal protection purposes.
To begin with, the limitation clearly is not necessary to preserve the rights and benefits of
marriage currently enjoyed by opposite-sex couples. Extending access to the designation of
marriage to same sex couples will not deprive any opposite-sex couple or their children of
any of the rights and benefits conferred by the marriage statutes, but simply will make the
benefit of the marriage designation available to same-sex couples and their children. As Chief
Judge Kaye of the New York Court of Appeals succinctly observed in her dissenting opinion
in Hernandez v. Robles, supra, 855 N.E.2d 1, 30 (dis. opn. of Kaye, C.J.): There are enough
marriage licenses to go around for everyone. Further, permitting same-sex couples access to
the designation of marriage will not alter the substantive nature of the legal institution of
marriage; same-sex couples who choose to enter into the relationship with that designation
will be subject to the same duties and obligations to each other, to their children, and to
third parties that the law currently imposes upon opposite-sex couples who marry. Finally,
affording same-sex couples the opportunity to obtain the designation of marriage will not
impinge upon the religious freedom of any religious organization, official, or any other person;
no religion will be required to change its religious policies or practices with regard to same-sex
couples, and no religious officiant will be required to solemnize a marriage in contravention
of his or her religious beliefs. (Cal. Const., art. I, 4.) (f00tnote omitted)
275
While retention of the limitation of marriage to opposite-sex couples is not needed to

preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples
from the designation of marriage works a real and appreciable harm upon same-sex couples
and their children. As discussed above, because of the long and celebrated history of
the term marriage and the widespread understanding that this word describes a family
relationship unreservedly couples and same-sex couples and exclude the latter from access
to the designation of marriage, we conclude these statutes are unconstitutional. sanctioned
by the community, the statutory provisions that continue to limit access to this designation
exclusively to opposite-sex couples - while providing only a novel, alternative institution for
same-sex couples - likely will be viewed as an official statement that the family relationship
of same-sex couples is not of comparable stature or equal dignity to the family relationship
of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons,
the retention of a distinction in nomenclature by which the term marriage is withheld
only from the family relationship of same-sex couples is all the more likely to cause the
new parallel institution that has been established for same-sex couples to be considered a
mark of second-class citizenship. Finally, in addition to the potential harm flowing from the
lesser stature that is likely to be afforded to the family relationships of same-sex couples
by designating them domestic partnerships, there exists a substantial risk that a judicial
decision upholding the differential treatment of opposite-sex and same-sex couples would be
understood as validating a more general proposition that our state by now has repudiated:
that it is permissible, under the law, for society to treat gay individuals and same-sex couples
differently from, and less favorably than, heterosexual individuals and opposite-sex couples.
In light of all of these circumstances, we conclude that retention of the traditional
definition of marriage does not constitute a state interest sufficiently compelling, under the
strict scrutiny equal protection standard, to justify withholding that status from same-sex
couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction
between opposite-sex couples and same-sex couples and exclude the latter from access to the
designation of marriage, we conclude these statutes are unconstitutional.
276
The G.L.U., Superpower of the 21st Century (2009-05-27 02:11)
With all the talk out of Texas about secession, Ive been thinking. The Great Lakes contain 20 %
of the worlds fresh water. In the undeveloped world, fresh clean water is perhaps the greatest need, but
theres no doubt that even in the fastest growing areas of the U.S. water is not only in short supply; there
seems no answer to the problem.
So heres my idea: the states and provinces bordering the Great Lakes should secede from the U.S.
and Canada, form their own country (the Great Lakes Union), and exert exclusive control over the water
in the Great Lakes. In other words, wed go OPEC with respect to water. The rest of the country is
ready to let our economies go to hell. When is the last time you heard a politician outside the Midwest
talk about the importance of saving the economies of Ohio and Michigan? Well, weve got the most
valuable resource of all. Lets see what they say as the deserts spread.
Off to Holland I go . . . (2009-05-27 23:52)
Im off to Amsterdam Thursday to teach U.S. Contract Law to 22 brilliant Dutch students at the University of Amsterdam. Its the third consecutive year I have had the pleasure to do so. Who knew that
Ruth Bader Ginsburg taught at UvA too?
277
2.6
June
Tulips and Weed (2009-06-01 10:26)
278
So now Im in Amsterdam, getting ready for my first class tomorrow, and

still recovering from jet lag. The weather helps considerably. Clear blue skies and not a bit of humidity,
hot in the sun and cool in the shade. They say exposure to sunlight helps reset ones circadian rhythms.
Im hoping so.
Invariably when Amsterdam and law come up together in conversations in the States, its in a conversation about drugs and/or prostitution. I suppose those are subject worth delving into, but theyre not
terribly important ones when it comes to comparing two cultures through their law and legal systems.
Or, rather, theyre symptomatic, not central. There is a social libertarianism in Amsterdam openly dismissive of religious moralism to a degree that would be politically suicidal in conventional U.S. political
conversation. But I think that social angle is just one of many. Social libertarianism is one thing. Economic libertarianism is something else entirely, and I think I can explore the ways the Dutch seem to
both be adept at Western capitalist enterprise (they did, after all, virtually create international banking)
and at the same time to maintain successful socialized systems of education and health care financed by
a high tax rate. There are ways, I think, the Dutch both respect and fear the power of capitalist markets
because of a longer history of and memory for their successes and their failures. Who could forget the
Dutch Tulip Craze?
Faking it in Amsterdam (2009-06-03 08:00)
In Bamboozling Ourselves, Errol Morris asks, Why

do people believe in imaginary returns, frauds and fakes? Bernard Madoff, A.I.G. , W.M.D.s ... How
did this happen? Do we believe things because it is in our self-interest? Or is it because we can be
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manipulated by others? And, if so, under what circumstances?

To explore these questions, Morris writes about Han van Meegeren, arguably the most successful art
forger of all time. Van Meegeren, a painter and art dealer living in Amsterdam was arrested for collaboration with the Third Reich. He was accused among other things of having sold a Vermeer to
Reichsmarshal Hermann Gring - essentially of having plundered the patrimony of his homeland for his
own benefit and the benefit of the Nazis. Van Meegeren, however, claimed he had forged the Vermeer,
as well as several others. As Morris concludes:
Han van Meegeren forged 11 Vermeers, a Frans Hals, a couple of de Hoochs and a Terborch.
But . . . Van Meegerens greatest forgery was not any of his paintings. It was his biography.
It was his success in convincing Joseph Piller, the Jewish agent of the Dutch Resistance who
arrested him, and eventually the rest of the world that he was a folk-hero - a gifted artist who
conned Gring - not a Nazi-sympathizer or collaborator. As such, forgery is similar to sleight
of hand. You misdirect attention, emphasize certain details and suppress others.
Is Holden Caulfield still only J.D. Salingers character? (2009-06-04 08:21)

J.D. Salinger recently filed a lawsuit (complaint (pdf)) seeking to block the publication of 60 Years Later:
Coming through the Rye, an unathorized sequel to Catcher in the Rye, on the grounds it infringes
Salingers copyright in the novel and in Holden Caulfield, the narrator and essence of that novel.
Its an interesting case. In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d
1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001),
the owners of the copyright to Gone With the Wind sued the publisher that owned the rights toThe Wind
Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used
and drew upon the characters and story line from Gone with the Wind. The court ordered the lawsuit
dismissed because The Wind Done Gones use of the characters and story line from Gone with the Wind
constituted fair use. The courts conclusion was that TWDG was a protected parody of GWTW because
one of its principal purposes was to critique the worldview advanced by GWTW:
TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a
critical statement that seeks to rebut and destroy the perspective, judgments, and mythology
of GWTW. Randalls literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. In the world of GWTW, the white characters
comprise a noble aristocracy whose idyllic existence is upset only by the intrusion of Yankee
soldiers, and, eventually, by the liberation of the black slaves. Through her characters as well
as through direct narration, Mitchell describes how both blacks and whites were purportedly
better off in the days of slavery: The more I see of emancipation the more criminal I think
it is. Its just ruined the darkies, says Scarlett OHara.GWTW at 639. Free blacks are described as creatures of small intelligence . . . [l]ike monkeys or small children turned loose
among treasured objects whose value is beyond their comprehension, they ran wild - either
from perverse pleasure in destruction or simply because of their ignorance. Id. at 654. Blacks
elected to the legislature are described as spending most of their time eating goobers and
easing their unaccustomed feet into and out of new shoes. Id. at 904.
It seems that any sequel is bound to comment on the original in one way or another. Does that mean any
sequel is a non-infringing fair use of the original work? I doubt it, but where would the line go between
a sequel sufficiently critical of the original and a sequel that merely exploits the value the author created
in the original?
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What constitutes good output for a law school, and how do you measure it?
(2009-06-05 09:41)
The ABA Journal reports that the part of the ABA that accredits law schools is due to adopt sweeping changes that will radically change the ways it evaluates the quality of the education individual law
schools deliver. Most significantly, the ABA will move away from evaluating law schools on the basis of
criteria that measure input-such things as faculty size, budget and physical plant. Instead, the Legal
Education Section would evaluate law schools more heavily on the basis of outcome measures. The
essential difference is that outcome measures would focus on what students actually take away from their
educational experience at a particular law school rather than what the school teaches, and how . . . .
There is one HUGE question, however, still to be resolved: Speaking on Fridays panel, [committee
vice chair Margaret Martin] Barry and her fellow committee members said the greatest challenge is to
determine the best ways to measure outcome.
Ive got a suggestion on where they should look: Back in March, as I wrote, the New York Times
reported that professors at the University of California, Berkeley, have studied what makes lawyers (not
law students or law professors) effective and have come up with a test that they say is better at predicting success in practicing law than is the LSAT. The study concluded, as Ive long been convinced, that
LSAT scores . . . were not particularly useful in predicting lawyer effectiveness. . . What does the
new test consider factors that contribute to lawyerly effectiveness?
[T]he ability to write, manage stress, listen, research the law and solve problems.
When the ABA starts testing law school graduates on those abilities Ill be convinced the ABA genuinely
is measuring outcomes. Somehow, though, I suspect that theyll focus on instead on salaries, clerkships,
and professorships, outcomes determined to a significant degree by people with vested interests in the
status quo.
Liberally construing potato chips. (2009-06-05 11:45)
Britains Supreme Court of Judicature has concluded that Proctor & Gamble owes $160 million in taxes
becase Pringles are either potato chips or similar products made from the potato, or from potato flour.
The court reached its conclusion because its overall impression of Pringles was that they are sufficiently
similar to potato chips to be considered a similar product. As the New York Times explains.
Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are
activists. But there is no magic right way to interpret terms like free speech or due process
- or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges
tend to be expansive about things like equal protection, while conservatives read more into
ones like the right to bear arms.
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The Greening of Amsterdam (2009-06-09 11:08)
One of the joys of living in Amsterdam is the opportunity

to bike everywhere and at any time. The city is built for and entirely operates around the predominance
of bicycles as a means of transportation. Its not U.S. bicycling, with expensive bikes and helmets. You
ride one-speed junker bikes that no one wants to steal, but the city is small and flat, so you dont care
much. But Amsterdam wants only to become greener and more energy efficient:
The City of Amsterdam has selected Accenture to help implement its Amsterdam Smart
City program and create the European Unions first intelligent city. The purpose of the
Amsterdam Smart City program is to take a comprehensive and coordinated approach to
developing and implementing sustainable and economically viable projects that help the city
reduce its carbon footprint and meet the European Unions 2020 emissions and energy reduction targets.
And Amsterdam, apparently, is on the cutting edge of energy efficiency in urban planning. According to
Business Week, unlike cities that could take decades to upgrade their infrastructure, Amsterdam aims to
complete its first-round investments by 2012. That makes it one of the first and most ambitious adopters
of the smart city concept, attracting attention from policymakers worldwide hoping to glean lessons from
the green experiment. Just last week, on Utrechtsraat, a major shopping avenue in the center of the
Dutch capital not far from where I am living, electric trucks have begun to pick up the trash, and the
electronic displays on the local bus and tram stops are powered by small solar panels. Elsewhere, 500
households will pilot an energy-saving system from IBM and Cisco aimed at cutting electricity costs. An
additional 728 homes will have access to financing from Dutch banks ING and to buy everything from
energy-saving light bulbs to ultra-efficient roof insulation.
What real biking culture looks like. (2009-06-10 12:27)
As I wrote yesterday, the fact bicycling is the best and

most popular way for Amsterdamers to get around their own city is one of the greatest pleasures I take
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in living here, even for the brief times Ive been able to each of the last 3 years. It shouldnt be surprising, therefore, that Amsterdam is leading the world in pursuing green urban planning. But for green
Americans, the reality may not be exactly what they would conceive. Not only, as I wrote yesterday,
do you ride a cheap, single-speed, fat tired, rusty and old bike and buy and use locks heavier than your
backpack and more expensive than the bike itself, but you dont wear a helmet, you carry people often
in the plural, and often of very tender ages on whatever protrusion they fit on. And they, of course,
dont wear helmets either. You ride at any hour of the day or night, and you dont hesitate to speak on
your cell phone while youre riding.
Its the honest truth from one who is here. And if you dont believe me, you can check out 82 pictures of bicycles taken during 73 minutes on 9/12/06 in Amsterdam, Netherlands.
Bicycling is, by the way, the most energy efficient means of transportation, more efficient even than
walking.
J.D. Salinger may be a phony. (2009-06-10 12:50)

Dont forget you read it here first: J.D. Salingers effort to stop the publication of a sequel to Catcher
in the Rye on the grounds it infringes his copyright in the original novel is no sure thing either way. On
the one hand, Holden Caulfield is very much his creation, and it seems the market Salinger has created
by means of that creation might be considered his exclusive domain under copyright. But, then again, as
copyright lawyer Marc Reiner said , the sequel may qualify as a parody in the courts eyes, as the sequel
puts the main character as an old man and may show a transformative quality to the original-to what
extent the book in question transforms the original work can affect whether it is seen as infringement.
As I explained, this argument is founded principally upon the case in which the copyright owners of
Gone with the Wind sued the writer of The Wind Done Gone. The court determined that The Wind
Done Gone made fair use of the copyrighted characters and stories Gone with the Wind because TWDG
is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that
seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randalls literary goal
is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War.
Now I dont think you have to rebut, destroy, and explode the original to constitute commentary constituting fair use upon the original. Nor is it easy for me to imagine a sequel that does not comment upon
the original. And isnt Holden Caulfield now such a cultural icon that he belongs to all of us, not just to
J.D. Salinger?
But thats going too far. I dont think I could produce Holden Caulfield playing cards or action
figures without J.D. Salingers consent. But if you can use Scarlett OHara in a sequel to Gone with
the Wind that uses Gone with the Wind to make its own points, why cant you use a Holden Caulfield
nearing 80 to comment on Catcher in the Rye?
Listening (not) to Pandora in Amsterdam (2009-06-11 17:33)

Dear Pandora Visitor,
We are deeply, deeply sorry to say that due to licensing constraints, we can no longer allow
access to Pandora for listeners located outside of the U.S. We will continue to work diligently
to realize the vision of a truly global Pandora, but for the time being we are required to
restrict its use. We are very sad to have to do this, but there is no other alternative.
We believe that you are in Netherlands (your IP address appears to be 213.46.155.181).
If you believe we have made a mistake, we apologize and ask that you please contact us at
283
pandora-support@pandora.com
If you are a paid subscriber, please contact us at pandora-support@pandora.com and we
will issue a pro-rated refund to the credit card you used to sign up. If you have been using
Pandora, we will keep a record of your existing stations and bookmarked artists and songs,
so that when we are able to launch in your country, they will be waiting for you.
We will be notifying listeners as licensing agreements are established in individual countries.
If you would like to be notified by email when Pandora is available in your country, please
enter your email address below. The pace of global licensing is hard to predict, but we have
the ultimate goal of being able to offer our service everywhere.
We share your disappointment and greatly appreciate your understanding.
I dont think J.D. Salinger should own Holden Caulfield. But I think Mickey Mouse
belongs to all of the world too, so what do I know? (2009-06-12 14:07)
One must ask: should J.D. Salinger have the exlusive right to profit commercially from stories that include Holden Caulfield? He certainly has the right to block publication of his own letters. The author of a
letter owns the copyright in the letters contents. But he doesnt own the letter. So when Joyce Maynard,
who was 18 when the 52 year old Salinger started a relationship with her, put up for auction the letters
Salinger had sold her from that time. there was quite a hulabaloo. And since the auction was being
conducted through Sothebys, as Joyce Carole Oates recounted, there was not only a public auction but
also a public exhibit of the private letter preceding the auction. As Oates wrote, the situation might be
troubling, and its certainly one fertile for lawyers:
One might argue reasonably that such a public exhibit constitutes publication, for doesnt
it violate the writers rights over his or her material, assuming that these rights have been
protected by the law? The complications are endless, a battlefield rife with spoils for ambitious
lawyers.
But he wrote the letters to Salinger, and what about that exactly gives him sole say over whatever happens to them, as Oates asked:
Though Joyce Maynard has been the object of much incensed, self-righteous criticism,
primarily from admirers of the reclusive Salinger, her decision to sell his letters is her own
business, like her decision to write about her own life. Why is one life more sacrosanct than
another? In fact, we might be sympathetic to J. D. Salingers increasingly futile efforts to
safeguard his precious privacy, as we might be sympathetic to anyones efforts, but that he
happens to be a writer with a reputation is irrelevant.
And I cant say Im very sympathetic to Salingers efforts to maintain control over Holden Caulfield. Hes
an iconic character. Its difficult to live through adolescence in the U.S. without feeling his influence. He
has as much life to an American of my age as did JFK, maybe more. Why should Salinger alone control
his future. I know the difference between a book about Holden Caulfied by Salinger and one by someone
else. But thats not to say someone else writing about Holden Caulfield wouldnt have a lot to say J.D.
Salinger might never be able to say.
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Prohibition doesnt work! (2009-06-14 19:01)
Back from Amsterdam (in Chicago, waiting for a flight

to Cleveland), and wondering along with Bob Herbert when were going to give up our war on drugs. It
never did seem to make a lot of sense to me to deal with what it seems isprimarily a medical problem as
one to be solved through the criminal justice system. I thought wed learned better from our experience
with Prohibition. As Herbert writes, The stakes are huge, the uncertainties great, and theres a genuine
risk that liberalizing drug laws might lead to an increase in use and in addiction. But the evidence
suggests that such a risk is small. And, after all, what weve been doing through most of my life has
been a colossal failure:
This year marks the 40th anniversary of President Richard Nixons start of the war on
drugs, and it now appears that drugs have won.
Weve spent a trillion dollars prosecuting the war on drugs, Norm Stamper, a former police
chief of Seattle, told me. What do we have to show for it? Drugs are more readily available,
at lower prices and higher levels of potency. Its a dismal failure.
Dont friend judges! (2009-06-15 11:27)

I write again and again about how changing technologies clash with law based on old technologies, but
this is a particularly appalling example. In North Carolina, Judge B. Carleton Terry, Jr., who was presiding over a custody dispute, became a Facebook friend with Charles A. Schieck, an attorney for the
father of the child whose custody was the subject of the dispute. As the Public Reprimand issued by
the North Carolina Judicial Standards (pdf) recounts, before the matter was resolved, the Judge checked
Schiecks Facebook account and noted that Schieck had posted a question about what he would have to
prove to prevail in the custody dispute. Then,
Judge Terry posted on his Facebook account [that] he had two good parents to choose
from and [that he] feels that he will be back in court, referring to the case not being settled.
Schieck then posted on his Facebook account, I have a wise Judge.
Our adversary system is founded on there being an adversary. Communications between one party and
the judge without the presence of the other party (ex parte communications in the jargon of the law)
are, therefore, forbidden (except under exceptional circumstances). I remember in law school standing
with my clinical supervisor in the doorway of a courthouse in Flint, Michigan, where wed just attended a
hearing for a client I was representing. It was pouring rain, we didnt have an umbrella, and wed decided
to wait out the storm in the shelter of the doorway. A minute later the judge wed just appeared in front
of walked out, and stood next to us, smiling and saying hello. My supervisor grabbed my arm, pulled
me out into the rain, and walked with me to her car. I asked what was going on, and she explained: We
cant talk to the judge! I got it. Getting soaked to the skin in the only suit I owned was better than
risking an ex parte communication with the judge.
Judge Terry also did research online on the mom in the custody dispute without telling the parties.
Dont befriend judges on Facebook!
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Does online writing produce better writers? IMHO, it can, but hasnt yet to any
great degree. (2009-06-16 08:00)
In the Chronicle of Higher Education, Josh Keller asks: does the explosion of online writing via social
networking sites mean that were developing a better generation of writers?
The long and the short of it is that no one knows. Students are writing a lot more, and to audiences about whom they care. On the other hand, Facebook, Twitter, and blogs do not exactly seem to
promote the kind of disciplined analysis that most good writing constitutes:
Some scholars say that this new writing is more engaged and more connected to an audience, and that colleges should encourage students to bring lessons from that writing into the
classroom. Others argue that tweets and blog posts enforce bad writing habits and have little
relevance to the kind of sustained, focused argument that academic work demands.
The debate seems to boil down to whether more writing produces better writing. One researcher states,
People write more now than ever. In order to interact on the Web, you have to write. But writing, on
the one hand, for Facebook and, on the other, to produce an analytic essay or a legal brief, is writing for
entirely different purposes. Sometimes I wonder if the differences are like driving to a Friday night party
and driving in the Indy 500 skill at one does not necessarily translate into skill in the other. As one
writing professor quoted in the Chronicle of Higher Education article points out,
[H]e spends more of his time correcting, not integrating, the writing habits that students
pick up outside of class. The students in his English courses often turn in papers that are
stylistically impoverished, and the Internet is partly to blame, he says. Writing for ones
peers online, he says, encourages the kind of quick, unfocused thought that results in a scarcity
of coherent sentences and a limited vocabulary.
My own views on the effects of online writing on professional writing are mixed it hasnt been the
benefit idealists hope for, but its an outstanding tool that, properly used, could be a tremendous benefit
to producing a new generation of excellent writers.
On the one hand, I have encountered again and again in the past couple of years student efforts at
professional writing that are so stylistically inappropriate as to make me cringe. I recently read, for example, an analysis of the jury system that read entirely like a People Magazine article, full of superficial
quips and an endless series of references to examples obvious to everyone - the principal point of reference
was the O.J. Simpson trial (which, incidentally, I consider an example of atrocious lawyering on the part
of the prosecutors, not a failure of the jury system).
On the other hand, the internet is here, and we better get used to it, even if we are training lawyers or
political analysts. Students write a lot on social networking sites. As the article points out, Students in
[one] study almost always had more enthusiasm for the writing they were doing outside of class than
for their academic work . . . . Moreover, online writing is self-directed, is often used to connect
with peers and usually is aimed at a broader audience than is professional writing. One of the most
interesting points to me as a legal writer is that online writing is also often associated with accomplishing
an immediate, concrete goal, such as organizing a group of people or accomplishing a political end . . .
.
These are all characteristics that quite plainly can be used to produce better professional writers even if
they have not yet been used effectively to this end. I have struggled to exploit student enthusiasm for
online writing. Two years ago, I created a class wiki directed at creating a brief writing check list. I did
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not consider the effort terribly successful. One year ago, however, I created (as the Chronicle of Higher
Education noticed) a class blog to explore issues regarding copyright and fair use in connection with a
legal brief the students were assigned to write. While the blog became almost entirely the product of my
own work rather than that of my students, it was a huge success in producing better work product. The
students were engaged in and argued about the blog, and that engagement and passion produced work
that was far more thoughtful and disciplined than anything I could have imagined without the blog.
So does Web 2.0 produce better writers? If you think it does so merely because it makes people write
more, no. But it is a tool that, properly employed, sure can help.
People have always remixed their cultural artifacts; the internet has made them
publishers. (2009-06-16 12:26)
Rene Kita has a terrific post on copyright law and remix culture. His point is that weve always engaged
in remixing existing copyrighted works circulating in our culture, but the internet has transformed these
perfectly typical activities into published works:
Theres the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they
typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitts
face? Lawyers at your door. Insert poops into that Britney Spears song? Lawyers again.
Lose your house paying your defence lawyer.
You see, lawyers have this fictional creature known as The Consumer. Thats all of us,
but stripped of any urge or ability to get creative. And then there is that other mythical
monster called The Artist, who creates works from scratch - or gets hauled into courts for
theft. Neither of these phantasms has anything to do with how human culture actually works.
Kita concludes that it is this misfit between the law and normal human activity that underlies the anger
people feel at the tyrannical assertion of copyright:
This is why people are angry. Their normal modes of expression have been turned into
a crime. They know they are only safe from prosecution because they are small fry - unless
someone decides to make an example of you. Thus, any time you post some photoshoppery
or a musical mash-up you risk having it summarily deleted and your account cancelled for
criminal cultural activities.
Perhaps I do accept that there should be a way for creative artists to make a living with
their craft, but if it comes at the cost of turning the rest of humanity into passive consumers,
I say it is not worth it. We need a completely different way of showing our appreciation to
artists.
The influence (not) of law professors (2009-06-16 15:56)

Justin Hughes, Of World Music and Sovereign States, Professors and the Formation of Legal Norms, 35
LOY. U. CHI. L.J. 155, 157 (2003)(emphasis added):
You want the best indicator of how an American court will decide a major intellectual
property case in the Internet era? Look for the amici or parties brief with the dozens of law
professors those theories are how the court will not decide the case.
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Robert Johnson made no deal with the devil; he listened to and learned from his
colleagues. (2009-06-17 08:34)
In Beyond Authorship: Refiguring Rights in Traditional Culture and

Bioknowledge, the Case Western Reserve University English Departments Authorship Collaborative
(building on the work of my colleague and friend Martha Woodmansee) explains that the prevailing view
of an author as the originator of new works is a relatively recent phenomenon arising out of the Romantic Movement and its view of an artist as someone uniquely inspired. This view of authorship stands
in stark contrast to an older view becoming new again in todays remix cutlure a view that creative
endeavors are derivative and collaborative, that originality is not the product of isolated genius but of,
well, remixing:
originary. This individualistic construction of authorship is a relatively recent invention, the
result of a radical reconceptualization of the creative process that culminated less than two
centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from
Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense
that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere
reproduction, but in a new, unique in a word, original work which, accordingly, may
be said to be the property of its creator and to merit the laws protection as such. See
Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of
the Emergence of the Author; reprinted in Woodmansee, The Author, Art, and the Market,
35-55.
The post I referred to yesterday by Rene Kita noted the tension between the collaborative nature of
creation and the Romantic notion of authorship in connection with the Blues: [Y]ou may create a new
instance of The Blues by shuffling the notes and words around by a set amount. Shuffle too little and
youre in trouble with the law. Shuffle too much and the purists start screaming rape.
My former colleague Olufunmilayo B. Arewa makes the point in much greater depth in Seeing but
not Hearing Music: How Copyright Got and Didnt Get the Blues, a working paper she recently presented at the recent Conference on the 100th Anniversary of the 1909 Copyright Act. Arewa focuses
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on Robert Johnson, the musician who remained largely obscure until decades after his death he became
known as the greatest and quintessential Blues musician. In Arewas view, Johnson is an archetypical
example of the way the Romantic view of authorship promotes individual genius over cultural context:
Commentators have so elevated Johnson by using classic language associated with Romantic author discourse that emphasizes the unique genius of Johnsons compositions. Romantic
author discourse has generally played an important role in defining who constitutes an author for copyright purposes in part by emphasizing the unique and genius-likecontributions
of individual creators. Romantic author assumptions are a primary mechanism by which borrowing and collaboration in creation are minimized or even denied. This vision of authorship
has significantimplications for the application of copyright to blues music. The collaborative
nature of blues musical composition does not lend itself very well to Romantic author characterizations. In blues practice, the combination of individual performers crafting material from
a collaborative tradition is a difficult one from the perspective of current assumptions about
creation in copyright. Later romanticization of his musical creations aside, Robert Johnson
falls firmly within a blues tradition characterized at least in part by repetition and reuse of
existing music and lyrics as a core aesthetic. [Charles Ford, Robert Johnsons Rhythms,
17 Popular Music 71, 88 n. 57 note 57, at 88 (noting that Johnson borrowed and pastedin materials much like his predecessors and shaped his pieces into unique and autonomous
forms)].The divergence between Robert Johnsons actual musical practice and later characterizations of both the nature and musical practices underlying his musical genius is thus
significant. (footnotes omitted)
Why, then, did Robert Johnson, who in Arewas view was likely of a piece with an entire genre to African
American audiences in the 1920s and 1930s, become known as a genius among musicians comparable to
the way Shakespeare is viewed among writers? Because a bunch of white British musicians in the 1960s
listened to his recordings and heard something they genuinely had never heard before. In other words,
as Arewa explains, perceiving originality in the Romantic sense is more a matter of being ignorant of
sources and influences than it is of genuinely discovering independent genius:
Conceptions of Robert Johnsons work highlight the context dependent nature of notions
of originality. Originality is yet another characteristic of copyrightability that is not always
easy to delineate in actual contexts of creation. However, what might seem original to those
in one context may not seem as original in other contexts. Consequently, within the context
of African American audiences of the 1920s and 1930s, Johnsons work probably did not
seem startlingly original in the way that it did to British and other musicians and audiences
listening to Johnsons music, often in relative isolation, in the 1950s and 1960s. This later
audience was largely removed from the original context of other music that was prevalent at
the time Johnson produced his music or able to listen to a limited and likely biased sample
of such music. For early African American blues listeners, what seemed original and
interesting was very different that what seemed interesting and original to the largely white
blues fans that were the major force behind the blues revival in the 1950s and 1960s. For
the latter, romantic conceptions about the blues were closely tied to notions of authenticity
that are often unsuited to musical creation in living musical traditions. As a result, what is
perceived as original may depend in significant part on the contexts within which listeners
hear music. (footnotes omitted)
Dont believe it? Heres a song by Charlie Patton (1891-1934) and one by Robert Johnson:
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The justice system complements the political system: Climate Change and Human
Rights. (2009-06-18 08:30)
The University of Washington School of Law recently hosted a conference entitled Three Degrees: The
Law of Climate Change and Human Rights. In the words of the conference organizers:
Numerous scholars have suggested that human rights law may provide the most adequate
and responsible remedy for climate-related impacts, and this conference will create an international forum to thoroughly test the available remedies, raise the legal issues associated with
these remedies, and collaborate over necessary advancements in the law.
Dan Bodansky raises an interesting question about using human rights law to address the problems posed
by climate change: wouldnt the focus on individuals through the use of legal remedies detract from the
big-picture policy approaches that are most needed?
Climate change mitigation involves tremendously complex tradeoffs between different values. Focusing on particular individuals or cases, or on particular human rights, can obscure
these tradeoffs, making sensible policymaking difficult. Although emphasizing the effects of
climate change on human rights may be a useful means of mobilizing public concern and
of prodding the political process, a solution to the climate change problem will, in the end,
require political decisions by states, both nationally and internationally.
I appreciate Bodanskys preference for large-scale political movements, but I think that law-making directed prospectively at the level of a political entity (city, state, country, etc.) can and is complemented
by legal remedies for individual harm. Again and again I marvel at the blindness of doctors, for example,
who direct their wrath at the legal malpractice system without considering the functions the system
serves above and beyond punishing doctors. A patient injured by a medical procedure needs to bear the
cost of taking care of his injuries regardless of the doctors fault. Given the absence of universal health
care and the inadequacy of much of the existing health insurance in this country, is it any wonder that
juries are likely when they have the chance to choose to have the doctors insurance carrier pay for the
injured patients care? We all face the risk of bad outcomes from medical procedures; doesnt it make
perfect sense to socialize that risk, to have us all share it? Until we come up with a way to do that other
than the malpractice system, individual justice is the best weve got.
So I would say to Bodansky: unless and until we have the most effective policy solutions to the problems
posed by climate change, individual, case-by-case remedies for harm caused by climate change can only
help.
How does legal innovation occur? Slowly, by looking to the laws of other countries,
and by disguising innovation as interpretation. (2009-06-18 13:02)
In Inventing Invention: A Case Study of Legal Innovation, Professor John F. Duffy recognizes that
change and evolution in law are taken for granted but rarely studied in depth: Legal change is treated
as if it is something that just happens-that follows inexorably from the emergence of social needs and
changed social conditions. Duffys article is an antidote to these truisms, studying in depth the development of the requirement that in order to be patentable an invention must be non-obvious. Duffy
identifies in the development of this major legal innovation several characteristics he believes could be
generalized to a lot of legal innovation:
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(1) Nation-states do not seem to create new legal conceptions independently nearly as
frequently as they borrow them from other nation-states.
(2) Nations with similar legal cultures and industrial capabilities, such as the United States
and England, sometimes maintain significant differences in their law for periods of decades.
The speed of convergence on a single common law seems extraordinarily slow. This deliberate pace seems to be the product of a wait and see attitude: because [one country does] not
know whether the innovation is a pathbreaking and salutary development, like obviousness,
or a disastrous experiment that will eventually be discarded, it will wait and see the results.
(3) Courts are wary of the criticism often directed at them for making policy rather than
merely applying existing law. As Chief Justice John Roberts puts it, his role is merely to be
an umpire, not to determine what is a ball and what is a strike. Of course, Roberts ignores
the fact that a strike zone is rather well defined, whereas law is full of open-ended standards
(the requirement of due process, for example), gaps that do not fit cases that courts must
decide, and outright ambiguities. But, as Duffy points out, the attitude Roberts exemplifies forces courts to engage in innovation under the guise of mere intepretation: even when
courts are trying to change the law, they often deny that they are doing so by creating clever
reconstructions of the language that previously defined the relevant doctrine.
Googles Library of Babel and its opponents. (2009-06-18 22:41)
Steven Shankland has written a good piece on the proposed settlement of the lawsuits over the Google Library Project; the proposed settlement is now under
review by Judge Denny Chin of the U.S. District Court for the Southern District of New York.
Under the proposed settlement, the owners of copyrights in books would need to opt out of the project
to prevent Google from including those books in its Library database, which is being compiled by scanning the libraries of several major insitutions around the world. As Shankland points out, that means
essentially that Google would be permitted to show content from in-copyright, out-of-print books and
sell online copies of those books even without an explicit agreement with the books rightsholders. Copyrighted, out-of-print books constitute approximately 70 percent of the books in the library collections
Google is scanning, and that 70 percent includes the vast majority of orphan works in those libraries.
Orphan works are works whose copyright holders cannot be identified, a common problem because there
is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather,
the copyright holders might include unidentifiable heirs or even corporate entities that have gone through
mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to
identify the entity that currently owns the copyright.
Nevertheless, some authors continue to oppose the Google Library Project:
Under the actual law, it is Googles burden and not yours to ask you for permission and
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then fairly negotiate terms of contract acceptable to you personally, not jam some monstrosity
down your throat, said Lynn Chu, a literary agent with Writers Reps who also called the
proposed settlement a ripoff for authors in a Wall Street Journal opinion piece.
As a business matter, I dont understand the view Chu expresses, as Ive previously written. Why would
someone whose work is out-of-print not want that work accessible to the general public? And if that
someone wants to keep his work in the obscurity resulting from being out-of-print and available only at
some far off insitutions library, he can always opt out. Chu says that the actual law requires Google
to ask permission first, not for the copyright holder to deny permission, but the wonderful thing about
contracts (and a settlement is a contract) is that they can be a means parties have of altering the rules
that govern their relationships in the absence of agreement.
Ive been a fan of the Google Library Project since it was announced in 2003. It promises to make
available for search the collections of many of the greatest libraries in the world. Google will only be
able to display brief snippets of works that are in print and under copyright, but even that access will
make known to researchers the availability of sources they never otherwise would have been able to find.
The Project is one of those endeavors that make the internet and the digitization of information truly
revolutionary and magical. It would be a shame if copyright law founded on old technologies and the
unfounded knee-jerk reactions of copyright holders (its mine, and that means you cant do anything with
it without my permission!) were to end up preventing the realization of revolutionary magic.
Finally, Shankland points out that there is concern over the settlement because it would give Google
an advantage over competitors: Microsoft, Amazon, or the Internet Archive . . . without their own
handy class-action settlement [] would be have to try to seek such permission in advance from each rightsholder or risk copyright infringement litigation. But if copyright holders and their representatives are
willing to reach this settlement with Google theres no reason to suppose they wouldnt with Microsoft,
Amazon, or the Internet Archive. Googles competitive advantage is the result of its initiative and daring
in starting the Project in the first place and developing technology (including new scanning technology)
to make it truly possible. Advantages gained by daring and initiative should be rewarded by the law, not
stymied.
If you cant type well, youre inarticulate. (2009-06-19 08:27)
A message I emphasize to my students: learn how to use the tools of your trade as well as possible. So,
for gods sake, if you dont know how to track changes in your word processing program, learn how.
If you dont know how to unjam the photocopy machine you use regularly, learn how. Matthew Homan
has good advice in this vein on Twitter, advice Ive been trying to get through to my son learn how to
type well:
The keyboard is now the optimal communication tool of your life. Typing < 60wpm is
like talking w/your mouth full of marbles.
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$1.92 million penalty for illegally downloading 24 songs. (2009-06-19 10:57)
From cnet news:
Jammie Thomas-Rasset was found guilty of willful copyright infringement on Thursday in

a Minneapolis federal court and must pay the recording industry $1.92 million. In a surprise
decision, the jury imposed damages against Thomas-Rasset, who was originally accused to
sharing more than 1,700 songs, at a whopping $80,000 for each of the 24 songs she was
ultimately found guilty of illegally sharing.
The (Iranian) Revolution will not be Televised (2009-06-19 17:38)

Gil Scott Herons song seems timely these days:
Doing justice versus making rules. (2009-06-22 12:50)

There is a tension in the common law between doing justice in an individual lawsuit and articulating rules
of general application that can guide decisions in future cases. The beauty of the common law system,
however, is that the primary goal is to do justice in the individual case. Civil law, the system that governs
in non-Anglo-American countries, on the other hand, relies on a civil code of general application that
provides predictability but often at the cost of individual justice.
One consequence of the common law system is that a rule articulated by a court in one case to reach
the proper result in that one case can often be modified in a subsequent case in which the facts differ in
a way that would make it unjust to merely apply the earlier rule.
One of my problems with Supreme Court jurisprudence in recent years has been that it has lost sight of
this principal purpose of common law judging: to do justice in the particular case before before the court.
The justices seem often more concerned with formal, abstract consistency than justice, an emphasis that
to this common law lawyer seems very misplaced.
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No more blatant example of this distinction exists than the Supreme Courts recent decision in Caperton v. Massey (pdf). Thankfully, by a 5-4 decision, the Supreme Court reached what plainly was
the right result, but Justice Roberts dissent (joined by Justices Alito, Thomas, and Scalia) epitomizes
the ways striving for abstract, intellectual consistency can do violence to what, plainly, is common sense
justice.
Caperton began in West Virginia, where a jury found the A.T. Coal Co., Inc. liable for $50 million for
fraudulent misrepresenta-tion, concealment, and tortious interference with existing contractual relations.
Knowing the West Virginia Supreme Court would consider an appeal of the verdict, Don Blankenship,
Masseys chairman and principal officer, contributed $3 million to the campaign of Brent Benjamin,
who was running for the state Supreme Court against an incumbent. The $3 million contributed by
Blankenship exceeded the total amount spent by all other Benjamin supporters and by Benjamins own
committee. Benjamin won the election by fewer than 50,000 votes.
Subsequently, Caperton, who had won the $50 million verdict, moved 3 times to disqualify Benjamin
from hearing the appeal of the verdict. Each time, Benjamin himself denied the motion. Benjamin also
turned out to be the deciding vote that resulted in a reversal of the verdict against Masseys company.
Apparently, as they say, money talks. There is, however, a constitutional right to due process under the Constitution, and, accordingly, Caperton appealed to the Supreme Court, which held, as anyone
with any sense would hold, that Judge Benjamin could not be counted upon to be a fair and impartial
judge of an appeal of a $50 million verdict against the man who got him elected. Justice Kennedy, writing for a majority of the Court, concluded that the primary legal quesiton is whether under a realistic
appraisal of psy-chological tendencies and human weakness, the interest poses such a risk of actual bias
or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately
implemented. Kennedy concluded: There is a serious risk of actual bias when a person with a personal
stake in a particular case had a significantand disproportionate influence in placing the judge on the case
byraising funds or directing the judges election campaign when thecase was pending or imminent.
Justice Roberts, jointed by Justices Scalia, Thomas and Alito, on the other hand, ignored the egregious
facts before the Court because requiring disqualification based on a probability of bias, is a standard
that cannot be defined in any limited way. Thus, Roberts complains, [t]he Courts new rule provides
no guidance to judges and litigants about when recusal will be constitutionally required.
I think Roberts is full of it. Any law student knows that common law rules often turn on standards
such as reasonableness and probability. What do we know based on Caperton? We know that deciding a case in favor of the man who has contributed more than 50 % of the funds to get you elected to
the bench is enough to establish a probability of bias. That hardly seems arguable. If it means well
get other cases arguing for a probability of bias under facts far less probabitive of such undue influence,
the courts can deal with those cases by hearing the evidence and determining, using common sense and
the guidance of precedents such as Caperton, whether there is or is not a probability of bias.
But Roberts, Scalia, Thomas, and Alito would prefer to let stand a travesty than to burden the courts
with deciding exactly the kinds of questions the courts decide every day. Thats not doing justice, and it
certainly isnt common law justice. Im not sure what it is.
Do you know youve agreed that Amazon can decide youve agreed to something other
than what you agreed to? (2009-06-23 11:27)
I teach contract law. One of the most interesting issues in contract law is the extent to which it is
based on conscious agreement. Theoretically, two free individuals are at liberty to agree to govern their
relationship with respect to any given matter (the sale of a car, the division of assets in a divorce, the
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employment by one of another, the limitations on the use of materials posted by one on a web site governed by another) in any way they agree.
One problem with this theory is that so few of our contractual relationships are based on anything
resembling conscious agreement. When is the last time you read a rental car agreement? The agreement
governing use of your credit card? (Well, we might all be doing that more these days.) The terms of
service governing your Facebook account?
The vast majority of us never read the terms of service governing our use of commercial web sites.
Yet there is little question we are bound to them and that we entrust them with our creative work and
our information we want to keep private. More surprisingly, perhaps, when we agree to these terms of
service we almost always agree that the service provider can change the terms unilaterally. In other
words, we are agreeing that our relationship with the web site will be whatever the web site decides that
relationship will be.
As Plagiarism Today explains:
[I]t is standard practice for many sites to silently change their terms of service as the terms
itself allow them to do. Users are often unaware of potentially worrisome changes until after
a problem has arisen, when it is often too late to do anything about them.
But now the Electronic Frontier Foundation has created TOSBack: a terms of service tracker for
Facebook, Google, eBay, and other major websites:
At www.TOSBack.org, you can see a real-time feed of changes and updates to more than
three dozen polices from the Internets most popular online services. Clicking on an update
brings you to a side-by-side before-and-after comparison, highlighting what has been removed
from the policy and what has been added. . . .
Some changes to terms of service are good for consumers, and some are bad, said EFF
Senior Staff Attorney Fred von Lohmann. But Internet users are increasingly trusting websites with everything from their photos to their friends lists to their calendar and sometimes
even their medical information. TOSBack will help consumers flag changes in the websites
they use every day and trust with their personal information.
Doesnt art require the use of symbols that resonate with the culture? J.D. Salinger
and his ownership of Holden Caulfield compared to Shakespeare and his theft of
King Lear. (2009-06-23 13:14)
I may be a minority, but I find it odd to think a literary character, rather than the work he appears in,
can be copyrighted. Nonetheless, the judge hearing J.D. Salingers lawsuit seeking to block publication
of 60 Years Later: Coming Through the Rye apparently thinks Holden Caulfield is a portrait by words.
Funny, I might think of Catcher in the Rye as analogous to a painting, but the character himself?
Holden Caulfield is a cultural icon of adolescent alienation (or at least was at one time). Can no creative
work employ him as a symbol with resonance for an entire generation without J.D. Salingers permission
(that, by all appearances, he would never grant)?
A lot of great art would never have been created if that were the case. Thinking these thoughts, I
came across this, from Groklaw (via techdirt):
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I was goofing off, looking up some information on Wikipedia on King Lear, and heres
what struck me. If the current US Copyright Law had been in effect over Shakespeare, I
think he could have been sued by many authors for copyright infringement for writing that
masterpiece.
Count how many lawsuits there could have been just for King Lear alone:
Shakespeares play is based on various accounts of the semi-legendary Celtic mythological
figure Lear/Lir. Shakespeares most important source is thought to be the second edition of
The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587.
Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of
Monmouth, which was written in the 12th century. Edmund Spensers The Faerie Queene,
published 1590, also contains a character named Cordelia, who also dies from hanging, as in
King Lear.
Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent
(1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip
Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaignes
Essays, which were translated into English by John Florio in 1603; An Historical Description
of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden
(1606); Albions England, by William Warner, (1589); and A Declaration of egregious Popish
Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar
while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which
a father rejects his youngest daughter for a statement of her love that does not please him.
The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidneys
Countess of Pembrokes Arcadia, with a blind Paphlagonian king and his two sons, Leonatus
and Plexitrus.
How many lawsuits do you see? At least a half dozen? I even see some methods and concepts
claims, if we view it with modern copyright owner eyes. Remember J.K. Rowlings litigation
over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could
have raised a transformational fair use claim. But what if he accessed the prior works in
digital format? Does fair use exist there? Or maybe theyd have been DRMd. Hed maybe
then never have read them.
Of course, what really would have happened is there never would have been a King Lear
written. It would have been too legally risky. You can go to jail for copyright infringement,
after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining,
lets imagine Shakespeare did that. Shakespeare wasnt even noncommercial. And there are
criminal sanctions under regular Copyright Law, too.
If Shakespeare had plenty of money, he could have contacted all the copyright owners and
paid them whatever they asked, but if he didnt have enough money, the result would have
been he would have been unable to afford to write King Lear. Do we want a world where
Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember
what happened to internet radio? And if one song is worth $80,000, is the sky not the limit,
if you are a copyright owner and hold all the legal cards and can get Congress to keep upping
the ante to suit you?
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Compliments are worthless, and losing is winning:
lawyering in a nutshell
(2009-06-24 10:25)
From The Namby Pamby, Attorney at Law, comes this story, which sums up concisely both what so
much of legal practice is about and why it is so often difficult for students to grasp exactly what it is
theyre supposed to be doing:
Eight months, untold amounts of hours, it all came to this

For the second time in the last month, my brief writing was complimented by a judge:
Counsel, this was excellently briefed, well done...Im going to deny your motion.
Thanks.
The lesson here is to beware the judicial compliment.
The reality is that even though we lost our motion, we did serious (perhaps fatal) damage to
the opposing side. My boss was happy. Ergo, despite my failure at a judicial declaration of
winning, we still won.
Consumer Protection: an old idea thats new again. (2009-06-24 23:17)

It is remarkable how much times have changed, and how quickly. Since the election of Ronald Reagan the
legal common wisdom has been that allowing individuals to enter into whatever agreements they wish,
no matter how risky, leads us to the best of all possible worlds. Most usury laws became irrelevant. If
you wanted to borrow at a ridiculously high interest rate, who was the government to say you couldnt?
Ive been told that my opposition to that common wisdom was a belief that people are stupid. I suppose
thats one way to put it, but I certainly dont except myeslf from the group I am judging. Saying I think
people are stupid is just a way of saying Im arrogant, paternalistic, and think I know whats better
for others than they do themselves. But give people the opportunity to take irrational risks, and they
will. Give enough people enough opportunities to take irrational risks, and you put the entire society at
risk. So now were speaking again (as we began to back in the Sixties) in terms of consumer protection
laws limiting what terms consumers can be bound to and requring that whatever terms are agreed to
are agreed to openly and plainly. Such regulation supplements the common law of contracts, which is
founded on the idea of freedom of contract precisely that individuals are free to make whatever stupid
deals they wish. You want to sign up for a credit card with a 29 % APR? Who am I to stop you. But
theres nothing wrong with limiting freedom of contract to some extent it likely strengthens another
core principal of contract law: that we should enforce contracts because they are agreements people
consciously and intentionally enter into.
From the New York Times:
The federal consumer protection system failed the country, disastrously, in the years leading up to the mortgage crisis. One big cause was the sharing of responsibility for compliance
with laws and regulations among several agencies that communicate poorly with each other
and tend to put the bankers interests first and consumer protection second
if they pay
attention to it all.
The Obama administration was right on the mark last week when it recognized this problem
and proposed a solution: consolidating the far-flung responsibilities into a strong, new agency
that focuses directly on consumer protection. The plan, modeled on a bill already introduced
in the Senate by Richard Durbin, Democrat of Illinois, deserves broad support in Congress.
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John Lennon: an original, or a remixer? Or are they really the same? (2009-06-24 23:33)
[EMBED] [EMBED]
Lawyers need to learn EVERYTHING. (2009-06-26 06:57)

A student complained to me yesterday that he was being penalized on his law exam because he didnt
know as much about the world as other people. I laughed. I would imagine that greater knowledge
about the world would lead to the better performance in any occupation. But the complaint highlighted
something unique I think to law. First, law does not stand alone it only operates in connection with
specific activities. If youre a lawyer for an investment banker, you better understand credit default
swaps. If youre a lawyer for a real estate developer, you better know an awful lot about building. If
youre a family lawyer, a heavy dose of sociology and psychology would be very helpful. Lawyer need
to be experts about the REALITY they are acting as lawyers within. The rules are the easy part. The
hard part of lawyering is figuring out how to take evidence and use it effectively to interpret and apply
those rules. The more you can explain persuasively what and why things happened, the more you can
persuasively argue what the law means when it applies to what happened.
It also highlighted part of what I love about law. Every client, every problem, and every transaction
requires me to learn about people and things that I never knew before, often about people and things I
had no clue even existed. The world is a very interesting and complicated place, and theres no end of
learning.
The fact my students know a lot less than I do is no surprise. Most of them are more than 25 years
younger than I am. But they need to know that they always need to learn more and that Im not penalizing them for not knowing things they havent been exposed to Im teaching them that the more
theyre exposed to the better theyll perform as lawyers.
Expert is only a name; an experts ideas are only as good as the ideas themselves.
(2009-06-28 22:39)
This is the honest truth: back when the Napster case was pending on appeal (the appeal Napster would
eventually lose), I was teaching a legal writing class and the problem was about copyright and fair use
in connection with a web site that used posted exerpts of copyrighted works and also an online bulletin
board (it was that long ago) for discussion of the works. I told my class that I thought that if the music
industry had any sense theyd put significant excerpts of every work in their catalogs in streaming audio
next to a button that would allow electronic download of an mp3 file of each song for a price.
I bring this up not to boast that I am some brilliant businessperson who wouldve wisely been picked up
by Apple to help produce iTunes. I have no doubt Id read the idea a hundred different places and that
it sounded good to me. So why do I bring it up?
The students reacted this way: its a stupid idea; if it werent, the music companies wouldve done
it already. What would I know that they dont? I was left almost speechless. I asked them if they
really believe that people who do things necessarily know whats best with respect to doing those things.
They apparently did. I told them I thought that it was very important that they learn that just because
an expert thinks certain things about his area of expertise doesnt mean that a non-expert cant have
better ideas, and that it certainly isnt the case that an entire industry necessarily does business in the
best way it could.
I was reminded of all this when I read at Ars Technica that Geoff Taylor, head of UK major label
trade group BPI, wrote an op-ed piece for the BBC today in which he called Napster the Rosetta Stone
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of digital music, said it was simple to understand and use, and said that the music industry should
have embraced Napster rather than fighting it.
When law doesn t match up to reality, law loses

proposal. (2009-06-29 09:08)
Connie Schultz makes an unworkable
I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a
change to federal copyright law that would give news originators the exclusive right to the news they
report on their web sites for the first 24 hours after publication. The remedies to enforce this exclusive
right would include (1) a requirement that online aggregators would have to reimburse newspapers for
ad revenues associated with their news reports and (2) injunctions to bar aggregators profiting from
newspapers content for the first 24 hours after stories are posted.
Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that
waiting even 6 months before enacting this law would be to wait too long.
Theres a lot wrong with this proposal I wont go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Heres my problem with it merely in my
capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). Its
utterly unworkable. An injunction against use is no remedy to be effective, an injunction needs to be
enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by
anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really
apply? Whos a news source? Am I when I publish something online based on my own research and
thinking? When is what I publish my own research and thinking and when is it merely aggregation.
And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and
news available around the world? When would I cross the line?
Its an utterly unworkable proposal.
I have a lot of sympathy for Ms. Schultz and her position. Ive grown up worshiping journalists. (To
be an adolescent leftist poseur back in the early 70s meant worshiping the New York Times and the
Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check
newspapers have traditionally provided with respect to local events.
But theres no going back. Law is not going to stop the inevitable consequences of the change in technology were experiencing. Im not suggesting were in for a wonderful new world. Were losing a lot, and I
share with Ms. Schultz the desire to save it all. But were not going to. Were going to have new things.
Heres one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). Theres been very
little news out of Iran. Whats going on in the streets, if anything, is a matter of intense interest around
the world, but newspapers have largely been rendered unable to report on events thanks to the moves of
the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivans blog
that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi
instead delivered a speech to his supporters via cell phone. The speech was then captured on camera
by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog.
And now its on YouTube. As Dan put it on Twitter, [i]f scoring at home, thats Mousavi - cell phone
- camera - facebook - twitter - blog - youtube. Now thats an alternative info stream.
Im not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are
no western jounralists in Tehran as far as I know), but its extraordinary. There have got to be better
ways than Ms. Schultzs ill-conceived proposal to make the transition to what the new technology makes
available and what the new technology makes inevitable. The way is not going to be through a rather
simple law. When law doesnt match up with reality, law loses, but worse, so do we. Make intoxitants
illegal, and our prisons become jammed with non-violent offenders. Dont provide legal means to immi299
grants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion
and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing
of your product to new technologies, and engage in ineffective litigation that results in blatant injustice.
. .
Yes, lawyers need to be experts in design and typography too. (2009-06-30 08:16)
I always tell my students that one of the reasons the first year of law school is so difficult is that they
come to law school thinking their time and effort will be completely exhausted by the effort to learn all
the law. But, I go on to tell them, learning the legal rules is the easy part. You read statutes and case
law and regulations and secondary source interpretations to find the rules. Applying them is a whole
different thing. Thats probably the hardest part.
But one of the most difficult parts of lawyering, one most students take a particularly long time to
grasp, is that you have to pay attention to everything. So you act like a professional: you show up on
time; you use professional language, not the language you use with your friends or on Facebook; you take
criticism as an opportunity to learn what you did wrong; you take disagreement as a necessary part of
the profession you are becoming part of, not as a personal attack; the point of your efforts is to learn to
be a good lawyer, not to earn a good grade.
It never ends. But thats okay theres just always room to get better.
And now comes, to fill an aching need, Typography for Lawyers, a site by Matthew Butterick, a civil
litigator in L.A. who majored in art as an undergrad at Harvard, where he focused on design and typography. Im very impressed by his recognition of the reason his expertise is needed. He explains that using
good typography is like dressing well for court, a way we signal to clients, other attorneys, and judges
that we take our work seriously and we take court seriously. Moreover, bad typography detracts from
your goal of persuading your audience your client is right. When you show up to make an oral argument,
you make sure that you present yourself as professionally and persuasively as possible. Similarly, your
written documents should reflect the same level of attention to typography.
In general, the importance of graphic design to effective communication is woefully unappreciated. Butterick points to the design of the butterfly ballots that caused the 200 presidential election fiasco in Palm
Beach County, Florida as an historic example of the bad consequences of bad design.
What caused the Challenger shuttle disaster? You might think it was defective O-rings, but that would be
to fail to appreciate that the defect would likely have been known and its consequences guarded against,
according to Edward Tufte, if the charts presenting the critical information to the decision makers had
been rationally designed. Tuftes expertise is in the effective use of graphics in conveying information.
Hes a genius, and the dedication to his craft is made clear by the fact he self-publishes his books so that
he can control the design of every element of them. And his advice on the use of PowerPoint is priceless.
We can only fix the medical malpractice problem if we fix all the problems we use
medical malpractice to address. Universal coverage and medical malpractice cannot
be separated from one another. (2009-06-30 09:55)
Walter Olson asks what were getting from our medical malpractice system with jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery that Canada, at 10 % of the cost for
its medical malpractice system does not. Its only part of the question. Olson quotes Richard Epstein,
who states American judges frequently let juries decide whether honest mistakes are negligent. Judges
in other nations are less likely to do so. American courts commonly think it proper for juries to infer
medical negligence from the mere occurrence of a serious injury. European judges usually will not.
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Why is this going on? Is it just madness? Of course not. What Epstein and Olson ignore is that
patients in Europe and Canada have national health insurance that will pay for the costs of medical care
necessitated by inevitable even if honest and non-negligent bad outcomes that result from medical
malpractice.
We cant just fix the malpractice problem unless we fix the problem of being sure patients who
suffer bad medical outcomes (a risk were all exposed to) being unable to pay for the care required by
those outcomes. Why does Canada only spend 10 % what the U.S. does on malpractice? Because Canada
has national health insurance to pay for that care.
It worked for businesses with workers comp. Why not a no-fault liability system to pay for medical
care and other consequential financial loss flowing from any bad medical outcome?
The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA,
even though it won $1.92 from a jury, surely wants her to, likely for any price.
(2009-06-30 15:21)
Mike Masnick of Techdirt reports that the RIAA is anxious to settle the case in which it won $1.92 million
from Jammie Thomas-Rasset for illegally downloading 24 songs. As Masnick writes, the RIAA seems to
recognize that the insanity of the $1.92 million doesnt do it any favors. Even the musicians whose music
was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit
for some lower amount so it can run around touting the risksof file sharing without having people laugh
outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could
be bought for $1 each.
Masnick writes too that hes been expecting Jammie Thomas to settle but the longer this goes on,
the more I wonder if shes actually planning to fight on. If so, this could certainly represent a case to
examine the statutory rates associated with copyright violations.
Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of
the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this
appeal. When a lawyer looks to challenge a law, if hes got any sense he doesnt challenge it via any case
that happens to come up. He chooses a case that presents especially good facts for the challenge. The
EFF would love to have Jammie Thomas appeal - no case involving a defendant found liable for illegal
downloading would be a better vehicle for bringing the challenge to the statutory penalties.
2.7
July
We are very confused about the difference between similarity and illicit copying.
Down Under and Kookaburra this time. (2009-07-01 09:32)
Another in a long line of this type of case: Larrikin Music is suing for compensation from royalties earned
by Men at Work, alleging that the distinctive flute riff in Down Under was copied from the refrain of
a 1934 childrens tune, Kookaburra Sits in the Old Gum Tree. As I suggest in the post liked to above
(as well as many others on this blog), one has to ask these questions: Do our markets reward plagiarism, or are we confused in believing that an artist or author only has rights in his work if his work is
unique? And if an artist does have rights to work that is derivative (as I believe most creative work is),
dont appropriators (collage artists, musicians who create aural collages by weaving together samples
of copyrighted recordings) also have rights in their works?
[EMBED] [EMBED]
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Did Apple Mislead Investors Regarding Steve Jobs Health? Almost certainly, yes.
Then why did it not disclose the medical facts? (Part I) (2009-07-02 09:48)
Steve Jobs had a liver transplant last week, and, the L.A. times and others report, the doctor who led
the transplant team said this week that Jobs was the sickest patient on the waiting list at the time a
donor liver became available. All Apple had earlier disclosed to the public regarding Jobs health was
set forth in 2 statements written by Jobs and posted on Apples website posted last January. The first,
in connection with his widely reported drastic weight loss in 2008, stated that my doctors think they
have found the cause a hormone imbalance that has been robbing me of the proteins my body needs
to be healthy. Sophisticated blood tests have confirmed this diagnosis. The remedy for this nutritional
problem is relatively simple and straightforward, and I ve already begun treatment. But, just like I
didn t lose this much weight and body mass in a week or a month, my doctors expect it will take me
until late this Spring to regain it. I will continue as Apple s CEO during my recovery. (emphasis added)
The second letter, posted one week later, stated that during the past week I have learned that my
health-related issues are more complex than I originally thought. In order to . . . focus on my health,
and to allow everyone at Apple to focus on delivering extraordinary products, I have decided to take
a medical leave of absence until the end of June. (emphasis added) In April, [a]ccording to unnamed
sources . . . Jobs continue[d] to work on the most important strategies and products from home,
though Apples only official statement was that Steve continues to look forward to returning to Apple
at the end of June.
Inevitably, people are asking a question lawyers representing a company whose stock is traded on
public exchanges always have to ask themsevles about any facts that might affect the companys value:
is the information material? On the one hand, the L.A. Times story states: Companies are not
required to divulge medical details about executives, lawyers said. But the story also quotes a lawyer
stating that If [Apple] tried to lessen the disclosure and make it misleading by omission, thats just as
bad as telling something that flat isnt true . . . . And Warren Buffet is quoted stating: Certainly
Steve Jobs is important to Apple. . . Whether he is facing serious surgery or not is a material fact.
(emphasis added).
Whats going on? What information is material and therefore has to be disclosed to the public
by a publicly traded company? Well, Neil Lipschutz is right that something is material if there
is a substantial likelihood that a reasonable shareholder would consider it important in making an
investment decision. Also, if there was a substantial likelihood a reasonable investor would think the
information significantly altered the total mix of information available about a company.
Do we have anything better to guide us than (1) what seems a terribly subjective test, (2) the
gut reactions of lawyers and of Warren Buffett, and (3) the almost certain fact that Apple, after close
consideration of the facts and the law by its lawyers, made the business decision that the risks and
probabilities of disclosure last January (or at any time between when Jobs first got sick and now) were
outweighed by the risks and probabilities of liability for securities fraud if and when its lack of candor
became known?
Well, if what youre seeking is guidance in the way beginning law students and most non-lawyers
want the law to provide guidance articulation of rule that makes it easy to decide the question the
answer is a resounding NO. These are judgment calls based on the specific evidence of each case. In
order to determine if a set of facts would matter to an investor, you need to look at those specific facts.
And plainly I have not had available to me all the evidence that might eventually be considered to judge
the question in this case. But there is a lot available, and based on only that, I have to agree with
Warren Buffet that the fact Steve Jobs was so ill he required a liver transplant certainly is material.
But, again, my certainty is not a product of pointing to a law and having you nod your head
in agreement. I have to look at the specific evidence regarding Apple, the law, and the facts in the cases
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in which courts have concluded that events are material and in which courts have concluded the events
are not material. By doing that, I hope I can convince you that my certainty is well founded. Thats the
best I can do.
Moreover, thats not the end of the lawyers job. Even if the lawyers concluded that the facts
regarding Jobs health prior became material at any time before the next week would not mean
Apple necessarily would disclose those facts. Apples lawyers would have to consider what potential
downside its failure to disclose those facts would present and the likelihood that downside would occur.
Then Apple, not the lawyers, would have to decide if those risks and probabilities would outweigh the
likelihood and degree of the impact disclosure would have on Apples value.
There are a number of rules under which a publicly traded company is obligated to disclose material information to the public or face criminal and civil liability, but the definition of materiality is
the same under all of them. One is a regulation known in the trade as Rule 10b-5 [17 CFR 240.10b-5],
which makes it a crime and a civil wrong for any a company or an individual purchasing or selling
stock to omit to state a material fact necessary in order to make the statements made, in the light
of the circumstances under which they were made, not misleading, . . As the United States Court
of Appeals for the 2d Circuit stated in SEC v. Texas Gulf Sulphur Co., 401 F.2d at 833, 848 (2d Cir.
1968), this requirement to disclose material facts is based on the justifiable expectation of the securities
marketplace that all investors trading on impersonal exchanges have relatively equal access to material
information . . . . The requirement originates in the Securities Exchange Act of 1934 (15 U.S.C.
78j(b)), one of the keystones of the New Deal passed in response to the practices prevalent on Wall
Street that had led to the 1929 stock market crash.
As the court further stated in Texas Gulf Sulfur, [t]he basic test of materiality * * * is whether
a reasonable man would attach importance * * * in determining his choice of action in the transaction in
question. Thus, material facts include any facts which affect the probable future of the company and
those which may affect the desire of investors to buy, sell, or hold the companys securities.
The defendants in Texas Gulf Sulfur had argued that tests showing one of their companys mines
was likely a rich one were not material because there was nothing certain to report until mining had
actually begun and there was more certainty than the tests could provide. The Second Circuit rejectted
their argument, ruling that even possibilities that never occur might be material. One must look at the
probability the fact would have an impact on the companys value and the magnitude of that potential
impact: whether facts are material . . . will depend at any given time upon a balancing of both the
indicated probability that the event will occur and the anticipated magnitude of the event in light of
the totality of the company activity. 401 F.2d at 849. Thus, the court reversed the trial courts decison
to dismiss the criminal charges against the defedants because, the Second Circuit decided, they would
be guilty if it were true that they had failed to disclose the possibility, which surely was more than
marginal, of the existence of a mine of the vast magnitude as a result of a remarkably rich sample
taken close to the surface (suggesting mineability by the less expensive openpit method) within the
confines of a large anomaly (suggesting an extensive region of mineralization). That mere suggestion
. . . would certainly have been an important fact to a reasonable, if speculative, investor in deciding
whether he should buy, sell, or hold stock in the mining company the defendants controlled. Id. at
849-50 (emphasis added).
The U.S. Supreme Court expressly adopted the Second Circuits test in 1988 in Basic, Inc. v.
Levinson, 485 U.S. 224 (1988), a case in which the Court determined that corporate insiders might have
had the duty to disclose negotiations for a corporate merger before the merger was concluded. Some
courts outside the 2d Circuit prior to that time had ruled that a deal didnt have to be disclosed until
it was a binding deal. The Supreme Court rejected the reasoning of those courts and made plain that
an event that might not ever happen nevertheless might at some point be likely enough and big enough
that it would affect a reasonble investors investment decisions.
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So the questions Apples lawyers had to be asking themselves all the time ever since they learned
in 2004 that Jobs had pancreatic cancer, are the following:
(1) Is Jobs so important to Apple that an investor would make a decision to sell, buy, or hold
on to Apple stock based on his ability to do his job?
(2) Do the medical facts demonstrate with sufficient probability that Jobs condition is threatened enough that those facts would cause an investor to sell, buy, or hold on to Apple stock?
(3) Did Apples words or omissions mislead reasonable investors in evaluating whether Jobs could
continue to do his job well enough to not affect their investment decisions.
Lets get the easy stuff out of the way. Jobs health and its impact on his ability to do his job
are so plainly material that to argue otherwise wouldnt pass the giggle test. I would therefore, if I
were representing Apple in litigation, advise the company simply to admit this point in the answer to
any complaint anyone filed. To admit the point would at least minimize attention to something that, if
Apple did dispute it, would only increase attention to a weakness in the companys case. But just in
case you think I dont understand when its smart lawyering to concede a point, remember these things
someones own words are taken by a court as admissions. In other words, if someone admits something
that is harmful to his legal position, the court will assume the facts are at least that bad. In the letter
posted online last January, addressed to the Apple Community, Jobs ended with this: So now I ve
said more than I wanted to say, and all that I am going to say, about this. Id love to ask him in a
deposition why, if he didnt want to write what he wrote, he did. The probelm, if Apple had decided to
dispute the materiality of Jobs to the companys value, is that hed have to deny and dance around the
obvous: his lawyers told him he had to write the letter because his health and its impact on his capacity
to do his job is material to Apples shareholders and potential shareholders.
Dont assume I havent considered the arguments I could make on Apples behalf on this point
I could point out, for example, as MacNewsWord did yesterday, that since January, when Jobs wrote the
letter he didnt want to write, Apple stock has almost doubled in value. The Apple loving outlet implied
that market shows that investors have been confident that Apple was fine without Jobs: This could be
due to general belief among investors that Apple has a good management team in place which has kept
the company running on an even keel despite the CEOs absence. Or it could mean the market had
already accounted for Jobs illness. Or it could be that the market is driven by unreasonable investors.
It could be for any number of reasons. Regardless, I am convinced that a strategy to fight a securities
fraud case on the grounds that Jobs isnt important enough to be material to Apple is not going to make
winning the case more likely. I could go on and on . . . Last October, just to take at random one piece
of evidence easy to find via a mere Google search, (according to CSnews) Some individual had posted a
fake report . . . claiming Steve Jobs had suffered from a heart attack and was rushed into the hospital.
As a result, Apples stock made a 10 % nosedive.
NEXT: (a) was Jobs health so dire its specifics would have made a difference to people thinking
about buying, selling or holding on to Apple stock, (b) did Apples statments or silences mislead
investors about Jobs health, and (c) why would Apple choose not to disclose specifics regarding Jobs
health even if its lawyers were telling it that those were material facts?
The Madoff Investigation Should Focus on the SEC. (2009-07-02 10:06)

Ever since the Bernie Madoff scandal broke, Ive wondered: was the SEC paid off? Its hard to believe
the SEC could have investigated Madoff as it did, see what anyone who looked closely could see, and not
dig sufficiently to uncover the fraud. And a story today from the Washington Post only adds gasoline to
the fire of that suspicion. An SEC lawyer told her superiors in 2004 that information provided by Madoff
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during her review didnt add up and suggest[ed] a set of questions to ask his firm. She was instructed in
response to focus on other matters. And her immediate supervisors boss later married Madoffs niece!
The suspicious SEC lawyer, Genevievette Walker-Lightfoot, had previously worked at the American
Stock Exchange, where she developed an expertise in specialized trading strategies. After she was diverted to other matters, she never was asked about the Madoff investigation again, even during an agency
investigation into Madoff in 2005 which only found three violations of minor rules. In 2006, WalkerLightfoot left the SEC after filing a complaint with the agency alleging that shed been subjected to a
hostile workplace. A person familiar with the complaint said it was settled in Walker-Lightfoots favor.
Madoff, incidentally, once boasted at a business roundtable discussion about his close relationship with
SEC regulators, saying my niece just married one.
KLF: Don t worry about being accused of being a thief. (2009-07-03 19:57)
By sheer chance as far as I can remember I came across the KLF as the inspiration for the fictional
problem (scroll down and look at the right hand column) based on real songs I constructed once for
a legal writing class I taught. It seems fate in that the guys who constituted the KLF turned out to
be remarkably aware of and articulate about the realities underlying the issues the problem involved
copyright and fair use. Their book, The Manual (How to have a Number One the Easy Way), published
after their own rise to the top of the British pop charts, is by turns satiric, insightful, and sarcastic, but
it isnt what many of my students took it as: a cynical effort to give people an easy way to cash in. It
isnt. Its thoughtful, funny, and honest, and it makes a lot of sense.
So how do you create a number 1 pop hit?
It is going to be a construction job, fitting bits together. You will have to find the
Frankenstein in you to make it work. Your magpie instincts must come to the fore. If you
think this just sounds like a recipe for some horrific monster, be reassured by us, all music can
only be the sum or part total of what has gone before. Every Number One song ever written
is only made up from bits from other songs. There is no lost chord. No changes untried.
No extra notes to the scale or hidden beats to the bar. There is no point in searching for
originality. In the past, most writers of songs spent months in their lonely rooms strumming
their guitars or bands in rehearsals have ground their way through endless riffs before arriving
at the song that takes them to the very top. Of course, most of them would be mortally upset
to be told that all they were doing was leaving it to chance before they stumbled across the
tried and tested. They have to believe it is through this sojourn they arrive at the grail; the
great and original song that the world will be unable to resist.
But dont leap to the conclusion the KLF believed that there was no such thing as genuine creativity:
So why don t all songs sound the same? Why are some artists great, write dozens of
classics that move you to tears, say it like it s never been said before, make you laugh, dance,
blow your mind, fall in love, take to the streets and riot? Well, it s because although the
chords, notes, harmonies, beats and words have all been used before their own soul shines
through; their personality demands attention. This doesn t just come via the great vocalist or
virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed
music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire.
The creators of that music just press a few buttons and out comes - a million years of pain
and lust.
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. . .
What we are basically saying is, if you have anything in you, anything unique, what others might term as originality, it will come through whatever the component parts used in your
future Number One are made up from.
Just fifteen minutes ago I was listening to an interview with John Mellencamp. Asked about his sonwriting, he said something along these lines: If its out there, its mine. Whether it was written by
Shakespeare or Dylan, if I hear it, it becomes mine and I can use it . . .
J.D. Salinger does not get it at all. Is there anything hes done since 1964 that could be said to promote
creation?
The KLFs composition method for their first hit, Doctorin the Tardis?
The complete history of the blues is based on one chord structure, hundreds of thousands
of songs using the same three basic chords in the same pattern. Through this seemingly rigid
formula has come some of the twentieth century s greatest music. In our case we used parts
from thrcc very famous songs, Gary Glitter s Rock n Roll , The Doctor Who Theme
and the Sweet s Blockbuster and pasted them together, neither of us playing a note on the
record. We know that the finished record contains as much of us in it as if we had spent three
months locked away somewhere trying to create our master-work. The people who bought
the record and who probably do not give a blot about the inner souls of Rockman Rock or
King Boy D knew they were getting a record of supreme originality.
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Why is music the main battleground in the copyright wars? (2009-07-06 07:31)
Andrew Dubber is an established scholar working in Britain, an author, and an online music consultant
writing a book about the music industries and intellectual property in the digital age. Hes also writing a
blog as a scrapbook of material for the book. The book and the blog, Deleting Music, are [s]pecifically
. . . about the problems that arise when music is only considered in terms of its function as commerce,
rather than as culture.
Two days ago Dubber raised this question: why is his focus on music when the issues he is exploring extend[] way beyond popular music into books, visual arts, academic works, medicine& and extend[]
into the realms of international trade, global politics and genuine life and death issues? He believes that
the reason is that the music industry is uniquely threatened by the commercialization of culture:
There s a genuine cultural crisis going on in the music industries. Master tapes are decaying
in vaults. Original works by artists you ve heard of, not just obscure and irrelevant wannabes
are not being preserved. Archives and libraries are only reluctantly being supplied with
copies of released material and not reliably so.
In music, perhaps in more than any other field, culture is not merely being prevented from
being remixed it s completely disappearing, preventing it from forming the basis of any
future works or research. And it s that, more than anything else, that I want to communicate
through this book.
This is not a hypothetical problem, or merely an unfair distribution of power. Popular music
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culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling
from master tapes as we speak.
To me, that s important, urgent
and worthy of its own book
Music has been the center-piece in the recent copyright wars. Dubber knows better than I the impact of
the music industrys practices on the culture, but I think theres a very good legal explanation for the
music industrys centrality to todays copyright disputes.
In both the plastic arts and in literature there is a long history of, well, remixing as a legitimate
method of creation. There has been in music as well, but not in quite the concrete and specific way
there can be in painting and literature. Collage is a long-established artistic genre, and in literature the
wholesale copying and rearranging of existing work as a composition method goes back to the foundation
of Western literature in Homer. In music, on the other hand, while composition has always been a matter
of reworking existing formulas, weve been operating in recent times on a general assumption that lifting
a single note from an earlier recording constitutes copyright infringement. For long enough this practice
has been the norm in the music industry that most people I know simply assume its an indisputable fact
that if you sample anything from a copyrighted work you must pay for the sample.
But thats a very debatable proposition. So where did it come from?
Paying for every last sampled note from a copyrighted song only became standard industry practice
beginning in 1991 practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros.
Records, Inc. , 780 F. Supp. 182 (S.D.N.Y. 1991), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie s third album because one of its songs sampled
three words and the accompaniment ostinato of Gilbert O Sullivan s cheesy hit Alone Again, Naturally.
Duffy wasn t satisfied with a mere injunction; he also referred the defendants to the U.S. Attorney s office
for criminal prosecution and began his opinion, like a preacher from the pulpit with these words:
Thou shalt not steal has been an admonition followed since the dawn of civilization
Unfortunately, in the modern world of business this admonition is not always followed.
The U.S. Attorney s office exercised its prosecutorial discretion and refused to seek an indictment against
Biz Markie or his producers. One likes to think the prosecutors were more thoughtful about the copyright
issues the case raised than was Judge Duffy.
But Biz Markies record company did not appeal the decision and, in fact, the decision marked the
beginning of the music industrys practice of requiring permission and payment for any sample. The
companies that at the time constituted the industry had a strong interest in maintaining the regime
Duffys decision put into place (a regime bolstered in 2004 by the decision in Bridgeport Music, Inc. v.
Dimension Films, 410 F.3d 792 (6th Cir. 2004), in which the court ruled that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier
copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats). Deference to
this legal regime meant that each companys recordings were inviolate without payment. There was no
economic reason to challenge the right of another recording company to require payment for any sample,
no matter how small, no matter transformative its use was, and no matter how little impact it would
have had on the market for the sampled piece. Moreover, artists who would have challenged the existing
regime hardly had the financial wherewithal to take on the industry and the enormously successful artists
who benefit from it. Thus, as John Pareles has written, [a]lthough sampling was just a technological
extension of the age-old process of learning through imitation, producers who use samples now pay up
instead of trying to set precedents for fair use.
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Thus, the the RIAA states generally speaking, the use of any part of a song requires a license.
But, as I have emphasized again and on this blog, law is forced to change when the material conditions it governs change, and the ability to make and stitch together samples into compositions that can
be disseminated world-wide an ability that in 1991 was held almost exclusive by the recording industry
is now within reach of, literally, millions of people. It is inevitable that with this change the deference
given to a trial court decision in 1991 would be challenged and that the arguments Judge Duffy entirely
ignored in that decision would be examined anew.
But when, and in what circumstances? That is the interesting legal question right now. As Ive previously written, Greg Gillis, who performs as Girl Talk, creates music that does nothing but violate the
rule Judge Duffy declared inviolate since the dawn of civilization Girl Talks work consists entirely of
samples of recordings (virtually all copyrighted) stitched together into entirely new works.
Girl Talks work therefore has been described as a lawsuit waiting to happen. Gilliss compositions
include samples of recordings made by such artists as Metallica, who have demonstrated their willingness
to sue people they believe have violated their copyrights, and the Guess Who, whose representative has
stated , We ll chase [Girl Talk] down. What more can you do? Yet no one, as far as I know, has yet
sued Gillis. Why?
Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone
else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients
(or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I
would advise that client not to sue Girl Talk; Gilliss argument that he has transformed the copyrighted
materials sufficiently that his work constitutes non-inringing fair use is just too good. I d go after someone
I am more likely to beat. Othewise, I d lose all the leverage I have with the existence, as yet undisputed
in case law, of the decisions in Grand Upright Music and Bridgeport Music.
Think for a moment whether you can imagine Socrates saying, Lets stop talking
and go play; we all know you can learn as much about a person in an hour of play as
in a year of conversation. (2009-07-06 10:02)
One of Sarah Palins favorite rhetorical moves is the maxim. She resorts again and again to brief sayings
she intends to be pithy and apt. Just off the top of my head on Friday I remember her mentioning that
only dead fish go with the flow and that, as her parents refrigerator stated, your friends dont need
explanations and your enemies wont believe them.
She often too attributes the maxim she is quoting to some authority or other. One danger in doing
this type of thing, especially if you do so without having done more than cursory research or are speaking
off the top of your head, is attribution to the wrong source. When she stated that General McArthur
had said, Were not retreating, we are advancing in a different direction, she apparently was quoting
General Lewis B. Chesty Puller, not Douglas McArthur. Of course, Puller isnt known to her audience
(nor to me or, likely, to her), so the quote would not pack the same impact if properly attributed.
The bigger problem, though, is the credibility lost due to improper attribution. But theres even more
danger. You can look just plain stupid. In her Runners World interview last week, she said, We like to
have other people participate in these activities with us because, as Plato said, You learn more about
a person in an hour of play than in a year of conversation. The Weekly Standard (in a post actually
entitled The Philosopher Queen and now mysteriously gone from its web site(Google cached version),
blogged on Wednesday, June 29th: Sarah Palin mentions a (perhaps apocryphal) quote fromPlat0 in her
fascinating interview with Runners World.
Perhaps apocryphal? Could anyone who thinks about Plato for one minute doubt the quote does not
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come from Plato? Platos entire corpus is in dialogue form. His version of Socrates is the foundation of
Western philosophy. How is Socrates always portrayed? In conversation. Could you imagine Socrates
and Plato suggesting that the dialogues Socrates engaged in should be broken up for some play because
you learn more about a person in an hour of play than in a year of conversation? Its ridiculous. Its
ridiculous to even think so, and it betrays nothing but thoughtlessness.
James Boyle: A Songs Tale: Mashups, Borrowing, and the Law (2009-07-07 13:29)
Professor James Boyle lectures on the 199 year history of a song protesting the governments inept response after Hurricane Katrina, tracing its sources back over 100 years through the work of, among others,
Kanye West, Ray Charles, and Clara Ward. Each (Im shocked, shocked) of these musicians borrowed
from the music of others before them, yet they borrowed in different ways, under different legal rules, in
a different musical culture. Their music was shaped, for better and worse, by those constraints. At the
end of the 100 year journey, we can have a sense of how the music of the future may be shaped, and of
what our musical culture will give up in the process.
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New technology means the old ways of doing business wont survive how much
longer will we have newsprint? (2009-07-08 10:41)
The ways changing reality forces change in the ways business is done: Nicholas Cohen wrote in January
that it costs the New York Times about twice as much money to print and deliver the newspaper over
a year as it would cost to send each of its subscribers a brand new Amazon Kindle instead. Cohen
concludes that, as a technology for delivering the news, newsprint isnt just expensive and inefficient;
its laughably so. In taking down the pay wall to some its contentmaking Web, the Times recognzied
that site visitors pay for content would not bring in as much money as making it available for free and
supporting it with advertising. Well see what happens with the newsprint . . .
How good a literary critic was the judge in the Catcher in the Rye case?
(2009-07-09 10:29)
Will the judges decision that 60 Years Later: Coming Through the Rye infringes J.D. Salingers copyright in Catcher in the Rye stand up on appeal? My judgment is necessarily a qualified one. I havent
read Coming through the Rye, and a truly informed judgment would require me to do so in essence,
the decision turns on whether Coming through the Rye is a commentary and criticism of Catcher in the
Rye or, instead, an effort to cash in on the copyrighted character of Holden Caulfield. In other words,
is Coming through the Rye original or not? I cant tell for sure without reading it myself. Nevertheless,
there are problems in the judges decision that cast it, in my mind, in some doubt.
Most troubling is the judges conclusion that Coming through the Rye cannot be deemed to comment
on the original because Holden in the former is identical to Holden in the latter. The judge stated:
First, Colting s assertion that his purpose in writing was to critically examin[e] the character Holden,
and his presentation in Catcher [in the Rye] as an authentic and admirable (maybe even heroic figure is
problematic and lacking in credibility. To support that point, the judge refers to the sworn declaration
submitted by Martha Woodmansee on behalf of Colting, quoting Woodmansee s statement that [r]eaders
familiar with [Cather in the Rye] will anticipate the same laconic observations and reflections they associate with Holden Caulfield. What do they get from the 76 year old C? They get much the same kinds
of observations and freflections, but coming from a 76 year old and applied to a world much changed
in the 60 intervening years, such observations and reflections fall flat. They reveal a character whose
development was arrested at 16, who instead of growin g up could only grow old. The judge also quotes
Woodmansee s statement that the observations and reflections of Mr. C evoke [in style and content . .
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. vintage Holden Caulfield, and coming from a 16 year old, they seemed honest and endearing. Coming
from the 76 year old C, however, they seem pathetic.
In short, the judge concluded that Coming through the Rye was not a parody of Catcher in the Rye
because Holden in the new work was merely a copy, not an original character. She stated that it is hardly
a parody to merely put the same character in a new situation: It is hardly parodic to repeat that same
exercise in contrast, just because society and the characters have aged.
That is odd reasoning. One of the principal criticisms of Catcher in the Rye since its publication is
that Holden did not develop at all emotionally or intellectually through the course of the books story.
John Aldrige wrote that in the end, Holden remains what he was in the beginning cynical, defiant,
and blind. As for the reader, there is identification but no insight, a sense ofpathos but not tragedy.
This may be Salingers intent, as Holdens world does not possess sufficient humanity to make the search
for humanity dramatically feasible. In other words, by depicting a 76 year old Holden who is no different
than Salingers 16 year old Holden, one might conclude that the author was parodying the self-absorbed,
dense, and unreflective 16 year old (as well as the author, who has contributed nothing to the creative
life of the society from which he has done everything to withdraw since 1964). And indeed, Woodmansee
takes the same characterization of the young and the old Holden the judge seizes upon and sees it
precisely as parody. Her testimony is that Mr. C in Coming through the Rye is a character whose
development was arrested at 16, who instead of growing up only grows old. This is a devastating critique
of Holden Caulfield in particular, of [Catcher in the Rye] generally, and of its author J.D. Salinger, whose
apparent inability to develop his hero reveals him to be burned out. (emphasis added)
Is Coming through the Rye fair use.? I think on appeal it might well be found to be . Its interesting that we make our judges literary critics in these cases. Why do I doubt the judges crtiticism?
Because it seems to simplistic and because, knowing Martha Woodmansee personally, I feel far more
confident in her abilities as a literary critic than I do in the judges.
Negativland was way ahead of Girl Talk, and still is. (2009-07-10 14:13)
On September 2, I will have the honor of being part of a seminar, sponsored by the Arts Network of
the Council on Smaller Enterprises (COSE), that will feature a multimedia presentation by independent
musician, arts activist and citizen lobbyist Mark Hosler from Ashville, North Carolina. Mr. Hosler, well
known [as one of the founding members of] the band Negativland for his experiences fighting legal battles
over copywright, intellectual property and fair use in art and music, will present a mixed media lecture
about his first hand experience with these topics. Negativland was way ahead of Girl Talk. Holsers
encounters with the inanities of copyright law are legendary and illustrative. Most importantly, Holser
is remarkably articulate on these issues. Negativlands entire site is worth a visit; here is one of Holsers
most recent writings:
From our 28 years of being creators, observers, and consumers of music, art, and video,
our group, Negativland, has witnessed incredible and wonderful shifts in the ways that the
public is now able to create and distribute new work via digital technologies. We ve also
witnessed amazing changes in the way that money and corporate power has increasingly influenced policy, Congress, and the laws of our nation. At times, these changes are good. At
other times, as I am sure you know, they benefit no one except the businesses lobbying you.
We are concerned when this does not serve the public interest.
We believe that the healthy evolution of art and creativity has more value than simply counting how much money is lost or made. Art, science and technology have evolved because of
how we all build upon the ideas and works of those who came before us. Copyright was always
intended as a balancing act between giving ownership to creators so as to provide incentive
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to create new works, and allowing works to lapse into the public domain so that new ideas
could develop. But our founding fathers could never have imagined the kind of world we live
in today and the amazing new technologies that we are surrounded with - technologies that
encourage and inspire us to interact with the world and create in unprecedented new ways.
Protecting the author of a creative work is a good thing, but the benefits of copyright have
been thrown off balance by the disproportionate influence of those with the most money. In
fact, the more recent expansions of our nations copyright laws represents a break from our
nations past and from the intentions of our own Constitution.
Did you know that copyright originally lasted only 14 years, and then all work fell into the
public domain? The limit now is 70 years plus the life of the creator, meaning that nothing
made in our lifetimes will fall into the public domain. This does not strike us as a very good
public good. Even patents, which govern everything from industrial processes to pharmaceuticals, are given only a 20 year period before other manufacturers have access to them and
this system seems to have done nothing to discourage innovation, creation, and especially
remuneration in the fields of science and technology with this relatively short time span.
But art is neither science nor technology. Why make art out of things originated by others? We think that unless one is lucky enough to live on a remote island somewhere, we all
live in a world surrounded by news, music, movies, ads, logos and messages. We are, quite
literally, bombarded with media. It has always been a part of human nature to make art in
response to and using material from the world around us. Nowadays, anyone with a small
computer can easily make, remake, slice, dice, mix, and remix from any electronic media they
can get their hands on. And because we can, we often do. Besides being fun, this kind of work
creates a new type of cultural conversation that we can all have with the media around us,
a conversation that we believe is healthy for a vibrant democracy that aspires to true freedom
of speech.
Copying has gone on in art and music throughout the ages, from quoting in classical music compostions, to homage and parody. In much of the last century, these appropriation
practices were the province of the avant-garde and the fine art world. But with the Internet, the ever-growing speed of computing, YouTube, MySpace, file-sharing, and other recent
developments, they have now moved wholly and firmly into the mainstream. And yet our
laws strive to criminalize all of this behavior. Ours is a world in which copyright has fallen
woefully behind the curve of what the public actually wants to do with all that digital stuff
out there. Millions world wide are creating art, music and video that incorporate elements of
existing work - cutting and pasting bits and pieces of music, video, text, and pictures made
by others to create new works. Millions of web pages now use various Creative Commons
licenses to provide a nuanced alternative to traditionally black and white interpretations of
copyright laws (one such license Negativland helped to write). The prevalence of these alternative copyright strategies is a testament to how many of your constituents are not at all
happy with copyright as it stands now.
At this juncture, we feel it s necessary to point out that we support artists and creators
being paid for the work they produce. We believe copyright was correctly intended as a
judicious balance between providing for the creator as well as providing for the public commons, a balance which Negativland believes has been largely forgotten by the big businesses
who produce and sell most media and entertainment. And we should also mention that all
this creative re-use of material rarely if ever puts new work in economic competition with
its sources. It does not pose any reasonable economic threat to the original source in any
marketplace that they share. In an ideal world, Negativland would like to see the notion of
Fair Use expanded to accommodate, accept, and protect these new practices.
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[EMBED]
Manny Garcias own words betray the weakness of his case. (2009-07-11 14:05)
Manny Garcia, who actually shot the photo at issue in

the lawsuit between Shepard Fairey and the Associated Press the photo that allegedly was the source
of Shepard Faireys Obama Hope poster is intervening in that lawsuit on the grounds that he, not AP,
owns the copyright in the photo. On page 5 of the brief in support of his motion he makes clear he is
arguing too that Fairey infringed his alleged copyright in the photo he shot.
Ive said it before one of the best ways to defeat an adversary in litigation is to use his own words
against him. Garcia now seems to think theres a principle he has to defend in arguing that Faireys
poster infringed his copyright in his photograph. AP also thinks Faireys work was an infringement but
that it owns the copyright in the photograph on the grounds that it was a work for hire. Be that as it
may, if Garcia thinks Faireys work is sufficiently transformative that it stands on its own as an original
work, that would be pretty harmful to his and APs arguments, wouldnt it?
Well, for a long time Garcia himself didnt realize Faireys poster mightve been made from his photograph. As Scene on the Road reported last January, Garcia, after learning that many thought his
photo was the original source said, Ive been on the campaign for twenty something months, so I would
see the artwork, I would photograph it, and think what is with this image? But it didnt snap. It never
occurred to me it was my picture. (emphasis added)
Moreover, he said he wasnt interested in a lawsuit because he understood that artists create by remixing
the things around them:
[Garcia] was quick to add he is not mad at Fairey, and hes not looking at any lawsuits.
I know artists like to look at things; they see things and they make stuff. Its a really cool
piece of work. I wouldnt mind getting a signed litho or something from the artist to put up
on my wall.
So lets see: Garcia didnt recognize his own photo was the source of Faireys work even after regularly
seeing and photographing Faireys poster. In fact, it took someone else to point out that Garcias work
might have been the source. And Garcia himself thinks Faireys poster is a really cool piece of work
and knows artists work by doing what Fairey allegedly did with his photo. I dont know how better to
identify and define a work that stands on its own as an original piece of art.
But later, in an interview with NPRs Terry Gross at the end of February, Garcia seemed to be singing
a different tune, saying that Fairey had taken something that didnt belong to him:
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Initially when I found out, I was disappointed in the fact that, you know, someone had was able to go onto the Internet and take something that doesn t belong to them and then use
it. I think that that part of this whole story is crucial for people to understand that simply
because it s on the Internet doesn t mean it s free for the taking, and just because you can
take it, doesn t mean it belongs to you.
So which was it Manny your first take that what Fairey did was cool, that youd like to have a signed
litho, and that Fairey had merely done what artists do in taking and reworking the photo, or your second
take that he had taken something that didnt belong to him and used it? And why was it you didnt
recognize the poster was taken from your photo?
Did you hate cliques in high school?
You should hate them as an adult too.
(2009-07-13 17:09)
How can you tell when your organization is in trouble? [E]mployees start talking directly to people
they feel comfortable with, and stop sharing information more widely. It may not be the most surprising
insight Ive ever come across, but it is an important point, and its the conclusion reached in a study of
the emails sent by Enron employees during the companys final 18 months. According to New Scientist,
the study showed that the number of active email cliques, defined as groups in which every member
has had direct email contact with every other member, jumped from 100 to almost 800 around a month
before the December 2001 collapse. Messages were also increasingly exchanged within these groups and
not shared with other employees.
Paris Hilton as law professor: each judge is your BFF, and remedies are everything.
(2009-07-14 09:00)
Knowing the law and being a lawyer are two entirely

different things. If something is illegal, does that mean you cant do it? That would mean you cant drive
26 mph in a 25 mph zone. In other words, its not about whether something is legal or illegal; its about
consequences, remedies. If youre in breach of contract, it doesnt matter much if the party suing you
doesnt have proof that your failure to live up to your promise actually caused the harm youre thinking
of.
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Paris Hilton understands that. She also understands how to get a judge on her side. As Law.com
reports, Hilton flirted with a Miami federal judge and mentioned her Zodiac sign as she testified Friday
in a civil trial seeking the full production cost of the box office bomb Pledge This! for allegedly scanty
promotional work. The plaintiff in the case is Worldwide Entertainment Group, which was seized by
federal regulators as a Ponzi scheme after producing Hiltons 2006 movie. Hilton is arguing that she
fulfilled all her contractual obligations to promote the film and that her schedule is booked months in
advance. To illustrate, she explained that last week she was filming her new reality show, My New BFF,
in Dubai. This prompted Moreno to ask what BFF stood for. Hilton explained the acronym is short
for best friend forever and added, Youre my best judge forever. Spectators applauded.
Hiltons lawyer is arguing not only that she fulfilled her contractual obligations, but also that even if
she didnt the World Wide Entertainment cant show her failure to do so is the reason the film only
made $2.9 million in theatrical release. The judge, apparently won over by Paris, seemed open to that
argument Moreno said even if he finds Hilton could have done more to boost the movie, he doesnt
know how he can translate that into damages. I know even some of the greatest actors flopped in the
movies economically, he said.
Applying the law to the facts where empathy must be part of judging.
(2009-07-15 08:57)
Theres been a lot of argument recently about President Obamas rather innocuous statement that empathy is a big part of judging. Thus, I wasnt surprised that Sonia Sotomayor insisted that all she does
is apply the law to the facts in acting as a judge. And, in fact, one of the things Ive been impressed
by in her decisions and statements is her emphasis on facts. Too many law professors and commentators
focus on the law as a set of abstract principles and theories rather than what it is the judgment of how
the laws apply to the specific circumstances of the specific case they happen to be judging.
But I think its precisely in the importance of facts that empathy does play a part. One judge will
consider a given fact crucial, while another judge wont, and that difference will make a difference in
judicial outcomes. In 2008, the Supreme Court upheld Indianas requirement of a government-issued
identification card to vote. The majority opinion, written by Justice Stevens and joined by Justice
Kennedy and Chief Justice Roberts (he who told the Senate in his confirmation hearings that he judges
by merely calling balls and strikes), stated that the fact that public transportation is not available in
some Indiana counties tells us nothing about how often elderly and indigent citizens have an opportunity
to obtain a photo identification at the BMV, either during a routine outing with family or friends or
during a special visit to the BMV arranged by a civic or political group such as the League of Women
Voters or a political party. In his concurring opinion, Justice Scalia, joined by Justices Thomas and
Alito, wrote that [t]he burden of acquiring, possessing, and showing a free photo identification is simply
not severe, because it does not even represent a significant increase over the usual burdens of voting.
In contrast, in one of the dissenting opinions in the case, Justice Breyer considered the burden imposed
by the voter i.d. requirement far more significant, seeming to perhaps even emphasize with specific
types of voters:
For one thing, an Indiana nondriver, most likely to be poor, elderly, or disabled, will find
it difficult and expensive to travel to the Bureau of Motor Vehicles, particularly if he or she
resides in one of the many Indiana counties lacking a public transportation system. See ante,
at 6-7 (Souter, J., dissenting) (noting that out of Indianas 92 counties, 21 have no public
transportation system at all and 32 others restrict public transportation to regional county
service). For another, many of these individuals may be uncertain about how to obtain the
underlying documentation, usually a passport or a birth certificate, upon which the statute
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insists. And some may find the costs associated with these documents unduly burdensome
(up to $12 for a copy of a birth certificate; up to $100 for a passport). By way of comparison,
this Court previously found unconstitutionally burdensome a poll tax of $1.50 (less than $10
today, inflation-adjusted). See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 664 n.
1, 666 (1966); ante, at 30 (Souter, J., dissenting). Further, Indianas exception for voters
who cannot afford this cost imposes its own burden: a postelection trip to the county clerk
or county election board to sign an indigency affidavit after each election. See ante, at 8-10
(same).
Both sides are looking at facts. Both sides are applying the same rules (which require, among other
things, looking at the burden imposed by the state by its requirements for voters). They are coming to
very different views of the matter. Is empathy at work? Of course it is, but it is inescapable too.
Amazon, EULAs, and Orwells memory hole. (2009-07-20 08:48)

Can Amazon take back from y0ur Kindle a book you thought youd purchased? Well, it did exactly that
Kindle owners whod obtained ebooks of George Orwells 1984 and Animal Farm discovered last week
that Amazon had simply deleted those books from their Kindles. No one seems to have known Amazon
could do that the fact the Kindle connects electronically to the internet has until now always been
considered a reason the Kindle is better than competing ebook readers.
But did Amazon have the contractual right to do what it did?
The first thing to note is that you dont buy ebooks from Amazon. As the Kindles End User License Agreement (EULA) states, you merely purchase a license to use the ebooks. The license is the
right to use the ebooks under the terms of the EULA.
But does the EULA allow Amazon to unilaterally take back a book? Im not so sure. I think likely
Amazon is in breach. Nowhere in the agreement do I see any provision that gives Amazon the right to
do what it did. Moroever, the EULA states that the license is one to keep a permanent copy of the
text you are obtaining and to view, use, and display that text an unlimited number of times:
Upon your payment of the applicable fees set by Amazon, Amazon grants you the nonexclusive right to keep a permanent copy of the applicable Digital Content and to view, use,
and display such Digital Content an unlimited number of times.
The fact Amazon refunded the price of the Orwell books would not excuse its breach. You cant enter a
contract and then unilaterally tell the other side to the deal you want to undo it.
So Amazon may indeed be in breach. But does it matter? First, it would be difficult to prove any
damage over and above the purchase price, which Amazon has refunded. But there are two more important points. First, as Ive written before about EULAs, anytime you enter one online you are probably
agreeing that the agreement can be amended at any time without even any notice to you. Amazon may
simply argue that its recall of the books was an amendment of the agreement.
Second, what are you going to do, sue? You cant. The EULA requires any dispute arising under it
to be arbitrated in Seatlle! Are you going to go to the trouble of hiring a lawyer in Seattle to start an
arbitration proceeding so that you might be able to recover a few more bucks? Of course not.
Actions like these are why class actions exist where a company engages in actions that cause small
amounts of damage to many people, its not worth any individuals time or money to pursue a remedy,
and even if it were the remedy is so small that the companys gains from the improper conduct are worth
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it. As Wikipedia explains:
[A] class action may overcome the problem that small recoveries do not provide the
incentive for any individual to bring a solo action prosecuting his or her rights. Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp.,
109 F.3d 388, 344 (7th Cir. 1997)). A class action solves this problem by aggregating the
relatively paltry potential recoveries into something worth someone s (usually an attorney s)
labor. Amchem Prods., Inc., 521 U.S. at 617 (quoting Mace, 109 F.3d at 344). In other
words, a class action ensures that a defendant who engages in widespread harm but does
so minimally against each individual plaintiff must compensate those individuals for their
injuries. For example, thousands of shareholders of a public company may have losses too
small to justify separate lawsuits, but a class action can be brought efficiently on behalf of
all shareholders. Perhaps even more important than compensation is that class treatment
of claims may be the only way to impose the costs of wrongdoing on the wrongdoer, thus
deterring future wrongdoing.
But you cant bring a class action in arbitration. Thats why all these EULAs require arbitration so
that theres no opportunity for a class action that would impose on the company the real damages it
would be liable for to all the people it has wronged by its conduct.
Pretty clever, eh? Just remember, when you push for tort reform, youre really looking to benefit
wrongdoers, not to right the defects of a broken litigation system.
ADDENDUM: Maybe there is hope after all - in Harris v. Blockbuster, a federal district court in Texas
ruling under Texas state law refused to enforce an arbitration provision precisely because the contract
provided a unilateral right to amend. Ive got to research this point more, but it seems on its face to be
consistent with Texas law. I see reason, though, to think it wouldnt be under the law of many states.
The court says the agreement to arbitrate is illusory because it can be amended without notice. I would
think that in most states the un-amended contract would be enforceable and terms that were added by
amendment MIGHT be deemed illusory.
Dont forget to call your mashup a reflection and critique of the works it appropriates!
(2009-07-21 11:03)
In determining whether a work that appropriates a copyrighted work is a non-infringing fair use, the
fundamental issue is whether the new work transforms the copyrighted work to a degree that makes the
new work so creative it stands on its own. One thing that puzzles me is the degree to which courts
rely on the artists expressed intent in deciding whether the new work is transformative. Are we really
supposed to ground our determination of whether a work is transformative in the artists own expressed
purposes?
To do so poses all sorts of problems. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online in words that are so well accepted they are almost trite,
The passageway provided by art is very wide. No single interpretation of art is ever right,
not even the artists own. He or she can tell us the intent of the work, but the actual meaning
and significance of the art, what the artist achieved, is a very different matter. (It is pitiable
to hear the grandiose discussions of artists work by the least talented of our contemporaries.)
We should listen to the appreciations of others, but then we should put them aside and
advance toward a work of art in the loneliness of our own truth. Each of us encounters the
work alone, and how much we receive from it is wholly the effect of our will to accept this
responsibility.
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What was Jackson Pollocks purpose in painting Lavender Mist? Van Goghs in painting The Irises?
Havent we accepted by now the limitations focus on artistic intention would impose on our appreciation
of art?
Not only does art live in its relationship with its audience, not in its creators mind, but to explore
questions of intent in determining a works originality inevitably will raise questions of an artists stature.
Is Jeff Koons original? According to Wikipedia, [s]upporters claim (for Balloon Dog) an awesome presence... a massive durable monument (Amy Dempsey, ed. Styles, Schools and Movements, 2002, Thames
& Hudson), and for other work that it is possible to be wowed by the technical virtuosity and eye-popping
visual blast (Jerry Saltz, art critic). On the other hand, Mark Stevens of The New Republic dismissed
[Koons] as a decadent artist [who] lacks the imaginative will to do more than trivialize and italicise his
themes and the tradition in which he works... He is another of those who serve the tacky rich. Michael
Kimmelman of The New York Times saw one last, pathetic gasp of the sort of self-promoting hype
and sensationalism that characterized the worst of the 1980s and threw in for good measure artificial,
cheap and unabashedly cynical.
It seems likely a lot of people would have a difficult time considering anything by Koons original.
Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the U.S. Court of Appeals
for the Second Circuit, in holding that Koons appropriation of a copyrighted photograph constituted
fair use, based its conclusion that the new work was transformative precisely on Koons statements
regarding what he intended:
Koons asserts and Blanch does not deny that his purposes in using Blanchs image are
sharply different from Blanchs goals in creating it. Compare Koons Aff. at P4 (I want the
viewer to think about his/her personal experience with these objects, products, and images
and at the same time gain new insight into how these affect our lives.) with Blanch Dep.
at 112-113 (I wanted to show some sort of erotic sense[;] . . . to get . . . more of a
sexuality to the photographs.). The sharply different objectives that Koons had in using,
and Blanch had in creating, Silk Sandals confirms the transformative nature of the use. See
Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendants purpose
in using copyrighted concert poster was plainly different from the [*253] original purpose for
which they were created); see also 17 U.S.C. 107(1) (first fair-use factor is the purpose
and character of the use (emphasis added)).
Koons is, by his own undisputed description, using Blanchs image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entmt, 150
F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted
work is used as raw material, Castle Rock Entmt, 150 F.3d at 142 (internal quotation marks
and citation omitted), in the furtherance of distinct creative or communicative objectives, the
use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert
posters as historical artifacts in a biography was transformative); Leibovitz v. Paramount
Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster
was transformative when the ad [was] not merely different; it differ[ed] in a way that may
reasonably be perceived as commenting on the original). His stated objective is thus not to
repackage Blanchs Silk Sandals, but to employ it in the creation of new information, new
aesthetics, new insights and understandings.
The test for whether Niagaras use of Silk Sandals is transformative, then, is whether
it merely supersedes the objects of the original creation, or instead adds something new,
with a further purpose or different character, altering the first with new expression, meaning, or message. Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted,
alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes
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Koonss adaptation of Silk Sandals: the use of a fashion photograph created for publication
in a glossy American lifestyles magazine with changes of its colors, the background against
which it is portrayed, the medium, the size of the objects pictured, the objects details and,
crucially, their entirely different purpose and meaning as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use
in question was transformative.
Given the focus on an artists expressed intent in making a work of art, it would seem wise for appropriation artists to be versed in the proper lingo. Call your work a reflection and criticism of the themes
evoked by the original. You might even want to call your work a parody of the original, but doing
so might be a little too blatant. It is plain that in the recent decision enjoining the publication of a
sequel to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his
representatives had described the work in words that didnt fit the legal standard they wanted to meet.
The judges opinion seems in fact to indicate that if only the author had used the magic words to describe
his work the outcome might have been different:
Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new
work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the
original jacket of 60 Years states that it is . . . a marvelous sequel t one of our most beloved
classics. . . . Additionally, when initially confronted with the similarities between the two
works, rather than explaining that 60 Years was a parody or critique of Catcher, Colting s
[the new work s author] literary agent, Mr. Sane, contended that 60 Years is a completely
freestanding novel that has nothing to do with the original Catcher in the Rye.
Opinion and Order at 16, n. 3.
Colting, obviously, should have called his work a parody and critique, not a sequel or a freestanding novel. Its odd to think that makes a difference, though. No matter what he said, his work would be
the same.
Tort law serves a lot of purposes tort reformers dont recognize, though Robert Bork
might have changed his mind. (2009-07-22 12:42)
The law tends to be rational, though the rationale behind it is not always apparent. But when you see
people screaming about irrational laws, theyre often failing to see, if not ignoring, what the laws do
accomplish.
Youll hear again and again in connection with proposals to reform our system of health insurance that
the real way to cut medical costs is to reform our tort system so that doctors dont practice excessively
expensive defensive medicine. Dont believe it. Im not saying that our malpractice system is perfect,
but merely cutting back on malpractice cases and recoveries because of their impact on the practice
of medicine ignores two important consequences of the malpractice system that we better be sure are
provided in other ways before we significantly cut it back.
First, the malpractice system maintains the high quality of health care we do have. My dentist, who
is German, told me she hates practicing dental surgery in Germany because the standard of care is so
low. Shes always afraid the anaesthesiologists will kill the patients. In contrast, she explains that the
standard of care is so good here precisely because of the fear of malpractice liability.
Second, judges and juries in some jurisdictions likely do err in favor of patients in finding doctors at
fault. Why? Because our health insurance system is so inadequate and, regardless of the doctors wrongdoing, a patient who suffers a bad outcome from a medical procedure is going to need money to take
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care of the bad outcome. If it isnt going to come from health insurance, why not from the doctors
malpractice carrier?
The second problem would be better taken care of by instituting a no-fault compensation scheme for
people who suffer bad outcomes from medical procedures. But doctors have always, for reasons I do not
fathom, resisted such a system, while at the same time they cry, understandably, about the blame game
played in malpractice cases.
There have to be better ways than the malpractice system to maintain our nations high standard of
medical care. But until weve devised such a system, we ought to be cautious about dismantling the
system that currently maintains that high standard.
The funny thing is that no one likes a personal injury lawyer until they need one. Robert Bork, of
course, is a notorious conservative critic of our legal system who is often portrayed as a victim as a result
of the rejection of his nomination by Ronald Reagan to the Supreme Court. Borks critique of the legal
system has included an attack on the tort system, calling it, as Bloomberg News reported last month,
an irrational and unpredictable process that subjects businesses to the kind of predation practiced by
pirates:
In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson,
who later became a top Justice Department official, criticized what they called the expensive,
capricious and unpredictable civil justice system in the U.S.
Todays merchant enters the marketplace with trepidation anticipating from the civil
justice system the treatment that his ancestors experienced with the Barbary pirates, they
wrote.
But Bork recently sued the Yale Club of New York City, claiming he tripped and fell because of the
clubs negligence as he ascended a dais to give a speech. His amended complaint alleges that [w]hen it
was his turn to deliver a speech at the Yale Club, he approached the dais. Because of the unreasonable
height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the
dais, striking his left leg on the side of the dais and striking his head on a heat register. Among other
defensess asserted by the Yale Club in its answer are that the risks of mounting the dais were open and
obvious and that Bork has already been compensated (no doubt through his health insurance, which I
bet is as good as it comes) for some or all of his economic loss.
Bork isnt the first hypocrite of tort reform, nor will he be the last. But next time you know someone
whos been badly injured, you might want to keep in mind the ways he or she might get compensated for
the costs arising from the injury and the ways the law discourages the conditions that caused the injury.
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Easy Case:
Postage Stamp is Fair Use of Korean War Veterans Memorial
(2009-07-23 07:39)
Over at the Art Law Blog, Donn

Zaretsky points to Gaylord v. U.S. (pdf), in which the court held that a postage stamp (pictured at
right) that reproduces a photograph of many of the 19 stainless steel soldier sculptures that are part of
the Korean War Veterans Memorial (pictured at left below) located n Washington, D.C. did not infringe
the copyright in the sculptures.
The court found that the stamp was transformative enough to merit fair use protection because the
photograph it used transformed [the sculptures] expressionand message, creating a surrealistic environment with snow and subdued lighting. Zaretsky writes that this is [n]ot a particularly tough standardto
meet. The first problem with the post is that regardless of whetherZaretsky believes the standard is
tough enough, it is the standard courts apply in determining the originality of an allegedly infringing
work.
Worse, though, Zaretsky states that the case is another good example of how you can make the traditional four-factor fair use analysis do whatever you want it to do. He cites as authority for this damnation
of the law Judge Kozinski of the 7th Circuit Court of appeals, who has said that the 4-factor test applied
to fair use can always go in either direction.
I think Zaretskys be;ief that the 4-factor test can support any position is ridiculous. Granted, determinations on the edge are difficult and plainly depend on a case by case judgment, but judgments
as to whether (a) the new work is sufficiently transformative to stand on its own without exploiting the
market created by the original work and (2) whether the new work has or threatens an adverse impact
on the market for the original work are not the arbitrary decisions you assert they are. Thats the way
much of law works its a function of better and worse arguments, not bright lines that offer easy predictability. To accept Kozinskis statement as the truth is to dismiss an enormous amount of law as the
utterly rudderless and arbitrary imposition of power. Ive practiced and taught law too long to believe
thats what it is.
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Moreover, the sculpture allegedly infringed by the stamp, called The Column, is not, as Zaretsky
asserts, a good example of the 4-factor tests arbitrary nature. In fact, its an excellent example of a
situation in which the 4-factor test leads pretty easily to the conclusion reached by the court. The courts
conclusion that the stamp significantly reworks the sculpture is pretty convincing. Looking at the stamp
you cant tell youre looking at figures that originate in a sculpture, and other than the figures themselves
the entire image set forth on the stamp is not present in the sculpture. Moreover, its laughable to suggest
the stamp adversely affects the value of the sculpture. And if you want to look at the other factors, those
too are pretty convincingly on the side of fair use: the sculpture is public art and therefore is constantly
viewed for free. Moreover, it was done for the government, which, last I heard, is one of the people, by
the people, and for the people. Finally, the stamp itself is a governmental product in other words, its
a non-profit product.
In making the accusation that the fair use analysis employed by the courts is entirely arbitrary without
having engaged in any analysis of his own to suggest the ways in which the analysis might support the
sculptor Zaretsky may be acting in a disingenuous fashion. But I suspect what he is really bemoaning is
that the fair use test is so case specific it is difficult for artists to know exactly whether, in appropriating
copyrighted works, they are acting in legitimate or infringing ways. It is a very fair common complaint.
I have yet to see, however, any test that would better draw the line. More importantly, the test is one
developed by our courts on a case by case basis for over one hundred years. While it is now embodied as
a statute in the 1976 Copyright Act, the legislative history of that act makes clear that the statutory language is meant to incorporate that court-made common law, not supplant it, and courts are not limited
to considering those 4 factors in making their fair use determinations.
The fair use test some cases are easy, some are hard, and some are somewhere in
between. A follow up to the dialog regarding the postage stamp and the Korean War
Veterans Memorial. (2009-07-24 03:19)
Donn Zaretsky, unsurpisingly, took exception to the post I wrote yesterday, in which I strongly
condemned his assertion that you can make the traditional four-factor fair use analysis do whatever you
want it to do. As Judge Kozinski has said, the analysis can always go in either direction. (emphasis
is Zaretskys) The back-and-forth originated in our disagreement about the decision that a postage
stamp that is a reproduction of a photograph of a sculpture forming part of the Korean War Veterans
Monument on the Mall in Washington, D.C. does not infringe the sculptors copyright in the sculpture.
There is a reproduction of the stamp and a photograph of the sculpture in my original post. I believe
the court was right and that the determination that the stamp is a non-infringing fair use is a pretty
easy one. Given that he is invested in his belief the laws 4-part test to determine fair use is an utterly
arbitrary one that in every case can as easily support one position as another, Zaretsky thinks Im
wrong.
In response to his latest post, I sent him the following e-mail (hyperlinks added):
Donn As I said, judging the competing merits in any case that results in a lawsuit rational parties are
willing to take to trial and even up on appeal is almost always a question of choosing between better
and worse arguments, not a matter of mechanically applying rules that result in obviously predictable
outcomes. But I still havent heard your argument that the postage stamp that uses a impressionistic
photograph of the sculpture in the Korean War Veterans Monument is not entitled to fair use beyond (1)
your mere assertion, borrowed from an IP lawyer, that the stamp is a derivative, not a transformative,
use and (2) a few unfounded legal contentions regarding the definition of a derivative work and the
relevance of the nature of the allegedly infringed work.
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First, any work of appropriation art is by definition derivative; plainly, the mere fact one work
is derived from another does not make it an infringing derivative work not entitled to fair use
protection. As William Patry puts it in his treatise, Patry on Copyright, [t]he derivative right is subject
to a number of special limitations and one general exception, fair use. Id., Section 12:24. In other words,
calling a work a derivative work does not answer the question whether it is fair use. So you cant evade
evaluating the elements of the fair use right merely by denominating a work an allegedly infringing work
a derivative one.
Nor is there any basis for the assertion by the IP lawyer on whose opinion you rely that a transformative work can only be a work whose uses and purposes are different than the uses and purposes
of the original copyrighted work. First, it is impossible to define a works uses and purposes in any
reasoned way without making that definition the a priori determination of your conclusion regarding
whether those uses and purposes are identical to those of another work. You can define the uses and
purposes narrowly (the sculpture is intended as a 3 dimensional work of commemorative art displayed
in a public forum visited by millions of people every year) or broadly (the sculpture is an expressive
aesthetic work)? Are the uses and purposes of the sculpture public art and the stamp a means of
governmental commemoration of the sacrifices of our veterans, the creation of a collectible for philatelists,
and a means of collecting revenue. If so, the uses and purposes of the works are entirely different. Or
are both works expressive works of art? Then they share identical uses and purposes.
Second, even if youre going to play that logically incoherent definition game, there are numerous
cases ruling that works whose uses and purposes were very similar to the uses and purposes of copyrighted works were nonetheless entitled to fair use protection. In Blanch v. Koons, 467 F.3d 244 (2d Cir.
2006) Jeff Koons painting was a two dimensional image, just as was the photograph he appropriated.
The court held that Koons painting was sufficiently transformative to be a non-infringing fair use of the
photograph. In Campbell v. Acuff-Rose Music, 2 Live Crews Pretty Woman and Roy Orbisons Oh,
Pretty Woman were both songs directed at the popular market. The Supreme Court held that 2 Live
Crews song, despite borrowing almost the entirety of the melody of Orbisons song, was a non-infringing
fair use. In the Wind Done Gone case, both that novel and Gone with the Wind were novels sold for
commercial gain. The court held that The Wind Done Gone was a non-infringing fair use despite the
fact it borrowed the characters and a lot of the story line from Gone with the Wind.
I could go on, but Ive made my point: merely stating that the stamp is derived from the sculpture doesnt begin to answer whether the stamp is a non-infringing fair use, nor is there any legal
authority supporting the thought that a transformative work must be a for different uses purposes than
the uses and purposes of the source work.
Which is also to say that the mere fact that someone, even an IP lawyer, believes my position is
wrong doesnt mean her argument is as convincing as mine. Obviously, you and everyone else must
judge for themselves, but please give me reasoned argument, not baseless assertion.
Plainly too it is well established that merely transposing a novel into a film is not transformative. That answers your point about the Harry Potter novels adaptation into a film. The statutory grant
of rights to a copyright holder in derivative works sets forth the types of transpositions that generally
are considered not to be fair use: these include works such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment,
[or] condensation.
I see Harry Potter movies and I have no question theyre the same stories with the same characters as the books. Many of the characters in the Harry Potter book also are likely merely as characters
to be afforded copyright protection as a result of their individuality. In contrast, however, I look at the
stamp and a photo of the sculpture and for all I know theyre derived from a common source or similar
common sources, not one from the other. (You can see a picture of the stamp and a straightforward
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photo of the sculpture in my original post.) Moreover, you could hardly call any of the individual
figures in the sculpture ones that in themselves are individualized in such a way that they could be
considered copyrightable characters; compare those figures to the characters of Harry, Hermione, Ron,
and Dumbledore and consider whether your analogy betwen Harry Potter films/Harry Potter books and
the stamp/sculpture really is a very compelling analogy.
Nor can you consider the tranformative nature of the allegedly infringing work (part of the factor
pertaining to the purpose and character of the challenged work) apart from the other factors in the
4-part test. Among those other factors, the most significant is the effect of the allegedly infringing work
on the market for the copyrighted work. I cant begin to wonder how the stamp could hurt the market
the sculptor can exploit with his copyright in the original work. Talk about different uses and purposes!
If we take the sculptors copyright (as I think we properly should) to extend to straight, photorealist
depictions of the sculpture (whether in photographs or in other media) that are sold for commercial
gain, I cant see how the stamp would hurt that market. And the sculpture as a sculpture, of course, has
no commercial market. Its public art!
Nor is it legitimate if you are engaging in real legal analysis to dismiss as completely irrelevant,
as you did in your response to my original post, the fact the sculpture was created for and sold to the
government for display in a public area visited by millions of people annually. One of the 4 factors in
the 4-factor test is explicitly the nature of the copyrighted work. Thus, for example, all else being
equal, an appropriating work will have a better shot at being fair use if it appropriates a published work
rather than an unpublished work. Why? Because the author of an unpublished work has not yet had
an opportunity to exploit the commercial market for his work. For example, J.D. Salinger was able to
enjoin the publication of a biography of him that contained large portions of unpublished letters he had
written. At the time the biography was scheduled to appear, Salinger had not published
anything for about 30 years. Given this long silence and his immense popularity as a writer, there was a
market of readers thirsting to buy anything hed written that they hadnt already seen. Thus, regardless
of its merits as a biography, the biography was going to be sold to that market, the readers who would
buy the book simply because it contained big chunks of previously unpublished writing by Salinger.
In short, the nature of the sculpture is very relevant to whether the stamp is entitled to fair
use protection. The sculpture is a work of public art on view permanently in a location that is one of
the most popular tourist destinations in our country. And it was sold to our government that is, to the
public rather than to a private art museum. Merely dismissing these facts as irrelevant is to ignore
that your blog is called the art law blog. The law doesnt ignore these factors. [You might note in
connection with this factor that I believe the fact that Mark Cuban sent a message via Twitter to all of
his followers demonstrated that he didnt have a very strong interest in controlling the use of the words.]
Finally, a commercial product is not one that produces revenue. It is a product produced for
private commercial gain. Thus, for example, political advertisements plainly directed at raising money
are entitled to greater fair use protection than commercial advertisements. And the fact the appropriating
work is used by a non-profit entity also
distinguishes it significantly from one used by a commercial entity seeking to raise revenue for the profit
of private persons as private persons. I would also suspect that the fact the non-profit use in the case
of the postage stamp is a purely public use (rather, than, say, a use by a private non-profit entity like a
foundation) renders it even less commercial.
Finally, you bring up several other cases. Im not sure how bringing them up and suggesting
they might be difficult cases supports your proposition that the 4-part test is useless and can be equally
supportive of any position. Each claim of fair use must be evaluated on its own merits. As you can
see in this little back and forth we are having, there are just too many relevant variable to reduce the
judgment to simple rules. But again, the fact that the judgments are complex does not mean that, as
you implied in your original post, they are arbitrary.
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So the fact you might be able to point me to a difficult fair use case doesnt mean the 4-part
test is arbitrary and useless and thats what you said. It means that theres a legal rule under which
there are close cases. And there are others that arent. Welcome to the law.
But Ill give you my quick take on each of those cases anyway, and you can make your own
judgments (and call me on it when I turn out to be utterly off base).
I cant really judge the Catcher in the Rye/60 Years On case because, due to the ruling, I have
not been able to compare the two works. Nonetheless, having read the decision and the expert opinions
in the case, I wouldnt be shocked if the trial courts decision is reversed on appeal. The judge who
enjoined the publication of 60 Years On largely based her decision on (1) a determination that Holden
Caulfield is a copyrighted character, the Holden character in 60 Years On is identical intellectually
and emotionally to the Holden character in Catcher in the Rye, and (2) the fact the author and his
representatives represented the book as a sequel to Catcher in the Rye, only resorting to calling it
a parody when they were sued by Salinger. I think one potential defect in her reasoning was her
conclusion that the identity of the 2 Holdens precluded the possibility that 60 Years On commented
upon and criticized Catcher in the Rye. What she seemed to miss is the possibility (one that was central
to the declaration sworn to in the case by Martha Woodmansee, a very influential and accomplished
scholar of conceptions of authorship and the history of copyright) that it was precisely 60 Years On was,
precisely, commenting on the observation that Holden showed no emotional or intellectual development
in the course of Catcher in the Rye. In other words, depicting the 80 year old Holden as emotionally
and intellectually identical to the 16 year old Holden was a commentary on Holdens failure to change in
the course of the original novel. 60 Years On also seems, through the emotional immaturity of Holden
and other literary devices, also to critique Salinger for having frozen himself in time in 1964 as far as
his reading public is concerned in 1964. Copyright exists to promote creativity. What has Salinger done
since 1964 to promote creativity? If anything, hes only stifled it in himself and in others.
But well see. The Second Circuit will read the two works, review the sworn statements of the
experts, and come to its own conclusion. But, as I said above, I wouldnt be shocked if it reverses the
decision of the trial court judge.
As to the Patrick Cariou/Richard Prince case: I strongly suspect Cariou will win. Ive thought
about this case far less than the others you brought up, but I myself dont find nearly as great a
difference between Princes collages and Carious photographs as I do between the stamp is of the
Korean War Veteran Memorial sculpture. In addition, both Prince and Carious works are graphic,
2-dimensional works made for personal commercial gain by private individuals. Moreover, there appears
to be more individual character in the subjects of Carious photographs than in the sculptures figures.
I would never imagine that Princes collages and Carious photographs were derived from a common
third source. I myself think there should be much greater latitude given to appropriation art than the
law gives, but the way I read the law I feel Ill stand by my (pretty superficial assessment) that Cariou
likely will win.
As to the Shepard Fairey/Manny Garcia dispute, Im on record with my strong conviction that
Fairey will win. You can see what Ive written in the posts youll find here (set forth in reverse
chronological order).
Thanks for reading, and for the dialog, and take care,
peter
ADDENDUM: I seem to have gotten under Zaretskys skin, which really isnt my point. I appreciate the dialog. I dont think I have all the answers. I might be wrong. But I like to see law supporting
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legal arguments, not unsupported opinions. Before Id even finished the e-mail above, he had posted
another piece, this one arguing Im wrong to conclude, emphatically, that theres no way the postage
stamp could have an impact on the market the for the sculptors copyrighted work. He argues, in essence,
that there is an impact on the market for the copyrighted work because if the Postal Service had paid for
a license to use an image of his sculpture on their stamp he would have made money and that granting
fair use protection to derivative works would deprive the copyright holder of the income he is entitled
to from derivative works. In support of this argument he relies on a law professors statement that The
right way to frame the question [whether a work has an impact on a copyrighted works market], I think,
is whether an artist who creatively appropriates a ... photograph needs to pay for a license to do so.
Again, no cases, no statutes just opinions. And the point simply doesnt make sense to me.
Maybe someone can make sense of it to me; maybe Im dense. But, again, this argument seems circular.
An artist needs to pay for a license to appropriate a copyrighted work only if the artists work is
not entitled to fair use protection. The only way to determine whether a work is entitled to fair use
protection is to work your way through the 4-part test. If you concluded, for example, that any artist
making a collage needed to pay for a license to use any copyrighted work appropriated in the collage,
Jeff Koons could not have won in Blanch v. Koons.
While one of the 4 factors in the 4-part test is the impact of the work on the copyrighted works
markets, it wouldnt make sense to assume that the copyrighted works markets must include the market
for all types of works like the challenged one. To do so would be to assume that any appropriating work
that produces a revenue stream is not fair use. That is not the law.
Finally, Zaretsky refers again to the decision in the 60 Years On/Catcher in the Rye case. He
points out that the judge, in ruling that finding that 60 Years On is entitled to fair use protection would
potentially have an impact on the market value inherent in Salingers copyright in Catcher in the Rye,
stated it is quite likely that the publishing of 60 Years and similar widespread works could substantially
harm the market for a Catcher sequel or other derivative works.
Besides the fact that I think there is a real possibility that decision will be reversed on appeal,
there are a couple of reasons I dont find this reasoning terribly persuasive. First, the conclusion that
there is a potential harm to the market for Catcher sequels or other derivative works assumes the
conclusion I suggested above might be the basis of a reversal the appellate court might well find that
60 Years On is no mere sequel but instead constitues a genuinely creative commentary upon and critique
of Catcher in the Rye and Salinger himself.
Second and this is where Ill stray much further away from anything Ive seen in the case law
than in anything Ive written regarding Zaretskys statements yesterday or today this reasoning seems
contrary to the entire purpose of copyright: to promote creativity. Lets suppose copyright law did not
prevent people from writing sequels to books by other people and someone wrote a sequel to Catcher
in the Rye that in no way, shape, or form consituted a commentary upon or critique of Catcher in the
Rye (and lets assume such a thing were possible). Lets say too that Salinger himself wrote a sequel
to Catcher in the Rye. What would happen? One possibility, the most likely one perhaps, is that the
knock-off sequel had no market impact because the market judged it to be a poor substitute for the real
thing. In that case Salinger has suffered no harm. Lets suppose instead that the knock-off was deemed
by the market far better than Salingers sequel. Then Salinger has suffered harm, but why? Because
the audience has determined that the knock-off was better. To prevent its publication, therefore, would
be to stifle creativity, not to promote it. The same would be true if the knock-off and other knock-offs
competed well but did not overwhelm Salingers work. Wed have two or more works the market had
judged substantially equal in creative worth. In other words, the market will reward or punish the
copyright holder according to the extent he maintains his creative edge. Why should copyright law step
in and change that result?
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Michael Jackson was a remix artist! Im shocked, shocked. (2009-07-26 11:01)

[EMBED]
Hat tip to Known in the Marts
A legal pattern - innovation, slow embrace of the innovation, abuse of the innovation,
and gradual control of the abuse (2009-07-27 07:33)
Disputing a terrific blog dedictated to issues regarding arbitration, mediation, and other means of alternative dispute resolution has given me the honor of writing as a guest. Today on Disputing you can
read Part One of
Alternative Dispute Resolution, the Rhetoric of Naming, and the Emerging Trend to Invalidate Mandatory Arbitration Clauses and Class Action Waivers in Consumer Agreements
It describes a typical arc for legal innovations. There is innovation, acceptance by the law of the innovation, abuse of the innovation that uses it for purposes other than those it was created to accomplish,
and, slowly, the laws effort to preserve the benefits of the innovation and curb its abuses.
In this case, the innovation is arbitration. As Wikipedia explains, In the early 20th century, businessmen
in New York began promoting the idea of legally binding arbitration to resolve disputes as a less costly
alternative to litigation. Courts were hostile to the idea . . . . Only in the 1950s and 1960s did courts
generally accept arbitration and come to universally enforce agreements to arbitrate disputes. During my
legal career (I began law school in 1981 and practice in 1984), the enforceability of arbitration agreements
became an unquestioned fact.
But, inevitably, businesses began to recognize that requiring their customers to agree to arbitrate disputes rather than engage in litigation in the courts offered other benefits, benefits that had nothing to
do with arbitrations offer of faster and less expensive dispute resolution. And only now (literally, in the
last month) are courts both recognizing what is going on and dealing with it effectively.
You can go to Disputing to read part 1 of the story. Part 2 will appear on Disputing tomorrow.
2.8
August
1L Contracts, the blog: a new educational tool (2009-08-17 10:23)
My law school starts class next week. For my Contracts

course, Ive decided to maintain a blog, 1L Contracts, to givethe class an opportunity to explore the
course subject matter in greater depth than 3 hours a week of class permits and the the ways the issues
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arise every day in everyones lives. The initial posts are concerned with, among other things, emphasizing
the enormity of the project the students are embarking upon and the proper ways to read case law.
I first used a blog for a class during the 2008-09 academic year. It was a more effective way of getting my students engaged in class subject matter than few things Id ever done. That blog, What is Fair
Use?, also garnered some attention in the academic world. People get excited when technology is used
in new ways in the classroom. But in the case of that blog, the excitement wasnt merely a matter of
fascination with technology. The blog really made a difference to the level of the students engagement
with the subject matter. It also happened to be the first forum in which I wrote about copyright and
fair use in depth.
And Im deeply gratified by the kind words about the new blog written by Stephanie West Allen
a lawyer, author, law professor, and expert on the neuroscience of learning on her terrific law blog,
idealawg.
If youre interested in contract law and in the difficulties of the first year of law school, please read
along there too.
You can reproduce entire copyrighted images! (2009-08-18 07:58)
In 2006, the U.S. Court of Appeals for the 2d Circuit ruled that the
reproduction of Grateful Dead posters owned by the Bill Graham Archives (owners of the poster reproduced to the right) in a book about the Grateful Dead constituted non-infringing fair use of the images.
The reproductions, obviously, were substantially smaller than the posters themselves and therefore in no
way could be used as substitutes for the posters. Moreover, they were being to illustrate the history of
the Dead, plainly a use that we would want to encourage in biographical work.
Last week, in a similar ruling, Warren Publishing Co. v. Spurlock, a federal court similarly ruled
that a recently published book, Famous Monster Movie Art of Basil Gogos, a history of the work of
a man whose paintings of movie monsters appeared on numerous magazine covers, did not violate the
copyrights owned by the publishers of those magazines.
Reproductions in books of posters and magazine images are fair use. So, by the way, are reproductions on postage stamps of photographs of copyrighted public scuptures.
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Hat tip to techdirt.
Doing justice is not calling balls and strikes, and to say it is is un-American.
(2009-08-19 13:17)
Law is not a matter of calling balls and strikes. Rules in baseball define the strike zone, and there is no
reason to suppose those rules should change from game to game or batter to batter.
As I need to begin explaining on Monday to my new law students, to suppose that all one needs to
do is know the rules and apply them to the infinite complexities of life to come up with decisions, they
are sorely mistaken. Edward H. Levi, in a 1948 law review article later expanded into a seminal book, An
Introduction to Legal Reasoning, introduces the complexities of legal analysis as well as anyone I have
ever read. As he explains, rules announced in earlier cases are applied as is or changed depending on the
degree to which the later case is similar or different than the earlier case in which the rule was originally
announced:
Thus it cannot be said that the legal process is the application of known rules to diverse
facts. Yet it is a system of rules; the rules are discovered in the process of determining similarity or difference. But if attention is directed toward the finding of similarity or difference,
other peculiarities appear. The problem for the law is: When will it be just to treat different
cases as though they were the same? A working legal system must therefore be willing to pick
out key similarities and to reason from them to the justice of applying a common classification.
. . .
Edward H. Levi, An Introduction to Legal Reasoning, 15 U. Chi. L. Rev. 501, 501-03 (Spring 1948)(emphasis added; citations omitted).
So if it turns out that a court is ruling in a case in which a criminal defendant who has been convicted of murder but in the twenty years since the crime [seven] key witnesses have . . . recanted, and
several people have charged that the main prosecution witness was the shooter, it would seem worthwhile
before executing the defendant to hold a hearing to determine whether in fact he is innocent. Certainly
there must be some amount of evidence that could turn up years after a murder conviction that would
convince just about anyone of the convicted mans innocence.
Would it make sense in a country that requires due process of the law to refuse consideration of the new
evidence, no matter how strong? Of course not. It is a justice system. It is fair to say, I think, that it is
fundamental to American values that we do not execute people for crimes we know they are innocent of.
But what if a court had never permitted a hearing to prove a convicted mans innocence before? Should
that stop the court from permit the new hearing in the new case? Levys account of how the law works
makes plain that is not the case. The new case is different than the old one in that the post-conviction
evidence of innocence is so strong that it simply isnt similar enough to all the cases in which new hearings
were denied to conclude the court could never order a new hearing.
That, however, is exactly what Justice Scalia, joined by Justice Thomas, wrote yesterday:
This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is
actually innocent. (emphasis in original)
My point is that it is irrelevant as a matter of legal analysis that the court has never held that the Constitution forbids the execution of a convicted murderer who can convince a court (via the constitutional
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right to a writ of habeus corpus) that he is innocent. Scalia, Thomas, and commentators like Andrew
Sullivan are simply wrong on this one. The implication of their logic is that if we knew we were executing
an innocent man for a murder he had been convicted of the overriding concern with procedural rules, not
justice, would prevent our justice system from doing anything.
Thats bullshit. I apologize for my language, and I hope I would never use it in the classroom, but
this particular reasoning by Scalia and of those who would justify it is no part of a justice system, and
it is no part of the way U.S. courts have always operated.
Do we really want anyone to have free online access to court files? (2009-08-21 11:51)
Court documents are public. You can go down to any courthouse and examine the files from any case
you want. But there has been no smooth transition to making those documents publicly available on the
internet. That may be changing, though Im not entirely sure I agree with the majority of commentators
on the subject that making those documents freely available to anyone with an internet connection is a
good thing.
As explained by the Wall Street Journal, Digital records of court filings, briefs and transcripts sit
behind paywalls like Lexis and Westlaw. Lawyers, non-profits, and researchers can use PACER to access
all documents filed in the federal courts, but PACER has 2 significant defects: (1) it costs 8 cents per
page to download any document (an amount that can add up rapidly to access a sufficient amount of
material to make sense of any given document), and (2) you cannot search the system by keyword.
As the WSJ puts it: Thats right: In 2009, judicial records in the U.S. are essentially unsearchable.
But last week, a team from Princetons Center for Information Technology Policy unveiled a Firefox
add-on that promises over time to make all those documents filed in federal courts freely available and
word searchable:
They whipped up a sleek little add-on to the popular Firefox Internet browser called
RECAP (PACER spelled backward). Legit users of the federal court system download it.
Then each time they drop eight pennies, it deposits a copy of the page in the free Internet
archive. This data joins other poached information, all of which is formatted, relabeled and
made searchable the kind of customer service government tends to skimp on. Users can
even see what has already been liberated while within the government system, a stylish and
subversive touch. This week, as RECAP picked up speed, various court offices got skittish and
began sending out emails acknowledging the projects legality, but strongly discouraging its
use anyway.
Im as great an advocate of government (and corporate) transparency as almost anyone, but I cant help
but be troubled by the possibility that someday all the files in every court in the land will be word
searchable and accessible to anyone with an internet connection. Its one thing to go to a courthouse
(or even through many free online sites) to access the papers filed by the parties to a particular lawsuit.
Courts are public institutions, and the fact their documents have always been and continue to be accessible to anyone (willing to visit the courthouse where those papers are filed) has been fundamental to the
greatness of our judicial system.
But papers filed in court do not necessarily state facts. Think of what friends of yours have been
falsely and outrageously accused of in bitter business and divorce cases. Think of all the ridiculously
frivolous lawsuits tort reformers are always screaming about. Think about how often the report of a
filing of a lawsuit, which sets forth allegations that are merely allegations, not assertions of proven fact,
are reported and read as fact. Do you really want anyone with an internet connection to be able to
search the files of all the courts in the land for your name, pull up the documents from that case, and
329
set forth on their website what some witness has stated without regard to the larger context of the court
case that might reveal the witnesses lack of credibility, hostility, limited knowledge, subjectivity, or sheer
misapprehension?
Just one example of the sort of problems free access to court records could create was described by
Charlotte Watson, Executivec Director for the New York State Office for the Prevention of Domestic
Violence in a public hearing held by the New York State Commission on Public Access to Court Records.
Ms. Watson testified as follows (at pages 82 and following of the transcript of the entire hearing (pdf):
Ms. Watson: What we innocently put on the Web a few years ago is now being used
in ways we never considered, including invasive crimes such as identity theft. Weve heard
horror stories of how stalking victims were tracked and harmed through information posted
and available to all for good or bad intent. Weve all seen those annoying pop-up adds on our
computers, advertising the ability to find literally, anyone. As a domestic violence advocate
with more than 27 years in the field, and one concerned about privacy in general, those ads,
and the open, easy access to so much personal information in what we term the information
age are truly frightening.
Nowhere is this more of a concern than when considering the safety and security of
victims of domestic violence, sexual assault and stalking. We know that domestic violence is
pervasive, on-going, life-changing reality for millions of women and children in this country,
and stalking is an integral part of the dynamic of domestic violence.
Domestic violence victims know all too well their abusers will use any means to control and terrify them and keep them from escaping. It is not unusual for a batterer to monitor
the odometer on a victims car, record the victims phone calls, or use hidden cameras.
Imagine what it would be like to have a Global Positioning Satellite unit attached to your
car and monitored constantly by someone in authority over you. This is the daily reality of
many victims of domestic violence with the state of technology today.
What will tomorrow hold? Its extremely difficulty and often dangerous for battered
women to escape their abusers. Many find it necessary to flee the area entirely in hope of
finding safety. Those who are able to get away live with the extreme fear of being
found by their abuser. A losing battle for approximately 1,100 U.S. women each year who
were murdered by their intimate partners after fleeing, as well as, countless others who are
re-assaulted.
There have been many attempts to help victims find safety. . . . Unfortunately, at
the same time we are recognizing the needs of domestic violence victims, the trend toward
open government and access to information has become an easy, affordable and valuable
weapon for abusers.
As advocates for victims of crime, however, we do recognize the need to find ways to
increase the accountability of systems, including the courts, in their responses and decisions.
Its vital that these interests are balanced against victim safety and the privacy of users of
our court process. In the effort to increase accountabilities, the court must be mindful of
even the appearance of culpability, should granting easy access to information result in harm
to a victim.
It should never be the case that potential consumers of the courts must weigh the
need for safety through court intervention against the need for privacy and anonymity
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which may also impact safety. In light of these concerns, I will outline a number of
recommendations regarding open access to court information. . . . The negative implications
include, as has been mentioned:
A chilling effect on victims who are considering using the court for legal relief. While
we applaud the fact that family court and matrimonial records will not be subject to open
access, I must emphasize that under current law, criminal court is the only court in which
many victims may seek relief. Consider, for example, a victim whos being abused or stalked
by a boyfriend. To obtain an order of protection, that victim will have to disclose significant
personal information and potentially embarrassing details about the abuse in criminal court.
Under the Conference of Chief Justices and the Conference of State Court Administrators
Guidelines, this information would readily be accessible by the public and the offender. Its
not a leap to say the victims will be reluctant to pursue an order of protection under these
circumstances. Is it fair to ask a victim to sacrifice her privacy for the safety shes entitled
to under the law?
Imagine the heyday the pornography and smut industry will have with such easy access to crime scene photos of horribly violent rapes and homicides. Imagine the websurfer
who accidentally opens a porn site or the errant adolescent going to sneak a peak only to
discover the crime scene photo of his naked mother lying in a pool of blood. At what point
would the balace tip from accountability at this point to culpability? At what price? Who
and how would these decisions be made as to where to draw the line?
There are safety risks for crime victims and witnesses. As I noted earlier, abusers often track and monitor their victims as a means of maintaining control. These behaviors
typically increase when a victim leaves the abuser. Whenever a victim becomes involved with
the court system, whether voluntarily, as a result of mandatory arrest or pro-prosecution
policies or for some other reason, precious information about her location, status, current
name, phone numbers and other circumstances is disclosed. Such disclosure is a major
concern for my agency and victim advocates across the state. We know that abusers will
access this information and use it every way possible to stalk, threaten, assault or kill the
victim and maybe her children.
This can be a problem even when the victim is using the court system for something
unrelated to domestic violence. For example, if these involved in a motor vehicle accident
resulting in legal action and the information, includinging simply the location of the Court is
posted on the Internet, her address would be posted making it all too easy for her abuser to
find her. Perhaps she relocates to escape the abuser and later becomes the beneficiary of a
probated estate. As a result, identifying information could be posted creating similar safety
risks. Ironically, if the victim is seeking a legal name change, even this information could be
posted on the Web, making her efforts at anonymity fruitless.
Its important to note she may not be a victim at the time of her interaction with
the court on the myriad of non-domestic violence related actions that could bring her
to court. After one date with a stalker, she would be vulnerable to his gaining valuable
information about her that could lead to her demise. Theres an increased opportunity for
identity theft. Destroying the victims credit and reputation is a tactic already used by
batterers. Open public court records will only increase the opportunity for accessing and
misusing personal information.
Were concerned about the secondary uses of the information. Information stored by
the courts will most certainly be used for purposes that move far from the original public
policy intent of governmental accountability. It will be gleaned and sifted and compiled
331
along with other information to create entirely new databases that can be misused and
misinterpreted. Once the information is gathered for another database, it can never be
taken back or corrected. In domestic violence cases, false or misleading information could be
deliberately planted by the batterer in spurious legal filings that include slanderous material
against the victim which are then posted on the Web for all to see and use.
Internet access could undermine the victim in custody proceedings. Seeking custody
is one of the most powerful tactics used by abusers to access control their victims. Abusers
will use every means available to discredit the victim and prolong a custody battle. The
proposed guidelines actually aid abusers in this process. Open public access to court
information provides abusers with cheap and easy access to all records of any criminal
proceeding, regardless of whether such information was relied upon we the court. This
poses serious ramifications for victims who ultimately leave their abusers and seek custody.
Economic survival or the abusers threats or false promises often compel victims to minimize
or deny the events or later recant earlier statements of abuse that form the basis of a
criminal prosecution. The fact that such records from a criminal proceeding and many
civil proceedings will be within easy grasp of an abuser in a subsequent custody proceeding
essentially re-victimizes the victim, rewards the abusers use of coercive tactics and facilitates
the abusers use of custody as a weapon of control.
MR. ABRAMS: It seems to me that a good part of what youre saying would apply
to public access, regardless of whether theres an Internet or not. When you say that open
public access on page five to court information provides abusers with cheap and easy
access to all records of any criminal proceeding, regardless of whether such information
was relied upon by the court. The fact is that now, without an Internet before we had
an Internet, there was open public access to court information, regardless of whether the
information was relied upon by the court. Does your office favor limiting access to the
information itself, regardless of whether its going on
the Internet?
MS. WATSON: Our concern is the same one expressed many times today; thats the
cheap, easy affordable part of it. You can actually be sitting in your bedroom, walk over
to your computer and find the information. Its very different from having to go down to
the courthouse and go through the records and find the information, being able to sit in
California, sit on your computer, pull up your victim, your targets information on a court
record in New York.
A tribute to Justice Souter, and his recent speech on civics education (2009-08-25 08:35)
Justice Souter was woefully underestimated. He was reviled by the right because he turned out to be
a moderate someone who, especially given the rightward drift of the Court in the since Reagan was
elected, seemed to the right an outright leftist. That he had been appointed by George H.W. Bush, a
Republican, made Souter seem to the Right not merely a leftist, but also a traitor. Nor did the Left
particularly appreciate him except, perhaps, as a man they recognized as independent in his thought.
But perhaps Souters biggest failure as a public figure was that his style did not fit his time. Souter
did what I learned judges are to do: strive hard to do justice in each individual case. His opinions reflected his strenuous effort to make sure the law was interpreted to ensure that the parties to the lawsuits
he was judging were treated justly.
Unfortunately, however, he served during a time when overreaching ideologies became the fashionable
way to judge problems, especially legal problems. Law and Economics, a legal movement that interprets
332
law entirely through the lens of a purported judgment as to its ability to efficiently allocate economic
resources, has grown during my professional career from one approach among many to, arguably, the
most dominant mode of legal thought in those circles that are concerned with delineating theoretical
approaches to law. Since Ronald Reagan was elected, weve raised an entire generation that accepts
without any consideration of the realities that anything government does it does incompetently and that
labor unions are corrupt institutions that entrench incompetence. Youd never know that the era of the
greatest American affluence (an affluence shared far, far widely than the wealth the U.S. has today) followed thirty years of big government and the rise of labor unions to the apex of their power. Youd never
know that my father, the son of immigrants who grew up in poverty (which he didnt even dream of as
poverty) in the Depression, served in WWII, and was a POW in Germany, attributes his success (which,
of course, is entirely resonsible for mine) to the fact the goverment paid entirely for his higher education
by way of the G.I. Bill (imagine: investing in your countrys future!). He attributes his remarkable good
health at 85 to health care he receives from the Veterans Administration, which he says is as good as
better as the health care anyone he knows receives.
So when Justice Souter told the attendees at the American Bar Associations annual meeting earlier
this month that we need better civics education in our schools, he spoke the truth. We also need far, far
better history instruction.
[EMBED] /p>
2.9
September
Aural Collage and the Law (2009-09-09 18:01)

Click on the picture below to see my PowerPoint presentation from last weeks COSE Arts Forum on
Intellectual Property and the Arts.
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Do we need to protect Exxons right to free speech? (2009-09-10 11:42)

Theres an interesting and largely ignored set of precedents at play in the campaign finance case the
Supreme Court heard arguments in yesterday. The focus is on whether Chief Justice Roberts after
having emphasized during his confirmation hearings the importance of precedent and the extraordinary
circumstances that would require it to be overturned will vote to overturn over 100 years of limits
on corporate donations to political campaigns on the grounds that limiting corporate contributions to
political campaigns is an unconsitutional limitation on free speech. Heres my bet (which I strongly recommend you dont take): Roberts will overturn the precedent and vote to overturn the campaign finance
restrictions.
But theres an even older set of precedents that ought to be subject to review: the precedents that
conclude that corporations are persons just like you and me; accordingly, corporations are entitled to
free speech rights, protection against unreasonable searches and seizures, and all the other rights guaranteeed to individuals under the Constitution.
Theres nothing self-evident about concluding that a corporation is entitled to these protections. One
reason is what the right wing of the Court identified years ago in concluding that limitations could be
made on a unions power to contribute money to political causes: an individual union members views
might difffer from the unions. Just so, an individual stockholder or directors views might differ from
that of the corporations.
More importantly, though, the idea of a corporation is a convenient legal fiction really a metaphor
that courts employ because it is, well convenient for purposes of certain legal analysis. But when we
confuse the metaphor for the reality we can get into trouble. As Buzzflash pointed out recently, Thom
Hartmann in his book Unequal Protection explains:
Prior to 1886, corporations were referred to in U.S. law as artificial persons. but in 1886,
after a series of cases brought by lawyers representing the expanding railroad interests, the
Supreme Court ruled that corporations were persons and entitled to the same rights granted
to people under the Bill of Rights. Since this ruling, America has lost the legal structures
that allowed for people to control corporate behavior.
So think twice before you conclude that the campaign finance case is all about overcoming restrictions
on free speech, which is the position argued on the left by the ACLU and on the right by the Wall Street
Journal:
Hillary Clinton may end up the accidental heroine in the battle to reassert First Amendment rights over restrictions on political speech. Yesterday, the Supreme Court heard a
historic reargument in the case of Citizens United v. Federal Election Commission, and the
Justices have a chance to revisit two of their greatest offenses against the Constitution.
The case involves a political documentary made during last years Presidential primaries
about then-Senator Clinton called Hillary: The Movie. It wasnt what youd call a glowing
portrayal. Funded by a group called Citizens United, the film was intended to be shown on
cable TV during the primary season, a profile that got it caught in the net of campaign finance
reform laws that control political advertising.
At stake are two major precedents in the campaign-finance canon, Austin v. Michigan Chamber of Commerce (1990) and a portion of McConnell v. FEC (2003). In Austin, the Court
ruled the government may ban corporations from engaging in whats known as express advocacy directly from corporate treasury funds, requiring the funds to be channeled through a
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separate political action committee. In McConnell, the Court built on that decision to uphold
most of the Bipartisan Campaign Reform Act, a.k.a.
the 2002 McCain-Feingold law, including a section that banned electioneering communications.
. . . The First Amendment was designed specifically to protect speech in just the kind
of scenario Hillary: The Movie presents the right to engage in the political process and to
challenge and comment on candidates. Citizens United is the ideal opportunity to overturn a
major swath of bad law.
No, the First Amendment was not designed to specifically protect speech by business organizations it
was intended to protect speech by individuals. Its an amazing argument from those who would normally
argue that we need to stick to the Original Intent of the Framers, but it shows too that Original Intent
is merely a means to a political end, not a reasoned position.
RiP! A Remix Manifesto (2009-09-11 12:30)

Filmmaker Brett Gaylors RiP! A Remix Manifesto, now available on Hulu.
[EMBED]
In an interview conducted by Rebecca Harper, Gaylor, among many other things, discussed the inspiration he drew from Brazilian culture, which apparently suffers no anxiety from the recognition that
creativity is inherently built on earlier creation:
[A]s I made the film, I had to amass a lot of knowledge about copyright law. Maybe not
what surprised me, but certainly what inspired me was the history of appropriation in Brazil,
and how going back to the very beginning of Brazilian culture, there was this history of fair
use and appropriation. And you know, we have that in North American culture, as well,
with things like the Blues and obviously hip-hop. But what really struck me about Brazilian
culture was how recognized it was, and how there was this culture that seemed to be built on
taking influences of Europe, of North America, of their native cultures, and sort of putting
them in this big pot and making a stew. That was really inspiring, and I read the works of
a Brazilian poet and modernist called Oswald de Andrade. He wrote this thing called The
Cannibalist Manifesto, which was basically saying that Brazilian culture needed to eat and
ingest the cultures of the world to regurgitate and create something new. I just thought that
was a really great metaphor for the digital age and postmodernism. That s why I decided to
go to Brazil and spend a good amount of time there.
A corporation is not a person (unless it buys the right to be treated that way).
(2009-09-11 13:21)
Theres an interesting addendum to add to my post yesterday about the fact the Supreme Court in the
campaign finance case it heard arguments on two days ago seems to be assuming without question that
corporations are just like individuals when it comes to constitutional rights. In other words, the Court
is assuming, if a limitation on campaign contributions is a limitation on First Amendment free speech
rights, then a limitation on campaign contributions by corporations is unconstitutional.
335
The case on which everyone founds the concept that a corporation is a person entitled to constitutional
protections afforded to individuals did not even decide that question. Rather, in Santa Clara County
v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), [a]ccording to the official case record, Supreme
Court Justice Morrison Remick Waite simply pronounced before the beginning of arguement in the case
of Santa Clara County . . . that:
The court does not wish to hear argument on the question whether the provision in the
Fourteenth Amendment to the Constitution, which forbids a State to deny to any person
within its jurisdiction the equal protection of the laws, applies to these corporations. We are
all of opinion that it does.
The court reporter duly entered into the summary record of the Courts findings that
The defendant Corporations are persons within the intent of the clause in section 1 of the
Fourteen Amendment to the Constitution of the United States, which forbids a State to deny
to any person within its jurisdiction the equal protection of the laws.
Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons
under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of
history.
Moreover, the decision did not even rest on the constitutional assumption but, rather, on statutory
grounds. Thus, Santa Clara County does not in any way stand for the proposition it is always relied on
for that corporations are persons for purposes of the individual rights protected by the Constitution.
It should be no great surprise that in 1886 the Court simply asserted without any consideration that
a railroad was a legal person for constitutional purposes. It was a time when railroad companies owned
the country. Who owns it now?
Chris Whitley: Living with the law (2009-09-11 18:37)

[EMBED]
Chris Whitley - Living With The Law (Official Music Video) - Click here for more free videos
Legal rules, convenient fictions, and figuring out when youve agreed to something
you havent read. (2009-09-14 10:26)
I wrote on Friday about one legal fiction that a corporation is a person entitled to First Amendment
free speech rights and today I can write about another: that contractual relationships are founded on
agreement.
I can get one level of the point out of the way quickly. As first year law students learn right at the
beginning of their first year contracts course, it is the objective manifestation of agreement that matters,
not the subjective intent. You cannot agree to buy a white horse and then argue that delivery of a
white horse is a breach of your agreement because you subjectively intended white to mean black. To
suppose otherwise would create a practical nightmare every contractual dispute potentially would have
to be resolved by determining which party to the contract was a liar.
But how do you determine the objective meaning of someones expressed intent? As a general rule,
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if you sign an agreement that says youve agreed to X, a court will rule you agreed to X. In the online
world, if you click on a button that says I agree, a court will rule that you agreed even if, as is likely,
you didnt read the agreement.
But there are more complicated possibilities.
In Specht v.
Netscape Communications Corp.
(pdf)(S.D.N.Y. 2001), Judge Alvin K. Hellerstein (someone I once, many years ago, worked for) ruled
that an agreement to arbitrate contained in an online agreement Netscape purported to bind anyone who
downloaded a certain program from the internet was not enforceable. Why? Because under California
law (which the court had determined was applicable to the dispute), someone, regardless of apparent
manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious. . . . Slip op. at 16 (citation
omitted).
In Specht, Judge Hellerstein found that the provision in dispute was too inconspicuous to be enforced
because the person downloading the program could have done so without even knowing he was agreeing
to contractual terms that would limit him in certain ways. Why? Because the language indicating that
there even was such an agreement could have been entirely missed it appeared via a link that could not
even be seen unless the user scrolled down on the appropriate page. In other words, the user could click
through to the download page without even seeing language indicating that his download represented an
agreement to terms he could find by clicking on a link. Id. at 17.
Judge Hellerstein clearly preferred online agreements that require the affirmative act by the user of
clicking on a button that says I agree and made plain that Netscapes failure to do that in itself (even if
the link to the applicable terms had been visible without scrolling down a page) was enough to undermine
its argument that an agreement had been formed:
Netscape argues that the mere act of downloading indicates assent. However, downloading is hardly an unambiguous indication of assent. The primary purpose of downloading is
to obtain a product, not to assent to an agreement. In contrast, clicking on an icon stating
I assent has no meaning or purpose other than to indicate such assent. Netscape s failure to require users of SmartDownload to indicate assent to its license as a precondition to
downloading and using its software is fatal to its argument that a contract has been formed.
Id.
Recently, however, as Techdirt pointed out, the court in PDC Laboratories Inc. v. Hach Co., No. 09-1110
(pdf) (C.D. Ill., Aug. 25, 2009), disagreed with Judge Hellerstein and ruled that under Illinois law a contract provision available for viewing behind a hyperlink was an enforceable term in the parties contract
for the sale of goods.
So, online sellers: if you want to be sure your agreements are enforceable, do what most online sites
do require your customers to click on a button that expresses their agreement before the transaction is
complete.
Online buyers: be careful. Dont believe that youre getting what you think youre getting. Youre
only getting what the fine print says youre getting. But if you do get screwed, remember too that even
when you sign something it might be so unfair it is unenforceable.
If, like my law students, youre shaking your head, thinking this guy is not cutting to the bottom line
what does the law say? understand this: the law is not like the Ten Commandments, setting forth brief
rules that are always applicable. Rather, much of the time it gives you guidance on how to minimize your
risks. Assume that youve minimized your risks as an online seller if you require someone to click on an
I agree button, and assume youve minimized your risks as a buyer if youve read and understood the
fine print.
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Then again, even the Ten Commandments are not as clear cut as most people think. Thou shalt not kill?
Unless youre a Jain, you dont really believe in the literal truth of that rule.
I dont think Glenn Beck raped and murdered a young girl, but why wont he deny
it? (2009-09-15 11:15)
Arts
Technica
reports
that
2
days
after
the site glennbeckrapedandmurderedayounggirlin1990.com Becks media company had contacted the
domain registrar demanding that the highly defamatory domain name glennbeckrapedandmurderedayounggirlin1990.com be deleted, that the WhoisGuard privacy protection service be revoked, and that
the owners contact information be turned over to the lawyers.
This is a classic case of an effort to chill speech you dont like. Parody and political speech are protected
by the First Amendment, but who wants to take on the costs of litigating against a media giant? One of
my students asked the other day if there were any way for an individual to get funding to litigate against
a large corporation. I explained that there really isnt. If youre really, really poor, you might get legal
aid, but not likely even if youre really, really poor to defend against a lawsuit like Becks. We have a
brilliant legal system, but its been entirely distorted by inequalities of wealth and the expense that has
become accepted as part of litigation. Someone with little legal merit to their claims or defenses can
prevail merely by wearing down and exhausting the resources of their adversary.
I myself wouldnt begin to conclude from seeing the domain name that there was any real evidence
Glenn Beck had raped and murdered a young girl, but one expert in the article thought Becks lawsuit
had enough merit that it cant merely be brushed off:
I dont think Ha ha its a joke at the end gets you off, he says; if the parodic information
is defamatory, its risky for the defendant in such cases. Thats complicated by the fact that
the original domain name made the allegedly defamatory claim against Beck and of course
no one stumbling across the site in a search engine or elsewhere would see any disclaimer. In
such cases, the domain name itself is a standalone piece of content; the disclaimer may help
regarding the website content, but it wont necessarily transfer a cone of protection to the
domain name as well.
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This is what we get when we take seriously allegations like the one that Obama wants to euthanize my
mom (would she be so lucky! sorry, thats an entirely different and very personal topic).
ADDENDUM: Beck does want to beat Rep. Charles Rangel to death with a shovel, and he wants
to kill other people, right?
[EMBED]
ADDENDUM 2: This guy Beck may or may not be a rapist and murderer (but why wont he just prove
his innocence?), but he is definitely a first-rate parodist, pointing out the Communist propaganda hidden
in New York City. Who knew John D. Rockefeller was really a communist, and that Isaiahs timeless call
to beat swords into plowshares is really an ancient progressive plot? Hes hilarious. Everyone does just
laugh at this stuff, right?
[EMBED]
Copyright and Good Judgment: Damien Hirst, Idiot. (2009-09-16 08:43)
In England, a 17 year old artist named Cartrain created a collage that included an image of Damien Hirsts
diamond encrusted skull, a work entitled For the Love of God. As the Independent reports: The
collages were put up for sale on a website, 100artists.com. Hirst reported him to the Design and
Artists Copyright Society and a string of legal letters were sent to Cartrains art dealer, Tom Cuthbert, at 100artworks.com, about the teenagers pieces, also called For the Love of God. The online
gallerysurrendered them to Hirst with a verbal apology. So, in July, Cartrain walked into a museum showing some of Hirsts works and walked off with a box of pencils from one of the installations. As Cartrain explained, That same day I made up a fake police appeal poster advertising that the pencils had been removed from the Tate and that if anyone had any information they
should contact the police on the phone number advertised. A few weeks later I went out and I
returned home to find out the art and antiques squad from New Scotland Yard had called round
339
with a
warrant for my arrest. According to the Independent, Cartrain was told by custody officers that the
pencils were valued at 500,000 and that he had damaged the concept of a public artwork titled Pharmacy ... valued at 10,000,000. Cartrain is on bail and, if convicted, his actions will feature among
the highest value modern art thefts in Britain. Does Damien Hirst have the right to foreclose the use of
images in which he owns the copyright from collages? Plainly, I don t think so. But its also one of those
situations in which Id tell a client to just back off. Reportedly, Hirst sold the skull for $100 million.
The image is ubiquitous. I know Ive sent it to friends as part of an app on Facebook. Do you, Id ask,
really need to be so heavy-handed in connection with a kid trying to get his start as an artist? (hat tip
to Techdirt)
Few people read them, but some online agreements are enforceable, and some arent;
its a mess. (2009-09-17 13:05)
Just 3 days ago I wrote about two conflicting decisions concerning the enforceability of online contract
provisions that do not require consumers to affirmatively click an I agree button. Well, today techdirt
points me to a new court decision invalidating such a provision: according to MediaPost, the court ruled
that Internet retailer Overstock cant enforce the manadatory arbitration agreement set out in its online
terms and conditions because there is no evidence that consumers read the policy. According to the
decision, the plaintiff lacked notice of the terms and conditions because the website did not prompt her
to review the terms and conditions and because the link to the terms and conditions was not prominently
displayed.
As I wrote the other day, under all the court decisions I am aware of online sellers can ensure that
their contracts are not invalidated on these grounds merely by requiring the affirmative act of clicking
on an I agree button. As I read all of these decisions, online agreements that require the consumer to
click I agree are enforceable despite the fact that consumers generally do not read the agreements.
To rule otherwise would overturn ages of decisions imposing on the consumer a duty to read that
binds them to agreements they express agreement to even if they dont understand what they are agreeing to. It would also leave open to dispute any online transaction that the consumer decided he or she
didnt like, a result that would mire our economy and courts in a mess to deep to contemplate.
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There is a solution, however, and its one that hit a high gear 50 years ago only to peter out in the
wake of our more recent passion for unregulated free markets consumer protection laws that dictate
what terms can and cannot be imposed on consumers. As the situation now stands, we are left with
a patchwork effort to find traditional contract rules to come up with fair results (such as invalidating
mandatory arbitration clauses that deprive consumers of any meaningful remedies for wrongdoing by
online sellers).
In the meantime, I can only repeat what I wrote the other day:
Online sellers: if you want to be maximize the likelihood your agreements are enforceable,
do what most online sites do
require your customers to click on a button that expresses
their agreement before the transaction is complete.
Online buyers: be careful. Don t believe that you re getting what you think you re getting. You re only getting what the fine print says you re getting. But if you do get screwed,
remember too that even when you sign something it might be so unfair it is unenforceable.
Thank god I can ridicule Glenn Beck and Chiropractors. (2009-09-17 17:00)
I think its sad anyone can take seriously a Glenn Beck legal claim based on the allegedly defamatory
nature of a domain named glennbeckraped andmurdered- ayounggilrl.com, but Im grateful at least for
a First Amendment that, I believe, makes it very unlikely any such claim by Beck would prevail and that
allows me to title a blog post I don t think Glenn Beck raped and murdered a young girl, but why won t
he deny it?
I could, after all, live in England, where, as Olivia Judson writes,
Several times this summer, science journalists in London have leaned over to me and said
something along the lines of, I was thinking of writing, and gone on to describe an article
that was going to be critical of someone. But then, the speaker would gloomily conclude,
I thought to myself, Simon Singh, and I decided not to.
In England, as the Guardian explains, not only will the legal costs of defending a libel action will be
considerable, often running into hundreds of thousands of pounds, but, unlike in the States, the loser
almost always has to pay the costs of the winner, plus any damages awarded to the claimant. As Judson
points out, in England not only do [l]ibel cases cost little to bring
you can make a no-win-no-fee
arrangement with your lawyer but, most importantly, the defendant has the burden of proving the
allegedly defamatory statement is true. In contrast, in the States, a public figure must prove the defamatory statement not only was false but was made with a reckless disregard for the truth. And even a
non-public figure has the burden of proving the falsity of the allegedly defamatory statement.
Why is Simon Singh the person potential critics of bad science are reluctant to become? Because Singh
is being sued by the British Chirpractic Association for libel after he wrote the following:
The British Chiropractic Association claims that their members can help treat children
with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged
crying, even though there is not a jot of evidence. This organisation is the respectable face of
the chiropractic profession and yet it happily promotes bogus treatments.
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At least in this country we can hear presentations like the following:
Conventional chiropractic [medicine] is a confused pseudoscience that attracts nondiscerning customers and students just as surely do supermarket tabloids, astrologers, palm
readers and psychics. Don Paulin, who directs the Victims of Chiropractic outreach and is a
member of the National Council Against Health Fraud, will examine the status of chiropractic
and illustrate his talk with videos.
You can feel the way you want to about chiropractors, but Ive never seen any evidence that satisfies
me its benefits are anything other than the result of a placebo effect, and Im glad I can say so without
any great fear of being hauled into a court on charges of libel. Though, as the Guardian article linked
to above suggests, since my posts can be read anywhere, I suppose theres some risk I could be sued by
chiropractors in England.
Oregon Attorney General is rethinking his copyright claim; Id advise him to back
off. (2009-09-18 07:43)
In Oregon, theres an interesting and seemingly misbegotten effort by the states attorney general to assert the right to enforce a copyright in the states official documents. As the Oregonian reports, Oregon
Attorney General John Kroger met with a group of journalists in July and pledged to review the states
public records act to make sure that its working properly. Kroger told the group the work would take
some time but that it is very important for me to get this right. The review was provoked by a law
professor who has posted to a web site a scanned copy of the Attorney Generals Public Records and
Meetings Manual on his web site. But the attorney general sells the 326-page book for $25 a pop, mostly
to law firms and other state agencies. Krogers spokesman, Tony Green, says thats how the AGs office
makes back the cost of producing the book.
I suspect the Attorney Generals review will result in the state taking no action. According to L. Ray
Patterson and Craig Joyce, in Monopolizing the Law: the Scope of Copyright Protection for Law Reports
and Statutory Compilations, 36 UCLA L. Rev. 719, 723 (1989), the U.S. Supreme Court in 1834 held
that opinions of the Court are not copyrightable, and that holding remains the law. Subsequent cases
and the present copyright act reinforce and expand upon the point: the law, whether in court opinions or
statutes, cannot be reduced to property through copyright, whether by individuals or by the government
itself. (footnotes omitted)
ADDENDUM: William Patry writes in his treatise on copyright, Patry on Copyright, Secton 4:59, that
[J]judges, legislators, and by extension all government employees are paid by the public
for performing their duties. Having paid the salaries, the public is deemed to own the fruits
of the employees labors, a kind of work for hire. To grant copyright to employees for works
created in the course of performing their duties would result in double payment. Moreover,
having received their salaries, government employees do not need the additional incentive that
copyright provides; the same logic applies at the institutional level. (footnotes omitted)

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My bad. I only knew Yo La Tengos cover. Adrienne has, thankfully corrected me and I am grateful to
have learned of the Only Ones. But still there is no way Billy Idol can be compared to Yo La Tengo.
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The secret to creativity is knowing how to hide your sources. Albert Einstein
(2009-09-19 09:21)
Preaching to the converted or trying to convince the unconvinced? Theyre very

different activities, and the former may well undermine the latter. (2009-09-21 11:59)
One does not persuade the undecided by means of name-calling and comparing oneself to the oppressed
one persuades the undecided with reasoned argument.
Im not talking about healthcare Im talking about copyright and music again.
Ten days ago, a federal court granted Veohs motion for summary judgment and dismissed Universal Music Groups (UMG) lawsuit alleging that Veoh, which, like YouTube, allows users to share
videos free of charge, for contributing to and inducing copyright infringement as a result of the uploading
by Veoh users of copyrighted videos. A copy of the decision is available here.
The court concluded that Veohs efforts and policies to limit incidents of infringement and to
work diligently to keep infringing works off its website satisfy the safe harbor provisions that shield
it from liability under the Digital Millennium Copyright Act (the DMCA). I am no expert on the
DMCAs safe harbor provisions (an FAQ on those provisions is available here), but the decision strikes
me as a rather thorough exploration of the legal issues and of the evidence. Moreover, some of UMGs
arguments are downright specious, including what the court characterizes as its first. Typically in
fact, universally among effective lawyers a lawyer makes his clients strongest argument first.
UMGs first argument was that Veoh is not entitled to the safe harbor protections of the DMCA
because it had actual knowledge that Veoh knew there were copyrighted videos on its website.
UMG proof Veohs actual knowledge was that Veoh knew that it was hosting an entire category
of content music that was subject to copyright protection. Slip op. at 14. The proof was hardly
sufficient to the court, for reasons that seem, to me, persuasive:
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First, the mere fact that Veoh was hosting material contributed by users that could be infringing
cannot be proof of actual knowledge that there are infringing materials on the service because
otherwise there would be no purpose to the safe harbor Congress created in the DMCA. [V]ast portions
of content on the internet are eligible for copyright protection (including plenty of materials posted on
this site). Id. If one held providers like mine liable for allowing the use of materials by its users that
could, if used improperly, be infringing, the internet as we know it would end.
In addition, it is unreasonable to interpret the DMCA to permit such proof to establish actual
knowledge of infringement because if one were to accept UMGs theory the DMCA s notice-andtakedown provisions would be completely superfluous because any service provider that hosted
copyrighted material would be disqualified from the section . . . safe harbor regardless of whether the
copyright holder gave notice or whether the service provider otherwise acquired actual or constructive
knowledge of specific infringements. Courts will typically interpret statutes so that their interpretations
will not make other parts of the statute meaningless. If Congress intended to create the notice-andtakedown procedures in one part of the statute, it wouldnt be reasonable to interpret another part of
the statute to make them meaningless.
Moreover, UMG made arguments that were refuted by the evidence, including the argument that
Veoh, of course, knew that it never had a license from any major music company to display music
content and thus knew that all such content was unauthorized. Id. (emphasis added) Unfortunately
for UMG, its own evidence showed that [a]mong the types of videos subject to copyright protection
but lawfully available on Veoh s system were videos with music created by users and videos that Veoh
provided pursuant to arrangements it reached with major copyright holders, such as SonyBMG.
Let me be clear I have not researched the takedown-and-notice provisions of the DMCA to the
degree that would make me feel reasonably certain that the court was correct in the decision it reached,
but I am certainly persuaded by the reasoning it set forth in its opinion (and what I do know about those
provisions) to be well along the way to that conclusion. I am, however, quite open to being convinced
by those who would argue otherwise.
I am not convinced at all, however, by Chris Castle (a self-described journalist in the media and
communications fields), whos first observations about the decision consist entirely of name-calling,
far-fetched analogies, and arguments I know are unfounded. He titles his post Gideons Remix and
explains that he is comparing independent artists and songwriters hurt by the courts decision to the
defendant in Gideon v. Wainwright, the landmark Supreme Court decision that established the right of
criminal defendants to legal representation in their criminal proceedings. The defendant in Gideon had
been sentenced to five years in prison for allegedly stealing about $55 and a few bottles of beer from a
pool room. He had been forced, due to his inability to afford a lawyer, to defend himself against the
charges.
You better have some evidence of real hardship before you start comparing independent artists
and songwriters to Clarence Earl Gideon, and you better realize that there is a world of difference
between losing your freedom for 5 years and not being entitled to deny the opportunity for current
technology to do the myriad of legitimate and enormously beneficial things it does.
Castle next writes that [i]f the decision [is allowed] to stand, copyright becomes a Constitutional
right without a remedy. Thats odd. The law provides plenty of remedies for copyright infringement,
including statutory awards that do not even require evidence that establishes any financial harm arising
from the infringement.
I think Castles reasoning that Veohs activities allow infringement without a remedy might be illuminated by 2 other assertions he makes. First, he suggests that copyright infringement is no different
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than the theft of personal or real property:
And why limit the decision to the online worldwhy not extend the notice and shakedown
concept to the physical world, too? Why not apply it to cars, or homes, or personal property
generally? Why not make our offline economy into one big squat?
This argument is just plain silly. If someone steals a car, the damage is obvious the owner no longer
has the car to use or sell. If someone squats in an apartment you own, thats property you cannot
rent to someone else. But the fact that someone might have improperly posted a copyrighted song on
Veoh doesnt eliminate the fact that the vast majority of videos posted on Veoh are not infringing and
are beneficial to Veohs users. Moreover, the independent artists and songwriters whose property is
allegedly being misused have the legal power to stop the misuse, the right to sue the infringing Veoh user
for damages (without showing harm), and the possession of the thing itself allegedly stolen.
Castle states too that leaving the recording companies (and the independent artists and songwriters he
seems to equate to UMG) to find infringing materials is too great a burden to expect of them:
It seems an entirely unreasonable burden to force independent artists, songwriters, unions,

directors, writers, record companies and film studios to search the Internet 24 hours a day, 7
days a week to find infringing copies of works that have not been licensed or approved for use.
Im not convinced it is an unreasonable burden. Its easy for me to find online any reference to me or
my writings. And it may well be reasonable to impose that burden on me and all those independent
artists (one might forget UMG was the plaintiff in the lawsuit) in exchange for the benefit of having
sites like YouTube and Veoh and the like. Most importantly, the decision on whether, given the benefits
provided to society by requiring copyright holders to send takedown notices to services like Veoh (rather
than imposing on Veoh the burden of pre-clearing everything posted on its service) is a decision Congress
made. If Castle thinks it was a bad judgment, his beef is with Congress, not the court that decided the
Veoh case.
Castle also dismisses as a canard without any suggestion that there are merits to it the argument
that the fair use of copyrighted materials on which a lot of the value on blogs, hosting sites, and search
engines is grounded in the constitutional right to free speech. The plain fact is that copyright is a
limitation on free speech without the rights accorded for a limited time and for limited purposes to
copyrighted materials, their use would be constitutionally protected by the First Amendment. Thus, the
rights accorded by copyright necessarily must be balanced against free speech rights, and this principle
is one that is no canard it is well- and long-established as the basis of fair use.
Finally, Castle resorts to name calling. He calls Google childish for re-posting videos that it has removed
the soundtrack from something that as far as I can tell is a perfectly legitimate response to a legitimate takedown notice from the owner of the copyright in the soundtrack. He also calls Lawrence Lessig
creepy, which I suppose is a step up from another post in which he calls Lessig Lyndon Larouche.
Again, though, you only gratify those who already believe Lessig is a creepy fascist by tossing around
names like that, and anyone who does not already find glee in such ignorance will at best be unpersuaded;
more likely, theyll be turned off.
So is Veoh correctly decided? Castle has only made me feel more strongly that it was. But I remain open
to reason.
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How to come up with new solutions: try out new ways of using old ideas and take
chances. (2009-09-23 01:59)
From Guy Kawasakis interview with Scott Berkun, author of The Myths of Innovation:
Question: Where do inventors and innovators get their ideas?

Answer: I teach a creative thinking course at the University of Washington, and the foundation is that ideas are combinations of other ideas. People who earn the label creative are
really just people who come up with more combinations of ideas, find interesting ones faster,
and are willing to try them out. The problem is most schools and organizations train us out
of the habits.
Question: Why do innovators face such rejection and negativity?
Answer: It s human nature we protect ourselves from change. We like to think we re progressive, but every wave of innovation has been much slower than we re told. The telegraph,
the telephone, the PC, and the internet all took decades to develop from ideas into things
ordinary people used. As a species we re threatened by change and it takes a long time to
convince people to change their behavior, or part with their money.
Question: How do you know if you have a seemingly stupid idea according to the experts
that will succeed or a stupid idea that is truly stupid?
Answer: Don t shoot me, but the answer is we can t know. Not for certain. That s where all
the fun and misery comes in. Many stupid ideas have been successful and many great ideas
have died on the vine and that s because success hinges on factors outside of our control.
The best bet is to be an experimenter, a tinkerer to learn to try out ideas cheaply and
quickly and to get out there with people instead of fantasizing in ivory towers. Experience
with real people trumps expert analysis much of the time. Innovation is a practice a set of
habits and it involves making lots of mistakes and being willing to learn from them.
Rules must allow for the inevitability of change: art museums and the doctrine of
deviation (2009-09-23 10:19)
I ve had my disagreements with Donn Zaretsky, the author of the Art Law Blog. But he s dead on in his
criticism last week of objections typified by Eric Gibson s piece in the Wall Street Journal . . . about
the Cleveland Museum of Art s [CMA] request for court permission to use certain acquisition-restricted
funds . . . to help complete its renovation/expansion. . . .
As Zaretsky acknowledges, Gibson is sympathetic to CMA s plight: Clearly the museum has to do
something. Nobody could have anticipated the events of a year ago, and [the museums director] and his
colleagues make a compelling case that the museum has to move forward with its expansion plan rather
than mark time. I would add that sympathy is worth the paper Gibson s online piece is printed on. Yes,
something has to be done. Maybe from New York an art museum, even a respected one, in Cleveland
can be treated with condescension, but as a native Clevelander who happily moved back after 13 years
of professional life in NYC, I can appreciate that the Cleveland Museum s self-description accurately
describes the importance of the institution:
The Cleveland Museum of Art means many things to many people. To the residents
of Greater Cleveland, it is a beloved civic asset, a place where the community s greatest
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aspirations find expression, and a backdrop for many a wedding photo. The museum is a
major force in the regional cultural and intellectual community, helping to keep Northeast
Ohio a vibrant center of learning and artistic endeavor. As one of the nation s top museums,
the CMA has long exhibited leadership in acquisitions, presentation, and education, and its
curators have originated many groundbreaking exhibitions. The Cleveland Museum of Art
is renowned the world over for the extraordinarily high quality of its holdings (which are in
constant demand for loan exhibitions) and for both the intellectual rigor and the public spirit
of its daily activity.
And CMA is no dusty holdover from the days when John D. Rockefeller and his contemporary Cleveland
industrialists funded a cultural life of one of the richest and most dynamic cities in the country. Earlier
this year, as Gibson also notes, it completed Phase I of a $350 million, eight-year expansion and renovation plan that, when completed in 2012, will increase the museum s size by nearly 50 %, significantly
expand exhibition space, and enhance the museum in other ways. But, of course, [l]ast fall, with the
start of the second and last phase of the plan on the horizon, the museum found itself caught in what
Michael J. Horvitz, the board s chairman, calls a perfect storm : With $138 million remaining to be
raised, philanthropy dried up, the credit markets froze, and the museum s endowment plummeted to
$558.5 million as of June 30 this year from $736 million before the crash.
Gibson, however, is paralyzed with fear that the precedent this could set if the court grant s CMA s
request to use funds restricted for use to the acquisition of art. You have to to worry about what [art
museums] might do if given an opening to finesse the rules governing restricted endowments. As Zaretsky
notes, Lee Rosenbaum makes a similar point . . . . Cleveland s actions, she says, unchecked, would
set a dangerous precedent that could have a negative impact on future benefactions, just when museums
need help the most.
This is garbage. As Zaretsky points out: The doctrine of deviation, upon which the museum relies,
has been around forever. If the court grants the museum s application, it won t be creating an opening
that other museums will then come rushing through, but allowing it to pass through an opening that was
always there. Moreover, the CMA s has used the doctrine of deviation in the past in a responsible way,
and there s no reason to think, given the obvious need even its critics acknowledge, to think that if it
convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly
to act irresponsibly. Nor should we make rules that don t permit courts to look at individual cases and
grant relief from restrictions no longer serving any useful purpose just because we re afraid someone may
try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those
who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds
because circumstances demand it would create a bad precedent are blind to the fact that the rules that
allow precisely that have been around and worked well for a long time:
The opening to finesse the rules has existed for this very museum with respect to these
very funds for more than 50 years. It seems safe to say they haven t exactly been abusing the privilege. Once again, the people who run our nation s museums are not naughty
schoolchildren who need to be penned in by simple, black-and-white rules.
And the rules set no strict standards. The legal doctrines that grant relief from restrictions on contributions made by donors require that present circumstances have made it impossible, unlawful, or
impracticable to adhere to the original terms of the donation . . . [or] the administrative terms of a gift .
. . hamper the accomplishment of the gift s purposes. Emmeline Barton, Relief from Gift Restrictions:
Cy Pres and Deviation, Harvard Law School Art Law Client Newsletter at 7 (Spring 2007).
I do wish people like Gibson and Rosenbaum would bother, before spouting off, realize that others
long ago might not only have shared those opinions but also managed to work their way through to a
reasonable way of accommodating the entire range of concerns raised in connection with those opinions.
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If the CMA can t convince the court that circumstances merit relief from the restrictions on the funds
they want to use, the court won t let them. And we shouldnt stop them because were afraid someone
else might not deserve the same type of relief theyre seeking.
Lets get straight the historically profound benefits of making information available
online Scribd this time. (2009-09-24 12:14)
Two days ago I wrote about the court decision holding that the video hosting service Veoh is protected
by the safe harbor provisions of the Digital Protection Millennium Act from liability if any of the services users upload videos that infringe existing copyrights. One of the reasons Veoh is entitled to those
protections is that it uses adequate technological safeguards to police the content its users upload.
So I dont expect there is much of a chance that a new lawsuit against Scribd, a web site that hosts
documents uploaded by its users, will will succeed or even survive a motion to dismiss for failure to state
a claim, a procedural device that ends the lawsuit at its very beginning by means of a court determination that even if everything the plaintiff alleges is true she is not entitled to legal relief. As Geek.com
reports, the lawsuit alleges copyright infringement by Scribd not because it hosts copyrighted materials
but because the software it uses to detect copyrighted materials before they are published on the site
allegedly uses copyrighted materials:
A children s author in Texas has leveled a strange lawsuit against the company, claiming
that the company infringes copyright, but not by hosting infringing works on its service.
No, her claim is even weirder: she maintains that Scribd prevents copyrighted material from
being placed on the site by copying the text of copyrighted books and other publications into
its copyright infringement detection software, which therefore infringes copyright itself!
The claim may not be as weird as Geek.com believes, though it is likely not to survive long. The original
legal challenge to the Google Books Project by the Authors Guild and individual authors holding who
were identified was premised largely on the contention not that Google was going to make those authors
copyrighted works available. It wasnt. It was only going to make those works searchable so that snippets
could be brought up by researchers who could thereby identify and by library loan or purchase obtain
relevant works they never otherwise would have found without traveling from Palo Alto, California to
Ann Arbor, Michigan to Oxford, England. So what was the problem? The authors alleged that the fact
Google was copying their works in their entirety to create the database that would yield the snippets
constituted copyright infringement.
And in A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473 (E.D. Va. 2008), affd in part and remanded, F.3d 630(4th Cir. 2009), plaintiffs were students who alleged that iParadigms Turnitin
plagiarism detection system used by schools throughout the country to detect plagiarism committed
by students constituted copyright infringement. Schools that use Turnitin require each student turning
in a paper to submit it through Turnitin. Turnitin then compares the paper to its database and prepares
a report that rates the similarities of the paper to papers in its database. In addition, Turnitin adds the
paper it is rating to the database, thereby constantly growing and increasing the effectiveness of that
database.
The students alleged that they owned the copyright in their papers and that IParadigms was infringing those copyrights by copying those papers and using them as part of the Turnitin database. But
last March the federal court hearing the lawsuit dismissed it.
There are several interesting points to make about the decision. First, I read the trial court decision (that was later affirmed by the U.S. Court of Appeals for the 4th Circuit) on Scribd (here). Scribd
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is a tremendous resource for me a lot of legal documents are not available online, and a lot of valuable
ones that are available online are behind paywalls even though they cannot be copyrighted (including
a lot of court decisions). Scribd is a solution to this problem, providing a central clearinghouse where
lawyers can upload legal documents to make them available to the general public.
The value of resources like Scribd is one of the reasons I find criticisms like that Chris Castle directed at the decision in the Veoh case so maddeningly unhelpful. If one looks at sites like Veoh and
Scribd as doing nothing but making available for free works that people would otherwise pay for, then it
is much easier to rant and rave that those sites are nothing but distributors of stolen merchandise and
to rationalize a stubborn refusal to admit that copyright must be balanced against strong competing
interests in free speech and the exchange of ideas. But if you see these sites as profoundly gratifying
resources that make the internet the greatest innovation in the history of information technology, the
fact that media companies (and even independent writers, artists, and musicians) can readily identify
infringing uses that do slip through detection programs does not seem so profoundly troubling. Those
copyright owners can quickly employ the DMCAs notice-and-takedown procedures, which many criticize
as too friendly to the copyright holders.
Why would you use copyright to stifle marvelous new innovations?
age, not stifle, invention.
Copyright exists to encour-
So a legal attack on Scribd, even if it is not as weird as it might seem on first blush, is something I will scrutinize carefully.
Second, it seems odd that Scribd would be attacked for committing copyright infringement resulting from a mechanism it is employing to minimize copyright infringement by its users and for which
it is rewarded by the immunity conferred by the DMCA safe harbor provisions.
Third, a spokesperson for Scribd, as Wired reports, explains that Scribd does not copy works in
their entirety as part of its copyright detection system; rather, it creates a digital fingerprint, or a
hash, to identify infringing copies.
Most importantly, even if Scribd did copy the entirety of the copyrighted works only to use those
copies to prevent users from uploading and making available to readers those copyrighted works, the
decision holding that Turnitins similar use of copies copyrighted materials to detect plagiarism is
illuminating. The trial court, affirmed in this reasoning by the 4th Circuit Court of Appeals, explained
that iParadigms, through Turnitin, uses the papers for an entirely different purpose [than those the
plaintiff did or could], namely, to prevent plagiarism and protect the students written works from
plagiarism . . . by archiving the students works as digital code. Thus, while the court recognized
that iParadigms profits from its use of the student works, the court found that iParadigms use of
plaintiffs works was highly transformative because it adds a further purpose or different character
to the copyrighted works and provides a substantial public benefit through the network of educational
institutions using Turnitin. Slip op. at 14.
In affirming the trial courts decision, the 4th Circuit added to this reasoning and described as
clearly misguided the argument that Turnitins use of the plaintiffs copyrighted papers cannot be
considered transformative because the archiving process does not add anything to the work Turnitin
merely stores the work unaltered and in its entirety:
The use of a copyrighted work need not alter or augment the work to be transformative in
nature. Rather, it can be transformative in function or purpose without altering or actually
adding to the original work. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,
1165 (9th Cir. 2007) (concluding that Googles use of copyrighted images in thumbnail search
index was highly transformative even though the images themselves were not altered, in that
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the use served a different function than the images served). [Turnitins] use of plaintiffs works
had an entirely different function and purpose than the original works; the fact that there was
no substantive alteration to the works does not preclude the use from being transformative
in nature.
562 F3d at 639.
So lets get it straight: what Scribd is doing is of tremendous value to society as a whole. Its use
of copyrighted works to minimize the availability on its site of copyrighted works is entirely different than
and in no way diminishes the value of the copyrighted works to the owners of the copyrights. A copyright
is not ownership of property like title to a car is it does not give the owner control over any use of that
car the owner doesnt approve. There are a lot of good reasons for these differences. First, if someone
else uses your car, you cant. If someone else uses your copyrighted work, you can still use it too. If
they use it for a use you never would have, whats your problem? And if that other persons use is doing
a lot of good, why should the law confer on you a power to stop it? (Even your ownership of physical
property is limited by restrictions imposed for the social good.) Finally, copyrighted works are works of
expression, and we have a constitutional right to free expression. The limitation on copyright imposed
by fair use is precisely a means of balancing the copyright holders interests against this profound social
interest in free expression.
Its an amazing world. In the name of legal rights that exist to promote progress and innovation, people
everywhere are trying to stop revolutionary innovations they plainly dont realize the value of. One of
these days Ill have to talk about the Google Book Project settlement and the fights raging in connection
with it. Some are more legitimate than others. But lets be clear: Google is trying to make available
online for research purposes (not in ways that would displace the markets for the works themselves) the
contents of major research libraries from around the world. Doesnt everyone realize what an amazing
and unprecedented advance this is for the life of the mind, for anyone anywhere who ever has had an
interest in doing research?
Dan Bull: Dear Lily [an open letter to Lily Allen] (2009-09-26 22:05)
Im would never argue that sharing for free without any transformative effect an entire copyrighted song
without permission is fair use, but theres a lot to be said for the argument that the anti-file sharing
campaign is bad for music. And Lily Allens problem was she really didnt understand what she was
talking about.
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Lawyers do the best they can for clients; I wish law professors realized thats what
lawyers should always do. (2009-09-28 10:25)
As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the
divide between legal practice and legal academia, and I am partial to the legal practice side of the debate.
Its not that a lot of law professors dont do a lot of good things; rather, its that too many law professors
and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced
that legal education and legal theory divorced from the application of law in practice is meaningless. Law
does not exist except as it has the potential to affect the real world (unless youre talking about religious
law).
And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is
to the clients best interests. When you start treating the client merely as a means to raise intellectual
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issues you find of greater interest youre doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesnt understand how to be a lawyer. Nesson
ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of
Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who
considered Nessons defense bad lawyering, including myself. Blue Mass Group even asked whether he
was the worst lawyer ever in a post that supported the legitimacy of the question with examples from
the case:
[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then
contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony,
just before the verdict, he actually admitted liability, causing the judge to find him liable
and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to
testify? Did anyone bother?
It also seems that Professor Nesson made audio-recordings of depositions in the case
perhaps for use in the classroom?without the knowledge of the lawyers on the other side of
the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil
Procedure, which require a lawyer taking a deposition to notify the other side of the method
to be used to record it (though perhaps if Professor Nesson was recording depositions taken
by the other side, he would not be in violation of the ruleIm not sure).
Now, Professor Nesson says he will appeal on the judges failure to instruct the jury on
fair use. Im not a copyright law expert, but Ive heard others describe this issue as likely to
lose.
In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaums interest. This twenty-something graduate student is now facing bankruptcy when he
could have settled the case for next to nothing.
More support for the criticism of Nessons job defending Tenenbaum comes today with the news that the
judge in Tenenbaums case ordered defendants who did not even bother to defend file sharing charges to
pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that
Tenenbaum and others like him would have been far better off monetarily if they had simply ignored
the complaint altogether and failed to show up in court.
The sad part is Ars Technica is right sometimes bad lawyering is worse than no lawyering.
Nessons response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaums liability? He writes, without an ounce of apparent regret: these defenses do not join
the fundamental issues. this trial was not an exercise in getting joel off the hook.
Thats precisely my point. If you treat a case as a means to an end and are willing to sacrifice the clients
best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury,
make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial
testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without
having gotten the judges permission to do so, and then go and post those recordings on line, is it any
wonder your client ends up paying a big price?
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As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the
RIAAs campaign to sue file sharers is misbegotten as a practical, business matter. Ive even gone out
of my way to try to help Nesson. (See also here.) That doesnt mean that Nesson is a noble guy in
sacrificing his client to what he considers a greater cause, and a lawyer should know better.
Law and education must change since the realities they control and shape have
changed. (2009-09-29 10:21)
Changes in reality requires changes in the law, in the ways we practice law, and in the ways we teach.
What has been Best hasnt been Best because it is the Best for all time but, rather, because it has been
the Best way weve figured out how to do what we want under the circumstances that have faced us.
Change the circumstances, and whats Best changes.
Nothing the RIAA does to enforce the interpretations of copyright laws formed when record companies
had a virtual monopoly on producing and distributing recorded music is going to change the inevitable
consequences of the fact that the technology to produce and distribute recorded music is now available
to any individual with a laptop and an internet connection.
Nothing lawyers scream at their clients is going to change the fact that personal expression is more
public and more permanent than ever before. All the insistence in the world on traditional rules regarding the formation of contracts isnt going to change the fact that applying those rules strictly to the
online marketplace is going to create a mess.
And nothing is going to change the fact that my students and my kids spend their time differently
than I did and want to use different tools to express themselves than I did.
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Realizing my sons obsessions with things that dont seem to matter (video games) are not necessarily
worse than the ones I grew up with (professional sports) might even help me communicate with him
about what creativity is.
Ideas,
originality,
and copyright.
Coldplay accused of infringement again.
(2009-09-30 11:40)
One of these days well learn what the KLF long ago tried to teach us about pop music: Every Number
One song ever written is only made up from bits from other songs. There is no lost chord. No changes
untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for
originality.
Lets get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office
puts it: Copyright does not protect facts, ideas, systems, or methods of operation, although it may
protect the way these things are expressed. See Circular 1, Copyright Basics, section What Works Are
Protected.
So it may be true, as Consequence of Sound reports, that just days after settling with Joe Satriani
over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician
Andy J. Gallagher for borrowing from Gallagher s Something Else video with their video for Strawberry Swing. But being accused of copyright violations and having those accusations deemed worthy
of anything other than contempt are two entirely different things. As the Guardian explains, theres no
doubt that [Gallaghers] and Coldplays music videos offer an awful lot of similarities. Or rather, one
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big similarity: they both show people interacting with animated chalk-boards. And it may even be true
that, as Gallagher complains, it seems less than fair that [Coldplays] video will win numerous awards
and receive industry praise when [Gallaghers] director Owen Trevor had the idea the year before.
But the answer is: so what? You cannot copyright the idea of a video involving people interacting
with animated chalk-boards. As the producers of Coldplays video point out (pdf), the idea was hardly
original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making
the Coldplay video:
We re aware of those videos, and I don t wish to denigrate them, but we thought there
was more mileage in the technique than they had explored. We never claim to be original,
just rigorous. So we wrote a story we thought would be entertaining and went about making
it. It was a lot of hard work.
The specific video they produced may be original, but it hardly precludes anyone else from making videos
involving people interacting with animated chalk boards.
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[EMBED]
2.10
October
If a county court in Georgia can take adavantage of a website and do it well, so can
you. (2009-10-01 12:16)
Justice Serves, for the 11th consecutive year, names the Top Ten Court Websites.
What do they have in common? Theyre well organized, making it easy for anyone to find exactly
what they need on the site. They provide online services that eliminate pointless trips to inconvenient
locations. (Courthouses arent the centrally located public oases they once were. Have you ever attended
traffic court in a strip mall 50 miles away? I have.) And they make rules and procedures that inspire
dreams of Kafka plain and obvious.
Three cheers to the State Court of Chatham County, Georgia.
Lying messes you up. Polanski, the rapist, and the lying prosecutor. (2009-10-01 12:35)
One thing potential witnesses have to understand about lying is that every lie creates problems regardless
of whether the lie itself is found out. Every lie requires every statement after the lie for an indefinite
period of time to account for the lie. If you say something after the lie inconsistent with the lie, youve
got real problems. Which is the lie? The new statement? The old lie? Who is going to know, and who
is going to believe anything you say?
Im reminded of this problem with lies today because of a story Marcia Clark writes about one of the
prosecutors in the Roman Polanski rape case back in 1977, after Polanski had entered a guilty plea to
engaging in unlawful sexual intercourse with a minor and was awaiting what he hoped, and apparently
expected, was a sentence that would not include jail time. As the Wall Street Journal Law Blog writes,
According to a 2008 documentary, called Roman Polanski: Wanted and Desired, . . . a Los Angeles
prosecutor named David Wells confessed to buttonholing the judge [presiding over Polanskis case]
out of the presence of Polanski s lawyer
and convinced him to impose a sentence that included prison
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time.
Lawyers cannot communicate with judges regarding pending cases outside of the presence of the lawyers
for the other parties. Its a major no, no, and Wells admitted misconduct no doubt is part of Polanskis
opposition to extradition.
But now, according to Clark, Wells recently told her:
I lied. I know I shouldn t have done it, but I did. The director of the documentary told
me it would never air in the States. I thought it made a better story if I said I d told the
judge what to do. . . . Look, after 30 years, I never thought they d get the guy back here. I
figured no one cared anymore, and no one here would ever see the film anyway. What can I
say? I don t have a better reason than that. It seemed like a good idea at the time.
Clark believes Wells. I dont know what to believe. Was he lying in to the filmmakers or is he lying
today? Why would a prosecutor tell a lie to filmmakers that would show him to be unethical? He has
more reason to lie today now theres attention to the unethical conduct he confessed to on film, and
the extradition of a rapist is at stake.
And, frankly, I dont consider Marcia Clark the most reliable judge of anything. Dont get me going, but the reason for the O.J. verdict to my mind was, purely and simply, incompetent lawyering by
the prosecution.
Mercedes Sosa, R.I.P., 1935- October 4, 2009 (2009-10-04 17:23)

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All the cash has been sucked from Simmons mattresses. (2009-10-05 10:28)
Is it any wonder we dont trust Wall Street?
I saw it back in the 80s up close and personal, when the debt was called junk, but the practice goes
on and on and on. When credit markets are good, investors (called private equity firms or merchant
bankers or leveraged buy out firms or the like among their peers and minions) will sell a companys
bonds to finance their purchase of the company, take fees for issuing those bonds, issue more bonds later
on to take cash out of the company for themselves (and fees for the new issuance), and then, when the
debt becomes to burdensome for the company, the purchasers of the bonds are left high and dry that
is, broke or, at best, with equity in a new, reorganized, and crippled company worth a fraction of what
they paid for their bonds.
The latest victim? Simmons Bedding Company, the maker of the Simmons Beauty Rest Mattress. As
the New York Times reports:
Simmons says it will soon file for bankruptcy protection, as part of an agreement by its
current owners to sell the company
the seventh time it has been sold in a little more than
two decades
all after being owned for short periods by a parade of different investment
groups, known as private equity firms, which try to buy undervalued companies, mostly with
borrowed money.
For many of the company s investors, the sale will be a disaster. Its bondholders alone stand
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to lose more than $575 million. The company s downfall has also devastated employees like
Noble Rogers, who worked for 22 years at Simmons, most of that time at a factory outside
Atlanta. He is one of 1,000 employees
more than one-quarter of the work force
laid off
last year.
But Thomas H. Lee Partners of Boston has not only escaped unscathed, it has made a profit.
The investment firm, which bought Simmons in 2003, has pocketed around $77 million in
profit, even as the company s fortunes have declined. THL collected hundreds of millions of
dollars from the company in the form of special dividends. It also paid itself millions more in
fees, first for buying the company, then for helping run it. Last year, the firm even gave itself
a small raise.
Wall Street investment banks also cashed in. They collected millions for helping to arrange
the takeovers and for selling the bonds that made those deals possible. All told, the various
private equity owners have made around $750 million in profits from Simmons over the years.
Want to become a practicing lawyer? Dont go to Harvard! Nesson and Tenenbaum

again. (2009-10-06 09:55)
Some of my favorite and most respected former colleagues in practice went to Harvard Law School, but,
based on what Ive been seeing out Charlie Nesson in his role defending Joel Tenenbaum in Sony BMG
Music v. Tenenbaum, I have to seriously wonder what Harvard is teaching about the actual practice of
law.
I took Nesson to task recently for using his role as lawyer in the case to fight a crusade against the music
industry, not to give his client the best defense possible. That attitude alone destroys my confidence in
Nessons ability to train anyone to be a lawyer.
Now Nesson has proven he cant write a brief. Yesterday on behalf of Tenenbaum he filed in the court that
produced the $675,000 judgment against his client a document entitled Defendants Opposition to Entry
of Judgment and Injunction (pdf)(the Brief). There are some non-frivolous arguments somewhere in
that self-righteous screed, but theyre so buried in Nessons preference for rhetorical flourish over lawyerly
detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on
his incompetence. A lawyers job is to win the judge to his clients side through persuasive reason and
argument; it is not to throw a mess at the judge that may or may not contain winning arguments and
leave it to the judge to find those winning arguments.
Its a dirty little secret that lawyers dont like to make too much of: lawyers, not judges, win and lose
cases. Lawyers dont like to make too much of it because they want judges to believe theyre the ones
from on high pronouncing judgment. But if you convince the judge youre right and give him the tools
to rule your way, youll win. It is remarkably pleasing to get an order from a judge ruling in your clients
favor and realize the order is merely a cut-and-pasted version of your brief. Why shouldnt the judge
steal my words if they explain his result as well as he can figure out how to explain them, and why should
he trouble himself trying to find better ways to do so?
But Nesson doesnt give the judge hes seeking to persuade anything to work with. First, hes asking the
judge not to enter an order that would impose the jurys verdict and the injunction against his client.
But on what basis? Is he asking for judgment notwithstanding the verdict? What procedural rule is he
filing his opposition to the entry of the judgment on? His Brief sure doesnt explain the basis. Nor does
it explain what he is asking the judge to do in lieu of entering the order? Dismiss the case? Lower the
damages? Lift the injunction? Any or all?
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Listen, students: when you write to the judge make sure she knows what youre asking her to do and the
legal basis she has for doing it.
I wont get into all of the merits of Nessons arguments. I think he may well have a due process argument
on the excessiveness of the statutory penalties, but even that one is a stretch.
But the argument he considers first and foremost is that the statute in question does not permit a
lawsuit against an individual consumer for statutory damages. Brief at 1-2 (emphasis added). Having
not graduated from Harvard myself, perhaps I am missing something. The operative statute, 17 U.S.C.
Section 504(c), provides that the copyright owner may elect . . . to recover, instead of actual damages
and profits, an award of statutory damages for all infringements involved in the action, with respect to
any one work, for which any one infringer is liable individually, . . . . (emphasis added)
Nor is there anything in any authority to suggest that Nessons incomprehensible conclusion that the
statute does not contemplate imposing statutory damages on individuals is founded in sources to obscure
for me to know.
Nimmer on Copyright, Section 14.04[a] provides: Under the current Act, the copyright owner may elect
to recover statutory damages, instead of actual damages and defendants profits. He may, moreover,
make such an election regardless of the adequacy of the evidence offered as to his actual damages and
the amount of defendants profits, and even if he has intentionally declined to offer such evidence, although it was available. . . . The availability of statutory damages under the current Act, even under
circumstances in which plaintiffs damages or defendants profits are susceptible to precise evaluation,
represents a departure from the pertinent provisions of the 1909 Act.Under that former law, the availability of statutory damages was to a degree discretionary with the court and turned largely upon the
proof of actual damages and defendants profits. (citations and internal quotation marks omitted)
Patry on Copyright, Section 22:153 states: Statutory damages are damages whose assessment has been
fixed by the legislature. They have existed in U.S. copyright laws since preconstitutional days and stand
in contrast to common law actual damages and an accounting of defendants profits. Recovery of actual
damages or profits varies according to the harm suffered or the benefit received, without an upper limit
on the recovery. Statutory damages have been believed to be particularly valuable where such relief is
difficult to prove. The purpose of statutory damages has been noted a number of times by the Supreme
Court.
Thus, the court in In re Mann, 410 B.R. 43, 49 (Bkr. C.D. Cal. 2009), quoting Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (quoting
Nimmer at 1404[A] ), stated: However, a plaintiff may elect statutory damages for copyright infringement regardless of the adequacy of the evidence offered as to his actual damages and the amount of
defendants profits. In Raydiola Music v. Revelation Rob, Inc., 729 F. Supp. 369, 374 (D. Del. 1990),
the court explained that the purpose of statutory damages is to remedy a wrong which would otherwise
go unremedied if actual damages could not be proven. See also Broadcast Music, Inc. v. Papa Johns
Inc., 201 U.S.P.Q. at 305 (Statutory damages were provided by Congress to create a remedy where actual
damages [or profits] are not provable at law, but yet where it is proven that a violation of the copyright
has occurred.).
In short, the plaintiff in a copyright infringement case has an alternative: he can prove and recover actual
damages or seek the amounts allowed by statute. Such alternatives are common in situations in which
it might be difficult for plaintiffs, even after having established statutory violations, to quantify their
economic harm. It might even be argued that illegal downloading is precisely such a case how can Sony
BMG possibly quantify the sales, if any, it lost as a result of Tenenbaums unauthorized downloading of
356
copyrighted songs.
Could I be wrong? Of course, but Nesson hasnt begun to explain to me why. Instead, hes made himself
out to be someone who makes arguments that are patently false.
Dont get me wrong here. Im not on Sony BMGs side. I think the music industrys legal and business
approaches to the technological revolution that has entirely undermined their old business models have
been disasters, and I certainly dont think Joel Tenenbaum should have to pay Sony BMG $675,000.
My problem is that Nesson is Tenenbaums lawyer and he hasnt given me a good reason to believe he
can get Tenenbaum free from that monumental verdict.
How do we decide how a long buried corpse would want his art treated? And is the
corpses former intent all we care about? (2009-10-09 08:49)
My post last week about art museums and the doctrine of deviation provoked in the comments precisely
the kind of discussion/argument that I tried to point out is the whole point: how do we decide how to
apply rules or other written expressions when they are applied in contexts that have radically changed.
To literally apply the words written by a donor that restrict the use of a gift by an art museum when
doing so would threaten the entire point of the gift (a thriving art museum) seems pretty absurd to me.
If what were trying to do is discern a donors intent, shouldnt we be a little more flexible?
Thus, I am particularly pleased to note Donn Zaretskys reference to the Philadelphia Inquirers conclusion that the new Barnes Foundation building (the subject of a couple of those comments to my
original post) shows obvious respect for Barnes legacy - for his idiosyncratic view of how art should be
displayed and appreciated - should reassure supporters of the move. Thats precisely the point: Barnes
original bequest might have forbidden the move, but the result of his restriction, 60 years after his death,
was the closing off of a multi-billion dollar collection of art to the wider public, strife between the Foundation and its neighbors, and a threat to the very existence of the Foundation itself. Isnt it at least
arguable that satisfying much of Barnes obvious intent precisely how the art is housed and shown
while making it accessible to the world in a location where it is welcome is a reasonable effort to accommodate what he would have wanted? And isnt it appropriate that we have institutions like courts to
decide whether that reasonable argument or the opposing one (Barnes stated in his bequest the collection
should never be moved, so it should never be moved, even if there are circumstances now that he did not
anticipate and we could not predict his reaction to)?
And thats not even to mention that there is a public interest involved. Are we to so honor property rights that we would sacrifice billions of dollars of the worlds culture to the whim of the owner?
As Zaretsky asks in another post:
What if Barness Will had provided that the works were to be exhibited in Merion for
exactly 50 years and then were to be burned in a big bonfire?
Should we honor donor intent in that case?
Or can we agree that sometimes the public interest trumps the donors intent?
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Why are you working harder for less? Scientific Management, management consulting, and leveraged buyouts - a century of being conned. (2009-10-11 08:55)
I described leveraged buyouts the other day in connection with the demise of the maker of the Simmons
Beauty Rest Mattress as a symptom of why we dont trust Wall Street. You might wonder why, if Im
right, we allow people again and again to buy companies by borrowing enormous sums of money in
essence, we allow the buyers to suck money out of successful companies for their own benefit in the same
way we allowed home owners in a rising housing market to suck money out of their homes by means of
home equity loans.
Its perfectly clear why we allowed homeowners to do that all involved figured the market would
continue to rise at least until they could make their money and get out. But why do we let this keep
happening on a much larger scale on Wall Street?
I hadnt considered the question specifically at the moment I wrote that post about Simmons. It was
enough for me that throughout the 25 years of my career both practicing (in connection with, among
many things, leveraged buyouts) and teaching Ive seen the phenomenon again and again. But this week
I came across Jill Lepores article Not So Fast in the New Yorker, an article which asks the question,
Scientific management started as a way to work. How did it become a way of life? Lepores article is
about the rise in the early 20th Century of Scientific Management, the foundation of modern Management Consulting. Scientific Management was created by Fredrick Winslow Taylor, who, as Lepore
writes, sold himself as someone able to make businesses more efficient:
Speedy Taylor, as he was called, had invented a new way to make money. He would get
himself hired by some business; spend a while watching people work, stopwatch and slide
rule in hand; write a report telling them how to do their work faster; and then submit an
astronomical bill for his services. He is the Father of Scientific Management (it says so on
his tombstone), and, by any rational calculation, the grandfather of management consulting.
The problem, as Lepore notes, is that Taylor was a fraud, and Taylorisms grandchild, management consulting, is as well.
What does all this have to do with leveraged buyouts? Plenty. The entire rationale of the leveraged
buyout is that the buyers can take a company with a lot of unrealized value and realize it. How? By
making the company more efficient. The debt taken on to buy the company (and to reward the buyers with profits along the way) will, the argument goes, easily be paid off given the as yet unrealized
efficiencies. Thus, weve had decades of downsizing (massive layoffs), consolidations (elimination of
competing businesses), and arguments that advances in productivity brought about by our new technologies would redound to the benefit of all (when the only benefit would redound to whoever could pull the
money out quickest).
Weve been had.
At least we have one consolation none of us have been alone in being conned. The focus of Lepores work is Louis Brandeis, someone Ive always thought was a very bright guy and who against all
evidence remained convinced his entire life that Scientific Management would benefit the working person:
Neither unions nor businesses have lived up to Brandeis s optimism. If the fruits of
Scientific Management are directed into the proper channels, he wrote, the workingman
will get not only a fair share, but a very large share, of the industrial profits arising from
improved industry. Lately, that share has been going to shareholders and C.E.O.s. Home
and work, separated since the first stirrings of the Industrial Revolution, have been growing
358
back together again: BlackBerry on the nightstand, toaster in the photocopy room. Efficiency
was meant to lead to a shorter workday, but, in the final two decades of the twentieth century,
the average American added a hundred and sixty-four hours of work in the course of a year;
that s a whole extra month s time, but not, typically, a month s worth of either happiness
minutes or civic participation. Eating dinner standing up while nursing a baby, making a
phone call to the office, and supervising a third grader s homework is not, I don t think, the
hope of democracy.
Youll also find worthwhile on this topic the New York Times video series entitled Flipped: How Private
Equity Dealmakers Can Win While Their Companies Lose
Credit Default Swaps and Mortgage Backed Securities: a Primer. (2009-10-12 10:02)
Ive previously noticed Mark Labatons writing. Labaton is a lawyer in LA, and he writes with the kind
of clarity and precision that is crucial to effective lawyering. In the most recent issue of LA Lawyer (pdf),
he applies those writing skills in the article entitled Swap Meet to explaining derivatives, those
financial instruments central to our current economic disaster. Ive tried to do a similar thing here a few
times (here, for example), but Labatons account is much more comprehensive. Its an important piece.
I cant say enough to my students that they have to reject any idea that the stuff they have to face is too
complicated for them to understand. We were told again and again that credit default swaps were too
complicated to understand (see below, from a CNBC Telecast in November 2006). Thats hogwash. Accepting the myth our financial markets were dealing with risks too complicated for anyone to understand
(even the most active participants in the markets!) put us in this mess an is keeping us from getting out
of it as quickly or effectively as we might. Labaton not only understands this point, he also provides a
very useful explanation for the rest of us.
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Cleveland Museum of Art allowed to use 50% of income from trusts for expansion;
1st time in Ohio since 1955. (2009-10-12 11:15)
A follow up to my posts (here and here) regarding the power of museums to deviate from the terms of a
donors limitations on the use of money donated:
Last week, the Cleveland Museum of Art won permission from a Cuyahoga County Probate Court judge
to use 49.99 % of the income (not the principal) from 4 trusts over a period of 10 years (up to an amount
not to exceed $75 million) to finance the museums ongoing renovation and expansion. The 4 trusts were
established in 1920, 1935, 1938, and 1952. It is the first time since 1955 that the museum has sought
such relief from the terms of a donors trust, which is also the last time such relief has been sought by
any museum in Ohio.
These facts plainly do not justify the fears the museums critics hold up as the consequence of such
rulings.
ADDENDUM: The Art Law Blog was right on top of this, and also has written, commented upon,
and linked to articles about the background.
Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work
remains. (2009-10-13 12:37)
Kristopher Nelson of in propria persona graduated from Harvard Law School in May and now is a graduate student in the history of science. He astutely observes that law school emphasizes training its students
359
to practice law but does a rather poor job of actually doing so: Law school . . . while pushing the prac
tical, does not teach it. As Ive made clear, I think his criticism is particularly well placed when it comes
to Harvard.
So I am happy to see that Nelson points to an article written by co-written by Martha Minow (pdf), the
new dean of Harvard Law School, in which Minow and her co-author, Todd Rakoff, explicitly acknowledge
that law students need more. What do they need? I think Minow and Rakoff are right to identify it as
legal imagination:
[S]tudents need more, and they need more not for arcane or unusual careers, but simply
to be good lawyers. While an expert in differentiating mental skills could probably produce
a raft of labels for what they also need, when we think of what students most need that they
do not now get, we think: legal imagination. What they most crucially lack, in other words,
is the ability to generate the multiple characterizations, multiple versions, multiple pathways,
and multiple solutions, to which they could apply their very well honed analytic skills. And
unless they acquire legal imagination somewhere other than in our appellate-case-method
classrooms, they will be poorer lawyers than they should be.
How will they be taught this legal imagination? By being given cases more like students are given in
business school than students are given now in law school: complex problems in which the students are
required to generate real world alternatives, recommend the best, and be evaluated on the quality of their
judgment:
[T]he type of materials we have in mind can be described in general. Students ought to be
presented with relatively dense materials that lay out a situation, experienced as a problem for
a person, or group of people, for legal treatment. Students should face a choice that challenges
them to identify options and that permits multiple resolutions, sometimes within a relatively
tight ambit. Such resolutions might include issues such as which settlement offer would make
it sensible to forego litigation. Sometimes these choices might be within broader (but still
specifiable) alternatives, such as whether trying to get particular legislative language adopted
would be feasible and preferable to private ordering. The problems ought not to be situated in
one doctrinal area, but should present opportunities for mental maneuvering around the legal
universe. Teaching should emphasize generating alternative solutions as well as appropriate
grounds for choosing among them. And criteria for resolution should include legal, normative,
and practical considerations.
Of course, Minow and Rakoff also believe that following the business school model, we think that case
writers will need to get their materials from practitioners. Why isnt this already going on throughout
law school? One reason, Ive always believed, is that law professors are those who have done best in law
school (not necessarily, or even usually, as lawyers), so they perpetuate the existing institutional model in
their belief that if law school has identified them as the best and brightest it must be well designed. Law
professors are not unique in this tendency. Anyone who succeeds in an institution has a vested interest in
believing the institutions promotion procedures are very good at judging genuine merit. 90 % of law firm
partners will tell you their firm is better than most at judging associates. And Minow even recognizes
this impediment to the change she calls for:
Law professors were good law students, and given the history of legal education, this means
that they almost universally feel comfortable handling appellate opinions in the classroom even
if they have no experience doing so in practice. By contrast, for many of us, the arenas of the
legislature, the agency, the political movement, the media perhaps even the trial courts are
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ones we may only remotely watch. Ideally, case studies and teachers notes could be crafted
so that they could be taught by professors as we know them in law schools as we know them.
But, frankly, many of us will need to learn some new things.
I am thrilled that the dean of Harvard Law School is making these arguments. As goes Harvard, so goes
virtually every law school in the country. But there is also another piece of the puzzle that needs to
be put into place, as Ive previously written about: how in the world can we measure whether we are
effectively teaching legal imagination? In many ways I think Im ahead of Minow in trying to do what
she calls for. But until I can prove that what I am doing in fact teaches students how to be lawyers
better, Im afraid that I wont have a ton of influence. Fortunately, Minow, merely because she is the
dean of Harvard Law, can have influence even without first proving what she is arguing for works.
Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there
some other explanation? (2009-10-13 23:43)
As much as law students and law professors want legal

questions to resolve into nice, neat abstract questions, they seldom do.
Legal questions are only answered definitively by courts when those questions are necessary to resolve
lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom
allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some
nice, easy-to-follow rule so we can definitely predict what we can and cant do)?
One problem the most important one for lawyers is figuring out what happened. Its amazing
how people take the facts for granted, as if we have Gods videotape to play to a jury or something.
Instead, we have conflicting evidence. And the court has to decide what it all means.
So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope
poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?
Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog
Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, Garcia was quick
to add he is not mad at Fairey, and hes not looking at any lawsuits. I know artists like to look at things;
they see things and they make stuff. Its a really cool piece of work. I wouldnt mind getting a signed
litho or something from the artist to put up on my wall.
In paragraph 45 of his Answer to Faireys Counterclaim, filed on September 8 in the lawsuit between
himself, Fairey, and the Associated Press, Garcia denies he stated in interviews that he was not angry
with Fairey or interested in joining any lawsuits.
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Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if thats the case, then is he calling
Gralish a liar?
Welcome to the law.
ADDENDUM: Tom Gralishs series of posts chronicling his efforts to identify the photograph that served
as the source of Faireys Obama Hope poster are here. The posts re-enforce something I have suggested
before: Garcias photograph just isnt that original. Since the nature of the copyrighted work is relevant
to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is
less creative, the generic nature of the photo militates in favor of Fairey. But I still think Faireys work
is so obviously transformative that it constitutes fair use. Why? Because it had a resonance in the
nation that none of the photos Gralish examined would have had on their own. If Faireys ability to
confer that kind of power upon the source photo isnt transformative, I m not sure I know what is. And,
incidentally, most of my previous posts on the case are here.
Excellent acount of fair use in educational setting. (2009-10-16 07:55)

The American University Center for Social Media has published a Code of Best Practices in Fair Use
for OpenCourseWare. As the site explains, a code of best practices designed to help those preparing
OpenCourseWare (OCW) to interpret and apply fair use under United States copyright law. While the
document is limited in application (to educational settings), its nuance and sophistication makes it stand
out among online discussions of fair use.
Dont lie, even if you think it doesnt matter. Fairey, Garcia, and AP. (2009-10-17 10:27)
Now weve got 2 liars in the Shepard Fairey/Manny Garcia/AP lawsuit. As I mentioned the other day,
theres reason to believe Garcia is at least being highly misleading regarding his initial reaction to realizing that Shepard Faireys Obama Hope poster was based on his photograph. And now Fairey admits
that he lied in contending that the image everyone knows he used was not the image he used. And, of
course, AP is not exactly the most reliable source for legal positions on copyright and fair use.
All of these events are not particularly shocking to anyone whos litigated for a living. Whether or not
Garcia considered a lawsuit when he first realized his photograph was the source of the photo, whether or
not Fairey used another photo other than the one most people had concluded hed used, and whether or
not AP is taking ridiculous positions in copyright cases are all matters that do not really bear on whether
or not Faireys poster constitutes fair use of the photograph Garcia took (and in which Garcia and AP
each claim, in opposition to one another, ownership of the copyright).
But Fairey sure didnt help himself by lying. Nor did Garcia if it turns out he lied too. As much
as a lie doesnt change the legal question at issue in a case, theres no denying the fact that someones
credibility affects any courts willingness to find in their favor.
As a lawyer, you try to tell someone never to lie. Sometimes they think youre just supposed to be
telling him that, and that a nod-nod, wink-wink accompanies the advice. It doesnt.
The new economy, the billable hour, and law school tuition change is afoot.
(2009-10-20 10:12)
When things change, things change.

Ive written at length before about the perversities created by the hourly rates charged by lawyers.
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Hourly billing has been the standard practice in most of legal practice for the past 50 years or so. The
practice on its face is troubling just as our current health insurance scheme provides incentives for
doctors and hospitals to do and bill more (and, conversely, to engage in less preventative medicine), so
too does the billable hour provide incentives for lawyers to do more and, therefore to bill more.
The system has maintained itself in the same way many of our economic practices have maintained
themselves by means of an every increasing pie. And from the provider end the inflation worked its
way down to every level bills, salaries, hours, and law school tuition all skyrocketed. The tuition rise
could be paid for by loans that could be paid with inflated salaries. The inflated salaries were paid by
inflated bills, which were produced by inflated hours.
And in 2008 the whole edifice came crashing down. Now, all the talk is about different billing practices.
Were all still waiting for the change, however. One outcome of a change would be, I hope, a decrease
in the use of sheer economic weight to out-litigate an economically disadvantaged adversary. As things
stand, as much as I hoped always to be efficient for my client, the adversary would require me to do more
than I otherwise would if the adversary chose to contest every matter and to thoroughly investigate every
single piece of discoverable evidence (no matter how trivial or irrelevant).
And U.S. students are desperate for relief from the tuition costs the billing practices have raised. Legal
jobs are scarce, and those that exist are at depressed salaries. But tuitions have not yet come down.
Theyre going to have to.
Make your point and move on; Fairey lied, but AP wont establish he always does.
(2009-10-21 09:49)
As Ive said over and over again, lying messes you up. It robs you of credibility, a problem which inevitably is going to infect the decision makers view of the merits of your case. But when facing a liar,
you can get carried away by his lies and take your eye off your own case. AP seems prone to this danger
in its case against Shepard Fairey. Having established Fairey lied about knowing which photo he used
in creating the Obama Hope poster, AP is now contending that Fairey lied when he claimed in January
2009 that he didnt recall which photo he used.
Im not sure why AP is pushing this point. First of all, it does not bear on the question of fair use
at the heart of the case. Second, theyve just been successful in establishing Faireys a liar. What more
do they want? It will be far, far more difficult and, as far as I can imagine, impossible to establish
that in January Fairey didnt remember which photo he used (rather than incorrectly claiming later, after
hed reviewed his materials in connection with the preparation of the poster, which precise photo hed
used). And its not as if AP doesnt have its own problems with credibility that it should make every
effort to avoid.
And, again, as I wrote previously over at Remix America: Fairey and APs counter-accusations of illegitimate conduct are interesting but really irrelevant to the question of fair use in connection with the
Obama Hope poster. So is the possibility that Garcia is lying about being angry at Fairey when Garcia
first realized that the source of the poster was his photo. Of course, Garcias failure to realize this fact
until he was told, even though he was very familiar with the poster, may be relevant if the photographer
didnt realize the source was his photo, isnt that some evidence the poster so thoroughly transformed
the photo it stands on its own as a creative work?
But, more to the point of this post: if Garcia didnt realize in January the photo was the source of
the poster, isnt it credible that Fairey didnt either? AP gained ground this week in outing a lie; now it
may be trying to go to that tactic too often.
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Using the legal system to intimidate Cook County Prosecutor and Northwesterns
Medill Innocence Project (2009-10-22 14:04)
Before beginning my teaching career, I was a commercial litigator for almost 12 years. As a result, many
think Im one of those people ready to sue at the drop of a hat. But I think that litigators might be
among the most litigation-averse people around we know the price litigation extracts, and we know its
one of the least desirable means of dispute resolution around. (Thats not to say it isnt crucial one has
to resort to bold and difficult measures when others fail.)
So litigators know too that suing people forcing them into litigation is a powerful weapon. Sometimes it is used flat out to intimidate. An example of litigation being used for, apparently, nothing but
intimidation is pointed out by techdirt:
The Medill Innocence Project at Northwestern University gives undergraduate students firsthand experience in investigating wrongful convictions. The Projects efforts have freed 11 prisoners, including
5 who were on death row. But now, according to the Chicago Tribune, in preparation for a hearing
the Projects efforts have won for another prisoner, [t]he Cook County states attorney subpoenaed the
students grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent
to each other and to professor David Protess of the universitys Medill School of Journalism.
I cant say I disagree with Northwesterns lawyer, who said the prosecutors subpoena is an unwarranted fishing expedition that focuses on the messenger rather than on the possibility that an innocent
man has spent more than three decades behind bars. Prosecutors, he said, seem to be peeved at the
Innocence Project for uncovering a wrongful conviction.
Blackberry as ball and chain. (2009-10-23 12:14)
When I left practice, the firm I worked for, like every

one I knew of, was still too paranoid about security to be online. And I didnt have a cell phone. I should
be grateful. Technology is, like every advance, both a blessing and a curse. I hate when I have lunch with
my former colleagues and their attention is on the Blackberry under the table. But at least I understand
the dilemma they face. At Quinn Emanuel (the firm a good friend recently moved to), Above the Law
reports, a partners email made very clear to all that one is on call every waking hour, adding in for good
measure a firm-wide swipe at an associate who had actually done a good job but hadnt checked his email
after 7:30 p.m. The email, in part, reads as follows:
You should check your emails early and often. That not only means when you are in the
office, it also means after you leave the office as well. Unless you have very good reason not to
(for example when you are asleep, in court or in a tunnel), you should be checking your emails
every hour. One of the last things you should do before you retire for the night is to check
your email. That is why we give you blackberries. I can assure you that all of our clients
expect you to be checking your emails often. I am not asking you to do something we do not
do ourselves. I can assure you that John Quinn, Peter Calamari, Mike Carlinsky, Faith Gay,
364
Fred Lorig, etc. all check their emails often.

Yesterday I was working with a relatively new associate on a project which both he and
I knew was a rush. It was for a relatively new client whom we were trying to impress. The
associate did a nice job under pressure. Before I left the office at about 7:30 I sent an email
to this associate asking him to perform a task fax a draft letter for review and comment.
I assumed the task was done. Turns out the associate left the office and did not check his
emails until this morning. I assumed the task had been completed. It had not been. In this
case it was no harm no foul, but I think we can all imagine scenarios when this could be a
disaster.
Painting people whose images are protected Alabama football, Tiger Woods, and
Obama (2009-10-23 18:28)
The Tuscaloosa News reports that a decision is expected

soon in the University of Alabama s lawsuit against sports artist Daniel Moore. As the newspaper explains, the university sued Moore for trademark violations in March 2005, alleging he painted scenes
of Crimson Tide football games [such as the one at right] without permission from the university and
reissued previously licensed prints without paying royalties. The university is seeking back pay for more
than 20 paintings and wants Moore to license any future paintings.
Although the decision is by no means binding on the court deciding the Alabama case, a lawsuit filed
in 2000 by Tiger Woods and ETW Corporation, Woods licensing agent, against the artist Rick Rush
might be illuminating. The focus of the Woods lawsuit were a group of Rushs prints depicting Woodss
victory at the 1997 Masters. Woods sued to protect his name and his image under right-of-publicity and
trademark laws. Rush, like Moore, argued his prints are protected by the First Amendment. The U.S.
District Court and the U.S. Court of Appeals in Cincinnati (6th Cir.) agreed with Rush.
The Sixth Circuits decision is illuminating, not only with respect to the lawsuit between Alabama and
Moore, but also with respect to the dispute between the AP, Manny Garcia, and Shepard Fairey. The
court explained in reaching its decision that, like Andy Warhols paintings of celebrities, Rushs paintings
were sufficiently transformative to be entitled to First Amendment protection:
When artistic expression takes the form of a literal depiction or imitation of a celebrity
for commercial gain, directly trespassing on the right of publicity without adding significant
expression beyond that trespass, the state law interest in protecting the fruits of artistic labor
outweighs the expressive interests of the imitative artist. On the other hand, when a work
contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by
the right of publicity....
Accordingly, First Amendment protection of such works outweighs whatever interest the state
365
may have in enforcing the right of publicity. . . . [I]n Comedy III Productions, Inc. v.
Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001)] the California
[Supreme] [C]ourt []stated the test as follows: Another way of stating the inquiry is whether
the celebrity likeness is one of the raw materials from which an original work is synthesized,
or whether the depiction or imitation of the celebrity is the very sum and substance of the
work in question.
. . . citing the art of Andy Warhol, the court noted that even literal reproductions of
celebrity portraits may be protected by the First Amendment.
Through distortion and the careful manipulation of context, Warhol was able to convey
a message that went beyond the commercial exploitation of celebrity images and became a
form of ironic social comment on the dehumanization of celebrity itself.... Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more
so than other distinctions triers of fact are called on to make in First Amendment jurisprudence. Id. at 408-409, 106 Cal.Rptr.2d 126, 21 P.3d at 811 (citations and footnote omitted).
. . .
The evidence in the record reveals that Rushs work consists of much more than a mere literal likeness of Woods. It is a panorama of Woodss victory at the 1997 Masters Tournament,
with all of the trappings of that tournament in full view, including the Augusta clubhouse, the
leader board, images of Woodss caddy, and his final round partners caddy. These elements in
themselves are sufficient to bring Rushs work within the protection of the First Amendment.
The Masters Tournament is probably the worlds most famous golf tournament and Woodss
victory in the 1997 tournament was a historic event in the world of sports. A piece of art that
portrays a historic sporting event communicates and celebrates the value our culture attaches
to such events. It would be ironic indeed if the presence of the image of the victorious athlete
would deny the work First Amendment protection. Furthermore, Rushs work includes not
only images of Woods and the two caddies, but also carefully crafted likenesses of six past
winners of the Masters Tournament: Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagen,
Bobby Jones, and Jack Nicklaus, a veritable pantheon of golfs greats. Rushs work conveys
the message that Woods himself will someday join that revered group. . . .
We find, like the court in Rogers, that plaintiffs survey evidence, even if its validity is assumed, indicates at most that some members of the public would draw the incorrect inference
that Woods had some connection with Rushs print. The risk of misunderstanding, not engendered by any explicit indication on the face of the print, is so outweighed by the interest
in artistic expression as to preclude application of the Act. We disagree with the dissents
suggestion that a jury must decide where the balance should be struck and where the boundaries should be drawn between the rights conferred by the Lanham Act and the protections
of the First Amendment.
In regard to the Ohio law right of publicity claim, we conclude that Ohio would . . . [apply] a
rule analogous to the rule of fair use in copyright law. Under this rule, the substantiality and
market effect of the use of the celebritys image is analyzed in light of the informational and
creative content of the defendants use. Applying this rule, we conclude that Rushs work has
substantial informational and creative content which outweighs any adverse effect on ETWs
market and that Rushs work does not violate Woodss right of publicity.
We further find that Rushs work is expression which is entitled to the full protection of
the First Amendment and not the more limited protection afforded to commercial speech. .
. .
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In balancing these interests against Woodss right of publicity, we note that Woods, like
most sports and entertainment celebrities with commercially valuable identities, engages in
an activity, professional golf, that in itself generates a significant amount of income which is
unrelated to his right of publicity. Even in the absence of his right of publicity, he would still
be able to reap substantial financial rewards from authorized appearances and endorsements.
It is not at all clear that the appearance of Woodss likeness in artwork prints which display
one of his major achievements will reduce the commercial value of his likeness. While the right
of publicity allows celebrities like Woods to enjoy the fruits of their labors, here Rush has
added a significant creative component of his own to Woodss identity. Permitting Woodss
right of publicity to trump Rushs right of freedom of expression would extinguish Rushs
right to profit from his creative enterprise.
The difference between Moores case and Rushs principally seems to be that Moores paintings are far
more realistic than Rushs (as the painting pictured above demonstrates). In contrast, Faireys Obama
Hope poster is more like Warhols paintings of celebrities. The funny thing is that I have no doubt
Moores paintings take more time and effort but time and effort are not what is protected by the fair
use test; rather, originality of expression is.
Kids need to learn a lot, but they can teach us a lot too. (2009-10-27 10:10)
The information and communication revolution wrought by the internet is, among other things, a generational divider. While one generation bemoans the threat of the internet to newspapers and books, a
new generation the one I teach appears to do the vast majority of its reading online. It is of course
not all a matter of the younger generation having aptitudes for a new environment we old people resist
adapting to. There is as much lost as is gained. (One of these days Ill explore the loss Ive noticed in
researching skills, the ability to ferret out information that is not easily accessible or even immediately
recognizable as important.)
But there is so much that is of great use in the new environment that too many of my contemporaries (and, also, too many of my students) dont take advantage of. Social Media Law Student is a
terrific site for helping us all find and learn how to use new tools. Its run and written by law students.
Yana Siganur writes todays lead article, in which she takes the opportunity to remind everyone of the
efficiency that is Google in a well-written and concise guide to a number of tools available from Google
that can our professional lives easier.
Lawyers are beginning to learn that globalization means fewer jobs in the USA.
(2009-10-28 13:23)
Did all the lawyer-lawmakers who bought into free trade realize that it isnt just manufacturing jobs
they might be selling off to other countries? Mark Kobayashi-Hillary notes that the prediction that legal
services would be outsources is an old one, but he also believes that companies now are beginning to
seriously explore these possibilities. One piece of evidence supporting his supposition is that Lloyds
Banking Group is negotiating a 400m acquisition of CPA Global, the patent and legal services group.
What does CPA Global do? According to its website, CPA Global is one of the leading legal outsourcing companies in the world, offering a full range of general legal and intellectual property (IP)
support services. Among other things, CPA Global provides
services such as document review, contract management and litigation support right
through to top end intellectual property software, renewals and data management, research
and consulting assisting busy law firms and corporate legal departments throughout the
litigation and IP lifecycle.
367
Law students and lawyers moan that if they work for Big Law theyll spend years doing document
review, but, hey, its a living. Without those jobs, the entire market, already shrinking, shrinks more.
And now lawyers too begin to learn what globalization really means: selling to other countries with lower
labor standards the jobs the U.S. labor market has spent a century making half-decent for the people
who do them here.
The EFF fights copyright overclaiming by means of public shaming (2009-10-28 13:48)
One of the problems of our legal system Ive written about is the way its expense has conferred inordinate
weight on sheer wealth. In copyright, this problem plays out in what is termed copyright overclaiming
the assertion of rights over content that is utterly misbegotten but not worth the expense of fighting.
One means of fighting this abuse, I suppose, is public shaming, which is exactly what the Electronic
Frontier Foundation is now doing with its Takedown Hall of Shame, a compilation of [b]ogus copyright
and trademark complaints have threatened all kinds of creative expression.
The Framers embraced government provided services. (2009-10-29 15:14)

It never occurred to me that it would have to be repeated, much less come as a shock, that our country
was founded on the assumption that the government would be the source of services needed by all. But
Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of
Law, fills us in on precisely this history, explaining that the Founding Fathers believed that essential
services should be provided by government to the public at large for little or no remuneration. The costs
of these services would be shared by the whole. Im not sure I agree with Browns characterization of this
approach to governance as socialism, but I suppose hes only deferring to the debased and a-historical
way that term is being thrown around these days.
Warren Zevon: Lawyers, Guns & Money (2009-10-30 19:55)

[EMBED]
2.11
November
When is a copy an original? (2009-11-01 22:33)
Behind all the shouting about Shepard Fairey and the

Obama Hope poster, there is, as Ive emphasized again and again, a real failure to contend with our
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conceptions of creativity and originality. Hollywood, of course, is stuck in a rut of remakes so deep that
Im seeing remakes of films Ive already seen as an adult. There isnt much originality there. But then you
look at something seemingly so simply as Douglas Gordons 24 Hour Psycho (1993), a super slowed-down
version of Alfred Hitchcocks 1960 film Psycho, and you have to wonder whether it isnt a whole lot more
original then the coming remake of A Nightmare on Elm Street. Gordon explains his film as follows:
24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation... it wasnt a straightforward case of abduction. The original work is a masterpiece in its own right,
and Ive always loved to watch it. ... I wanted to maintain the authorship of Hitchcock so that when an
audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or
not at all, about me...
Cukoo Kookaburra copyright claim (2009-11-02 11:33)

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the
U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as
the nursery rhyme the songs riff was based on. The contestant needed prompting. Its no surprise he
had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, [t]he
key, harmony, structure and rhythm of Down Unders famous riff changed the sound of it so much that
nobody - not the band, [the managing director of the company that owned the copyright to Kookaburra],
or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz
show question.
But that didnt stop the copyright holder from suing Men at Work, despite the fact it had bought the
rights to Kookaburra in the 1980s when it bought them for $6100 from the family of its late composer,
Toorak School teacher Marion Sinclair. In fact, one of its managing directors jobs was to track down
unauthorized uses its a wonder he hasnt yet gotten to the school chorus version below.
The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is
fair use. If something is so transformed that it isnt noticed even in a #1 hit, it must be transformative,
right? I think Shepard Faireys Obama Hope poster is fair use for a similar reason the photographer
himself didnt realize the poster was based on his own photograph. Copyright claims like the one against
Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, The
reuse of riffs is as old as rocknroll. And its a good thing, according to Martin Armiger, former member
of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie
Louie by Richard Berry became the template for hundreds of songs including the Troggs Wild Thing
and the Beatles Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.
Or, as the KLF puts it, Every Number One song ever written is only made up from bits from other
songs.
[EMBED] [EMBED]
Homeland uber alles. (2009-11-04 11:02)

Im not Hannah Arendts biggest fan, but the prominence she gave to banality of evil is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can
be concisely described, the great evils in history generally, and the Holocaust in particular, were not
executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state
and therefore participated with the view that their actions were normal. The role of the legal profession
in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in
369
specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the normal way
of protecting our homeland.
Ive compared the case of Maher Ahar to The Trial. Im afraid that comparing it to fiction was my
own effort to deflect the ugliness. As Glenn Greenwald describes Arars nightmare:
Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications
engineer and graduate of Montreals McGill University, he has lived in Canada since hes 17
years old. In 2002, he was returning home to Canada from vacation when, on a stopover at
JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for
two weeks incommunicado and without access to counsel while he was abusively interrogated,
and then (d) was rendered despite his pleas that he would be tortured to Syria, to
be interrogated and tortured. He remained in Syria for the next 10 months under the most
brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone
acknowledges that Arar was never involved with Terrorism and was guilty of nothing.
Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arars lawsuit (pdf)
alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due
process. Why? Because he couldnt name the people who did what they did to him:
Arar alleges that Defendants

undifferentiated denied Mr. Arar effective access to
consular assistance, the courts, his lawyers, and family members in order to effectuate his
removal to Syria. But he fails to specify any culpable action taken by any single defendant,
and does not allege the meeting of the minds that a plausible conspiracy claim requires.
He alleges (in passive voice) that his requests to make phone calls were ignored, and that
he was told that he was not entitled to a lawyer, but he fails to link these denials to any
defendant, named or unnamed. Given this omission, . . . we agree with the District Court
and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25
(emphasis added).
So next time youre hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be
sure to get down the names of the officials doing this to you. Otherwise, you have no constitutional
protections against this treatment. Its all in the name of national security, and that trumps all, right?
This is judging?
The source of innovation

as a lawyer, as a business person, or as a designer
creative thinking. (2009-11-09 07:07)
is
One of the reasons I was willing and remain committed to writing about law and creativity here at Geniocity is the purpose of this site as Carolyn Jack, its founder, has made clear to me from the beginning:
it s intended to show how innovation works across professions and disciplines normally segregated from
one another so that people in those disciplines and fields can learn from one another. Innovation requires
a remarkably agile mind
a creative mind
and so anyone wanting to innovate should look to the
thinking of creative people no matter where they find them. Businesses should look to artists. Artists
should look to game designers. Game designers should look to lawyers. Lawyers should look to fiction
writers . . .
Again: no matter what you do
law, business, education, etc.
you should pursue innovation by
seeking ideas from people whose job it is to innovate. As Fast Company reports, that s also precisely the
advice Roger Martin gives to businesses:
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[T]he dean of the Rotman School of Management at the University of Toronto is traveling
the country, throwing down the gauntlet to companies who hope to analyze and strategize
their way out of a recession by bringing in armies of management consultants. You ll get
what you pay for, he warns, and it won t be innovation. The business world is tired of having armies of analysts descend on their companies, he says. You can t send a 28-year-old
with a calculator to solve your problems.
The problem, says Martin, author of a new book, The Design of Business: Why Design
Thinking is the Next Competitive Advantage, is that corporations have pushed analytical
thinking so far that it s unproductive. No idea in the world has been proved in advance with
inductive or deductive reasoning, he says.
The answer? Bring in the folks whose job it is to imagine the future, and who are experts in
intuitive thinking.
As Martin points out, even scientific progress starts with hypotheses; it doesn t merely apply the known.
Which, interestingly, is precisely the point evolutionary biologist Olivia Judson made in the New York
Times this week:
One of my favorite things to do is to take a set of facts and use them to imagine how the world might
work. In writing about some of these ideas, my aim is not to be correct
how can I be, when the answer
isn t known?
but to be thought-provoking, to ask questions, to make people wonder.
[S]cience is usually presented as a body of knowledge

facts to be memorized, equations
to be solved, concepts to be understood, discoveries to be applauded. But this approach can
give students two misleading impressions.
One is that science is about what we know. One colleague told me that when he was studying
science at school, the relentless focus on the known gave him the impression that almost everything had already been discovered. But in fact, science
as the physicist Richard Feynman
once wrote
creates an expanding frontier of ignorance, where most discoveries lead to
more questions. (This frontier
this peering into the unknown
is what I especially like to
write about.) Moreover, insofar as science is a body of knowledge, that body is provisional:
much of what we thought we knew in the past has turned out to be incomplete, or plain
wrong.
The second misconception that comes from this facts, facts, facts method of teaching science is the impression that scientific discovery progresses as an orderly, logical creep ; that
each new discovery points more or less unambiguously to the next. But in reality, while some
scientific work does involve the plodding, brick-by-brick accumulation of evidence, much of it
requires leaps of imagination and daring speculation. (This raises the interesting question of
when speculation is more likely to generate productive lines of enquiry than deductive creep.
I don t know the answer
I d have to speculate.)
Being effective at anything requires innovation to address an ever changing world. It s true in law. My
students arrive in law school wanting to be told the answers law provides. I hope by the time they leave
that what they ve learned are not answers but, rather, ways to creatively reach answers to questions no
one can anticipate they will face.
In other words, the qualities required by effective lawyers are the same qualities as Hartmut Esslinger,
the founder of frog design, tells Guy Kawasaki
required by effective designers. Both great designers
and great lawyers lawyers have an enormous depth and breadth of knowledge, an ability to connect that
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knowledge to human lives and human hearts, desire, and persistence:
The artistic talent required is more of an enabler at the end of rational and emotional
analysis as well as strategic conceptualization. Therefore, it is vital to learn and study as
much as possible especially about business, technology and human nature. In the end, there
are flavors in design which are more esthetic see New York Times Style Magazine but
design is only relevant when it improves human lives by appealing both to the mind and the
heart. Finally, a young person with the right talents needs to have infinite desire and never
give up. I apply a simple test with young students: smash a teapot into pieces and then hand
out the glue. Those who rebuild the teapot won t make it, those who create phantasy animals
and spaceships will.
So next time you are looking to innovate (and you always should be), look to creative people to help you
do it.
Protecting an artists legacy: maximize the income from his works, or seek to embody
his art? Moral rights and the successors to John Cage. (2009-11-10 13:18)
One of the more remarkable copyright fights has, literally, been over silence. The copyright issues are
interesting, but Im particularly interested in the insights provided by Lewis Hyde that I recently came
across and the way they bear on a lawyers duty to pay as much or more attention to a clients heart and
soul as it is to pay attention to a clients legal rights and remedies.
The new information comes from the Official Blog of the John Cage Trust, a wonderful new addition to
the blogosphere brought by the not-for-profit organization founded shortly after Cages death to support
and nurture his legacy. As American Masters explains, Cage was not merely one of the 20th Centurys
most important composers; his work and thought extends to every creative field:
His sense that music was everywhere and could be made from anything brought a dynamic
optimism to everything he did. While recognized as one of the most important composers of
the century, John Cage s true legacy extends far beyond the world of contemporary classical
music. After him, no one could look at a painting, a book, or a person without wondering
how they might sound if you listened closely.
Cage was particularly interested in investigating composition through chance procedures. Thus, it is not
surprising that the homepage of JohnCage.org points right now to Eddie Kohlers beautiful application
devoted to John Cages Indeterminacy: New Aspect of Form in Instrumental and Electronic Music. According to Stereophile (quoted on Amazon.com), Cage composed Indeterminacy by reading 90 stories,
his speed determined by the storys length. In another room, beyond earshot of Cage, David Tudor,
pianist and veteran Cage collaborator, performed miscellaneous selections from Cages Concert for Piano
and Orchestra and played pre-recorded tape from Cages Fontana Mix. The resulting collaboration is
an astounding piece of music, and a fine introduction to the innovations of John Cage. A wonderfully
curious way to hear stories.
Perhaps Cages most well-known work is 433. Solonmusic.net describes the pieces first performance
and the audiences reaction (footnotes omitted):
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The first performance of John Cages 433 created a scandal. Written in 1952, it is Cages
most notorious composition, his so-called silent piece. The piece consists of four minutes
and thirty-three seconds in which the performer plays nothing. At the premiere some listeners
were unaware that they had heard anything at all. It was first performed by the young pianist
David Tudor at Woodstock, New York, on August 29, 1952, for an audience supporting the
Benefit Artists Welfare Fund an audience that supported contemporary art.
Tudor placed the hand-written score, which was in conventional notation with blank measures, on the piano and sat motionless as he used a stopwatch to measure the time of each
movement. The score indicated three silent movements, each of a different length, but when
added together totalled four minutes and thirty-three seconds. Tudor signaled its commencement by lowering the keyboard lid of the piano. The sound of the wind in the trees entered
the first movement. After thirty seconds of no action, he raised the lid to signal the end of
the first movement. It was then lowered for the second movement, during which raindrops
pattered on the roof. The score was in several pages, so he turned the pages as time passed,
yet playing nothing at all. The keyboard lid was raised and lowered again for the final movement, during which the audience whispered and muttered.
Cage said, People began whispering to one another, and some people began to walk out.
They didnt laugh they were just irritated when they realized nothing was going to happen,
and they havent fogotten it 30 years later: theyre still angry. Maverick Concert Hall, the site
of the first performance, was ideal in allowing the sounds of the environment to enter, because
the back of the hall was open to the surrounding forest. When Tudor finished, raising the
keyboard lid and himself from the piano, the audience burst into an uproar infuriated and
dismayed, according to the reports. Even in the midst of an avant garde concert attended
by modern artists, 433 was considered going too far.
Laura Kuhn, the Cage Trusts Executive Director, graciously points readers to a excerpts from a conversation between Nicholas Riddle, general manager of Peters Edition, which owns the copyrights in Cages
works, and Hyde, the author of an eagerly awaited forthcoming book on the cultural commons. The
part of the exchange between Riddle and Hyde Ms. Kuhn has posted concerns the work that became the
focus of one of the more notorious copyright lawsuits of all-time, brought by Peters Edition against Mike
Batts, a British composer. In the course of producing the album Classical Graffiti for the The Planets,
Batts inserted a one minute silence between two sections of the album that were in radically different
styles. According to Riddle, Batts said, I thought for my own amusement it would be funny to call it
something, so I called it A Minutes Silence and credited it as track 13, and put my name as Batt/Cage,
as a tongue-in-cheek dig at the John Cage piece.
Subsequently, Batts record company forwarded the [album] to MCPS, which was handling the mechanical royalties for these CDs. They then identified Cage s 4 33 as the work in question and started to
pay out pro rata royalties to [Peters Edition] as Cage s publisher. After Batts homage became the
subject of newspaper reports, Peters Edition agreed to a run-off between the Batt piece (performed by
The Planets) and the Cage piece, performed at the clarinet by our London firm s Head of New Music,
Marc Dooley.
As Riddle notes, the press described the subsequent lawsuit brought against Batts by Peters Edition as
a claim that Batts stole his silence from Cage. I cant say that I didnt have precisely that impression.
Riddle explains the lawsuit to Hyde differently since Batts attributed the 1 minute of silence to Cage, he
was either earning royalties for Cages work or identifying something as Cages work that wasnt. Either
way, hed owe Peters Edition money:
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The claim was nothing to do with stealing silence from Cage. The issue was entirely that
Batt identified this silence as having Cage authorship, leading to a presumption that he was
quoting in some sense from 4 33 , and was so successful in doing so that the collecting society
started to pay out mechanical royalties for it. There were really only two options here: either,
the track really was intended as a quotation from 4 33 or some other unidentified Cage work,
in which case mechanical royalties were due; or, he was misappropriating Cage s name in
the context of a musical work, and that also would not do. He, after all, was the one who
claimed it was Cage in the first place. Was he passing off something else as being by Cage,
or was the work actually Cage? Since performances of 4 33 could be said in some sense to
be self-identified as such, it was really his call.
As Hyde recognizes in his response to Riddle, the claim that identification of the minute of silence as a
work by Cage was a misappropriation of Cages name to give value to a work it would not have had
without that attribution is founded in the concept of moral rights, which are (except in very narrow
circumstances not applicable to the lawsuit against Batts) not recognized in U.S. copyright law. As Hyde
very concisely describes an artists moral rights, such rights include the right of attribution, the right to
prevent false attribution, and the right of integrity.
I can understand why if one were talking about a conventional musical composition Riddle is right
Batts would owe money either because he had earned royalties from the sale, without permission, of a
work that Cage had composed or, under the doctrine of moral rights, he had made money from a work
that presumably sold in part because it had been falsely attributed to Cage. Nonetheless, I cannot get
my head around the idea that 1 minute of silence is a quotation of 4 minutes and 33 seconds of silence or
that the attribution wasnt a perfectly legitimate parody of Cages work rather than an effort to extract
money from listeners who would mistakenly think they were listening to Cages silence, not Batts. Even
in a realm of moral rights there must be room for parody.
Nonetheless, to the shock of many, Batts settled the lawsuit and paid an undisclosed sum of money
to the John Cage Trust. Riddle admits he is not at liberty to discuss the details of the settlement and
writes that he and Batts did not discuss the reasons Batts agreed to the financial settlement, but he
suggest that his own belief is that Batts as an artist recognized a need to acknowledge the legitimacy of
the publishers claims:
[M]y personal take on this is that it is important to remember that Mike Batt is also a
composer and that a significant part of his income is from royalties earned on his existing
works. The same applies to CDs of his music or the music of the bands he creates and promotes. He is heavily invested himself in the concept of intellectual property and its value.
And rightly so, in my view.
Hyde doesnt dispute the merits of Riddles explanation of the legal bases of the lawsuit, but he does raise
(in a remarkably gentle and respectful way) another entirely different doubt he has about the wisdom of
the lawsuit. Hyde points to Cages Buddhist beliefs and convictions that his art was not a projection of
his personality. In fact, moral rights are grounded in the idea that an artists creations are in some way
embodiments and extensions of the artist: one violates an artists moral rights if one violates a works
integrity by, for example, defacing it, because defacement of the work is in some sense a defacement of
the artist. To attribute to an artist a work that isnt by the artist is, in turn, to violate the artists identity
by identifying the artist with something that is not the artist; an artists genuine work, in contrast, is
the artist.
But Cage did not believe his compositions embodied or otherwise constituted extensions into the world
of his identity. As Hyde writes, Cage was not interested in chance as a means of revealing the personality.
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He even wrote, Personality is a flimsy thing on which to build an art. Instead,
Cage was after [Jacques] Monods absolute newness of pure chance. He was not out to
discover any hidden self, nor did he think chance operations would reveal any hidden, alreadyexisting divine reality, as ancient diviners thought. Composition is like writing a letter to a
stranger, he once said. I dont hear things in my head, nor do I have inspiration ....
If Hyde is right, then pursuing a claim that Cages moral rights had been infringed by Batts would be
to assert a claim Cage himself did not believe in. If Cage had understood that, would he have refused to
assert the claim? I think theres a good chance of that. Would you sue someone for doing something you
thought was a perfectly legitimate thing to do even if someone told you that if you sued them youd get
money? Its important to understand that a lawyer represents the client, not the clients abstract legal
rights. But when someones rights pass to another (whether by contract, by trust instrument, by will, or
otherwise), the new owner of the rights may have his own idea of what is important to protect.
How much is that successor bound by the original rights holders understanding and intentions? That is
a very, very interesting and difficult question. Hyde is suggesting, I think, that Riddle and Peters Edition
were really watching out for the concerns of Peters Edition and not for the concerns of John Cage as an
artist, that Riddle might have done far more to preserve Cages legacy than he did by extracting some
money from Batts for the John Cage Trust.
Honor our veterans and dont efface their experience with ideology: Freakonomics &
the draft. (2009-11-11 11:14)
My understanding is that Freakanomics is the application of economic thinking that oversimplifies human behavior to the analysis of actions that economics typically doesnt address. The thinking goes that
if people are always left free to make choices for themselves about what to do for themselves, society as
a whole will be best off.
When will this idiocy end? Isnt there some recognition somewhere that individuals making decisions
that are best for them might in the aggregate hurt everyone? And when is a person really free to make a
decision one way or another about whether, say, he can go to law school or he should enlist in the armed
forces?
Its Veterans Day. Its always been a special day in my family. My father was a soldier and POW
in WWII. WWII was a difficult war with an outcome that was not certain until very near the end (and
even then it took a new and horrific weapon to finally end it). The U.S. and the Soviet Union won it.
My father didnt get drafted, but he enlisted because he was about to be drafted. The U.S. military was
a genuine citizens force. My father was changed forever by the experience mostly for the better, but
it was by no means an experience he wished me to undergo in the absence of a very good reason.
I cannot help but be humbled on Veterans Day.
But Steven Levitt is much too clever for all of that. Hed tell my dad that people like him who were
forced into the military in WWII were the wrong people! Given Mr. Levitts brilliance, its a wonder
we won WWII and havent won wars in Iraq and Afghanistan that weve now fought 2 and 4 years longer,
respectively, than we fought WWII:
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The idea that a draft presents a reasonable solution is completely backwards. First, it
puts the wrong people in the military
people who are either uninterested in a military
life, not well equipped for one, or who put a very high value on doing something else. From
an economic perspective, those are all decent reasons for not wanting to be in the military. (I
understand that there are other perspectives
for example, a sense of debt or duty to one s
country
but if a person feels that way, it will be factored into his or her interest in military
life.)
One thing markets are good at is allocating people to tasks. They accomplish this through
wages. As such, we should pay U.S. soldiers a fair wage to compensate them for the risks they
take! A draft is essentially a large, very concentrated tax on those who are drafted. Economic
theory tells us that is an extremely inefficient way to accomplish our goal.
When ideas replace the lessons of experience, we dishonor those who have undergone the experience.
Fair Use, Fairy Tales, and Collage:
more proof Girl Talk wont be stopped
(2009-11-13 10:17)
Professor Eric Faden of Bucknell University created this brilliant account of copyright principles delivered
through the words of the very folks we can thank for nearly endless copyright terms. The fact it has
never been forced down is to me proof positive that legitimate, non-infringing fair use can consist entirely
of copied and pasted copyrighted works. Which is proof positive to me that I am right in believing that
Greg Gillis/Girl Talk need not worry should he ever be sued for infringement of the copyright of any of
the samples he uses.
I do think this video is deficient in one respect: it doesnt sufficiently discuss the importance in the
fair use analysis of the originality of the allegedly infringing work it suggests parody, journalism, and
criticism are legitimate, non-infringing uses of small parts of copyrighted works, but it doesnt connect
these individual examples of transformative work to the larger point: if the allegedly infringing work
stands on its own if it uses the copyrighted work to express something the copyrighted work doesnt
express to reach an audience for a different purpose than the copyrighted works audience comes to the
copyrighted work for then it is transformative and very, very likely not to be infringing. (If it is
tranformative, its not going to have an impact on the market for the original or any of the originals
reasonably anticipated derivative uses.)
The funny thing is that the video doesnt discuss the larger issues relating to the nature of the allegedly infringing work and how tranformative it is, but the video itself is entirely transformative:
[EMBED]
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Money or racism? Could the Dolans just do the right thing already? The courts
wont. (2009-11-16 17:00)
The Lanham Act, the federal law governing trademarks

prohibits trademarks which may disparage . . . persons, living or dead, institutions, beliefs, or national
symbols, or bring them into contempt. . . . Nevertheless, the Supreme Court has declined to review a
lower court decision (pdf download) in Pro Football, Inc. v. Harjo ruling that, even assuming the name
of the Washington, D.C. football team, Redskins, is disparaging to Native Americans or brings them into
contempt, the Redskins cannot be forced to give up their trademark rights. Why? Because, given the
length of time that the Redskins have had the name without challenge and the delay in the plaintiffs
bringing their claim, it would be unfair to deprive the football team of the profits to be made from selling
goods bearing the Redskins name.
There are serious questions to be raised about the legal merits of the NFLs position among other
points, the Lanham Act states that challenges to a trademark can come at any time. But my more
serious question, to Daniel Snyder and to Larry Dolan, is this: why in the world would you want to make
money off of a symbol so many people consider racist? Well, Larry Dolans answer is that he doesnt see
evidence that Chief Wahoo is racist.
Its amazing how money can blind someone.
Those naive little innocents may be a lot smarter than you, Mr.
Prosecutor.
(2009-11-17 13:34)
The range between online fluency and online ignorance is remarkable these days. It is largely, though
certainly not entirely, generational. One example of this gap in fluency was the discovery by one of my
more technically proficient students in a case we read in my Contracts course of ignorance regarding
the technical implications of an online transaction. The ignorance, in my students opinion, undermined
entirely the judges reasoning.
Ars Technica brings up another example, this one perhaps disclosing the naivety of a prosecutor:
Rodney Bradford, a 19-year-old Brooklyn resident, was arrested last month for allegedly
robbing a man at gunpoint. This, in itself, was not a very newsworthy event until his defense
lawyer discovered that Bradford had made an update to his Facebook profile at the time of
the robbery. Bradford had insisted that he was at his fathers Harlem apartment at the time,
and that the update was made from there. When the district attorney verified the claims
with Bradfords father and stepmother and the IP information with Facebook, the charges
against Bradford were dropped.
But, of course, its obvious to everyone . . . that the Facebook posting could have been made by someone
else, and there would be no way to truly verify who was sitting in front of the computer at the time. As
377
John Jay College of Criminal Justice law instructor Joseph Pollini points out, it might not be sufficient
for the prosecutor to shrug off the possibility simply because the alibi is a teenagers teenagers likely
know better than anyone how to construct such alibis (and that older people often fail to see through
them):
Some of the brightest people on the Internet are teenagers. They know the Internet better
than a lot of people. Why? Because they use it all the time.
You can now use Google Scholar to find case law. (2009-11-17 13:51)
This is a terrific new innovation. Today, from Google:
Starting today, were enabling people everywhere to find and read full text legal opinions
from U.S. federal and state district, appellate and supreme courts using Google Scholar. You
can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics
(like desegregation) or other queries that you are interested in. For example, go to Google
Scholar, click on the Legal opinions and journals radio button, and try the query separate
but equal. Your search results will include links to cases familiar to many of us in the U.S.
such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity
of separate but equal facilities for citizens at two different points in the history of the U.S.
But your results will also include opinions from cases that you might be less familiar with,
but which have played an important role.
The Amen Break: 40 years of remixing a drum break; but now ownership is being
asserted over it (and not by the creators) (2009-11-20 17:54)
[EMBED]
Trademark madness (2009-11-24 13:43)

From Legal Pad: Sand Hill Advisors, the Palo Alto wealth management company, is suing Sand Hill
Advisors, the commercial real estate company in Los Altos, for trademark infringement. I am, apparently, one of the 3 people Legal Pad asserts did not know that Sand Hill Road is the iconic stretch of
pavement near which the sainted feet of venture capitalists tread daily to their places of work. There
was a time I wouldve known the signifiers that mattered to venture capitalists. I suspect Im better off
no longer knowing.
Apparently the wealth management company claims its been using the name since 1995 and that the
real estate company is profiting off the value that the wealth management company has created in the
name. There would be some merit in the claim if people really are using the real estate company because
they think its somehow associated with the wealth management company, but that would seem to be a
difficult set of facts to establish. Typically, a trademark cannot be enforced against someone using it in
a different market because in doing so the alleged infringer typically is not capitalizing on value in the
trademark created by the claimant.
In addition, the real estate company claims (it its motion to dismiss (pdf)), that the trademark claim is
deficient because the wealth management company doesn t even have an enforceable service mark, since
the government rejected a trademark application because the name was descriptive of a place.
Legal Pad, though, is dead on in its prediction: Sand Hill Advisors has it in the bag.
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But who will win the lawsuit filed by Mickey Mouse against Donald Duck?
Thanksgiving for the American Dedication to the Common Good (2009-11-25 12:31)
Im not quite sure why it is that so many of my students really believe that the signal trait of the U.S.
is a radical individualism that doesnt even blink at suggestions that something like, say, Social Security
is socialism, but it certainly isnt a firm grasp of history. The Pilgrims whom we celebrate tomorrow
themselves promised in their Mayflower Compact that they were each dedicated to the good of the community and that their laws were to be those intended for the general good:
We whose names are underwritten . . . covenant and combine ourselves together into
a civil body politic, for our better ordering and preservation and furtherance of the ends
aforesaid; and by virtue hereof to enact, constitute and frame such just and equal laws,
ordinances, acts, constitutions and offices, from time to time as shall be thought most meet
and convenient for the general good of the Colony: unto which we promise all due submission
and obedience.
Happy Thanksgiving, to all, and to all for whom it isnt, may we all strive to make next years better.
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Can we force a prisoner to be medicated in order to be competent enough to be

executed? (2009-11-30 13:51)
Truly only Franz Kafka could do justice to some of the

questions that arise in our justice system. In Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), the
defendant argued that he could not be executed because he was not mentally competent and that he
could not be forced to take medication to make him medically competent because to do so would make
him eligible for execution and therefore could by no means be in his best medical interest. The 8th
Circuit disagreed, requiring the question whether the medication to make the defendant competent to be
answered without regard to whether there [was] a pending date of execution. Id. at 1026. Both the
death sentence and involuntary medication regime had been lawfully imposed. The defendant thus could
no longer assert either a life interest nor a liberty interest.
Now, though, the North Carolina Criminal Law Blog suggests that more recent U.S. Supreme Court
precedents may collectively stand for the notion that the execution of an inmate who is competent only
by virtue of forced medication might violate the Eighth Amendment s evolving standards of decency.
I find the suggestion encouraging, but I am skeptical. We seem loathe to find reasons not to execute
people these days.
2.12
December
Breathlessly waiting for Murdoch to be sued .
or wither on the web?
(2009-12-01 13:10)
The Kwika Entertainment Blog (reprinting a piece from the Huffington Post) breathlessly announces that
if Microsoft and [Rupert Murdochs] News Corp. go forward with a deal whereby News Corp. demands
that Google stop indexing its websites, don t be surprised if it leads to one of the most important copyright lawsuits in history.
Dont bet on it.
Googles display of snippets from News Corps web pages for search engine purposes is almost certainly
fair use. Can you imagine a Google snippet ever serving as a substitute for the original? If not, then the
snippet is fair use. And copying the entire site for the sake of creating the snippet is fair use too.
The idiotic part of Murdochs move would be that, assuming Google allows Murdoch s publications
to opt-out of Google (as Google does for any site
all you have to do is insert some code into your
site to exclude your site from Googles indexing), the result will be that Murdoch s publications will lose
all that traffic Google generates. Stupid, stupid, stupid.
380
Murdoch has always had the option to opt out of Google. The other stupid player here might be
Microsoft why pay to index something that will only be losing readership?
The inexorable trend toward free access to court documents (2009-12-02 14:43)
I mentioned last week that Google Scholar can now be used to find case law. Its real progress.Court
documents, after all, are public documents, so it sometimes seems a bit frustrating that the only reliable
way to do legal research is through private systems. As Wireds Threat Level explains, West [Publishing],
and its competitor, Lexis Nexis, buy court data in bulk, reformat it and add proprietary citation codes.
They then license the database of public documents at high rates to libraries, law firms and government
agencies. Even the U.S. Court system pays West s high license fees to access public court documents that
West purchased from it.
To make matters worse, the court systems database, PACER, doesnt work well: the search function is intricate and inflexible, and lacks a way for users to be notified when a case is updated. And in
the age of Google, it is absurd to charge citizens to search for the name of a person in a lawsuit. Even
looking at the docket sheet
a short form list of all actions in a given case
costs $.08 a page.
The ability to copy and disseminate documents instantaneously, of course, is breaking this system down.
In addition to Google Scholar, a Firefox plug-in called RECAP, created by Princeton students, uploads
court documents to a public archive any time a user goes into th e system, while programmer Aaron
Swartz took advantage of a pilot program offering free access to download 18 million court documents
(that earned him an FBI investigation).
Ive got mixed feelings about court dockets in their entirety being freely available via the internet (as opposed to, say, the documents courts themselves produce). Dissemination of documents produced without
thought to a worldwide audience can cause serious misunderstandings. But technology and economics
seem to be inexorable forces just ask the music industry: try as it might, it isnt going to recreate a
world in which it held a monopoly on the ability to produce and distribute recorded music. And its
probably better after all that the public gets for free the court documents it produces.
Legal education is monumentally difficult. Legal rules are not rules in the sense
most people understand them; they are, instead, formulations intended to reach just
results based on the evidence in individual lawsuits. (2009-12-03 13:45)
In making the point set forth in the title of my post, it is worth repeating the message I sent this morning
to my Contracts students, who are in the midst of studying for the first semester exams. My students
are in the midst of making the transition from the lay understanding of legal rules as rules of the
sort that govern the outcome of scientific experiments to the professional understanding that legal rules
are professional terms of art used to articulate arguments intended to achieve justice in individual cases.
It is not an easy transition to make, and it is a transition from a way of perceiving rules that seems
to dominate the thinking of the vast majority of mankind to a way of perceiving rules as man-made
constructs intended most of all to do justice to individuals.
As I wrote to my students, focusing on legal issues relating to the interpretation of disputed contract
terms (the last subject of our semesters study):
In trying to understand the law we are applying, consider the teachings of the teachings of the Chuangtzu, a collection of writings from the fourth, third and second centuries B.C.:
Great understanding is broad and unhurried; Little understanding is cramped and busy.
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Trying to understand the rules that pertain to contract interpretation will not come through a cramped
and busy effort to memorize the parol evidence rule and the rules regarding when evidence outside of
a writing is permitted to interpret the writing.
Instead, understanding contract interpretation will come first from from a broad and unhurried consideration of what language the parties are disputing the interpretation of. Then you must understand
why each party considers his interpretation the correct one. What evidence does each party have that
his interpretation is correct? How persuasive do you consider that evidence?
If one sides interpretation is more persuasive, that will likely be the correct one. One must first consider
the writing setting forth the purported agreement, the purposes of the purported agreement, the situations of the parties, and any other evidence that may bear on the meaning of the written agreement.
Only after considering all these matters (which can range far and wide) and coming to some individual,
human understanding of whether one persons interpretation or the others is more persuasive can on go
back to the rules to and use those rules to show how the rules and the evidence together will lead to that
more persuasive result.
Thus, for example, in Thompson v. Lilly, 26 N.W. 1 (Minn. (1885), the buyer of logs insisted the
seller did not supply logs of as high a quality as the parties had agreed the seller would provide. The
parties had written the following brief agreement:
AGREEMENT.
Hastings, Minn., June 1, 1883.

I have this day sold to R. C. Libby, of Hastings, Minn., all my logs marked H. C. A.,
cut in the winters of 1882 and 1883, for ten dollars a thousand feet, boom scale at Minneapolis, Minnesota. Payments cash as fast as scale bills are produced.
[Signed] J. H. Thompson,
Per D. S. Mooers.
R. C. Libby.
The Minnesota Supreme Court concluded that [t]he written agreement . . . , as it appears on its face,
. . . purports to be a complete expression of the whole agreement of the parties as to the sale and
purchase of these logs, solemnly executed by both parties. Thus, the court concluded that the buyer
could not prevail on his claim that he and the seller had in fact agreed that the logs he had purchased
were supposed to be of a higher quality than those logs the seller actually supplied.
But there really is nothing in the written agreement itself to preclude the reasonable possibility
that the parties had also agreed that the logs marked H.C.A would be of the higher quality the buyer
had not received. What is it about that 3 line agreement that suggests that it is the exhaustive statement
of all the terms the parties agreed to?
Admittedly, there are a few things you might point to to support the courts conclusion: the
writing states price, it states the identifying marks on the buyers logs, and it states the delivery place
and times. We might infer that if it includes all of those things it must include everything the parties
had agreed upon.
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But are we to suppose that in 1883 Minnesota in a sale between a logging company and a lumber buyer the technical requirements of the parol evidence rule were foremost in the buyers and sellers
minds? And are we to suppose the 3 line agreement was intended as the height of formality. And when,
for example, would winter begin in Minesota November, December 21, at first frost? To suppose the
seller of logs and the buyer of logs would have put into the writing something they considered important
is to be naive about how commercial transactions really take place (even today in the vast majority of
commercial transactions, and even among investment bankers in the high flying world of Wall Street
finance in which I once practiced).
In other words, if you merely start with the proposition that the parol evidence rule excludes the
consideration of evidence regarding the content of a contractual agreement that is not contained in a
final and complete written record of the agreement, you hardly have a convincing argument that the
decision in Thompson v. Lilly must have been correct.
But if you look at the evidence recounted in the opinion (and the absence of certain evidence)
the wisdom of the result (if not the clarity of the reasoning) becomes much, much more apparent the
buyer is claiming the agreement included a promise that the logs the seller was providing would be of a
higher quality than the logs that were delivered. And while the writing in and of itself doesnt inherently
exclude that possibility in any conclusive way I can fathom, what evidence does the buyer have that
the agreement included a promise of higher quality logs? Only the buyers own self-serving testimony.
There is no corroborating testimony from, say, others in the logging trade in 1883 Minnesota that an
agreement on quality like that insisted upon the buyer would be expected. There is no documentary
evidence outside of the 3 line agreement regarding the parties negotiations. There is no evidence that
the buyers purposes for buying the logs should have indicated to the seller that higher quality logs were
what the buyer expected. There is no indication the price the buyer agreed to pay reflects a market
price for logs of a higher quality than that which he received.
In short, apart from the buyers self-serving testimony, there is no evidence of any sort that any
agreement on the quality of the logs had been reached. In the absence of any evidence other than
the buyers self-serving testimony in support of his position, the court conclusion that the three-line
agreement contains all the material terms of the agreement does in fact seem convincing. If, on the other
hand, others in the trade suggested the quality of the logs would not have been included in the written
agreement or that the price in the agreement reflected a price for higher quality logs, the court would
have had a much more difficult time suggesting the three line agreement contained all the material terms
of the agreement.
Thus, the parol evidence rule does its job in this case it prevents the dispute from ending up
as a trial in which the buyers uncorroborated and self-serving sworn statements will be weighed by
a jury against the writing and the sellers sworn statements. But if we merely considered the 3 line
agreement without considering what other evidence the buyer had (or did not have) in support of his
position, the parol evidence rule in and of itself would have provided a very poor guide to determining
whether there would be any justifiable basis for a trial on the buyers claims.
To engage in the extra effort of trial in Thompson v. Lilly would have been unreasonable as a
matter of the administration of justice in that there seems no persuasive reason in the first place to
believe the buyer. Trials are expensive and burdensome affairs. And keeping the case from trial prevents
a jury from being persuaded by improper factors (such as preferring the buyer as a person to the seller).
Thus, the court invoked the technical rule the parol evidence rule to produce an outcome that seems
fair, just, and in accord with a common sense view of the evidence.
In other words, the legal rules and their proper application arise from the evidence the parties
bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead,
they provide the legal language (developed over the centuries long development of the common law) in
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which to couch the just conclusions compelled by the evidence.

So, as I explained to my students, when you are trying to figure out on an exam how to answer
a question, consider first: what question you are you trying to answer. Then consider what evidence you
have from each side of the dispute that helps persuade one way or another in answering that question.
Then weigh that evidence and consider what we are primarily trying to determine in contract law: what
the parties intended to agree to.
Then, and only then, use the rules to structure the presentation of your understanding of the
proper resolution to the dispute. You are likely being asked to present your personal and human
understanding as an intelligent adult being asked to solve a previously unsolved problem for the first
time in your life. You are not merely being asked to repeat material your professor asked you to learn
but to apply that learning to resolve new problems in a creative and original way no one other than you
can be relied on to answer thats what youre going to be doing as a lawyer!
I do not mean to minimize the importance of knowing the rules. You must know the rules. The
rules are the language the law uses to structure the presentation of your persuasive explanations. Merely
to give a recitation of your personal reaction to the evidence without reference to the rules is not to act
as a lawyer. But the rules will only make sense to you if you use them to come to a result that makes
sense to you as a human being.
You also have to keep in mind that rules in contract law sometimes serve purposes other than
merely giving effect to what the parties intended. Rules such as the statute of frauds, for example, will
in the absence of clear and convincing evidence of agreement avoid the administrative difficulties and
expense of full-blown trial in certain types of important cases in which the parties have not supplied
either the formal requirements evidencing such agreements or can supply other evidence as convincing
as those formal requirements.
Again, this is not to discount the importance of the rules. You must know the rules to articulate
your arguments in a manner that makes sense to lawyers, judges, and law professors. You are now a
member of a profession, and you must communicate in the language of the profession. But you will
never persuasively apply those profession-specific rules without first understanding the human disputes,
the evidence, and the ways that evidence persuades human beings as to the merits of the disputes.
Then, and only then, can you begin to structure your arguments in a manner that usefully employs the
technical legal rules.
As a final note, my disquisition here should put to rest the myth even one propounded by the
Chief Justice of the U.S. Supreme Court as a means of obtaining confirmation in the course of a farcical
political show that applying legal rules to resolve legal disputes is the same as calling balls and strikes.
Legal Practice and Legal Scholarship and Law School Reputations: Ships Passing in
the Night. (2009-12-04 08:54)
One of the most interesting aspects of the U.S. legal system is that, as a common law system (as opposed
to the civil law system prevailing in the vast majority of the non-Anglo-American world), the practice of
law and the activities of legal scholars exist in almost entirely separate realms. Having had worked for
well over a decade in each of the realms of legal practice and legal academia, the following account, from
Wikipedia, reflects my own experience that legal scholarship in the U.S. legal system has little impact on
the actual practice of law:
In common law jurisdictions [such as the U.S.], legal treatises compile common law decisions, and state overarching principles that (in the authors opinion) explain the results
384
of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers
and judges tend to use these treatises as only finding aids to locate the relevant cases. In
common law jurisdictions, scholarly work is seldom cited as authority for what the law is.
When common law courts rely on scholarly work, it is almost always only for factual findings,
policy justification, or the history and evolution of the law, but the courts legal conclusion is
reached through analysis of relevant statutes and common law, seldom scholarly commentary.
In contrast, in civil law jurisdictions, the writings of law professors are given significant weight
by courts. In part, this is because civil law decisions traditionally were very brief, sometimes
no more than a paragraph stating who wins and who loses. The rationale has to come from
somewhere else, and the academy often filled that role. As civil law court decisions move in
the direction of common law reasoning, it is possible that this balance may shift.
A footnote to this explanation adds: At least in the U.S., practicing lawyers tend to use law professor
or law review article as a pejorative to describe a person or work that is insufficiently grounded in reality
or practicality - every young lawyer is admonished repeatedly by senior lawyers not to write law review
articles, but instead to focus on the facts of the case and the practical effects of a given outcome.
I do not mean to point out the stereotypical disregard for legal scholarship among practicing lawyers
to disparage legal scholars. Rather, I mean to emphasize what I wrote yesterday: it is the evidence in
each case that persuades the legal decision maker what the just result is in each case. The legal rules of
the common law system are not abstract principles of justice pronounced from on high to produce justice
in each and every situation; instead, they are the refined products produced by centuries of case-by-case
efforts to achieve just results based on the specific evidence presented in each of those cases. Thus, those
legal rules are subordinate to the case-by-case efforts to achieve justice, not the infallible determinants
of just outcomes in all future cases. As I wrote yesterday in suggesting that my students in analyzing
legal disputes first consider what the dispute is about, then consider the evidence and its persuasiveness
in helping them as human beings determine a just result in that dispute, and only then employ the legal
rules to articulate as legal professionals speaking in the language of their technical expertise to explain
the justice of that result:
In other words, the legal rules and their proper application arise from the evidence the
parties bring to bear. The rules do not predetermine disputes that are predictable before they
arise. Instead, they provide the legal language (developed over the centuries long development
of the common law) in which to couch the just conclusions compelled by the evidence.
In explaining the practice of the common law, I do not mean to denigrate U.S. legal scholarhip. But I do
mean to put it into the proper context within our legal system: scholars strive to develop generalizations
that govern all cases. Courts, on the other hand, decide individual cases involving individual disputes
between individuals who have personal stakes in those disputes. In doing so, the courts do their best to
do justice in those individual cases. Scholarly generalization, inevitably, conflicts to a considerable degree
with that individual effort to find justice between individuals involved in specific disputes.
And yet the reputation of law schools is weighted enormously in favor of the evaluation by law professors of the legal scholarship of other law professors. For law students, the vast majority of whom go
to law school to become lawyers, the basis of these reputations must cause some consternation if there is
any truth to what I have written above about legal scholarships distance from and irrelevance to legal
practice. But here it is, from Brian Leiter, one of the most respected authorities on the evaluation of law
school quality. What measures a law facultys quality? Not success as a lawyer. Instead:
Faculty Quality (70 % of [a law schools] final rank): the rank in this category is based on
three criteria: scholarly productivity; scholarly impact of faculty work; and reputation. More
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precisely, 25 % of the rank is based on the per capita rate of publication for the period 1998
through summer 2000 of,
1. articles in the ten most frequently cited student-edited law reviews (Yale Law Journal,
Harvard Law Review, Stanford Law Review, University of Chicago Law Review, Columbia
Law Review, Michigan Law Review, California Law Review, University of Pennsylvania Law
Review, and Texas Law Review, plus New York University Law Review, which is less-often
cited but benefits in prestige from being affiliated with a top law school;
2. articles in ten leading peer-edited law journals (Administrative Law Review, American
Journal of Comparative Law, Constitutional Commentary, Environ- mental Law, Journal of
Legal Studies, Law & Contemporary Problems, Law & Social Inquiry, Legal Theory, and Tax
Law Review);
3. books from the three leading law publishers (Aspen, Foundation, West); and
4. books from the six leading academic presses in law (Cambridge, Chicago, Harvard, Oxford,
Princeton, Yale).
Another 25 % of the faculty quality rank is based on the per capita rate of scholarly impact for the top quarter of each faculty based on citations to faculty work on the Westlaw
JLR database as of August 2000. Finally, 50 % of the faculty quality rank is based on the
subjective academic reputation of the school based on a fall 1999 survey of academics conducted by U.S. News & World Report.
Each measure of faculty quality has advantages and limitations, but together they promise
to present an informative picture. The rationale for the particular weightings, and the details of the study methodology, can be found in Measuring the Academic Distinction of Law
Faculties.
So there you have it. The law schools with the best reputations are the law schools with law professors
who write law review articles read by other law professors but that have little if any impact on the actual
product of the U.S. legal system.
Then again, I am on record expressing my opinion that the most reputable of law professors at the
most reputable of law schools have, given the opportunity, shown themselves to the worst of lawyers.
Nesson continues to blame others for his lousy job of lawyering. (2009-12-05 15:23)
The Harvard Law Record reported yesterday on Charlie Nessons address to : a room full of HLS students
to explain his motivations and methods as the lawyer representing Joel Tenenbaum in Sony BMG Music
v. Tenenbaum, the case that resulted in a $675,000 judgment against his client.
I have on more than one occasion expressed my harsh views regarding Nessons lawyering in the case
(here and here). But the Harvard Law Records story only adds fuel to my fury at Nessons lawyering
skills. According to the story, When the case first came to his attention, Nesson knew that there was
little chance of victory on the merits, with the only truly viable strategy at trial being the minimization
of damages. (emphasis added)
The RIAA cannot have been happy about the way it looks after winning a judgment of $675,000 from a
kid, especially since, as Nesson with some degree of accuracy explains, [w]hat Joel did in downloading
and sharing songs was what just about every kid in his generation did and which I bet a great many
of you did. The RIAA was anxious to settle a similar case in which it won $1.92 million from Jammie
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Thomas-Rasset for illegally downloading 24 songs. As Mike Masnick wrote, the RIAA seems to recognize
that the insanity of the $1.92 million doesn t do it any favors. Even the musicians whose music was part
of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower
amount so it can run around touting the risks of file sharing without having people laugh outloud when
hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for
$1 each.
And Tennenbaum quite plainly had the ability to minimize damages through settlement rather than
by means of Nessons tactic of going to trial. In February, Ars Technica reported that the RIAAs initial
offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the
case went to court in 2007, the judge ordered the parties to settle and work it out between themselves.
Joel offered $5,000. The RIAA demanded $10,500.
And yet Nesson, realizing that there was little chance of victory on the merits and that the only
viable way of representing his clients best interests was to minimize the amount of his liability, failed to
settle a case that at most would have cost his client $10,500 (assuming, contrary to any notion of common
negotiating sense, that the RIAA would not have moved off of its last offer).
The Harvard Law Records story goes on to state that the evidence presented by the RIAA . . . made
it look like Tenenbaum blamed others and lied, thereby interfering with his effort to appear credible
and sympathetic. The problem is that the evidence didnt merely make it look like Tenenbaum lied.
He admitted in trial that had lied in sworn statements he had made before trial that he had not used
peer-to-peer file sharing networks to download and upload recordings.
Ive said it again and again. Im no fan of the RIAA. The recording industrys business and legal
responses to the technological revolution that has deprived them of their former monopoly on the means
of mass producing and distributing recorded music have been, to my legal and business mind, idiotic.
But Nesson was Tenenbaums lawyer. His professional judgment as a lawyer was that any legal defense
to the RIAAs claims had little chance of success and that the best lawyering job he could do for his
Tenenbaum was to minimize the damages he would be liable for. Nesson clearly had the opportunity to
do so. That he passed up that opportunity in a quixotic fight for a principle might be something a lot of
people admire, but its terrible lawyering.
Steven Levitt and Freakonomics can go to hell! (2009-12-08 22:20)

On Veterans Day I expressed my disgust and contempt for Steven Levitt (he of Freakonomics fame) because his devotion to intellectual abstraction divorced from any connection to reality is, well, disgusting
and contemptuous. The specific reason for my post on that day was Levitts proposition that a military
draft, in his words, puts the wrong people in the military. Bob Herbert today expands on the point:
The idea that fewer than 1 percent of Americans are being called on to fight in Afghanistan
and Iraq and that we re sending them into combat again and again and again
for three
tours, four tours, five tours, six tours
is obscene. All decent people should object. . . .
The reason it is so easy for the U.S. to declare wars, and to continue fighting year after
year after year, is because so few Americans feel the actual pain of those wars. We ve been
fighting in Iraq and Afghanistan longer than we fought in World Wars I and II combined. If
voters had to choose right now between instituting a draft or exiting Afghanistan and Iraq,
the troops would be out of those two countries in a heartbeat.
I don t think our current way of waging war, which is pretty easy-breezy for most citizens, is
what the architects of America had in mind. Here s George Washington s view, for example:
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It must be laid down as a primary position and the basis of our system, that every citizen
who enjoys the protection of a free government owes not only a proportion of his property,
but even his personal service to the defense of it.
Interpreting, accurately, what isnt there the Redactors Dilemma (2009-12-11 10:03)
Any lawyer knows that non-facts what people dont do, things that dont happen, words that arent
said are as telling as what we typically think of as facts. Julian Sanchez, in a post entitled The Redactors Dilemma, gives a brilliant demonstration of this truth. Sanchez has been poring over the FOIA
documents on cell phone lojacking obtained by the ACLU. Like many stacks of documents lawyers are
accustomed to examining, the ones Sanchez examined are heavily redacted. As he explains:
[O]ver time, you start developing little heuristics for trying to put the puzzle pieces together, to at least limit the domain of what might be in those black boxes. What can context
tell you? What can you infer from the length of the redacted material? Looking at these sets
of documents, I think I may have picked up on an interesting variation on Mike Masnick s
Streisand Effect that now-familiar phenomenon where efforts to suppress information end
up drawing all the more attention to it.
It was pretty easy for Sanchez to figure out that one of the redactions was the statutory definition of
basic subscriber information found in the U.S. Code, and his first reaction was to wonder [w]hat sort
of jackass . . . had concluded that the contents of American public laws were some kind of operational
secret? But then, of course, he realized the investigative technique [the redactors were] taking pains to
conceal . . . involved exploiting that part of the statute in some crucial way. The post is worth reading
in its entirety for the truth it uncovers: prosecutors are seeking cell tower information from telcoms,
rather than GPS info, because doing so requiring the prosecutors to satisfy a lower legal standard and
they can easily get enough from that information to determine where a person is.
But what I find most interesting is what Sanchez calls the Redactors Dilemma the huge risk that
redactions themselves will reveal to informed readers what it is thats been redacted:
Imagine you re given the task of censoring documents like these for public release. There
are some bits that you just obviously cut out whole paragraphs describing operational details that, for good reasons or bad, you want to keep secret. But that won t be quite enough.
Because you re probably going to have folks reading the documents who know a little something about the law, a little something about the relevant technology, and a little something
about surveillance tactics generally. Folks who might piece together one of those facts you ve
excised, not from an explicit statement, but from individually innocuous clues that would
nevertheless reveal something if an attentive reader pus them together in the right way.
This is where the dilemma arises. Because if anyone does happen to determine, by other
means, what lies behind one or two of those black boxes, you ve actually given them a much
bigger clue. You ve pointed them to the precise facts that, assembled in the proper order and
with the right background knowledge, hint at what you were trying to hide facts they might
otherwise skimmed over without a second glance. But it s worse than that, even. Because
the facts really are more or less innocuous in isolation, a lot of that information won t be
secret per se. The choice of just which lines to redact involves a fair amount of imaginative guesswork which bits might a reader combine in a chain of inference? That means if
similar documents are being censored by different redactors, you re apt to get the worst of
both worlds many pieces of the puzzle left exposed in one document or another, sufficiently
parallel in structure to make them mutually completing, with the potential significance of
each one highlighted by its absence from the others.
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Who owns the rights to ebooks - publishers who bought the rights to publish in book
form or the original authors? Ill bet on the authors. (2009-12-14 23:22)
Who owns the rights to electronic versions of books governed by contracts published back in the days
when there was no such thing as an e-book?
Typically, the contracts an author signed with the publishers of those books gave the publisher the
exclusive right to publish in book form or in any and all editions. According to the New York Times
(hyperlinks added),
In 2001, Random House sued RosettaBooks, an e-book publisher, for copyright infringement when Rosetta signed contracts with authors . . . to release digital versions of previously
published novels.
In its suit, Random House relied on wording in its contracts that granted it all rights to
publish the works in book form. . . .
In 2001, a federal judge in Manhattan denied Random House s request for a preliminary
injunction against RosettaBooks, ruling that in book form did not automatically include
e-books. An appellate court similarly denied Random House s request.
On Friday, however, the Times reports (hyperlinks in original) that Markus Dohle, chief executive of
Random House, sent a letter (pdf) to dozens of literary agents, writing that the company s older agreements gave it the exclusive right to publish in electronic book publishing formats. According to Mr.
Dohles letter:
The vast majority of our backlist contracts grant us the exclusive right to publish books
in electronic formats, as well as more traditional physical formats. At the same time, we are
aware there have been some misunderstandings conceming ebook rights in older backlist titles.
Our older agreements often give the exclusive right to publish in book form or in any and
all editions. Many of those contracts also include enhanced language that references other
forms of copying or displaying the text that might be developed in the future or other relevant
language that more specifically reflects the already expansive scope of rights. Such grants are
usually not limited to any specitic format, and indeed the f0rm of a book has evolved over
the years to include variations of hardcover, paperback and other written word fonnats, all of
which have been understood to be included in the grant of book publishing rights. Indeed,
ebook retailers market, merchandise and sell ebooks as an alternate book format, alongside
the hardcover, trade paperback, and mass market versions of a given title. Whether physical
or digital, the product is used and experienced in the same manner, serves the same function,
and satisfies the same fundamental urge to discover stories, ideas and infomation through the
process of reading.
Accordingly, Random House considers contracts that grant the exclusive right to publish in
book form or.in any and all editions to include the exclusive right to publish in electronic
book publishing formats. Our agreements also contain broad non-competition provisions. so
that the author is precluded from granting publishing rights to third parties that would compromise the rights for which Random House has bargained. We believe the effective exercise
of electronic rights is key to the future of publishing and that the combined marketing of print
and digital formats increases overall sales and creates the largest possible pool of revenues
for authors and publishers, Our efforts and investments in the digital realm perfectly complement Random Houses unmatched physical sales and distribution capabilities, which remain
a centerpiece of our business and relationships.
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But William Styrons family disputes Random Houses assertions that it owns the rights to publish electronic versions of Mr. Styrons books. One problem with Random Houses position is that, despite what
Mr. Dohle writes, Random Houses contract with Mr. Styron did not grant to Random House rights that
refer to forms of copying or displaying the text that might be developed in the future, and, in further
contradiction to Mr. Dohles words, were quite explicit in being limited to . . . specific format[s]. As
the District Court decision in the case between Random House and Rosetta Stone makes clear, Styrons
contract granted Random House an exclusive license to print, publish and sell the work in book form,
Styron also gave it the right to ]license publication of the work by book clubs, license publication of
a reprint edition, license after book publication the publication of the work, in whole or in part, in
anthologies, school books, and other shortened forms, license without charge publication of the work
in Braille, or photographing, recording, and microfilming the work for the physically handicapped, and
publish or permit others to publish or broadcast by radio or television & selections from the work, for
publicity purposes &.
The court reasons that the separate grant language . . . to convey the rights to publish book club
editions, reprint editions, abridged forms, and editions in Braille . . . would not be necessary if the
phrase in book form encompassed all types of books. That [language] specifies exactly which rights were
being granted by the author to the publisher.
The court further opined that a reasonable person cognizant of the customs, practices, usages and
terminology as generally understood in the particular trade or business, would conclude that the grant
language does not include ebooks. To print, publish and sell the work in book form is understood in
the publishing industry to be a limited grant. (citations and footnote omitted)
Finally, the court pointed out that Random House itself had acknowledged that ebooks are a new medium
(and thus, presumably, not within the contemplation of the parties when they entered into their agreements to allocate their respective rights):
In this case, the new use

electronic digital signals sent over the internet is a separate
medium from the original use printed words on paper. Random House s own expert concludes that the media are distinct because information stored digitally can be manipulated
in ways that analog information cannot. Ebooks take advantage of the digital medium s ability to manipulate data by allowing ebook users to electronically search the text for specific
words and phrases, change the font size and style, type notes into the text and electronically
organize them, highlight and bookmark, hyperlink to specific parts of the text, and, in the
future, to other sites on related topics as well, and access a dictionary that pronounces words
in the ebook aloud. The need for a software program to interact with the data in order to
make it usable, as well as the need for a piece of hardware to enable the reader to view the
text, also distinguishes analog formats from digital formats. See Greenberg v. National Geographic Soc y, 244 F.3d 1267, 1273 n.12 (11th Cir. 2001) (Digital format is not analogous
to reproducing the magazine in microfilm or microfiche because it requires the interaction
of a computer program in order to accomplish the useful reproduction involved with the new
medium. ). (citation omitted; hyperlink added).
Theres no question the publishing houses are fighting for their very existence. Its interesting, though,
that copyright holders are fighting the publishing companies over those rights. So much of the focus in
this area of late has been over Googles right to copy books to make them searchable so that they could be
found and, as a result, purchased or otherwise obtained from the rightful owners of the books themselves.
But now its the publishers who are trying to stretch the rights they contractually negotiated for decades
ago to realms no one imagined at the time.
It will be interesting to see where this goes next. As a contracts professor, my first impression is that
Random House isnt exactly in the strongest of positions.
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Dont let your clients send you emails from their employers email systems.
(2009-12-16 14:02)
Mike Masnick at techdirt has an interesting item about a court decision that personal emails sent from
work computers can still be considered privileged and confidential as an attorney-client communication.
Masnick notes, however, that [w]eve seen plenty of cases where courts have said that an individual has
no expectation of privacy on emails sent from work. And he realizes that the case hes discussing isnt
the typical employee e-mail case; instead, it dealt with a federal prosecutor who was fired, and is trying
to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney
that he believes will reveal why he was fired. So it wasnt a case of a company trying to review the email
(which is normally the case in these types of lawsuits). And, as such, it makes sense.
But Masnick has a more interesting question: suppose you e-mail your lawyer from your employers
e-mail system is your e-mail protected by the attorney-client privilege from disclosure to your employer? As Masnick wonders:
[W]hat would happen in a lawsuit where it was the employer looking at the material? If
a company has a regular program of recording and examining employee email (as many do),
then how would the issue be resolved? It would seem that, in such circumstances, it would
make a lot less sense to consider the content protected, since the employer is not asking for
it, but already has access to it.
I think Masnick is right that your e-mail to your attorney, sent from an e-mail system you know your
employer has access to (pursuant to typical employee e-mail policies), is not subject to the attorney-client
privilege. And if its not protected by the privilege, anyone who has a right to it as relevant evidence in
a lawsuit will be able to get it, not merely the authors employer.
Why? The mere communication between client and lawyer does not establish the existence of an attomeyclient relationship It is of the essence of the privilege that it is limited to those communications
which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended. McCormick on Evidence 91 (4th ed.
1972).
Thus, to establish confidentiality, (1) [t]he client must intend his communications with his attorney
to be confidential, (2) [t]he client s subjective intention of confidentiality must be reasonable under the
circumstances, and (3) the confidentiality must have been subsequently maintained. A subjective expectation of privacy can sometimes be ascertained from the client s express intentions. Those intentions must
be determined from the circumstances surrounding the communication. William P. Matthews, Encoded
Confidences: Electronic Mail the Intemet, and the Attorney-Giant Privilege, 45 U. Kan. L. Rev. 273,
283 (1996).
In short, in considering whether the privilege applies, the courts focus on the precautions taken to
preserve confidentiality and the parties reasonable expectation of privacy. Wendy R. leibowitz, Communication in the EMail Era: Deciphering the Risks and Fears, Natl LJ., Aug. 4, 1997, at B9.
Lawyers are like priests or doctors you learn early on that your clients confidences are sacred and
that your knowledge of them will go to the grave with you. You learn too that disclosure of those confidences to third parties destroys them. So you dont discuss client business on elevators, in subways, in
taxis, on planes, in restaurants, in coffee shops, on crowded sidewalks . . . . You know a clients friend
who is along for moral support but not part of the case should not be present for discussions that should
be kept confidential.
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In short, you know that if theres a reasonable likelihood someone else may be in on the communication (whether by listening in or by opening the letter or e-mail), the communication is not confidential.
And it doesnt seem to me that an employee has a reasonable expectation that someone else may not be
in on the communications he makes via e-mail from work. As the Privacy Rights Clearing House puts
it:
Is electronic mail private? What about voice mail?
In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer
owns it and is allowed to review its contents. Messages sent within the company as well as
those that are sent from your terminal to another company or from another company to you
can be subject to monitoring by your employer. This includes web-based email accounts such
as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems.
In general, employees should not assume that these activities are not being monitored and
are private. Several workplace privacy court cases have been decided in the employers favor.
See for example: Bourke v. Nissan, Smyth v. Pillsbury, Shoars v. Epson.
In short, if youre communicating with your lawyer in the course of what you consider a lawyer-client
communication, dont use your employers email system. You might just as well be speaking with your
lawyer in the back seat of a taxi with the cabbie listening in.
A cell phone really (not just abstractly) is different than an address book.
(2009-12-17 10:05)
The Ohio Supreme Court ruled yesterday (pdf) that police officers must obtain a search warrant before
searching the contents of a suspects cell phone unless the officers safety is at stake. The specific data
at issue were the records of the telephone calls made to and from the suspects cell phone. As the court
made clear, [o]nce the cell phone is in police custody, the state has satisfied its immediate interest in
collecting and preserving evidence and can take preventive steps to ensure that the data found on the
phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone s
contents, police must then obtain a warrant before intruding into the phone s contents. Slip op., 23.
In reaching its decision, the court first distinguished cell phones from closed containers, physical objects
capable of holding other physical objects. Such objects on or in the vicinity of a suspect are subject to
search without a warrant. Indeed, the United States Supreme Court has stated that in this situation,
container means any object capable of holding another object. One such example is a cigarette package
containing drugs found in a person s pocket. Id., 19 (citations omitted). The dissenin the Ohio case
concluded that the cell phone is a closed container because a cell phone s digital address book is akin to
traditional address books carried on the person. Courts have upheld police officers search of an address
book found on an arrestee s person during a search incident to a lawful arrest. The phone s call list is
similar, showing a list of telephone numbers that called to or were called from the phone. Id., 34.
The dissents reasoning seems odd. The phones call list is not similar to an address book. The
call list is electronically generated by making and receiving telephone calls, and thus is the same kind
of electronically generated information regularly produced by, among other devices, your laptop. Thus,
the majority of the court were convinced that because modern cell phones have the capacity for storing
immense amounts of private information they are thus are more like laptop computers, in which arrestees have significant privacy interests in contrast to address books or pagers found on their persons,
in which defendants have lesser privacy interests. Id., 18. The court did not equate cell phones precisely
to laptops (though no doubt iPhone users might take exception to the courts failure to do so), but
the similarity, in combination with the fact the police have the means necessary by warrant to obtain
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information from a cell phone, compelled the courts conclusion:
Although cell phones cannot be equated with laptop computers, their ability to store large
amounts of private data gives their users a reasonable and justifiable expectation of a higher
level of privacy in the information they contain. Once the cell phone is in police custody, the
state has satisfied its immediate interest in collecting and preserving evidence and can take
preventive steps to ensure that the data found on the phone is neither lost nor erased. But
because a person has a high expectation of privacy in a cell phone s contents, police must
then obtain a warrant before intruding into the phone s contents. Id., 24.
The dissent, on the other hand, unable to distinguish a cell phone from an address book, accused the
majority of needlessly embark[ing] upon a review of cell phone capabilities in the abstract. Id., 30.
Funny, I didnt know that the review of differences between cell phones and address books in 2009
required abstract thinking.
If you understand the uses and limits of maps, you can begin to understand the uses
and limits of legal rules (and it doesnt hurt to know the offside rules in soccer and
hockey) (2009-12-18 04:10)
Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolks six credit contracts course next
year and has been puzzling . . . about . . . teaching philosophy. As he claims, Contracts is the
often the bane of the first year experience, and I am thinking about hitting the reasons head on. I think
Lipshaws point is the same Ive been trying to get across frequently in this blog learning law (and
perhaps, especially, contract law) is not a matter of learning rules you apply to the world, thence to go
on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different
rules are useful in different situations; when a situation changes, a particular rule may be useless it may
be too specific, and not take into account specifics never contemplated when the rule was formulated, or
it may be too general to be of any practical use.
Lipshaw writes (emphasis added):
Ive concluded instead that the way to approach the subject (and relieve some student
angst at the same time) is to reject at the outset the idea that what they are learning maps
on the real world. It is more helpful to think of contract law as most casebooks begin with the idea of the objective law of contracts, or, as we say more explicitly in areas like
partnership, the default rules upon which the legal consequences of a binding promise will be
imposed on parties after the fact when indeed there is no subjective evidence of an intent to
be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law
may or may not map well onto the reality of private ordering, and the mistake most students
make is to try to make the map work. No - an integrated law of contracts, if one exists, is a
figment of the . . . imagination, a way of trying to make unified sense of the whole of private
ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or
the promise principle, to bring the debate forward in time).
Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine
is a map, based on the mapmakers view of what is important. But you could have a road
map of major highways, a topographic map, a detailed street map, a map of population densities, etc. This is merely one map, or several competing maps. . . . .
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Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master
the rules of cricket without making analogies to baseball, or the rules of rugby without making
analogies to American or international football. Lets say you are playing cricket, and you
do something that cause the other team to cry foul! You have to make your argument why
what you did was legal in cricket terms, not baseball terms. That doesnt mean there couldnt
have been other ways to play cricket, or that the world would be better off if we interpreted
the rules of cricket differently, but to win the argument we have to fashion it in a way that
appears to be consistent with cricket. Contract law is the set of rules making up the objective
contract litigation game, and some arguments based on those rules are cricket, and some are
not.
A map that I draw you to get you to my house will likely be of little use in helping you navigate your
way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then
again, most maps of Ohio Ive seen would be of little use in getting you to my house (which is on a road
leading from one side street ending in 2 other side streets, none of which lead to a street (much less a
highway) of any significance). And I could explain to you how being offside in soccer is akin to being
offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid
cherry picking), but when Im arguing about being offside in soccer I better not be using rules and jargon
from ice hockey.
Or, if youd like to get even more involved in considering the role of maps in understanding the uses
and abuses of rules, its well worth considering an article written by Boaventura De Sousa Santos, Law:
a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283
(1987)(footnotes omitted; hyperlinks added):
UNDERSTANDING MAPS
The main structural feature of maps is that in order to fulfill their function they inevitably
distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the
emperor who ordered the production of an exact map ofhis empire. He insisted that the map
should be exact to the most minute detail. The best cartographers of the time were engaged in
this important project. Eventually, they produced the map and, indeed, it could not possibly
be more exact, as it coincided point by point with the empire. However, to their frustration,
it was not a very practical map, since it was of the same size asthe empire.
To be practical a map cannot coincide point by point with reality. However, the distortion of
reality thus produced will not automatically involve the distortion of truth, if the mechanisms
by which the distortion of reality is accomplished are known and can be controlled. And,
indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:
[A]ll advantages and limitations of maps derive from the degree to which maps
reduce and generalise reality, compress or expand shapes and distances and portray
selected phenomena with signs that communicate without necessarily resembling
visible or invisible characteristics of the landscapes. The three elements of a map
are interdependent. Scale influences the amount of detail that can be shown and
determines whether or not a particular kind of symbol will be visually effective.
Maps should be convenient to use. There is thus a permanent tension in maps between representation
and orientation. These are contradictory claims and maps are always unstable compromises between
them. Too much representation may hinder orientation, as we saw in Borges s map. Inversely, a very
accurate orientation may result from a rather poor and elementary representation of reality.
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When you are invited to a party in a house whose location you do not know, the host will
probably draw a map which will be very effective in orienting you though very inaccurate in
representing the features of the environment along the way to your destination. One more
example: some of you may have seen medieval portolans, those maps of ports and coasts
well-renowned in the Middle Ages which, though very poor as far as representation of the
globe goes, were very effective in orienting navigators .at sea. There are maps that solve the
tension between representation and orientation in favour of representation. These I would call,
borrowing from French cartography, image maps. Other maps solve the tension in favourof
orientation. These are instrumental maps.
I would like to suggest that this dialectic of representation and orientation applies to law as
much as it applies to maps. In the analysis of .the relations between law and society we should
[consider] the simple paradigm of correspondence/non-correspondence. In the following I will
linger on maps a little while to analyse in more detail each one of the procedures through
which maps distort reality. In the process I hope to interest you in the fascinating world of
maps. As Josef Konvitz has said, lt is a supreme irony that maps, though they are one ofthe
most common cultural metaphors, are still far from occupying the place they deserve in the
history of mentalities.
One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earths various landmasses. Below
is the Arno Peters map , which, as Sirius Bark of Temple 3 explains isn t perfect (every map (and rule)
creates some distortion), but . . . does address some of the overall size distortions which dominate our
more well-known Mercator projections (emphasis and hyperlinks added):
Bobby Fuller: I Fought the Law (2009-12-18 18:13)

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SNAFU, anyone? (2009-12-21 06:22)

Its not for nothing the word snafu is a military coinage. Ars Technica reports that militants [in Iraq
and Afghanistan] have been intercepting US Predator drone video feeds using laptops and a $30 piece of
Russian software, and that the military has known of this vulnerability since the Nineties. But at least
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we have our priorities straight:
Operating system vendors have built entire protected path setups to guard audio and
video all the way through the device chain. TVs and monitors now routinely use HDCP copy
protection to secure their links over HDMI cables. Game consoles are packed with encryption schemes to prevent copied games from playing. Microsoft even goes out of its way to
add encryption when Windows Media Center records unencrypted over-the-air TV content.
Even the humble DVD, with its long-since-breached CSS encryption, offers more in the way
of encryption.
But US drones, which spy on militants and rain down death from a distance, have none.
The mind boggles, as it seems like the situation should be totally reversed: no encryption
on legally-purchased content, more encryption on devices designed to watch and kill human
beings.
But the fact Obama didnt immediately bow down to the military and order up General McChrystals
40,000 troops the moment they were demanded was dithering. Too bad Johnson didnt follow Kennedys
lead and dither himself in Vietnam:
In November 1961 Kennedy sent Gen. Maxwell Taylor and foreign policy adviser Walt
Rostow to South Vietnam. On their return they reported that it was possible for the South
Vietnamese to defeat the Communist insurgents without an American takeover of the war
effort if the United States provided strong political backing for the South Vietnamese government and provided substantially in-creased military and economic assistance. They further
recommended that President Kennedy send 8,000 combat troops to South Vietnam. Kennedy
decided against sending combat troops but authorized the deployment of up to 15,000 military advisers. By the time of Kennedys assassination in November 1963 the U.S. effort in
Vietnam was costing $400 million a year, and about 12,000 military advisers were providing
assistance to the South Vietnamese military effort. By the end of 1963 there had been only
70 American casualties.
Of course, in January 1964 the Joint Chiefs of Staff had sent President Johnson a memo urging him to
increase the U.S. commitment and to consider a bombing campaign against North Vietnam. By following
these two strategies the military hoped that the war could be won more quickly. The commitment of
U.S. troops was doubled; by the end of 1964 there were 23,300 Americans serving in Vietnam.
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Authorship is rarely a simple question. Architecture this time (2009-12-22 11:02)

Ive written before that it boggles my mind when people write seriously that legal documents that duplicate others might constitute copyright violations. Originality is not of any value in a legal document
the documents effectiveness in accomplishing its purpose is all that matters. Moreover, as Ive also
mentioned, legal writing is a quintessentially collaborative enterprise. Of course, law is not unique in this
regard. In the course of finishing up a paper on the nature of a judge as an author, I came across a
story from the New York Times written in 2005 about why accusations of plagiarism by architects rarely
make it to court. Guess what? Architecture too is largely a collaborative enterprise. As the story states:
One reason accusations of plagiarism [between architects] rarely make it to court is that
architecture, despite the romantic image of the solitary genius, is largely a collaborative
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pursuit. Principal, project architect, project designer and outside consultants of all stripes
contribute to a design. All the while, young architects move from firm to firm, spreading ideas
and sometimes eventually opening their own, competing offices. As for student architects, well,
just because they don t get paid for their work doesn t mean it never enters the commercial
arena. Theres so much rich activity going on at the schools, said Bill Sharples of the
Manhattan firm SHoP/Sharples Holden Pasquarelli, its hard not to be influenced by it.
With so many influences and so many echoes, authorship is rarely a simple question.
Breaking through to the other side: the music and publishing industries are dying.
Music and writing will live on in new ways, and were living through the revolution.
(2009-12-23 07:14)
My sister, Amy Friedman, is a brilliant writer who, like most artists I know who make their livings as
artists, has managed to make her way by working her butt off doing a million different writerly things.
She wrote a weekly column for the Kingston Weekly Standard, Canadas oldest newspaper. In 1992 she
began to write Tell Me a Story, which, on a weekly basis syndicated by Universal Press Syndicates, produces an original story or a childrens classic accompanied by a captivating illustration that will launch
the imagination. She must now have written over a thousand of these stories. Two compilations of these
stories have been published as books, Tell Me a Story and The Spectacular Gift. She personally produced
3 CD collections of these stories read by actors and backed by music composed specifically for each work.
(You can buy them here, individually or as a 3 CD boxed set). Each one of the CDs has won numerous
awards, and the most recent was the Winner of 2009 Parents Choice Gold Medal and 2009 NAPPA Gold
Medal for story telling. John Wood of Kid Muzic wrote of the first CD: The talent is first-rate from top
to bottom. The stories literally jump off the CD and into the listener s imagination I love the choices
on all levels! This is the real deal
Amy has also written 2 works of non-fiction, Kick the Dog and Shoot the Cat and Nothing Sacred:
A Conversation With Feminism. She continues to write and publish both fiction and nonfiction for newspapers, magazines and literary journals. She also performs her stories, often accompanied by musicians,
in schools and at summer festivals. She is presently working on a novel, a collection of short stories and
a television adaptation of Tell Me a Story. Shes a brilliant teacher of writing too.
In short, Amy is an artist, she works like hell at it, she produces brilliant work, and she has never,
to put it mildly, been economically secure in the way, say, many of my law students expect to be.
So I took it very seriously when she sent me the following yesterday:
All the authors I know, every one of them, is freaking out. Celebrity books. No reviewers
anywhere. Insane advances to celebrities leaving nothing left for others, no reviewers, too many
reviewers, Kindle, celebrity books, the death of Editor and Publisher and Kirkus Reviews, all
the authors I know are freaking out. If my memoir had gone to editors even three years ago,
it would be sold by now. Everyones scared. Whaddya think? http://bit.ly/5O2CQI
Im choosing not to freak out. Im choosing to say, this too shall pass, and it will enliven the
art world in some new way. (Thats my prayer, anyway)
In the article Amy linked to, Katharine Weber, a former National Book Critics Circle board of directors
member, novelist and short story writer, details some of the changes wrought by the internet on book
publishing and concludes, among other things, That literary work will continue to lose value as it is seen
even more as just another form of communication, rather than as a work of art with its own integrity.
There are 2 important points I want to make here: (1) I do not write incessantly about copyright and
397
the slippery notion of authorship as some ivory tower intellectual without strong connections to artists
and art art of all sorts, and (2) I have a very personal stake in these questions. So this (with some slight
edits) is what I wrote back to Amy yesterday:
Not freaking out is always the better choice. I can t think of a situation in which freaking
out adds value; in fact, I can t think of a situation in which freaking out doesn t considerably
worsen the situation.
But the fact so many people are freaking out is, in my opinion, because we re living
through a frigging technological revolution. Come on, you remember your Marx. The stuff
he was brilliant about: material and economic reality determine cultural reality. Cultural
reality has an effect on material reality too. That s why the experience of a cultural freakout
is not a healthy thing. It leads to bad decisions. Had Jack Valenti and the entire film
industry had their way, there would be no VHS machines, no CD and DVD burners, etc.,
etc. But it turned out that the VHS was the biggest financial boon the film industry had
ever experienced.
The way we produce, copy, and disseminate information had entirely changed. Anyone sitting in a coffee shop can produce a document that looks as if its been typeset. (And
Im sure my students have no clue what typesetting is.) That document can be copied at
virtually no cost, and disseminated world-wide at virtually no cost. So, guess what? The
entire publishing industry as we ve known it is a walking corpse. You can almost imagine
the zombie image composed of parts of Sarah Palin, Oprah, Dan Brown, and Tiger Woods
lumbering down Manhattan s avenues.
What will result? I don t know yet. But I strongly disagree with Katherine Weber s
statement that literary work will continue to lose value as it is seen even more as just
another form of communication, rather than as a work of art with its own integrity. The
idea that literary work is anything other than a vast cultural discussion is a relic of the
Romantics.
And there will still be books bought. They ll be read on electronic readers a lot and
in codex form a lot I m pretty sure demand for the scroll and the inscribed tablet has
vanished entirely. And there will be some illicit copying and distribution (that might not in
the end result in a net loss to the author).
But sure, publishing houses and anyone who s convinced her livelihood is dependent
on publishing houses is freaking out. Let them. The recording industry once had a monopoly
on producing and distributing recorded music. Now any kid can do it on his laptop.
And musicians are still making money. The music industry will scream and scream that
the internet is killing it, but thats because the music industrys ways of producing and
distributing music over the past 100 years have as much relevance today as the horse and
carriage industrys ways of producing and distributing means of transportation had after the
automobile became widely used.
As Mike Masnick at techdirt has written, a recent report by 2 British economists
(pdf) demonstrates that the UK music industry is actually growing. Let me repeat that:
despite all of the whining and complaining about the state of the music industry, some of the
music industrys own economists are admitting that the market is growing. Not surprisingly,
it found that retail product sales have declined, but the other parts of the industry have
grown noticeably more than the decline in retail sales. This growth has come from a
few sources. Live show attendance has increased more than retail sales have decreased.
Consumers have actually spent more. On top of that, the business to business side of the
398
industry (sponsorships, licensing, advertisements, etc.) has grown as well, opening up new
and lucrative means of making money.
Neither Masnick nor I would paint the present situation has some new technologically
produced utopia too much of the money in the music industry is going to touring artists
from the ancient days of our youths, among other things. But the point he is making is that
trying to pass laws and create digital locks and promote misleading propaganda is not going
to recreate a model of producing and distributing recorded music that no longer makes any
sense.
Something new is developing, theres no stopping it, and the thrilling thing is that we
are part of creating it.
If I had to bet, I suspect in the long run we ll probably end up with fewer writers
making too much money, and more making at least some.
But there s been literature for what, at least 3000 years? The fall of the structure
which produced and sold it in the 20th Century capitalist West won t mean there won t be
great literature. There may be more. I really think so.
I bought and started re-reading Lewis Hydes Trickster Makes this World yesterday.
The Trickster is the character who operates between realms, at doorways, through openings
that others don t cross either because they don t see them or they re afraid of what s on the
other side. (The intro to Hydes book is available as a pdf here provided by Hyde himself.)
And the trickster is the artist. If there s ever been a doorway to a new reality in the world of
literature, we re facing it head on. Let s break on through to the other side!
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Merry Christmas from an atheist Jew (2009-12-24 08:58)

My favorite religious story from childhood turns out, no surprise, to be a law story. I will tell it here
from memory, without resort to sources or hyperlinks. Law and religion tend to get muddled in disputes
over minutiae, and this is my story for today.
At the time Jesus was born, there were two leading rabbis, which may be a misleading term, but
is meant to convey that they were both religious teachers and religious judges. Hillel was the one we
would today call a liberal. Shammai was the strict constructionist. Two of their disagreements that I
recall had to do with women and marriage. Shammai insisted that to call your bride beautiful on your
wedding day if she was not in fact beautiful was a lie and therefore unacceptable. Hillel said instead
that on her wedding day every bride is beautiful. Another point of contention was over the degree of
evidence necessary to establish a husband had died in order that his widow could remarry. Shammai
insisted that first-hand evidence of death had to be produced. Hillel held that circumstantial evidence
would be sufficient.
But the story I remember best is of the non-Jew who came to Shammai and said that he would convert
if, while he stood on one foot, the rabbi could explain to him the whole of the Torah. Shammai dismissed
him in a huff, taking the question and the questioner as nothing but harassment. The man then went to
Hillel and asked him the same question. Hillel responded:
What is hateful to you, do not do to your fellow: this is the whole Torah; the rest is
commentary. Go and study.
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And the man converted and devoted his life to study.
Bob Dylan: The Christmas Blues/No life is too minor to matter. (2009-12-25 20:02)
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Michael Gerson:
A child of questionable parentage, born into humble circumstances, in a provincial backwater, begins a short life that ends in an execution. Yet it is somehow the hinge of history.
Christmas tilts the universe toward the humble. It asserts that every child, in every stable,
deserves angel choirs and the tribute of kings. It means that no life is too minor to matter;
that the stars are warm and sheltering; that desperate prayers are heard and heeded; that
every quiet, unnoticed death disturbs the cosmos; that memory boxes filled by children hold
relics of eternity.
Hat tip to Ray Ward.
Holy flipping animal crackers, that doesnt even warrant a response .
(2009-12-30 13:28)
Robert Lanham comes up with the definitive response to concerns that the publishing industry is dying
ENG 371WR: Writing for Nonreaders in the Postprint Era. The course description is priceless, beginning
as follows:
As print takes its place alongside smoke signals, cuneiform, and hollering, there has
emerged a new literary age, one in which writers no longer need to feel encumbered by the
paper cuts, reading, and excessive use of words traditionally associated with the writing trade.
Writing for Nonreaders in the Postprint Era focuses on the creation of short-form prose that
is not intended to be reproduced on pulp fibers.
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Happy new year! (2009-12-31 10:40)

Its been an amazing year for me in all sorts of ways. A small one is that for the first time ever I got
something like this: a nomination for a best law blog award I think you can improve my chances by
clicking on that little plus sign under the information on my blog and Brian Ledbetters name thanks
for the nomination, Brian!
And as a new years wish, heres one of my favorite all-time mashups:
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402
Chapter 3
2010
3.1
January
DJ Earworm - United State of Pop 2009 (Blame It on the Pop) - Mashup of Top 25
Billboard Hits (2010-01-04 10:46)
Is a music video with no original content transformative if I like it better than any of the top 25 hits of
the year it samples and it explains partly why that is? I think so.
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The records in the Bristol Palin/Levi Johnston custody battle should be sealed.
(2010-01-05 10:06)
Court documents are public records. Do we really want internet access to all court records. Do you want
anyone with an internet connection to have access to the files in your divorce case? Do you realize how
much personal stuff you might have to disclose in a lawsuit? Do you realize how many lies can be aimed
at you by opposing counsel and their client?
While all this stuff is of course available now, forcing someone to go down to the courthouse to ask
for the files and look at them there certainly filters a considerable amount of junk from public disclosure.
In a certain way, the issues raised by these questions are relevant to the piece by Ruth Marcus in which
she struggles with her own internal conflict over whether the court hearing the custody battle between
Bristol Palin and Levi Johnston should seal the records, thereby keeping them from the eyes of journalists
(and, indirectly, from the public at large:
As a journalist, I m supposed to be in favor of maximum access to court documents. As

a human being and in particular as a mother I have a hard time seeing why the custody
fight between Bristol Palin and Levi Johnston ought to be splayed out on the public record
for all to see. An Alaska judge has denied Palin s request to keep the dispute under seal. How
can this possibly be in the best interests of the child?
I happen to agree with Marcus view as a mother. As she also writes, the question in the case is whether
Bristol Palin s request for sole legal and physical custody of her son with Johnston given visitation
rights should be granted. The evidence regarding that request, which no doubt will include allegations
of outrageousness from both sides, turns on the best interests of the child. Its certainly in the best
interests of the child that there not be a full public record of these allegations. And I frankly see no
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public interest outweighing that interest.

But it makes sense that the Palin/Johnston case is fought out over a request by one party to seal the
record Bristol Palin knows reporters will be down at the courthouse ready to broadcast the allegations
set forth in any document filed. What about you? Do you know whos going to be trolling through the
files in your case from his laptop off in some coffee shop a thousand miles away?
We cant trust eye witnesses. (2010-01-06 01:02)

I tell my students the jury is our truth-telling machine. We dont have Gods Videotape of reality. (Even
if we did, would he have enough camera angles and high enough resolution to give us complete confidence
in what the tape seems to show?)
But juries, of course, depend on evidence, a substantial amount of which is the evidence of witnesses. As
US Supreme Court Justice William J. Brennan stated in his dissent in Watkins v. U.S., 449 U.S. 341,
352 (1982), there is nothing more convincing [to a jury] than a live human being who takes the stand,
points a finger at the defendant, and says Thats the one!
But eyewitness identification evidence is the leading cause of wrongful conviction in the United States.
Theres a lot of scholarship on perceptual biases ways our perception is shaped not by reality but,
rather, by assumptions our minds impose on our perceptions but I think the study discussed and shown
below is one of the most vivid demonstrations Ive ever seen of the unreliability of eyewitness testimony.
75 % of the subjects did not even notice that the person for whom they began filling out the experimental
consent form, after hed bent down behind the counter, had been replaced by a different person!
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Umberto Eco 13 years ago on the Next Decade in Book Culture (2010-01-07 12:24)
A few days ago Critical Mass, the blog of the National Book Critics Circle Board of Directors, posted my
piece as part of a series of guest posts on The Next Decade in Book Culture. In it, as a lover of literature,
I expressed and called for optimism about the changes being wrought by the internet. Umberto Eco, in
his 1996 lecture From Internet to Gutenberg, expresses well some of my reasons for suggestions that
the internet will be the death of literature in short, history tells us that technological change doesnt
kill earlier artistic forms; rather technological change transforms and enriches earlier artistic forms:
The arrival of new technological devices does not necessarily make previous device obsolete. The car goes faster than the bicycle, but cars have not rendered bicycles obsolete and
no new technological improvement can make a bicycle better than it was before. The idea
that a new technology abolishes a previous role is too much simplistic. After the invention of
Daguerre painters did not feel obliged to serve any longer as craftsmen obliged to reproduce
reality such as we believe we see it. But it does not mean that Daguerres invention only
encouraged abstract painting. There is a whole tradition in modern painting that could not
exist without the photographic model, Think for instance of hyper-realism. Reality is seen by
the painters eye through the photographic eye.
Certainly the advent of cinema or of comic strips has made literature free from certain narrative tasks it traditionally had to perform. But if there is something like post-modern literature,
it exists just because it has been largely influenced by comic strips or cinema. For the same
reason today I do not need any longer a heavy portrait painted by a modest artist and I can
send my sweetheart a glossy and faithful photograph, but such a change in the social functions
of painting has not made painting obsolete, except that today painted portraits do not fulfill
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the same practical function of portraying a person (which can be done better and less expensively by a photograph), but of celebrating important personalities, so that the command, the
purchasing and the exhibition of such portraits acquire aristocratic connotations.
This means that in the history if culture it has never happened that something has simply
killed something else.
I do think that the 13 years that have passed since Ecos lecture have undermined one of the points he
made regarding the need for books (in codex, rather than electronic, form). Eco is convinced that a writer
must print his material in order to edit it fully: In order to re-read a text, and to correct it properly, if
it is not simply a short letter, one needs to print it, then to re-read it, then to correct it at the computer
and to reprint it again. I do not think that one is able to write a text of hundreds of pages and to correct
it without printing it at least once.
I now teach students who were ten years old at the time of Ecos lecture, and they grew up writing
and editing on-screen. I now write and substantially edit what I write on-screen even though in 1996
I wouldve been convinced that I would never be able to do so. And ebooks dont cause the eyestrain
Eco attributes to computer screens he did not at all seem to anticipate that reading in electronic form
would not necessarily take place in the future only on electronic devices with which he was familiar back
in the previous century.
Vengeance breeds vengeance; we are a country of laws, not torture. (2010-01-08 10:46)
Theres creativity in legal thought, and then theres interpretation utterly unhinged from any logic
or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid
mistake in any argument in favor of torturing in order to obtain information to aid the so-called war on
terror it discourages people from coming forward with information. People applaud the underpants
bombers father, Alhaji Umaru Mutallab, who had the strength of character to report his sons activities
to U.S. authorities despite the possible legal repercussions for his son. But if a father knows his son will
be tortured, hes far, far less likely to turn him in. And, of course, if were trying to win the hearts and
minds of, among others, Afghanis, arent we undercutting our purposes by betraying our morality and
our laws? Martin writes:
Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to
cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be
as quick to intercede if they think their loved one will be brutalized, psychologically scarred
beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized
as enemies, not converted to allies.
Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime - a morally reprehensible practice in its own
right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable
intelligence regardless. Not only do they want to keep employing these self-defeating policies
that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and
the GOP leadership - as well as their media enablers - use Obamas refusal to torture and
profile as political cudgels when, in reality, the blows will they attempt will fall most heavily
on the American people in the end.
At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly
endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:
405
Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody
hatred, the destruction?
The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the
remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates
of torture can legitimately claim we are getting from torture, and weve understood for thousands of years
that vengeance does nothing but breed vengeance.
Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law,
I was betraying my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in
hand with a culture that has decided that money is the only valid measuring stick of value and that free
markets are the best means of making all our choices, even our choices about war.
And the market is governing our choices about education, making liberal arts undergraduate majors
so unpopular theyre beginning to disappear. Thus, according to an annual survey by the University of
California, Los Angeles, of more than 400,000 incoming freshmen:
In 1971, 37 percent responded that it was essential or very important to be very well-off
financially, while 73 percent said the same about developing a meaningful philosophy of
life. In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while
48 percent were after a meaningful philosophy.
People dont read the Oresteia anymore. I would bet only a handful of my students even know what it
is. So Im afraid the only thing I dont agree with when Glenn Greenwald writes the following is any
particular sense of being astounded:
Its truly astounding to watch us for a full decade send fighter jets and drones and
bombs and invading forces and teams of torturers and kidnappers to that part of the world,
or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators,
occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth,
and then act surprised and confused when some of them want to attack us. In general, the
U.S. only attacks countries with no capabilities to attack us back in the homeland at least
not with conventional forces. As a result, we have come to believe that any forms of violence
we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are
instantly breached in the most egregious ways whenever they bring violence back to the U.S.,
aimed at Americans. Its just impossible to listen to discussions grounded in this warped
mentality without being astounded at how irrational it is. What do Americans think is going
to happen if we continue to engage in this conduct, in this always-widening war?
Billy Bragg & Wilco: Against the Law (2010-01-08 23:18)

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AP shoots itself (twice) in the Copyright Wars. (2010-01-11 11:06)

The Associated Press occupies a controversial place in the so-called Copyright Wars, and it certainly
isnt making many friends anywhere in recent news. First, on December 31 of last year, AP filed its
Amended Answer to Complaints, Crossclaim, Counterclaim., and a cross claim against Mannie Garcia.
In that document, AP contends that it, not Garcia, owns the copyright in the photograph Garcia took of
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then candidate Obama that Shepard Fairey subsequently used as the source material for the (in)famous
Hope poster. APs contention rests on the assertion that Garcia was acting within his the scope of his
duties as a staff photographer for AP when he shot the photo and that it therefore constituted a work
for hire.
There are, I think, two sets of allegations in APs latest filing that are interesting in terms of whether
Faireys use of the photograph as source material for the poster constituted a non-infringing fair use.
First, AP states that Garcia was sent to the event at which he shot the photo by AP in order to take
photos such as the disputed one. Second, AP states that Garcia sent several of those photos to AP and
that AP chose the photo it decided ultimately to publish. One might think these allegations reduce the
extent to which Garcia can claim the shot was one so much of his own choosing. He was assigned to take
the shots he took, he took a lot of them, and AP, not Garcia, chose the one that fit its purposes best.
AP also goes right after Garcia, accusing him in its counter-claim of committing fraud in registering
his own copyright in the photo on the grounds that APs ownership of that copyright under the work
for hire doctrine was so plain that Garcia knew he at the time he filed the copyright registration that he
wasnt entitled to do so. It might not be the only accusation of dishonesty hurled at Garcia in this case.
Meanwhile, AP, of course, has been quite vocal about voicing its contention that news aggregators
infringe APs copyrights on a regular basis. No matter your view on the legitimacy of the infringement
claim, theres lots of reason to believe that APs stance is bad business. Google seems to have been a
principal target of APs complaints, and yet shutting Google off (something, incidentally, AP could do
at any time) would seem likely to drive traffic away from APs stories.
Well, Google seems to have called APs bluff. The Guardian reports that it has become apparent
that new Associated Press stories are no longer appearing on the site, which has hosted them since 2007.
Google hasnt added new AP content since December 24.
Heres legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it
happen? Stay tuned. (2010-01-12 12:54)
There are few more important and timely issues concerning innovation and law than the impact of the
internet on courts. Courts have always been considered public institutions anyone could walk into to see
court proceedings or to look themselves at court files. But now making something public means making
it available to anyone at his or her own computer, and the inherent resistance to change that resides in
any well-established institution makes courts and those who dont want their legal stands exposed to the
brightest possible public lights reluctant to embrace this new notion of public access.
So, as CNN reports, controversy and legal wrangling has erupted over the decision by the federal judge
who is hearing appeals of Californias Proposition 8 this week ruled that the proceedings could be shown
albeit in delayed fashion on YouTube. But opponents of same-sex marriage, outlawed by Proposition
8, appealed the judges order and yesterday the Supreme Court postponed the online broadcasts at least
until tomorrow (when, it is hoped, the Supreme Court will rule on the issue).
Jon Davidson, legal director of the pro-gay rights Lambda Legal, argued that opponents of same-sex
marriage want to keep the trial as much out of the public eye as they can because public debate on
same-sex marriage actually increases support for it. In addition, he argued that the risks of true public
access to the proceedings is way overblown:
One of the things we find on the marriage issue, but really on all issues in response to gay
rights, is that the more discussion there is the more conversation, the more people learn
the more likely it is that gay people are going to do well, Davidson said.
407
Davidson said posting the trial on YouTube wouldnt increase the potential for witnesses
to be harassed, saying that anyone can read news reports after the fact to find out who spoke
and what they said.
Besides, any effort to block new-media coverage of the hearings is already too late, Davidson said. He said people in the courtroom for opening arguments Monday were posting live
updates to Twitter throughout.
The New Pornographers - The Laws Have Changed (2010-01-12 20:51)

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Supreme Court decides, 5-4, that those public courts arent so public after all.
(2010-01-13 23:15)
From the L.A. Times:
By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking video
coverage of the trial of Californias Proposition 8, with a conservative majority ruling that
defenders of the ban on same-sex marriage would likely face irreparable harm if the proceedings were broadcast to the public.
It would be difficult if not impossible to reverse the harm of those broadcasts, the
court wrote in an unsigned opinion. The witnesses, including paid experts, could suffer harassment, and they might be less likely to cooperate in any future proceedings. The high
court also faulted U.S. District Judge Vaughn Walker for changing the rules at the eleventh
hour to allow the broadcasting of this high-profile trial that will decide whether gays and
lesbians have a right to marry in California.
Though the opinion is unsigned, it clearly speaks for Chief Justice John G. Roberts Jr.,
and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito
Jr. . . .
The majority cited newspaper accounts from the last year to bolster its contention that opponents of same-sex marriage have been subject to harassment, including confrontational
phone calls and e-mail messages and even death threats. Under the courts rules, the justices do not intervene in pending cases unless they are convinced that the appealing side has
a strong legal claim as well as evidence of an irreparable harm if the court fails to act.
[Justice] Breyer [in the dissenting opinion joined in by Justices Stevens, Ginsburg, and Sotomayor] scoffed at the notion that the witnesses in this case would face harm, because they
have gone on television in the past to advocate their views. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured
the state advocating a yes vote on Proposition 8, he said.
Learn that government regulation can be very effective in under 2 minutes.

(2010-01-14 19:38)
Next time someone tells you government regulation doesnt do any good, ask them to watch the video
below and whether theyd rather be driving a car built before the government started regulating automobile safety.
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Are free markets always the best? Of course not, and whered we get that idea?
(2010-01-19 07:31)
Ideas often trump reality, especially in law. In my career, Law and Economics, grounded in the principle
that law works best when it serves some notion of economic efficiency, has grown from a rather small
movement identified with the University of Chicago into perhaps the dominant legal theory in our law
schools and among our more prominent judges. Ive always thought, for a number of reasons, that the
faith in markets on which Law and Economics is grounded is bunk. Im plainly not alone. Tony Judt
writes:
In the last thirty years, a cult of privatization has mesmerized Western (and many nonWestern) governments. Why? The shortest response is that, in an age of budgetary constraints, privatization appears to save money. If the state owns an inefficient public program
or an expensive public service a waterworks, a car factory, a railway it seeks to offload it
onto private buyers.
The sale duly earns money for the state. Meanwhile, by entering the private sector, the
service or operation in question becomes more efficient thanks to the working of the profit
motive. Everyone benefits: the service improves, the state rids itself of an inappropriate and
poorly managed responsibility, investors profit, and the public sector makes a one-time gain
from the sale.
So much for the theory. The practice is very different. What we have been watching these past
decades is the steady shifting of public responsibility onto the private sector to no discernible
collective advantage. In the first place, privatization is inefficient. Most of the things that
governments have seen fit to pass into the private sector were operating at a loss: whether
they were railway companies, coal mines, postal services, or energy utilities, they cost more
to provide and maintain than they could ever hope to attract in revenue.
For just this reason, such public goods were inherently unattractive to private buyers unless offered at a steep discount. But when the state sells cheap, the public takes a loss. It has
been calculated that, in the course of the Thatcher-era UK privatizations, the deliberately
low price at which long-standing public assets were marketed to the private sector resulted in
a net transfer of 14 billion from the taxpaying public to stockholders and other investors.
To this loss should be added a further 3 billion in fees to the banks that transacted the
privatizations. Thus the state in effect paid the private sector some 17 billion ( $30 billion)
to facilitate the sale of assets for which there would otherwise have been no takers. These
are significant sums of money approximating the endowment of Harvard University, for example, or the annual gross domestic product of Paraguay or Bosnia-Herzegovina.[2] This can
hardly be construed as an efficient use of public resources.
In the second place, there arises the question of moral hazard. The only reason that private investors are willing to purchase apparently inefficient public goods is because the state
eliminates or reduces their exposure to risk. In the case of the London Underground, for example, the purchasing companies were assured that whatever happened they would be protected
against serious loss thereby undermining the classic economic case for privatization: that the
profit motive encourages efficiency. The hazard in question is that the private sector, under
such privileged conditions, will prove at least as inefficient as its public counterpart while
409
creaming off such profits as are to be made and charging losses to the state.
The third and perhaps most telling case against privatization is this. There can be no doubt
that many of the goods and services that the state seeks to divest have been badly run: incompetently managed, underinvested, etc. Nevertheless, however badly run, postal services,
railway networks, retirement homes, prisons, and other provisions targeted for privatization
remain the responsibility of the public authorities. Even after they are sold, they cannot
be left entirely to the vagaries of the market. They are inherently the sort of activity that
someone has to regulate.
What is a Judicial Author? (2010-01-19 07:42)

I have posted on SSRN a copy of an article entitled What is a Judicial Author? I presented several
years ago at a conference. I have learned to my utmost gratitude that Lewis Hyde will be quoting and
citing the article in his forthcoming, much-anticipated book on the cultural commons. As the articles
abstract explains:
This paper, originally presented in draft at the Con/Texts of Invention Conference sponsored by the Society for Critical Exchange, examines the ways in which judges write opinions,
the ways experienced and inexperienced legal readers conceptualize judges as authors, and
the affect these conceptions have on the way they read those opinions. The paper describes
judicial writing as a quintessential example of collaborative writing, a view corroborated by
the ways experienced lawyers use and interpret judicial opinions in practice. The judicial
opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from
on high. Rather, the opinion itself is a piece cobbled together from a number of other sources
that include established law, the lawyers written and spoken legal arguments, secondary legal
sources, and earlier opinions that were themselves built up from the bits and pieces floating
through the legal discourse community. Nevertheless, conventional legal thinking has since at
least the 19 th Century through today propounded the notion of the judge as quintessentially
Romantic author-creator. This clash between legal practice and the conventions of legal (and
especially academic) discourse poses real and neglected problems in legal education, especially
in the ways the Romantic view of judicial authorship instills in students habits of reading.
Who needs public services in case of disaster? Not the rich . . . (2010-01-20 09:41)
The market strikes again: worried about help in the event of disaster? Well, with a lot of money, youve
got nothing to worry about as Naomi Klein writes, if youre worried about wild fires burning down
your home, you can buy private fire fighters who will stand by and watch your neighbors home go up in
flames, or you can even buy larger scale disaster relief:
[Pellston, Michigan] is about to become the headquarters for the first fully privatized
national disaster response center. The plan is the brainchild of Sovereign Deed, a little-known
start-up with links to the mercenary firm Triple Canopy. Like HelpJet [guarantees its wellheeled members a seat on a chartered jet out of the hurricane zone], Sovereign Deed works
on a country-club type membership fee, according to the companys vice president, retired
Brig. Gen. Richard Mills. In exchange for a one-time fee of $50,000 followed by annual dues of
$15,000, members receive comprehensive catastrophe response services should their city be
hit by a manmade disaster that can cause severe threats to public health and/or well-being
(read: a terrorist attack), a disease outbreak or a natural disaster. Basic membership includes
access to medicine, water and food, while those who pay for premium tiered services will be
eligible for VIP rescue missions.(Hyperlinks added.)
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Corporations = individuals? Confusions in economic theory and First Amendment

jurisprudence (2010-01-22 15:12)
Metaphors are tricky things. Corporations are persons under the law in many respects, just as you and
I are. And we treat corporations as rational individuals in the market. These figurative equations of legal
fictions with human beings certainly have their utility, but they easily can be pushed too far. Individuals
at AIG were making individual fortunes based on the income they were bringing into AIG for selling
credit default swaps. Those individuals were making and would retain those fortunes even if, as turned
out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default
swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG
would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG
is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every
incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens
of millions of dollars.
And now the Supreme Court has overturned over 100 years of precedent permitting limits on corporate contributions to political campaigns because such limits constrained free speech and, according
to the truism announced by Justice Kennedys majority opinion, Speech is an essential mechanism of
democracy, for it is the means to hold officials accountable to the people. But corporations dont make
decisions about how to spend money on campaign contributions the individuals who control the corporations do. So what the Supreme Court has done is to remove any limits we might put on corporate
CEOs to spend corporate money to advance the interests that indubitably are intended to redound to
the benefit of those individual CEOs. I wouldnt limit the ability of CEOs and shareholders to make
individual contributions to political campaigns, but why are we treating purely legal entities like they are
made of flesh and blood?
As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:
Prior to 1886, corporations were referred to in U.S. law as artificial persons. but in 1886,
after a series of cases brought by lawyers representing the expanding railroad interests, the
Supreme Court ruled that corporations were persons and entitled to the same rights granted
to people under the Bill of Rights. Since this ruling, America has lost the legal structures
that allowed for people to control corporate behavior.
Bob Dylan: Hurricane (2010-01-22 17:05)

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True innovation in health care:
no-fault insurance for bad medical outcomes.
(2010-01-25 06:07)
We would make genuine and profound progress in fixing our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and
personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession
policed the quality of the care provided by its members.
One political war that never seems to wane is over the medical malpractice system. On the one hand there
are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that
is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection
against the risk of suffering unexpectedly from medical treatment.
411
The critique of the malpractice system has a lot of validity its a lottery in which those patients
who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a
result, too, doctors practice defensive medicine, driving up medical costs for all of us.
But thats not the entire story. Our health insurance system is a failure, and patients who suffer bad
medical outcomes often wont have coverage sufficient to provide them the care required by the bad
outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is
no recovery unless the patient is able to prove the doctor was negligent.
Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other,
declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and
find the doctor acted negligently?
Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents,
not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctors eyes, found
the doctor to be a bad doctor. To the doctor on trial, The patients injuries as opposed to the doctors
efforts are irrelevant.
The dilemma is obvious. First, bad
As a result, bad medical outcomes
not spread this risk rather, those
malpractice system themselves bear
medical outcomes are inevitable regardless of the adequacy of care.

are risks we all face. Second, our existing insurance scheme does
who suffer bad medical outcomes and are not compensated by the
all the costs of that risk.
Wouldnt we be better off if everyone who suffered a bad medical outcome was compensated for the
costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one
would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldnt
be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities
by an entirely understandable and praiseworthy sense of human sympathy.
Such a scheme does raise one problem that the critics of the malpractice system also ignore we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice
system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of
medical practice. To some degree they havent needed to do so because the risks posed by the malpractice
system have forced insurance companies to take on that role. To replace the malpractice system with a
no-fault insurance system, therefore, would require some genuine quality control imposed by the medical
profession itself.
But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the
need for some genuinely effective means of quality control, we would instead have the worst of all worlds.
412
In light of the decision by the Supreme Court the other day in Citizens United regarding the rights of
corporations to make campaign contributions without restriction, I felt compelled to republish a post
from early last year:
Stephen M. Wise discusses the ways society shapes the development of the law in connection with the
rising awareness that animals are not merely things:
Is it up to society to force a change in the law? Or will the law change society?
The law both leads and follows society. The legal system changes through the decision
of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery
amendments to the U.S. Constitution in the 19th century and the numerous civil rights
statutes of the 20th century. But the way the law changes and the way society changes are
connected. People who try to change the law also depend upon changes in societal values, as
well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with
reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos
of the last 20 or 30 years. These discoveries form the springboard from which I can argue for
their rights and personhood.
How do you think our view of animals will develop in the next 20 years?
It is going to develop in a complex way. First, a hierarchy of nonhuman animals will
continue. Though nonhuman animals are considered legal things today, society does not view
all nonhuman animals in the same way. Some we clearly value more than others. Even
though chimpanzees don t have any legal rights, we no longer euthanize them after they are
no longer useful in medical experiments, as we do, say, to white mice. This fact both results
from and drives the coming legal personhood of Great Apes. We re beginning to see this
not only in the U.S., but throughout the West. Westerners are also increasingly valuing
their companion animals and I see increasing protection for them. The animals whom we
thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S.
But an opposite trend is rising in [parts of] Europe. I think we will see the European trend
413
expand even as factory farming in the U.S. increases. However, within the next 10 years,
the American factory farming industry is going to learn how it has greatly overstepped and
miscalculated just how much abuse of nonhuman animals used for food people are willing to
accept. Stir in the environmental degradation that is its inevitable consort and there is going
to be a backlash that will drive factory farming in the U.S. in the direction that Europe has
taken and will, perhaps, drive at least some of it out of business.
Chief Justice Roberts has no respect for precedent that doesnt suit his purposes.
(2010-01-29 11:49)
One of the less noticed parts of last weeks Citizens United decision by the Supreme Court overturning
precedent that had supported over 100 years of congressional restrictions on corporate campaign contributions was precisely the question of the strength of precedent. During his confirmation hearings,
prospective Chief Justice Roberts was questioned intensely on the question of his respect for precedent,
particularly with respect to Roe v. Wade. In keeping with the image he plainly intended to project of
a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for
precedent.
Thus, it should not be particularly surprising that Roberts wrote a separate concurring opinion in Citizens United to supplement his support of Justice Kennedys majority opinion. Roberts concurrence
focused on the need to follow Court precedent or, rather, the need to depart from precedent in this
particular case.
Roberts concurrence should leave people convinced he would overturn Roe v. Wade and that his persona
as a non-activist umpire who merely calls balls and strikes is a fraud. First, Roberts wrote, upholding
precedent is not an end in itself. It is instead the means by which we ensure that the law will not
merelychange erratically, but will develop in a principled and intelligible fashion.
So why would Roberts depart from precedent? First, if he thinks its wrong: [I]f the precedent under
consideration itself departed from the Court s jurisprudence, returning to the intrinsically sounder
doctrine established in priorcases may better serv[e] the values of stare decisis than would following
[the] more recently decided case inconsistent with the decisions that came before it.
Merely overturning precedent because a judge thinks its wrong, of course, does away entirely with what
courts call stare decisis, the rule that compels them to follow precedent (except when they dont). If
all that mattered was a judges determination of what is right, then there would be no need for stare
decisis a judge will always uphold precedent he or she believes is right.
So Roberts has to come up with something better. What does he come up with? To me its plain: precedent ought to be overturned if its justification is difficult, if using it to decide future cases is difficult, and
if its original justification is open to question:
[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future
cases, its stare decisis effect is also diminished. This can happen in a number of circumstances,
such as when the precedent s validity is so hotly contested that it cannot reliably function
as a basis for decision in future cases, when its rationale threatens to upend our settled
jurisprudence inrelated areas of law, and when the precedent s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new
anddifferent justifications to shore up the original mistake.
414
Justice Blackmuns opinion in Roe v. Wade has been under attack by both supporters of the right to
choose whether or not to carry a pregnancy to term and those who oppose the right to choose since
the day it was issued in 1973. And in fact, our courts should and do uphold precedent if there is any
legitimate justification to uphold thats a central truth about legal interpretation (and one law students
have a very difficult time gaining an understanding of). But Justice Roberts and his allies on the Court
now have authority to cite as support for overturning Roe v. Wade because its original justification may
not gain widespread support this opinion of in Citizens United.
Finally, Roe v. Wade fits that other justification Roberts advances for overturning precedent it is hotly
contested, and no doubt he and his allies would argue it therefore cannot reliably function as a basis
for decision in future cases.
One thing I do know Roberts has no respect for precedent that doesnt suit his purposes.
Steven Colbert on Citizens United and Corporations as People (2010-01-29 19:41)

The Colbert Report Mon - Thurs 11:30pm / 10:30c
The Word - Let Freedom Ka-Ching
www.colbertnation.com
[EMBED]
Colbert Report Full Episodes
Political Humor
Economy
Belle and Sebastian: Legal Man (2010-01-29 19:54)

[EMBED]
Tom Waits: Jockey Full of Bourbon/Down by Law opening (2010-01-31 21:56)

[EMBED]
tom waits down by law..jockey full of bourbon
Uploaded by evouii. - Classic TV and last nights shows, online.
3.2
February
The music industry, book publishing, and now Lexis and Westlaw? (2010-02-01 06:54)
Our technological revolution is taking down the music industry as its operated for the last 80 years or
so, the book industry as its operated for the last 150 years or so, and now there are plenty of people who
think that internet in general and Google Scholar in particular will take down the online legal research
regime that has only existed since a couple of years before I started law school in 1981 Stephen E.
Arnold writes:
What is the financial outlook for the LexisNexis-type and Westlaw-type firms? Short term
there won t be much change. Over time, life gets tougher. I do quite a bit of work in online
information, and I am not sure these outfits can adapt to the Google s legal push.
415
We know the price of everything and the value of nothing. (2010-02-01 21:31)
A couple of weeks ago I quoted from Tony Judts critique of free market ideology. Raj Patel, in How
Free Market Delusions Destroyed the Economy, goes into considerable depth about the stupidity of our
faith in markets, but this brief point makes clear the wisdom underlying the entire article:
There is a discrepancy between the price of something and its value, one that economists
cannot fix, because its a problem inherent to the very idea of profit-driven prices. This gap
is something about which weve got an uneasy and uncomfortable intuition. The uncertainty
about prices is what makes the MasterCard ads amusing. You know how it goes green fees:
$240; lessons: $50; golf club: $110; having fun: priceless. The deeper joke, though, is this:
The price of something doesnt measure its value at all.
Trying Proposition 8 as teachable moment (2010-02-02 10:51)

Margaret Talbot notes that a trial can be a terrific method of educating the public on controversial
issues. In particular, she focuses on Perry v. Schwarzenegger, the case in which the constitutionality of
Californias Proposition 8, overturning the states gay marriage law, is being challenged. Talbot has been
blogging about the trial throughout the 3 weeks it has been going on. Her latest post points out that
trials, in subjecting witnesses to cross examination, permits scrutiny of controversial views that other
forums dont ever provide. As David Boies puts it The crucible of cross examination forces the witness
to confront the other side; they can t fall back on bumper sticker slogans like marriage is between a man
and a woman.
Talbot compares the educational value of Perry to that of the trial in Kitzmiller v. Dover Area School
District, the successful legal challenge against a public school districts requirement that intelligent design be taught as an alternative to evolution as an explanation of the origin of life:
In many ways [the trial in Perry] reminded me of another culture-war trial that I covered, in
2005, one that presented a similar opportunity for intellectually engaging with the arguments
and research that usually remain submerged beneath a politicized controversy. That trial
was to decide whether intelligent design could be part of the curriculum in a Pennsylvania
school district, and its expert testimony covered everything from the fossil record of obscure
dinosaurs to Darwin s own religious beliefs to the theoretical underpinnings of the separation
of church and state.
It really is unfortunate the Supreme Court ruled that Perry could not be broadcast via the internet.
I very much would like to have seen a witness explain exactly how it is that gay marriage undermines
straight marriage. Ive genuinely tried to understand the argument from some very intelligent people who
think that gay marriage does indeed undermine straight marriage, but, Ill confess, my mind has been
unable to get itself around the argument.
Mark Twain on invention (2010-02-02 21:05)

It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a
photograph, or a telephone, or any other Important thingand the last man gets the credit
and we forget the others. He added his little mitethat is all he did.
- letter to Anne Macy. Reprinted in Anne Sullivan Macy, The Story Behind Helen Keller (Garden City,
N.Y.: Doubleday, Doran, and Co., 1933), p.162.
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Archers Daniel Midland abuses copyright law to censor criticism corporations have
the right to free speech, but not the people who criticize them? (2010-02-04 08:12)
Some corporations apparently believe in free speech for themselves but not for individuals. The first video
below is a deadly dull piece of propagandistic pap in which Patricia A. Woertz, Chairman, President and
CEO of Archer Daniels Midland (ADM), USA drones on (someone get her better training for dealing
with the media!) about ADMs profound importance to feeding the world. The piece was produced in
advance of the recent Annual Meeting of the World Economic Forum in Davos, Switzerland.
ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for
price fixing (the subject of Matt Damons recent film The Informant and Fair Fight in the Marketplace,
an excerpt of which appears belows Woertzs blathering), political corruption, destruction of the rainforests, and the forced labor of children.
A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it
appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific
exploitation of the world and especially of multinational food markets. I thought it was hilarious piece
of political critique. No one could have mistaken it as an official ADM production, but plainly it hit a
nerve at ADM.
Today I noticed that when I click on the video on my Facebook profile a message appears that it is
no longer available due to a copyright claim by Archers Daniel Midland Company and that if I click
through to YouTube theres no page for the video at all, not even a page with the same empty video box
and takedown message.
This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is
grounded in the Constitutions guarantee of free speech, all you need is to think of a situation like this
one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the
copyright laws to silence that critique has nothing to do with protecting intellectual property and the
rights of a creator to profit from his, her, or its creation: its unconstitutional censorship! (Peter Bouchard
wrote a good summary yesterday on The Battle against Bogus Takedowns, a topic Ive touched on in
the past.
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[EMBED]
The South Butt Answer to the North Face (2010-02-04 14:27)

For a brilliant combination of technical perfection, persuasion, and humor of a sort Ive never before seen
in an answer to a complaint, youve got to see the answer filed by South Butt to the complaint filed by
North Face alleging that South Butts name and its slogan, Never Stop Relaxing, infringe North Faces
trademarks in its name and its own slogan, Never Stop Exploring. I will be forever grateful to techdirt
for bringing this document to my attention.
The South Butt Answer to the North Face [EMBED]
Go Saints! (2010-02-05 19:50)

No self-respecting Browns fan could root for a team that fled the city it belongs to in the middle of the
night. And no self-respecting Browns fan could help but feel the Saints fans are among the few who can
appreciate our loyalty.
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Arlo Guthrie: City of New Orleans

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Cuckoo Kookabura Culture as the Language of Art (2010-02-10 12:17)

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra
Sits in the Old Gum Tree that Men at Work had infringed Kookaburas copyright in their 1981 #1 hit
Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, [t]he
key, harmony, structure and rhythm of Down Under s famous riff changed the sound of it so much that
nobody not the band, [the managing director of the company that owned the copyright to Kookaburra],
or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz
show question.
But now, as Celebrity Justice (among others) reports, [a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra
tune and will now owe some of their royalties to the publishing group who bought the rights to that song
in 1990.
As CNN reports, the judge in his decision wrote that I would emphasise that the findings I have made
do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the hook
of that song.
Whether the judges decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright
infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this
question is not merely the result of the argument that I made in my November post that the transformative nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura
and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able
to quote works that have resonance and meaning in our culture is fundamental to artistic creation.
Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its
performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is
as resonant a way to convey Australia as there is.
Instead of recognizing what Lewis Hyde calls the Cultural Commons, many people have the kneejerk impulse people have to identify cultural creations as property and thereby equate them to real
estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of
ways in order to advance social goals (you cant have a pig farm in the middle of a suburb, you cant
paint your house fuschia in most places, and the government can take your property if it pays you a fair
(and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw
(and must draw) on existing cultural creations, and how those creations then achieve meaning in the
social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder,
creation, and the sooner we under what creativity really involves the more creative a culture well have.
You be the judge: are Men at Work plagiarists or composers?
[EMBED] [EMBED]
Street Smarts, Book Smarts, and Making them Work Together (2010-02-12 11:28)
Scott Berkun compares book smarts to street smarts and concludes: street smarts kicks book smarts
ass.
418
I agree, though, as does Berkun, in saying so I do not intend to demean the importance of book smarts.
Street smarts, as Berkun explains, is the knowledge born of experience:
To be street smart means you have situational awareness. You can assess the environment
you are in, who is in it, and what the available angles are. Being on the street, or in the
trenches, or whatever low to the ground metaphor you prefer, requires you learn to trust your
own judgment about people and what matters. This skill, regardless of where you develop it,
is of great value everywhere in life regardless of how far from the streets you are.
Most important perhaps, being street smart comes from experience.
To me the most compelling part of Berkuns post is his insistence that to be street smart is to rely on
your own judgment, not the answers someone else has set out for you and youve found:
The prime distinction between street smarts and book smarts is who is at the center of
the knowledge. On the street, it s you. In a book it s you trying to absorb someone else s
take on the world, and however amazing the writer is, you are at best one degree removed
from the actual experience. Street smarts means you ve put yourself at risk and survived. Or
thrived. Or have scars. You ve been tested and have a bank of courage to depend on when
you are tested again.
I would only add that making your own judgment the center of book learning will make the book learning
itself more effective. And you dont need the experience of decades to do so. If you read to find answers
without evaluating, trying out, and considering alternative to those answers, the answers are just so many
abstract symbols that are virtually impossible to translate into future action. But if you do bring your
own judgment and imagination to reading, you can make your street smarts improve your book smarts,
and those improved book smarts will in turn improve your street smarts.
Ronald Dworkin on Citizens United: a corporation is a legal fiction without opinions

of its own. (2010-02-15 09:31)
Ronald Dworkin criticizes the Supreme Courts Citizens United decision ruling that corporations are
entitled under the First Amendments guarantee of free speech to an unlimited right to contribute money
to political campaigns for the same two reasons I have. First, the majority overturned precedent while
hypocritically espousing their respect for the concept of adhering to precedent, and, second, because it
is absurd to treat a corporation for First Amendment persons as the equivalent of a human being:
The opinion announces and perpetuates a shallow, simplistic understanding of the First
Amendment, one that actually undermines one of the most basic purposes of free speech, which
is to protect democracy. The nerve of his argument that corporations must be treated like
real people under the First Amendment is in my view preposterous. Corporations are legal
fictions. They have no opinions of their own to contribute and no rights to participate with
equal voice or vote in politics.
Theres wealth and then theres wealth. (2010-02-16 12:14)

One of the most common criticisms of a lot (not all!) of the so-called economic analysis that has dominated the political and legal minds of the last 30 years is its inability to account for value that cannot
be reduced to monetary terms. The criticism, while duly noted, tends to be immediately forgotten. As
419
a result, weve had an entire generation thats felt compelled to justify its decisions on purely economic
terms. The economic crisis may be affecting this tendency as much as its affecting other ways of viewing
the world. Last year, some big law firms that were getting less work from their clients gave graduating
law students to whom theyd given offers of permanent employment an offer that sounded to good to
be true: go get another job let it be low paying and public interest and well pay you a part of
your salary in the expectation youll come work for us permanently next year. But now, according to
Georgetown Law Grad Russ Ferguson, those firms are finding out, to their surprise, that the students
who took advantage of the offer like their alternative jobs too much. Most importantly, theyre realizing
that theyre wealthier in real terms in their lower paying jobs:
These new lawyers have found that their new jobs are more fulfilling and more interesting,
and more importantly theyve seen that they can live on a smaller salary. As one of my
classmates put it, Add up the hours I worked this week and add up the hours my friends at
law firms worked. Divide our salaries by the amount of hours and youll see Im rich.
(hat tip to the ABA Law Journal)
Photographing public art: a persistent fair use problem (2010-02-18 11:42)
I have a friend, a sculptor, who has sold several of his pieces as public art. He laughs at the idea that
he could somehow recover more money than he has already received for any use the public makes of his
sculptures. And hell soon be a lawyer. The way he figures it, hes sold unlimited public use of the art
for whatever uses the public will make of it even money-making uses.
But his view is a generous one. Often the creators of public art will pursue anyone who uses images
of their public art under the copyright laws. To my mind, its one more of an infinite number of manifestations of our collective obsession with converting everything we can into a marketable commodity.
Nevertheless, the efforts of artists to restrict others from making and using images of their public art
is far from frivolous. Donn Zaretsky and I had a couple of go rounds last year in connection with the
use on a postage stamp of a photograph of the Korean War Veterans Memorial in Washington, D.C.
I am still convinced that the postage stamp in that case makes fair use of the image of the memorial, but well have to wait and see whether my conviction that it isnt even a close case is vindicated.
420
But now from the Citizens Media Law Project comes word of a similar, and perhaps more difficult, case, from Seattle, where photographer Mike Hipple is being sued by
sculptor Jack Mackie over the photo Hipple took about 10 years ago of a woman standing near the Dance
Steps on Broadway sculpture in Seattles Capitol Hill. As the Citizens Media Law Project explains:
The lawsuit has outraged scores of residents who find Mackie to be out of step with the
publics interest. Mackie installed the eight sets of inlaid bronze shoe prints, mapping out wellknown dances such as the waltz and rumba, in 1982 when the city rebuilt the neighborhoods
sidewalks. Despite receiving public financing for the project, Mackie retained rights to the
artwork. Those rights, according to 106 of the U.S. Copyright Act, include the exclusive
right to reproduce the work or to create derivative work from it.
Finally, I agree with the following sentiments: any scheme that involves paying to photograph seems
antithetical to the public interest. The most reasonable solution is to keep public artwork completely
open to the public. Until cities do this, however, commercial photographers may want to think twice
421
about incorporating public artwork into their photographs.

Nevertheless, I also agree with Hipple that the photo constitutes fair use of the sculptures image? Why?
Because the photo stands on its own as a creative work. Hipple has taken a work embedded in a sidewalk
in front of a public building and made it into a beautiful image that evokes both dance and confusion in
a world full of complicated instructions seemingly sending us in a myriad of different directions. I dont
know how often I can say it: art builds on art. Culture builds on culture. And the sooner we ease up on
our madness to monetize everything the sooner well be sane.
Jack Mackie, litigator-artist: artists arent entitled to stop uses of their work merely
because they dont like those uses. (2010-02-19 13:43)
A friend (who happens to be a relative too) points out to me that the artist whose lawsuit I wrote
about yesterday Jack Mackie, creator of the popular outdoor artwork in Seattle known as The Dance
Steps has previously sued over the alleged infringement of his copyright in that work. He was largely
unsuccessful in the earlier lawsuit, Mackie v. Reiser, 296 F.3d 909 (9th Cir. 2002), cert. denied 537 U.S.
1189 (2003), but not for a lack of trying he appealed his case to the U.S. Court of Appeals for the 9th
Circuit and even sought to have that decision reviewed by the U.S. Supreme Court.
In Reiser, Mackie sued the Seattle Symphony Orchestra for using a photo of part of The Dance Steps
without his permission in a Symphony promotional campaign. Even assuming the Symphonys use of
the image constituted an infringement, the court ruled that Mackie was not legally entitled to statutory
damages for copyright infringement because he had not registered his copyright in The Dance Steps; nor
was he entitled to damages from the Symphonys direct profits. He was awarded $1,000, based on the
trial courts determination that that is the amount he would have been paid by the Symphony for a
license to use the work, but he even appealed that award as inadequate because he did not like the way
the Symphony used the image of his work.
The court focused on his claim for indirect profits that is, the profits the Symphony earned from
its promotional material that were attributable to the allegedly infringing use of an image of Mackies
work. But Mackie was not able to produce evidence that any of the Symphonys profits were attributable
to their use of the image of The Dance Steps. In fact, Mackies damages expert had testified that it
was impossible to determine how much of the Pops revenue could be traced to the infringing artwork.
Although the expert subsequently testified that he had been wrong and that he believed 1.5 % of the
Symphonys profits from the campaign could be traced to its use of the image of The Dance Steps, the
court held that that belief was too much based on speculation. Interestingly, at trial, Mackie himself
conceded that his putative loss of future earnings was speculative at best [and] . . . that he had previously given permission for others to use The Tango without payment of a royalty.
Finally, the court ruled that there were no grounds to award Mackie more than $1,000 to represent
the amount the Symphony would have had to pay him for a license to use an image of The Dance Steps
despite Mackies personal objections to the manipulation of his artwork. It is important to understand
that copyright does not give an artist the power to stop a use of his work merely because he doesnt like
the use. And, indeed, the court concluded: Although it is not hard to be sympathetic to his concerns, . .
. Mackies subjective view, which really boils down to hurt feelings over the nature of the infringement,
has no place in this calculus.
Bob Dylan: Talkin John Birch Paranoid Blues (2010-02-19 13:57)

For those whose knowledge of history doesnt extend back to the pre-Reagan era, heres a reminder from
1964 about the co-sponsor of this weeks Conservative Political Action Conference (CPAC).
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Justice Department: Torture Memos were insane but not the product of professional
misconduct (2010-02-20 12:55)
From Jurist
The US Department of Justice (DOJ) [official website] has overruled the findings of a report [DOJ Ethics Report] released Friday concluding that two Bush administration lawyers
committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the
DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official
profile; JURIST news archive] were only guilty of poor judgment in writing the memos.
An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded
that Yoo had committed intentional professional misconduct when he violated his duty to
exercise independent legal judgment and render thorough, objective and candid legal advice.
The report also found that Bybee had committed professional misconduct when he acted in
reckless disregard of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [DOJ Margolis Report]
overruling the OPRs report, finding its analysis was flawed because it did not have a clear
definition of what constitutes professional misconduct.
Back in August of 2008, when I began writing this blog, I explained my then long-held conviction that
the White House Office of Legal Counsel and in particular Jay Bybee (now a federal judge) and John
Yoo (a tenured law professor) had acted immorally and in violation of their professional duties as lawyers
in writing the so-called torture memos that gave legal approval to the torture the Bush Administration
began. Both the DOJ Report and the DOJ Margolis Report confirm the details of what I wrote back in
2008 the memos were plainly written to justify a pre-determined conclusion. As I wrote then:
Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law
School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals
for the Ninth Circuit, thought they could get away with this utterly fictional definition of
severe pain. And they did. Plainly, though, Yoo does not believe in constraints. In December
2005 he stated in a Chicago debate that there is no law that could prevent the President from
theoretically ordering the torture of a child of a suspect in custody including by crushing
that child s testicles.
And now the DOJ Margolis Report concludes that the evidence of the knowing violations . . . led us
to conclude that Yoo put his desire to accommodate the client above his obligation to provide thorough,
objective, and candid. legal advice, and that he thereforecommitted intentional professional misconduct.
Mr. Margolis in the DOJ Margolis Report also stated:
While I have declined to adopt O.P.R. s findings of misconduct, I fear that John Yoo s
loyalty to his own ideology and convictions clouded his view of his obligation to his client
and led him to author opinions that reflected his own extreme, albeit sincerely held, view of
executive power while speaking for an institutional client.
423
The reports really are remarkable testaments to how far the Bush Administration went to force its desire
to torture within a rule of law that does not permit torture. Among other things, the DOJ Ethics Report
quotes other Bush Justice Department appointees stating that John Yoo needed adult supervision and
describing the torture memos as insane, a one-sided effort to eliminate any hurdles posed by the torture
law, plainly wrong, and slovenly:
Our view that the memoranda were seriously deficient was consistent with comments made
by some of tlie former Department officials we interviewed, even though those individuals
would not necessarily agree witl! some of our findings in this matter. [Daniel] Levin stated
that when he first read the Bybee Memo, [I had } the same reaction I think everybody who
reads it has - this is insane, who wrote this?. Jack Goldsmith found that the memoranda
were riddled with error, concluded that key portions were plainly wrong, .and characterized
them as a one-sided effort to eliminate any hurdles posed by the torture law. [Steven G.]
Bradbury told us that Yoo did not adequately consider counter arguments in writing the
memoranda and that somebody should have exercised some adult leadership with respect
to Yoos section on the Commander-tn-Chief powers. [Michael] Mukasey acknowledged that
the Bybee Memo was a slovenly mistake, even though he urged us not to find misconduct.
Insane about sums it up. Youre not acting as a lawyer if the research and analysis you do is insane.
But, I guess, insane is not a sufficiently firm legal standard for Mr. Margolis. The funny thing is that
Id expect any reviewing official who didnt see discern a standard in the report he was reviewing to
state the proper standard and make his own determination whether the facts set forth satisfied or did
not satisfy that standard. Or he could have sent the matter back to the ethics people with instruction
to set forth a clear standard. Instead, he plainly was looking for a way to find no ethical violations here.
Honestly, if the flat out lies about the law contained in the torture memos is permitted, then anything is
permitted in the war on terror. Which, of course, is exactly Yoos position.
424
Happy Birthday, George, and thank you for the wisdom on torture. (2010-02-22 11:12)
After the Battle of

Trenton, as his troops were preparing to run captured British soldiers through the gauntlet, Washington ordered them to
Treat them with humanity, and let them have no reason to complain of our copying the
brutal example of the British Army in their treatment of our unfortunate brethren who have
fallen into their hands.
The consequences of doing otherwise would be dire to match the crime:
Should any American soldier be so base and infamous as to injure any [prisoner]. . . I
do most earnestly enjoin you to bring him to such severe and exemplary punishment as the
enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause& for by such conduct they bring shame,
disgrace and ruin to themselves and their country.
425
Want to be an innovator? Be a first follower! And Andrew Dubber is worth following.

(2010-02-22 18:11)
It all started here:

[EMBED]
And then a friend of the guy who made the video, Andrew Dubber, announced that he would make it
possible for you to be a first follower:
30 ideas in 30 days
Starting Wednesday March 3rd, for 30 days, I m going to put one idea per day up on this
blog.
It could be any sort of idea: a business idea, an idea for a board game, a tv show, an
observation about the world that could be turned into a book, an invention, a website idea
anything.
I ll explain the idea in its most basic form my humble equivalent of a 3-minute TED
talk& and then I ll walk away. Anyone who wants the idea is welcome to it, and can run with
it under exactly the same terms and conditions of Derek s idea.
I don t guarantee that any of my ideas will be as good as any of Derek s. That s not what
this is about. I don t have to be as good at dancing as him, I just want to get up and dance
too.
When Abortion was Illegal (w/Spanish subtitles)(1992) (2010-02-22 20:36)

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Our capacity to be just is measured by our capacity to do justice to those most in

need of it. (2010-02-24 10:11)
The only way to do justice is to provide opportunities for justice. 50 years ago, in Gideon v. Wainwright,
the Supreme Court ruled that a criminal defendant has a constitutional right to representation by a
lawyer and that, if he cannot afford one, the state must provide him with one. Now, with our states
and local governments starving for money, this foundation of our justice system is sorely threatened.
Two lawyers whose careers have been devoted to these issues, Virginia Sloan and (my good friend) Cait
Clarke, write:
The report of the Constitution Projects National Right to Counsel Committee, Justice
Denied: Americas Continuing Neglect of Our Constitutional Right to Counsel, is the most
comprehensive examination of the indigent defense crisis in over 30 years. The Committee,
whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded
that this countrys indigent defense system is in crisis, that the government has for too long
ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.
One of the most important recommendations is that indigent defense should be provided
through an independent, non-partisan authority that appoints qualified, experienced lawyers
who have adequate resources. Of equal significance is the recommendation that the federal
government assist the states in ensuring that the Sixth Amendment is protected and that
poor people have the kind of lawyers to which they are constitutionally entitled. The federal
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government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates
the already untenable situation.
Another recommendation is that the federal government should create a federal office of
public defense services to distribute funds, collect data, promulgate standards, and develop
and deliver training similar to the federally-supported training for state and local prosecutors.
Additionally, the federal government should require all states to abide by national standards
for public defense. Adoption of the American Bar Associations Ten Principles would provide
constitutionally adequate legal representation for criminal defendants unable to afford an attorney.
One innovative idea that will improve the quality of representation for indigent defendants is
to create a national fellowship program to cultivate and train the next generation of indigent
defense lawyers. This would dramatically increase the number and caliber of lawyers working
to secure justice for clients and communities. Equal Justice Works, working in partnership
with the Southern Public Defender Training Center (SPDTC), is proposing to do just that.
The Korean War Memorial Postage Stamp Photo Case: I was way wrong! But I still
think I was right, and I think the case is bad for art. (2010-02-25 22:59)
Consider me dumbfounded, or just plain dumb. I thought the copyright infringement case brought
by the sculptor of the Korean War War Veterans Memorial (above, left) against the U.S. Postal Service
for the use of the memorials image in a postage stamp (above, right) was an easy case that the stamp
constituted fair use of the image of the memorial because, among other things, I thought the image was
sufficiently transformative of the memorial itself to constitute a creative work in its own right.
But today, in Gaylord v. U.S. (pdf),the U.S. Court of Appeals for the Federal Circuit reversed the
lower courts holding and ruled that the stamp infringed the sculptors copyright in the memorial (pdf).
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Whereas I thought the image on the stamp was transformative because, among other things, I wouldnt
have even known it was an image of a sculpture rather than a stylized image of actual soldiers unless Id
read otherwise, the court held that the purpose and character of the image on the postage stamp and
the purpose and character of the sculpture were identical: to honor veterans of the Korean War. Slip
op. at 9. The court rejected the reasoning I had advanced, reasoning as follows:
Although the stamp altered the appearance of The Column by adding snow and muting
the color, these alterations do not impart a different character to the work. To the extent that
the stamp has a surreal character, The Column and its soldiers themselves contribute to that
character. Indeed, the Penn State Team suggested that the Memorial have a dream-like presence of ghostly figures. Capturing The Column on a cold morning after a snowstorm rather
than on a warm sunny day does not transform its character, meaning, or message. Slip Op.
at 11.
I am stunned, and I find the courts limitation of of transformative work to work that comments on
or criticizes the work it appropriates without real rationale, but the odds are long the case will end up
before the U.S. Supreme Court. It might be a good case for the Supreme Court to weigh in on the
ease and low cost of copying and disseminating images in this day and age makes any and every sort of
appropriation art a contentious and wide open field, but I suspect the Supreme Court would prefer to let
these issues simmer in the lower courts for some time before it chooses to weigh in on the question. In
the mean time, I have to bow in humility to Donn Zaretsky, with whom I engaged in an online debate
last summer on this particular case in particular and on the issue of the photographic appropriation of
public art in particular. Donn was right, and I was wrong. I suspect, though, that this isnt the last word
well hear on this type of case.
Addendum: The more I think about the decision in Gaylord, the more wrong-headed I believe it is,
and the more I think it falls prey to a dangerous proclivity to commercialize every last aspect of our culture, including art. To limit transformative uses of copyrighted materials to uses that comment upon
or criticize the copyrighted works they appropriate is to eliminate the use of the kind of appropriation
as source material that is the very foundation of art. Copyrighted art works become part of the cultural
language. A work that has impact in a culture takes on a meaning of its own. That cultural meaning
then becomes part of the language of art, and as a part of that language it then has meaning that can be
used in the sorts of compressed and symbolic ways that art needs to use in order to be art. To remove
copyrighted works from this language in the absence of payment for their use would substantially damage
our culture. By the time a work of art becomes available for the free use of other artists as part of the
public domain the duration of the artists life plus 70 years it no longer will have any resonance worth
exploiting.
Moreover, it is, I think, strange that the court in Gaylord reasoned that the photograph of the sculpture
was not sufficiently original in its own right to be transformative despite what I referred to above the
fact that one would not likely even spot that the photo was of the the memorial, much less a sculpture
because that character of the photo was merely the product of the fact the photo was shot on a snowy
day:
To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial
have a dream-like presence of ghostly figures. Capturing The Column on a cold morning
after a snowstorm rather than on a warm sunny day does not transform its character,
meaning, or message. Nature s decision to snow cannot deprive Mr. Gaylord of an otherwise
valid right to exclude. Slip op. at 11.
This reasoning is strange because, as I have pointed out before, photography itself is protected by copyright as original rather than being rejected as mere transmission of the facts it conveys precisely
428
to the extent it reflects the photographers choices regarding the framing of the image, the choice of
background and lighting, and the resulting mood:

posing and arrangement of [the subject] so as to present graceful outlines ; the selection
decisions by the photographer or, more precisely, the elements of photographs that result from
these decisions are worthy of copyright protection. See, e.g., Rogers v. Koons ( Elements
of originality in a photograph may include posing the subjects, lighting, angle, selection of
film and camera, evoking the desired expression, and almost any other variant involved. )
(citations omitted). Meshwerks v. Toyotoa Motor Sales, Inc. ( 10th Cir. 2008).
I am not sure how one reconciles the idea that photography constitutes original work entitled to copyright
protection with the notion that the elements of the art that give it originality the elements that are
the result of the artists choice are merely natures decision and therefore not an element that make
a work sufficiently original to be entitled to stand on its own without paying its way. I also think that
the decision is vacuous as an artistic matter.
Finally, the decision plainly has significance with respect to the claim by the Associated Press that
Shepard Faireys Obama Hope poster infringed Manny Garcias photo of then-candidate Obama. I have
stated again and again that I think the Hope poster is a non-infringing fair use primarily because of the
way it transforms the photo and stands on its own as a creative work. It was many, many months before
anyone even identified which photo was Faireys source material; even Garcia himself, despite seeing the
poster again and again during those months, did not recognize that the poster was derived from his own
photo! But theres no doubt in my mind that the poster does not constitute a comment or criticism of the
photo. Under the Federal Circuits reasoning, therefore, Faireys poster infringes the photos copyright.
Fortunately, however, the Federal Circuits decision is not binding on the United States District Court
for the Southern District of New York, where AP v. Fairey is pending, so that court will be left to its
own judgment as to the scope of appropriation art will be permitted in this age of digital copying and
transmission.
Heres hoping, on my part, that the court in that case comes to a different decision. Art is a language that draws on and builds from itself. To reduce the languages components to commodities would
be to commercialize one more part of our lives, monetize one of the few things we have left that have not
been reduced to the equivalent of cold cash.
Second Addendum: John E. Grant has a very interesting take on the Gaylord decision he reads the
decision as one that focuses on the stamp rather than the photo the stamp consists of:
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In reversing the lower court decision, a 2-1 appellate majority ruled that the trial judge
was wrong to focus on the transformative aspects of the photograph. Instead, it held that
it must analyze the purpose and character of the stamp. The appellate majority then found
that the purpose of the stamp was the same as the purpose of the sculpture: to honor Korean
War veterans.
Its an interesting thought, but Im not sure I entirely buy it. If the photo itself was fair use, then I
do not understand why the photographer did not have the right to license the use of that photo to the
government for use on the postage stamp. Further, as Grant acknowledges and as I pointed out above, the
court reasoned that although the image on the stamp altered the appearance of the sculpture, . . . the
alterations [were attributable] to mother nature, not the photographer and . . . natures decision to snow
cannot deprive Mr. Gaylord of an otherwise valid right to his copyright. Again, I cannot understand
why the very elements that constitute the creative elements of a photograph can in this fair use analysis
be passed off as merely natures decisions.
Weezer: Photograph (2010-02-26 21:51)

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Literature is theft. (2010-02-28 15:59)

Plagiarism is a puzzling vice. No writer, if he or she were honest about it, would ever deny that, when
they come across a good thing in someone elses work, consciously or unconsciously they store it up for
a rainy day. Literature, the American journalist James Atlas likes to say, is theft. Hes right. The
history of books and writing supports this provocative assertion to the hilt.
[I borrowed that.]
3.3
March
New solutions for new problems:
who knows your passwords after you die?
(2010-03-02 10:55)
Heres a new problem: how do your heirs get access to your financial accounts and other online information after you die? You can, of course, be sure to maintain a file of your user names and passwords,
but you run the risk of forgetting to change the list as you change passwords, and who among us has
compiled such a list?
Into the vacuum created by such needs come solutions. As Rafe Needleman writes, Legacy Locker
simply backs up the passwords and access codes to your online accounts. When you die, it gives that
information to the people you designate. And the system (scheduled to become operative in April) comes
with all sorts of backup systems built in:
The system periodically tries to log on to your accounts for you. If it cantif youve
changed passwordsit alerts you to update your records. Also, Legacy Locker only unlocks if
two people whom youve designated confirm your death, and even then only if one of them
supplies a death certificate to the company. Legacy Locker staff handles this; the unlock
procedure is not wholly automated. Toeman claims that the systems files are all encrypted
and cannot be unlocked without authorization.
430
Of course, it comes with a price $29.99 a year or $299.99 for a lifetime subscription. And Life Locker
plans to market itself primarily to estate planners, who will pass on the cost to their customers.
And, of course, I hope its not just a very effective phishing scheme. :)
Thank god for our founding fathers John Adams, honorable lawyer. (2010-03-03 12:39)
Whose values do the lawyers for Guantanamo detainees share? John Adams, for one:
John Adams, in his old age, called his defense of British soldiers in 1770 one of the most
gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces
of service I ever rendered my country. Thats quite a statement, coming as it does from perhaps the most underappreciated great man in American history.
The day after British soldiers mortally wounded five Americans on a cobbled square in Boston,
thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a
Boston merchant , James Forest. With tears streaming from his eyes (according to the
recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas
Preston. Adams understood that taking the case would not only subject him to criticism,
but might jeopardize his legal practice or even risk the safety of himself and his family. But
Adams believed deeply that every person deserved a defense, and he took on the case without
hesitation. For his efforts, he would receive the modest sum of eighteen guineas.
So when Lynn Cheneys group, keepamericasafe.com, suggests that theres something un-American about
the fact that lawyers in the Justice Department have defended Guantanamo detainees, the real question
is this: why is keepamericasafe.com spouting the un-American propaganda that those accused of wrongdoing are not entitled to a defense and to requiring proof of their wrongdoing? In fact, as Adam Serwer
reports,
Lt. Col. David Frakt, who has represented detainees both in military and civilian courts,
said that the lawyers who secured due process rights for detainees were ultimately vindicated.
There is an assumption there that has proven to be a fallacy, which is that everyone at
Guantanamo was a terrorist, Frakt says, pointing to the fact that the government has lost
three-quarters of the habeas petitions filed by detainees at Guantanamo. What we have seen
over and over and over is that the vast majority of detainees at Guantanamo are innocent.
This is, in short, ugly, anti-American propaganda:

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Requiring licenses for artistic appropriation has nothing to with providing incentives
to create. (2010-03-04 15:48)
Ive been pretty passionate in this blog in expressing my belief that art that appropriates copyrighted
work does not infringe the copyrighted work provided the new work stands sufficiently on its own as a
creative work. To stand on its own in that way, the new work is one that isnt attracting an audience
merely because of its appropriation of the earlier work. The fact it uses the the copyrighted work to
convey meaning through the use of symbols and allusions is no different than the way new, original art
431
has always used the meaning culture attributes to earlier work. Art builds on art.
The counter-argument to my position is that artists need to make money to be able to create art, and
if an appropriator can pay for a license, why shouldnt he? First, merely asking for a license is not the
same as obtaining one. Second, the most meaningful pieces of art in our culture are the most successful,
and licenses for the use of those works are not likely to be within the financial means of most artists.
Third, why should you have to ask for a license to make something new from something someone already
has made money from (or as much as their work earned in the market)?
But now Malcolm Gladwell goes right to the heart of the most compelling argument copyright holders have against un-licensed appropriation that the financial remuneration is an incentive necessary to
the creation of art in the first place. Gladwell writes:
Dan Pink is best known for a number of really insightful business books, including A
Whole New Mind. In Drive, he tackles the question of what motivates people to do innovative work, and his jumping-off point is the academic work done over the past few decades that
consistently shows that financial rewards hinder creativity. These studies have been around
for a while. But Pink follows through on their implications in a way that is provocative
and fascinating. The way we structure organizations and innovation, after all, almost always
assumes that the prospect of financial reward is the prime human motivator. We think that
the more we pay people, the better results we ll get. But what if that isn t true? What the
research shows, instead, is that the great wellspring of creativity is intrinsic motivation that
is, I do my best work for personal rewards (out of love or intellectual fulfillment) and not
external motivation (money).
Maybe you dont think much of this blog, but Ive written it now for 18 months and havent seen a
penny in return. The best writers I know scramble to make their livings through their writing, teaching,
parlaying their writing into other creative projects, and whatever else can come their way. Ive known
artists my entire life. Ive known a few whove had vast success, but they are a tiny, tiny minority. The
artists I know wont stop creating if theyre not paid for transformative appropriations of their works.
Article 1, Section 8 of the U.S. Constitution sets for the basis of Congressional power to create laws
to protect copyright. It states:
The Congress shall have Power . . . To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries; . . . (emphasis added).
It does not state:
The Congress shall have the Power . . . To further the capacity of authors and inventors
to extract any and all value that exists in their creations, by securing for a time in excess of
the lifetimes of these Authors and Inventors the exclusive right to their respective writings
and discoveries; . . .
Lynn Cheney and William Kristol are anti-American. (2010-03-05 08:56)

Walter Dellinger, a partner with OMelveney & Myers, and former head of the Office of Legal Counsel,
writes today (in relation to my passionate rejection of Lynn Cheneys attack on lawyers who represented
Guantanamo Detainees):
432
It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and
Lt. Cmdr. William Kuebler of the Navy appeared in my law firms offices to ask for our
assistance in carrying out their duties as military defense lawyers that the young lawyer who
worked with me on that matter would be publicly attacked for having done so. And yet this
week that lawyer and eight other Justice Department attorneys have been attacked in a video
released by a group called Keep America Safe (whose board members include William Kristol
and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: DOJ: Department
of Jihad? and Who are these government officials? . . . Whose values do they share?
. . .
That [the lawyers] in question would have their patriotism, loyalty and values attacked by
reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life
in America? The only word that can do justice to the personal attacks on these fine lawyers
and on the integrity of our legal system is shameful. Shameful.
Father Coughlins Tea Party, 1939 (2010-03-05 17:17)

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Pat Paulsen, a man over 40 years ahead of his time. Or a measure of how radically
the culture has changed. (2010-03-05 18:42)
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All Creative Work is Derivative (2010-03-08 10:43)

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Collage is art, not theft (2010-03-15 13:46)

From Negativland:
No one much cared about the centuries old tradition of appropriation in classical music as
long as it could only be heard

when it was
played live in front of your ears. But now all music exists as a mass produced, saleable object,
electronically frozen for all time, and seen by its owners to be in continuous, simultaneous
433
economic competition with all other music. The previously interesting idea that someones
music might freely include some appropriated music of another has now been made into a
criminal activity. This example is typical of how copyright laws now actually serve to inhibit
or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.
This has become a pressing problem for creativity now because the creative technique of
appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed
mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner
litigations of such appropriation based works because the commercial entrepenours who now
own and operate mass culture are apparently intent on oblitering all distinctions between the
needs of art and the needs of commerce.

These owners of mass produced cultural material claim that similarly mass produced works of
appropriation are a new and devastating threat to their total control over the exclusive profits
which their properties might produce in the same mass marketplace. They claim that, art or
not, an unauthorized appropriation of any kind can not be allowed to directly compete in the
appropriated materials avenue of commerce, as if they were equal in content, and equal in
intent. The degree to which the unique nature and needs of art practice do not play any part
in this thinking is more than slightly insane.
Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use,
as well as gain permission from each and every owner. Consider how this puts a stop
to all independent, non-corporate forms of collage in music, and how those corporately
funded collage works which can afford the tolls had better be flattering to the owner in
their usage. . . .
Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists
will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture
from which both they and this new work spring. The owners of such artifacts and icons are
434
seldom happy to see their properties in unauthorized contexts which may be antithetical to
the way they are spinning them. Their kneejerk use of copyright restrictions to crush this
kind of work now amounts to corporate censorship of unwanted independent work.
Law isnt about whats legal and illegal; its about serving clients. (2010-03-15 14:14)
Law students, too many lawyers, and most non-lawyers think that lawyers tell clients what they can
do and what they cant whats legal and whats not. This caricature is so far from the truth its
laughable. Lawyers serve clients, and there is so, so much more that drives client decision making than
what the law states (except, perhaps, in those exceedingly rare instances when the law mandates a certain
decision).
So its refreshing that Settlement Perspectives reviews the kinds of questions clients want to hear from
their lawyers but dont hear often enough. Perhaps the most important one is this:
What is an acceptable outcome in this matter?
The article goes on to list a number of other questions of particular import to clients, including this one,
perhaps most immediately comprehensible to my first year students:
In the case of a litigated matter, on the continuum between winning and losing, what is
considered acceptable? Is there a possibility for success short of complete victory? Prevailing
without success? Not prevailing but not losing?
(Hat tip to What about Clients?)
Free culture and produce art! (2010-03-18 06:41)
From Appropriation Art:
Today many artists and creators use, reproduce, appropriate and incorporate materials
435
found within popular

culture and society. These raw materials reflect and embrace the world around us: snippets of film and TV,
radio spots, advertisements, news headlines, bits of text, characters, fragments of song&and
so on. Artists use this source material just as artists have used raw material for thousands
of years. Artists use this source material because it is meaningful and relevant and evocative. Artists must have the freedom to transform this raw material into new works with new
interpretations and new meanings in order for culture to advance. These new works push
boundaries, question the status quo, advance technologies. These new works encourage experimentation and invention. And while appropriation practice may not be the foundation
for every artist, it is inconceivable that . . . we would actually advocate restricting or even
banning these forms of expression.
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The practice of Appropriation is a fundamental part

of many creative cultural activities. Works of visual art that use Appropriation have a long,
distinguished and well documented place in the History of Art. This work is collected and
exhibited in major cultural institutions . . . around the world. We cannot open a book
on modern and contemporary art without being presented with some form of appropriation.
Appropriation integrates existing cultural product (movies, top 40 songs, television, radio,
advertising, characters etc.), but in such a way that these cultural products are transformed
and a new and original work of art is created. Yet in spite of the history, vitality and importance of Art using appropriation, this process is being threatened, as are the rights of artists
who practice it. And vulnerable new forms of creativity using appropriation are at threat of
being extinguished.
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The internet and mixing and matching texts is not destroying authorship, and to
believe so is to misunderstand authorship. Kakutani this time. (2010-03-18 10:54)
The Principle of collage is the central principal of all art in the Twentieth Century. - Donald Barthelme
In a rambling and incoherent diatribe in yesterdays New York Times, Michiko Kakutani mixes and
matches wildly disparate issues and controversies in what purports to be an effort to address the contentious issues of copyright, intellectual property and plagiarism that have become prominent in a world
in which the Internet makes copying and recycling as simple as pressing a couple of buttons.
While Ms. Kakutanis piece defies any effort to identify, much less analyze and criticize, any single thesis
(or even a manageable number of theses), I cannot leave unchallenged her following contention:
As John Updike pointed out, . . . the end of authorship

hobbling writers ability to
earn a living from their published works, while at the same time removing a sense of both
437
recognition and accountability from their creations would result from the hypothetical possibility that books would cease to be individual works but would be scanned and digitized
into one great, big continuous text that could be unraveled into single pages or reduced
further, into snippets of a page, which readers . . . could then appropriate and remix, like
bits of music, into new works of their own.
As Martha Woodmansee, Peter Jaszi, and others have pointed out, Ms. Kakutani and Mr. Updikes
conceptions of authorship are narrow-minded historical artifacts resulting from the efforts in the 18th
Century of book publishers, not authors, to protect their economic interests and of the conceptions of
copyright law that those publishers managed to enact into law and that persist to this day.
The Case Western Reserve English Departments Authorship Collective, building largely on the work of
Professor Woodmansee, summarizes this history as follows:
originary.
This individualistic construction of authorship is a relatively recent invention, the result of a
radical reconceptualization of the creative process that culminated less than two centuries ago
in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe
to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not
in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but
in a new, unique in a word, original work which, accordingly, may be said to be the
property of its creator and to merit the laws protection as such. [See Martha Woodmansee,
The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the
Author; rpt. in Woodmansee, The Author, Art, and the Market, 35-55.
With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, nonEuropeans, artists working in traditional forms and genres, and individuals engaged in group
or collaborative projects, to name but a few. Exposure of these exclusions the recovery of
marginalized creators and underappreciated forms of creative production has been a central
occupation of cultural studies for several decades. But the same cannot be said for the law.
Our intellectual property law evolved alongside of and to a surprising degree in conversation
with Romantic literary theory. At the center indeed, the linchpin of Anglo-American
copyright as well as of European authors rights is a thoroughly Romantic conception of
authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual
property regime. In patent it survives today both in figurations of the inventor and in the
emphasis, which this body of law shares with copyright, on the transformative moment in
the creative process.
We suggested above that cultural production necessarily draws upon previous creative accomplishments. For the better part of human history this derivative aspect of a new work was
thought to contribute to, if not virtually to constitute, its value. Writers, like other artisans,
438
considered their task to lie in the reworking of traditional materials according to principles
and techniques preserved and handed down to them in rhetoric and poetics the collective
wisdom of their craft. In the event that they chanced to go beyond the state of the art, their
innovation was ascribed to God, or later to Providence. Similarly, in the sphere of science,
invention and discovery were viewed as essentially incremental the inevitable outcome of a
(collective) effort on the part of many individuals applying inherited methods and principles
to the solution of shared problems.
It was not until the eighteenth century, and then chiefly in Western Europe, that an alternative vision of creative activity focusing on the endowments and accomplishments of the
individual genius began to take shape. In a sharp departure from the self-understanding
of writers of previous generations, authors in the new Romantic mode viewed their task as
one of transforming the materials of personal sense experience through the operation of their
unique, individual genius. This change of emphasis mystified the writing process, obscuring the reliance of these writers on the work of others. The notion that a technological or
scientific breakthrough owes its existence to the genius the unique creative abilities of
an individual inventor seems to be even more recent. It appears to date only to the third
quarter of the nineteenth century. Borrowed from literary discourse, this notion similarly
obscures the collective or collaborative element in scientific invention and discovery. Both
misrepresentations of creative activity appear to have fostered and been fostered by modern
intellectual property law. Like copyright, modern patent emphasizes individual achievement
chiefly by rewarding the identification of a single genuinely transformative moment in what
in most places through most of human history has been viewed as a collaborative because
incremental and continuous process.
Why has Girl Talk not been sued?
You wont find the answer at SXSW.
(2010-03-19 09:53)
You might think that the expert-filled session at the SXSW Festival on Why the Recording Industry
Hasnt Sued Girl Talk? and the Texas Observers reporting on the session might come up with more
profound (and unfounded) statements than the Observers unqualified declaration that [T]he totally fascinating upshot of all this is that it turns out that what Girl Talk is doing is definitely NOT legal.
But why should a bunch of critics and experts who feel theyre at the center of the music universe
down in Austin Texas put more thought into the issue than that? Any regular reader of this blog (and
many less-than-regular readers) know that I have written extensively on why I believe Girl Talk has not
been sued. And its not because what Girl Talk is doing is definitely NOT legal. One might wonder too
why the legal and music experts at SXSW think the legal regime that requires a license for any recorded
sample, no matter now brief, is as well-founded in the actual law as they seem to assume.
439
We build culture from culture, and lets stop acting as if any one of us owns it.
(2010-03-19 18:47)
David Shields, from Reality Hunger:

This book contains hundreds of quotations that go unacknowledged in the body of the text.
I m trying to regain a freedomthat writers from Montaigne to Burroughs took for granted and
that we have lost. Your uncertainty about whose words you ve just read is not a bug but a
feature.
A major focus of Reality Hunger is appropriation and plagiarism and what these terms mean.
I can hardly treat the topic deeply without engaging in it. That would be like writing a
book about lying and not being permitted to lie in it. Or writing a book about destroying
capitalism, but being told it can t be published because it might harm the publishing industry.
Mr. Shields, of course, is not original. Just check out Jonathan Lethem s essay The Ecstasy of Influence:
A Plagiarism.
Or my piece, wholly indebted to Lethem, entitled Appropriation.
Or David Markson, in Vanishing Point (at page 12): Nonlinear. Discontinuous. Collage-like. An
assemblage. As is already more than self-evident.
Phil Ochs Power and the Glory (2010-03-19 20:46)

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Phil Ochs - There but for Fortune (2010-03-19 20:52)

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What if corporate decision makers lost money when they made bad decisions?
(2010-03-22 15:04)
Back in January, criticizing the Supreme Court decision equating the free speech rights of corporations
with those of individuals, I pointed out the insanity of considering corporate and other business entities
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as rational actors of the sort many economists consider people to be. The problem is that corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the corporations
(and their shareholders). As I wrote:
Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain
those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to
pay off the obligations those credit default swaps imposed on AIG. In other words, if one
treated AIG as a rational person, one would suppose AIG would never expose itself to a real
risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation,
and the individuals actually making the decisions on behalf of AIG had every incentive to get
what they could, subject AIG to irrational risk, and be able to walk away with their tens of
millions of dollars.
I wasnt just engaging in paranoia. I spent too many years with investment bankers to entirely forget
their reality. And I have data to back me up:
In a study late last year, three Harvard Law School researchers examined public documents
to assess whether one standard narrative of the crash was true
that the meltdown of
Bear Stearns and Lehman Brothers largely wiped out the wealth of their top executives. It
turned out to be a fairy tale. In contrast to what has been thus far largely assumed, the
executives were richly rewarded for, not financially devastated by, their leadership of their
banks during this decade, the Harvard Law team wrote. The top five executives at both
Lehman and Bear collectively took home $2.4 billion in bonuses and equity sales
that s
nearly a quarter-billion dollars each
between 2000 and their 2008 demise.
Last week, William D. Cohan made much the same point in connection with the entire Wall Street ethic:
What if the biggest rewards on Wall Street went to those who thwarted dangerous and
excessive risk-taking instead of to those who enabled, approved or simply ignored it?
What if every senior Wall Street executive had to worry that he could lose his entire net
worth at any moment
including his mansions in Greenwich, Conn., and Palm Beach to
say nothing of his job
if the revenue he was generating turned out to be unprofitable or
excessively risky?
Wouldn t that combination of potential rewards and fear of calamitous personal loss instill
in every Wall Streeter a zealous desire to insist that the products his firm was peddling were
safe for others to buy?
If such simple incentives had been in place on Wall Street, wouldn t the latest crisis
as
well as the multitude of others that have been perpetrated on us in the past 25 years
been
largely avoided? . . .
The obvious answer to these questions is that human beings always do what they are rewarded to do and always have, especially on Wall Street. Rewarding prudent risk-taking on
Wall Street while punishing recklessness would result in a new ethic on Wall Street, one not
solely driven by generating as much revenue as possible in a given fiscal year with no regard
to the long term.
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To that end, shareholders must demand that corporate boards of directors revamp the entire
compensation structure on Wall Street away from one based on revenue generation to one
that rewards long-term profits. For goodness sake, what other business on the face of the
earth, aside from Wall Street, pays out between 50 percent and 60 percent of each dollar of
revenue generated to employees in the form of compensation!
And yet the Wall Street Journals stance on financial reform is the same as its stance on health care
reform: Once ObamaCare becomes law, the next big legislative rush is going to be for financial reform,
but as we look at Senate Banking Chairman Chris Dodds latest draft we cant help but wonder: Why
the hurry?
Indeed, why? Theres money still to be made . . .
Law can actually solve real problems. (2010-03-23 12:14)

1. Adult children may remain as dependents on their parents policy until their 27th birthday.
2. Children under age 19 may not be excluded for pre-existing conditions.
3. No more lifetime or annual caps on coverage.
4. Free preventative care for all.
5. Adults with pre-existing conditions may buy into a national high-risk pool until the exchanges come
online. While these will not be cheap, they re still better than total exclusion and get some benefit from
a wider pool of insureds.
6. Small businesses will be entitled to a tax credit for 2009 and 2010, which could be as much as
50 % of what they pay for employees health insurance.
7. The donut hole closes for Medicare patients, making prescription medications more affordable
for seniors.
8. Requirement that all insurers must post their balance sheets on the Internet and fully disclose administrative costs, executive compensation packages, and benefit payments.
9. Authorizes early funding of community health centers in all 50 states (Bernie Sanders amendment).
Community health centers provide primary, dental and vision services to people in the community, based
on a sliding scale for payment according to ability to pay.
10. No more rescissions. Effective immediately, you cant lose your insurance because you get sick.
RIP Ian Macneil: a lawyer, law professor, landlord, and mensch. (2010-03-24 11:56)
From the Times of London, the obituary of Ian Macneil, a lawyer, law professor, and landlord who embodied the ideal that ownership may be more about proprietorship than about sucking every last dollar
(or pound) out of your property:
Ian Macneil, 46th chief of the Clan Macneil and 26th Macneil of Barra, was a muchrespected American-born contract lawyer who gave his tenants and neighbours on the Outer
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Hebridean island of Barra security of tenure on the most favourable contract terms imaginable.
As one of the world s leading scholars in the field of contract law Macneil was particularly
associated with the invention, development and exposition of relational contract theory ,
which posits that all contracts belong in the context of complex webs of exchange relations.
As laird of Barra, though, he was so popular a landlord that when he first offered the
islanders part of his island estate for a nominal sum in 1981 they declined, saying they were
quite happy and saw no need for change.
In 2003 he did transfer his 9,000 acres in the southern half of Barra into public ownership
on condition that the islanders could choose, at any time, to take over the land themselves
without cost. Macneil, who was at that time 74, said he was giving up the property because
running a crofting estate was a time-consuming business and he was beginning to slow down .
He expressed confidence that the Scottish Executive s Rural Affairs Department would
run the property in the crofters best interests, but ensured that if the islanders, many of
them Gaelic-speaking, ever chose to take over the islands they would be given both Barra
and its neighbour, Vatersay, without charge. The islands were, in effect, put in trust for their
inhabitants. . . .
One other incident stands out from his professional career: in 1988, while on a visiting
professorship at Harvard, Macneil taught the young Barack Obama, and was so impressed
that he told his wife he thought he might have America s first black President in his class.
Macneil was invited to President Obama s inauguration in Washingtonlast year but was unable to attend because of failing health.
From his father s death in 1970 Macneil was much involved in Barra, running the estate,
arguing for the interests of the island s fishermen and crofters, and protecting the island s air
service from proposed cuts. His father had restored the ruined family seat, Kisimul Castle in
Barra, but in 2000 Macneil, who had a home in Edinburgh and occupied a croft on Barra,
donated the castle, which is now run by Historic Scotland, to the nation for a peppercorn rent
of a bottle of malt whisky and 1 a year. It was a typically practical gesture by a notably
kind and learned man
Research only begins with information: patience, insight, and imagination are the
most important parts of it. (2010-03-26 10:57)
Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on
the legal writing professors listserv from a professor who was seeking advice from students who were
wondering what tricks or tools they might use to find the analogies and legal arguments that they were
finding so difficult to discover in the course of their legal research. No doubt the hour contributed to
the poor quality of my response. In her poem 4 a.m., Wislawa Szymborska writes that No one feels
fine at four a.m. But the passionate rage I felt at the belief that there are simple tips and tricks to
effective research of any sort was not purely the product of the feeling Szymborska describes as Hollow.
Vain./Rock bottom of all the other hours.
We have a serious misunderstanding these days about what constitutes research.
According to the Oxford English Dictionary, research is the
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Systematic investigation or inquiry aimed at contributing to knowledge of a

theory, topic, etc., by careful consideration, observation, or study of a subject.
Lets assume that the inquiry is into a legal topic. The first element of research is a systematic investigation or inquiry. I suppose location of a database or the use of a particular search algorithm could be
considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises
I personally find of great value in certain subjects, and of course legal research is filled with secondary
sources and finding tools that fill virtually any style one might find useful in such sources. And we live
in the age of databases there are databases for everything.
But systematic investigation is barely begun, if even begun at all, by merely finding a source or set
of sources in which answers might lie. The real art of research lies in the second part of that definition
of the term: careful consideration, observation, or study.
The answers to difficult legal questions dont lie around waiting to be found as if they are treasure chests
left lying on forest floors. They are constructed and created by elements buried within our universe
of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing
through the sources, it requires also consideration, observation, and study of what one finds within those
sources so that one can, first, identify the elements that matter, and, second, put those important, buried,
and isolated elements together in some useful and novel way.
Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can
you know what matters without knowing what purpose you are putting it to? And how can you decide
what purpose you are trying to accomplish if you dont know what elements youll have to use?
In short, research, analysis, and theorizing are all a single activity finding things, making sure they are
the right things, and putting them together in the right ways.
To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil
War that James McPherson used in writing his brilliant history of that conflict was virtually all the work
that had to be done to produce the book. After all, once one has found the sources, the writing is just a
matter of stringing the information in those sources together, right?
Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can
mold into a work that educates, entertains, moves, and even convinces.
There is no such thing as research apart from insight and imagination. And an enormous amount of
work.
And so, in perhaps the most coherent part of my e-mail the other night, I wrote:
Research is about drawing connections between ideas and words from wildly disparate
sources, connections that can only be found by means of painstakingly patient reading of one
source after another, tracing connections between sources that might be as seemingly trivial as
the bare citation in one case to a another case in connection with a discussion in the first case
that strikes the attentive and imaginative reader as potentially relevant to the legal issue he
or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle
connections effective researchers exploit) requires an enormous amount of concentration, and
enormous amount of patience with the continual following up of leads that go nowhere, an
enormous amount of imagination to spot connections that courts dont make explicit (and
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often dont even recognize the true significance of), and an abandonment of the idea that
engaging in research in this manner is to neglect (in some Luddite fashion) tools that can
do the job so much more quickly and effectively.
Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests
librarians rather than legal writing professors should be teaching research to first year law
students, as if legal research is simply a matter of knowing sources and databases and how to
develop effective word searches rather than being part and parcel of the writing and analysis.)
Ive always told my students that law is as requires as much creativity and originality as any human
endeavor. I mean it.
One last point: I dont think Google is making us stupid. Yes, there is more information available
to us than ever before. But, again, we cant confuse information with research. Research is inquiry that
contributes to knowledge. Information may be a sine qua non of research, but without attention, insight,
and imagination, it isnt research at all.
There may after all be useful methods to develop effective analogies to help guide
your legal research! (2010-03-27 01:56)
I did at least acknowledge in Fridays post about the difficulties of research that my words originated at an
hour when I felt at rock bottom. The essence of my advice was not terribly helpful as an educational
matter except perhaps in emphasizing to students the enormity of the task and the difficulty of the work
they are taking on when they do legal research. I wrote:
Research that is genuine research not only requires Sisyphean patience in combing through
the sources, it requires also consideration, observation, and study of what one finds within
those sources so that one can, first, identify the elements that matter, and, second, put those
important, buried, and isolated elements together in some useful and novel way.
But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I
entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are
there any methods that are helpful in developing the analogies that are so central to legal argument?
So I did what I should have done in the first place if I were going to speak with any authority on
research I did some research, and, in fact, I found that there may be methods that can help students
develop meaningful and useful analogies they can subsequently use to guide their research with increased
effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural
and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.
One can, of course, make a lists of items and ask students which ones belongs and which one doesnt.
You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing
so, the students could recognize that the group of 4 could be classified according to a number of different
criteria, and each criterion would exclude a person the other criteria would not. There are 3 women.
There are 3 politicians. There are 3 people whose first names begin with the letter O.
This type of exercise does help students recognize that analogies are based on the similarities between
different situations, and that of course is a necessary first step in teaching argument based on analogy.
The problem with this type of exercise, however, is that experiments show that it leads subjects to
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focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies
people use to solve real world problems tend to be based on deep structural features rather than superficial features. Id. at 4.
Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful
analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are
presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One
group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition. In one experiment, for example, subjects were presented with the question of
whether Canada should run a public deficit or instead balance its national budget. One group was asked
to generate analogies that would be helpful to a group arguing for a balanced budget, while the other
was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.
The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure
analogies from domains not typically associated with the target problem. Thus, instead of focusing on
matters typically associated with debates over national budgets economics, politics, and personal finance (if I can balance my checkbook, why cant the government?!) the analogies were drawn from
domains as varied as natural resources, eating, illness, and domestic tasks. Id. at 9. Further studies have
shown similar results and have suggested that individuals generating analogies alone are more effective
than groups at finding deep structural similarities in situations that are not superficially similar. Id. at
13.
So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:
Sit down alone, without resort to any sources other than your own imagination, and try
to think of as many situations that are similar to the problem or issue you are addressing in
ways that support the position you are taking on the issue. Dont feel constrained by case law
you may have happened to have read or what you feel lawyers are supposed to do. Use your
imagination, and draw on whatever you can. Youll end up with a number of analogies. Then
you can go to secondary sources, identify cases that involve those types of situations, and
perhaps in those cases youll find arguments and analogies useful in the case you are trying
to solve. You might even find very good ones no one has considered before. Lawyers do that
all the time.
3.4
April
Why the music industry wont sue certain samplers such as Girl Talk and the producers of Copyright Criminals. (2010-04-05 10:21)
Ive discussed extensively in the past (most prominently, perhaps, here) my view regarding the music
industrys view that considers any unlicensed sample of a copyrighted recording, no matter how small
and how transformed, a copyright infringement. In short, I think it likely the case law on which that
view is based would be overturned if it is challenged in any case in which the sampling is used in a way
sufficiently transformative that the sampling work stands on its own as a creative work. In short, thats
why I don t think Girl Talk has been sued.
Transformative uses of copyrighted work are permitted under the fair use doctrine, and so are critical uses. Thats why I dont think Kembrew McLeod needs to worry about a lawsuit in connection with
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the documentary film he co-produced titled Copyright Criminals, which examines the messy three-way
collision between digital technology, musical collage, and intellectual property law. So why does McLeod
worry? Because hes right in explaining the following:
The music industry believed that the law didnt distinguish between copying one second or
half a minute of a sound recording. Therefore, record companies now insist that every fragment
of sound needs to be cleared, something that fundamentally altered the aural evolution of hiphop music. The more complex you make your sound collage, the more impossible it is to share
with the world. And in the course of documenting the legal and cultural history of this art
form, Ben [McLeods co-producer] and I are risking being sued.
But if McLeod is willing to fight a lawsuit and I think he is the recording industry wont sue him.
The existing precedents requiring licensing of every single recorded sample would be overturned, and the
record industry would lost the appearance created by these precedents, an appearance that makes the
vast, vast majority of samplers pay license fees for their samples. Its better business for the industry to
let the occasional brave and creative soul feel as if hes getting away with something than to have the
industrys precious and ill-founded legal precedents put at genuine risk.
There are a lot of good reasons to be skeptical of evidence, especially of the sort that
can be edited and appears to tell stories that are incredible. (2010-04-13 18:55)
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Visit msnbc.com for breaking news, world news, and news about the economy
Should we allow people to sell their souls to the devil? Freedom of contract confronts
the fact people dont read the contracts they enter. (2010-04-16 12:16)
I dont think Robert Johnson made any deal with Satan to obtain his remarkable talents; he listened
to and made his own the sounds of his contemporaries. Apparently, however, the British game retailer
GameStation is counting on its customers believing talent is more a matter of divine or satanic inspiration than the creative reworking of existing culture. GameStations current end user license agreement
requires online purchasers of its products to agree to the following: By placing an order via this Web
site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non
transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise
this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5
(five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised
minions.
As further reported, While all shoppers during the test were given a simple tick box option to opt out,
very few did this, which would have also rewarded them with a 5 voucher, according to news:lite. Due
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to the number of people who ticked the box, GameStation claims

believes as many as 88 percent of people do not read the terms and conditions of a Web site before they
make a purchase. The fact that so few people read the contracts they sign is no news to me. The troublesome part is that these contracts are generally enforced, although GameStop noted that it would not
be enforcing the ownership rights, and planned to e-mail customers nullifying any claim on their soul.
They are enforced because contract law is founded on the notion that we are all free and equal individuals
left to our own devices to enter those transactions we wish. Moreover, many believe that any limitations
on what individuals can be allowed to agree to (within certain well-accepted limits) are counter to economic wisdom. But when we face up to the fact so few people actually read these agreements, sooner or
later were likely to have to face the fact well have to limit what consumer retailers can require in these
agreements.
Do you think law schools teach their students how to practice law? (2010-04-19 13:57)
Im a law professor, but Ive always been mystified by law school. For one thing, it strikes me as remarkably odd that my experience in full-time practice (nearly twelve years) is more (much more) than the vast
majority of the professors on the faculties Ive been part of. For another, what I learned in law school
never made much sense to me until I actually began to practice. I always wondered why the knowledge
I picked up in practice that put it all together for me hadnt been there in law school in the first place.
I suppose the opinion expressed here is a perfect illustration of why that is, but, still, what has always
informed my teaching is my effort to bring into law school those pieces that were missing in my own legal
education and that, if they had been there, would have made a world of difference.
In short, learning law cannot be separated from learning the practice of law. And law schools, for
some reason, dont seem to think their job is to teach their students the practice of law.
My views are clearly minority ones within law school academia, but they clearly are not so in the legal
practice. As Above the Law reported last week: United Technologies General Counsel, Chester Paul
Beach . . . stood up and told approximately 75 law school deans and legal educators from around the
country:
We don t allow first or second year associates to work on any of our matters without special
permission, because they re worthless.
And last week, at the Harvard Law School/New York Law School Future of Education Conference,
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Vielka Holness, Director of the John Jay College of Criminal Justice Pre Law Institute, .
. . said that schools need to bridge the gap between legal theory and actual practice. . . .
Most importantly, she said that you need to look further up the pipeline, so students go into
law school with an idea of what they need to learn in order to be successful practitioners.
Gillian Hadfield, Professor of Law and Professor of Economics at USC, . . . said that
law schools weren t even very good at doing the things that they think they re doing well. She
had some great examples about how bad students are when asked to pick out the important
information in the case, or even pick out the information that will be important to a client.
Elie Mystal, the author of the post, concludes, in response to Hadfields point:
It s an important note. The kind of information regurgitation that will get an A in torts
and help you pass the bar will make your memo bleed red
if you re lucky enough to find a
mid-level that will even bother to read it.
The Copyright Police find out there are Hitler Parodies. (2010-04-22 10:32)
From PC World:
YouTube has recently begun removing videos that feature content from Constantin Films
2004 film, Der Untergang (Downfall), despite the fact that many of these videos are parodies and thus constitute fair use of the material.
This video says it all:
[EMBED]
Im sorry to report to lawyers and law students this version has been taken down: [EMBED]
Challenging automated YouTube takedowns (and dont forget to think through the
ramifications) (2010-04-27 11:38)
Chris Walters at The Consumerist provides an excellent account of the whys and wherefores of takedowns
of YouTube videos. In addition to explaining why YouTubes automated Content ID tracking system
results in the kind of baseless deletions I referred to the other day, Walters also explains that [Y]ou can
dispute any Content ID claim. If you have a clip thats been targeted, youll see a notice about it on
your YouTube account page. From there you can access a dispute page where you can affirm that you
believe your clip falls under fair use, and the clip will immediately become public again. The copyright
holder will receive notice that youve disputed the clip, and must then decide to leave you alone, send a
DMCA takedown notice, or sue.
Importantly, too, he explains that you want to give some thought to the ramifications of disputing
an automated takedown: There are legal ramifications to this, which YouTube hints at and the EFF
explains very clearly. If you decide to fight copyright abuse by a large company, you should make sure
that youre on the right side of the fight, that you have a sensible chance of winning a possible lawsuit,
and that youre willing to assume the financial risk. All three of those determinations probably require
some serious meetings with a lawyer.
On the other hand, any copyright owner sending a takedown notice ought to consider the legal ramifications of doing so, since a baseless one relying on the power to outspend an individual fair use claimant
might have its own legal downside.
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PowerPoint might make you dumb, but understanding why can help keep you from
being dumb even when you dont use PowerPoint. (2010-04-29 09:59)
Edward Tufte is the worlds premier expert on the graphic presentation of information. In the wider
world hes probably best known for his article, PowerPoint Does Rocket Scienceand Better Techniques
for Technical Reports, which (1) explained how, in connection with the Columbia space shuttle disaster,
a PowerPoint presentation misled NASA decision makers regarding the risks to the shuttle posed by
the impact of a piece of foam insulation that broke off of the shuttles fuel tank at launch, struck the
shuttles left wing, and penetrated that wings thermal insulation, and (2) made a strong case that it is
virtually impossible to convey any complex information using a PowerPoint presentation.
In a 2003 article entitled PowerPoint Makes You Dumb, Clive Thompson, summarizing Tuftes
article, wrote: When NASA engineers assessed possible wing damage during the mission, they presented
the findings in a confusing PowerPoint slide so crammed with nested bullet points and irregular short
forms that it was nearly impossible to untangle. It is easy to understand how a senior manager might
read this PowerPoint slide and not realize that it addresses a life-threatening situation, the [Columbia
Accident Investigation Board] sternly noted.
Further summarizing Tuftes article (which is really worth reading in its entirety), Thompson
wrote: [The low resolution of a PowerPoint slide means that it usually contains only about 40 words,
or barely eight seconds of reading. PowerPoint also encourages users to rely on bulleted lists, a faux
analytical technique, . . . that dodges the speakers responsibility to tie his information together.
And perhaps worst of all is how PowerPoint renders charts. Charts in newspapers like The Wall Street
Journal contain up to 120 elements on average, allowing readers to compare large groupings of data.
But, as Tufte found, PowerPoint users typically produce charts with only 12 elements. Ultimately, Tufte
concluded, PowerPoint is infused with an attitude of commercialism that turns everything into a sales
pitch.
Think of the difference between a low resolution photo and a high resolution photo of the same
scene the viewer of the low resolution photo remains ignorant even of the possible presence of
information present in the high resolution photo, much less the precise nature of that information.
Tufte self-publishes his books, not because he wouldnt be able to attract a commercial publisher, but,
rather, because by self-publishing he can control entirely the manner in which he presents his material.
Since his entire mission is to explain how to effectively present graphic information, that control is
crucial to his work.
What does the effective presentation of graphic information have to do with lawyering, which primarily relies on the use of verbal information? Plenty. The principles applicable to the effective
presentation of visual information are the same principles applicable to the effective presentation of
verbal information. Important information must be highlighted, the conclusions must be supported
with detailed, high resolution, step by step explanations and the telling use of narrative, and anything
extraneous to the points being made has to be cut out. You must also be acutely aware of your audience
and the precise purposes you are trying to achieve. Moreover, as Ruth Anne Robbins has so effectively
demonstrated in her article, Painting With Print: Incorporating concepts of typographic and layout
design into the text of legal writing documents, the visual appearance of even our written work is crucial
to its effectiveness. Finally, of course, our culture (including our legal culture) is one that increasingly
relies on the visual presentation of information. There is no denying, however, that a well written brief,
an effective oral argument, or a successful classroom discussion is like a high resolution photo, while a
PowerPoint presentation of of the same information is like a low resolution photo of the same subject.
In short, Tufte is exactly right in PowerPoint does Rocket Science when he concludes: Serious
problems require a serious tool: written reports.
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But again, merely using words instead of PowerPoint slides isnt the answer. The words need to
be chosen and arranged effectively. My students often make the same mistake the NASA engineers made
in their PowerPoint presentation, which did in fact contain statements meant to convey the substantial
risk that resulted in the Columbias disintegration upon its reentry into the earths atmosphere. The
problem was that the crucial information was buried in a place and amidst so much other, misleading
information that it was impossible for the audience to notice it.
It reminds me of my students when, in response to feedback they dont like, come to me with
their work and argue that they really did include in their writing the important points Ive said theyve
neglected. They even can point me to the words that I can see they really did mean to make those
points. But those points are either expressed in language that is too obscure or are put in places in
which they do not fit into an effective overall analysis. Its not just students, of course. All of us have
those moments when we believe we have expressed our opinion on a subject effectively, but if that if that
opinion is unconnected to the evidence, authority, and reasoning that supports it, if it is buried in words
that dont support that opinion, or if in any other way its truth is obscured, it might as well not even
be there.
Addendum: heres one example of stupid verbal argument that bases its conclusion on the information it presents but is too low resolution to make its conclusion convincing. The Washington
Examiner argues that [g]overnment workers, especially at the federal level, make salaries that are
scandalously higher than those paid to private sector workers. I have to admit I was startled when I
saw the editorials title: Want to get rich? Work for feds. Sorry, but none of the rich people I know of
outside of Congress (which doesnt make you rich, but, due to the cost of running for office, requires you
to be rich) are government workers.
So what information does the Examiner base its conclusion on? As of 2008, the average federal
salary was $119,982, compared with $59,909 for the average private sector employee. In other words, the
average federal bureaucrat makes twice as much as the average working taxpayer. The Examiner even
has a cool little graph to make the same point visually!
Whats the problem with the argument? It takes no account of the differences in education,
training, and ability required to do all those federal jobs and the education, training, and ability required
to do the jobs done by the average private sector employee. How many government jobs are there that
compare to the legion of private sector jobs that pay minimum wage to stock shelves in superstores, flip
hamburgers in fast food restaurants, or the like?
I know plenty of government employed lawyers. They really do make more, even much more,
than the average private sector employee. But they make less, much less, than private sector lawyers
whose education, training, and ability are no better than theirs. And their education, training, and
ability do happen to be considerably more than those of the average private sector employee. So why
do my friends who work for the government do what they do? Because they believe in and love what
theyre doing. Some are prosecutors. Some are public defenders. Some work for government regulatory
agencies. And theyre great at what they do. They definitely dont do it for the money.
Does anyone believe that going to work for the government is the way to get rich? God, stupidity is rampant.
There is no shortcut to thoughtful decision making. It requires critical thinking and

discussion, and PowerPoint not only doesnt help, it hurts. (2010-04-30 11:05)
My points yesterday were about much more than PowerPoint and its inadequacy to convey information
or analysis effectively. This isnt the first time Ive brought up Edward Tuftes work, but many have
451
pointed out to me what, in fact, had inspired yesterdays post The New York Times article 4 days ago
discussing the diagram below, part of a PowerPoint presentation made last summer to Gen. Stanley A.
McChrystal, the leader of American and NATO forces in Afghanistan, on U.S. strategy in Afghanistan.
As the article explained, McChrystals said, when he saw the slide: When we understand that slide, we ll
have won the war. The room erupted in laughter. The article also quotes Gen. James N. Mattis of the
Marine Corps, the Joint Forces commander, saying last month that PowerPoint makes us stupid, which,
of course, is a paraphrase of the headline of the 2003 article on Tufte and the Columbia space shuttle I
discussedyesterday. More to the subjects my post yesterday was about, the article states: Commanders
say that behind all the PowerPoint jokes are serious concerns that the program stifles discussion, critical
thinking and thoughtful decision-making. The most obvious conclusion to draw from an examination of
the slide below is one I made yesterday, quoting Tufte to convey any effective analysis that the slides
creator intended to convey would have required an extensive written document.
John Stewart last night got into the topic last night too:
The Daily Show With Jon Stewart

Afghanistan Stability Chart
www.thedailyshow.com
[EMBED]
Daily Show Full Episodes
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Mon - Thurs 11p / 10c
Political Humor
Tea Party
3.5
May
40 years ago (4 dead in Ohio) and today. (2010-05-03 21:52)
40 years ago today (May 4) I was 10 years old, sitting

at home, when I heard about something I thought unthinkable that had just happened about 40 miles
away from my home. National guard troops had fired on unarmed students at Kent State protesting the
Vietnam War, killing 4 and wounding another 9. Nine days later at Jackson State, police killed students
and wounded another 12 who were protesting the war and the killings at Kent State.
It was inconceivable to me that unarmed students exercising their First Amendment rights had been
shot to death in the United States, but my childhood was filled with nightmares of that sort. In 1967 I
remember driving through parts of Cleveland that were under military occupation as a result of just one
U.S. city among hundreds that had had exploded that year and the previous one. And, of course, in 1968,
Martin Luther King and Robert Kennedy were assassinated in little more than 2 months, disappearing
the 2 most prominent voices calling for the U.S. to pull its troops out of Vietnam.
And, of course, we were all at the time convinced of the inevitability of nuclear holocaust.
So I laugh when I hear earnest students of mine who insist that terrorism is the greatest threat this
country has ever faced. And when conservatives express the fear that President Obama threatens us with
fascism. We should not be fighting wars we cant win in support of corrupt regimes. And we have huge
problems at home:
In 2005, 21.2 percent of U.S. national income accrued to just 1 percent of earners. Contrast
1968, when the CEO of General Motors took home, in pay and benefits, about sixty-six times
the amount paid to a typical GM worker. Today the CEO of Wal-Mart earns nine hundred
times the wages of his average employee. Indeed, the wealth of the Wal-Mart founders family
in 2005 was estimated at about the same ( $90 billion) as that of the bottom 40 percent of
the U.S. population: 120 million people.
But I remember vividly how sad I was on May 4, 1970.
[EMBED]
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The Great Lakes Union: a great idea that just keeps getting better (2010-05-05 13:54)
One year ago I made the following proposal: The states and
provinces bordering the Great Lakes should secede from the U.S. and Canada, form their own country (the Great Lakes Union), and exert exclusive control over the water in the Great Lakes. In other
words, we d go OPEC with respect to water.
Steven Solomon, in Freshwater Scarcity: The Greatest Crisis Most Americans Have Never Heard Of,
lends my idea some credibility. Solomon writes:
Today, for the first time in human history, the global well is starting to go dry and we
are all about to learn the painful lessons of what happens when societies run short of historys
most indispensable resource.
Freshwater is overtaking oil as human societys scarcest critical resource. And just as oil
transformed the history of the 20th century, freshwater scarcity is starting to re-define the
geopolitics, economics, environment, national security, and daily living conditions of the 21st
century.
What is happening, essentially, is that under the duress of the voracious demand of our
global industrial society that uses water at twice the rate of our rapid population growth,
there is simply not enough available, sustainable supplies of freshwater in more and more
parts of the world on current trajectories and practices, to meet the needs for food, energy,
goods and accessible safe drinking water for our 6.7 billion, much less the 9 billion were becoming by 2050. Due to the uneven distribution of population pressures and water availability,
global society is polarizing into water Haves and Have-Nots.
New force for the irreparable harm requirement in copyright preliminary injunction
decisions? And might we see the Holden Caulfield sequel after all? (2010-05-07 14:39)
One week ago, the U.S. Court of Appeals for the 2d Circuit issued a very interesting ruling (inserted
below) in the case in which J.D. Salinger sued Frederik Colting, alleging that Coltings work, 60 Years
Later Coming Through the Rye, infringes Salingers copyright in Catcher in the Rye. First, and perhaps
most importantly, the 2d Circuit stated that we conclude that the District Court properly determined
that Salinger has a likelihood of success on the merits. In other words, the 2d Circuit concluded that
based on the evidence already presented to the trial court, it is likely Salinger (who, since his death,
454
has been replaced as the plaintiff by Coleen Salinger and Matthew Salinger as trustees of the Salinger
Literary Trust) it has concluded that 60 Years Later is likely an infringement of Catcher in the Rye.
Nevertheless, the 2d Circuit vacated the trial courts preliminary injunction forbidding U.S. publication of 60 Years Later and instructed the trial court to reconsider whether a preliminary injunction
should issue because, according to the 2d Circuit, the trial court did not apply the appropriate standard
in determining whether a preliminary injunction should have been issued. Most importantly, the trial
court had not considered whether, assuming it prevails in the end in the case, the Salinger Trust would
suffer harm that it could not be compensated for at final judgment in the absence of the preliminary
injunction.
It is important to note that a preliminary injunction is an order that someone should do or not do
something that is in effect only until the final verdict is rendered in a case. A preliminary injunction is
intended to preserve the status quo during trial of a case in situations in which the failure of the court
to ensure the preservation of the status quo would somehow damage the party seeking the injunction in
a way that would prevent him from being made whole by a final judgment.
Thus, the trial court in the Salinger case only determined that Salingers infringement claim had a
likelihood of success on the merits. That means that the court leaves open the possibility that after the
parties have had a chance to fully develop their evidence and the court has had the opportunity to see
witnesses testify live (rather than just via the written affidavits the court earlier considered), it might
change its mind on whether Salinger in fact has successfully established an infringement.
More importantly, perhaps, the 2d Circuit made clear that the trial court also needs to consider factors other than the likelihood of the success of the infringement claim. The 2d Circuit stated that the
trial court must reconsider whether to grant the preliminary injunction under the standard the U.S.
Supreme Court applied in determining the legitimacy of a permanent injunction (that is, an injunction
issued at the end of a case as a final judgment) a patent infringement action in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). That standard (the typical standard applied in most injunction
cases) requires the court to consider four factors: (1) that [the party seeking the injunction] has suffered
an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction.
No single factor is dispositive, nor are the factors given equal weight and considered together in any
easy formulaic way. All the factors are considered in a holistic evaluation. Interestingly, however, the
right to non-monetary, injunctive relief typically requires that the availability of monetary relief be inadequate to make the party seeking the injunction whole. It may be possible for Colting to argue on
remand that even should, his work be found to infringe the Salinger Trusts copyright in Catcher in the
Rye, should he be able to publish 60 Years On during the pendency of the case, the Salinger Trust can be
made whole by recovering whatever profits have in the meantime been made on the book. The Salinger
Trust, in the meantime, is likely to argue the mere publication of the book in the U.S. will harm the
Trust in a way that cannot be remedied by money because the mere presence of the book will detract
from the value of the Trusts copyright in the character of Holden Caulfield.
William Patry, in his treatise on copyright, has noted that courts in copyright cases have in the past
rarely given real consideration to the irreparable harm argument in issuing preliminary injunctions
The gutting is accomplished definitionally: rather than reject the requirement outright, courts define
the adequacy of legal remedies in such a way that those remedies can never be considered a substitute
for plaintiffs alleged losses. William F. Patry, Patry on Copyright, 22:12, citing Douglas Laycock, The
Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 692 (1990). Thus, Patry writes, Preliminary injunctions are issued far more often than they should be, at least from a review of available
455
decisions.
It makes me wonder whether the 2d Circuit is taking a stand here and insisting that the trial court
give real consideration to the requirement that the Salinger Trust could not be made whole, even if it
eventually prevails on its infringement claim, in the absence of a preliminary injunction. If so, we may
yet see 60 Years On published in the U.S., even if for only a brief time.
Salinger v Colting 2d Circuit Appeal of Prelim Injunction Decision [EMBED]
Kent State 40 years ago, and making up facts to fit todays world view.
(2010-05-11 08:59)
Few things frustrate me in my teaching than my students ignorance of history that predates their adolescence.
Last week, on the 40th anniversary of the Kent State shootings, I wrote about both their impact on
me then, and the frightening disconnect I see between current political rhetoric that compares President
Obamas policies to fascism and the very different reality of 40 years ago, when National Guard troops
really did engage in activity that might genuinely be equated to fascism. I guess I shouldnt have been
surprised that I was attacked for thinking that calling President Obama a fascist seems silly to someone
who remembers students being shot dead for protesting the invasion of Cambodia in 1970.
But I genuinely was surprised when in the comments to the post criticizing me another blogger stated
that in discussing the Kent State shootings I neglected to mention that the National Guard were shot
at first and that the host of the site in response to that comment wrote: Thank you very much for the
historical accuracy you add to this issue. You are correct. Mr. Friedman has selective memory.
The problem, of course, is that this purported historical accuracy is pure fantasy. There never has
been any evidence that the students at Kent State were armed, much less that they shot at the National
Guard. As the Cleveland Plain Dealer reports today, [t]wo trials and a presidential commissions investigation could not determine what initiated the gunfire, although the presidential commission concluded
that the indiscriminate firing of rifles into a crowd of students and the deaths that followed were unnecessary, unwarranted and inexcusable. Why is this news now? Because the Plain Dealer reported the
following 2 days ago:
The Ohio National Guardsmen who fired on students and antiwar protesters at Kent State
University on May 4, 1970 were given an order to prepare to shoot, according to a new analysis of a 40-year-old audio tape of the event.
Guard! says a male voice on the recording, which two forensic audio experts enhanced
and evaluated at the request of The Plain Dealer. Several seconds pass. Then, All right,
prepare to fire!
Get down! someone shouts urgently, presumably in the crowd. Finally, Guard! . . .
followed two seconds later by a long, booming volley of gunshots. The entire spoken sequence
lasts 17 seconds.
The previously undetected command could begin to explain the central mystery of the Kent
State tragedy - why 28 Guardsmen pivoted in unison atop Blanket Hill, raised their rifles
and pistols and fired 67 times, killing four students and wounding nine others in an act that
galvanized sentiment against the Vietnam War.
456
People should know that before they begin spouting off about the policies of an American President they
perhaps ought to know a little about history. And they certainly should know better than simply to make
up facts that fit their world view.
ADDENDUM:
[EMBED]
KENT STATE (trailer) from Mark Mori on Vimeo.
Stanford Law School recognizes law is a creative enterprise. (2010-05-11 12:53)
I think I should be proud. From the Stanford Law School

Course Catalog:
Law and Creativity: Fiction and Nonfiction
Practicing law is very much a creative enterprise. Effective advocates and counselors provide innovative and thoughtful solutions to complex problems. But there often isnt enough
attention devoted in law school either to thinking creatively or to reflecting in a creative way
on the issues students confront inside and outside the classroom. This course will respond
to this gap by building a bridge between law and the arts, with the goal of helping students
hone their ability to think creatively and use disciplined imagination.
Will the film, music, and publishing industries oppose Kagans nomination?
(2010-05-12 09:47)
It will be interesting to see whether the film, music, and publishing industries generate or fund any
opposition to Elena Kagans nomination to the Supreme Court. As the Hollywood Reporter states, the
entertainment industrys worry about Kagan might be her philosophy on intellectual property matters.
As dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the schools Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal
position on fair use in copyright disputes. Later, as Obamas Solicitor General, she successfully argued
against Supreme Court review of a 2d Circuit decision, opposed by the entertainment industry, that
allowed Cablevision subscribers to store television programs they had recorded on the cable providers
servers rather than on the subscribers own, in-home boxes. In the brief she filed in the Supreme Court
opposing review, she emphasized the importance to the decision of fair use principles. The parties to
the lawsuit had decided that fair use should not be considered in the case. Kagan therefore therefore
argued that the case was not an appropriate vehicle for Supreme Court review of the issues raised by
Cablevisions actions:
457
When a subscriber engages in time shifting, recording the program and playing it back
are two sides of the same coin. If fair-use principles would excuse a cable company from
liability for unauthorized reproduction when an RS-DVR system copies and stores a program
on a hard disk at a subscriber s behest, the same principles might excuse the company from
liability for unauthorized public performance when the system transmits the program to the
subscriber for playback. Here too, the parties agreement to litigate the case without reference
to fair-use principles has elevated to great importance a question that otherwise might have
been insignificant. Brief for the U.S. in Cable News Network, Inc. v. C.S.C. Holdings at 14
(footnote omitted).
Confirmation Hearings for Supreme Court Nominees, Elena Kagan, and the mythical
Borking of Robert Bork (2010-05-12 17:09)
During his confirmation hearings, prospective Chief Justice Roberts was questioned intensely about his
respect for precedent, particularly in connection with Roe v. Wade. In keeping with the image he plainly
intended to project as a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for precedent. As I have previously written, Roberts purported respect for precedent
didnt prevent him recently from voting for and writing a concurring opinion in support of the Citizens
United decision by the Supreme Court, a decision that overturned 100 years of precedent supporting
congressional restrictions on corporate campaign contributions.
I bring this up because of how refreshing I find Elena Kagans views on the confirmation process. Ever
since the rejection of Robert Borks nomination by Ronald Reagan, right wingers have defined the verb
to bork to refer to the way Democrats savaged Ronald Reagans nominee, the Appeals Court judge
Robert H. Bork. As a result, nominees since Bork have been careful to the point of absurdity to avoid
revealing their views on their judicial philosophy or on particular judicial precedent.
But can anyone seriously believe that John Roberts would vote to uphold Roe v. Wade despite insisting, in connection with questions about it, on his respect for precedent? In advance of the Courts
decision in Citizens United, Jeffery Rosen wrote in the New York Times that Roberts could support a
narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can
hand down a broad, activist decision that turns our political system upside down. Rosen expected the
former because when . . . Roberts became chief justice of the United States, he said that he hoped to
emulate the modesty and unanimity of his greatest predecessor, John Marshall.
We now know Roberts was lying.
It is worth keeping in mind, therefore, that when he was nominated to the Supreme Court, Robert
Bork
[P]romised to keep an open mind on the issue of abortion and the right to privacy. Liberal
and moderate Democratic and Republican senators did not believe him, and they were right
not to. Bork, after he resigned from the federal bench, admitted that he believed Roe v.
Wade was wrongly decided and all but explicitly said that had he been on the Supreme Court
he would have provided the fifth vote to overturn Roe v. Wade.
Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle for the Federal Courts, 39 U.
Rich. L. Rev. 871 (2004-2005), citing Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges
at 71 (2003).
Its worth noting Borks precise language in Coercing Virtue regarding Roe v. Wade and a later decision upholding it, Planned Parenthood v. Casey:
458
It is mind-boggling that citizens were admonished that accept Roe because theymust
respect the rule of law. Both Roe and Casey are, in fact, crass violations of the rule of law;
they are not rooted in any conceivable interpretation of the Constitution, and have nothing
to do with constitutional terms.
This from the guy who said, in sworn testimony during his confirmation hearings, that he had an open
mind about the constitutional basis for a right to privacy.
Why was Robert Bork rejected as a nominee to the Supreme Court? It was because his judicial philosophy was so out of tune with what the country expected of a Supreme Court judge in 1987 that the Senate
deemed him unacceptable. We could not accept as a Supreme Court judge someone who at the time it
mattered when Congress was considering the legislation opposed the Civil Rights Acts. We could not
accept someone who once wrote passionately that the First Amendment protection of free speech did not
extend to art and literature. As reported in 1987:
In 1963 and 1964, as a 36-year-old law professor, Mr. Bork wrote impassioned attacks on
legislation to desegregate lunch counters and other public accommodations. He argued that
the bill, by invading the liberty of proprietors to turn away blacks, was based on a principle of
unsurpassed ugliness. Not until 1973, when seeking Senate confirmation as Solicitor General,
did he publicly renounce this view, stated with such unsurpassed surliness.
Even in his latest appearance he declined to revise his pinched view of civil rights. He has
criticized some of the Supreme Courts landmark civil rights decisions for reasons that vary
from case to case. The bottom line, however, is almost always the same - unfavorable to
minorities.
Free Speech. Repeatedly over the years, Judge Bork has taken a narrow view of the rights of
expression. He declared that only the core value of political speech was immune from government restraint. Not until 1984 did he allow as how art and literature might be protected,
and then only because they sometimes relate to politics. His conversion, late, is also limited.
Even this limited liberty, in his view, remains utterly at the mercy of the majority when
speech becomes advocacy of illegal action. The Court and the mainstream of public opinion
have long tolerated strident dissent, reserving punishment for incitement to imminent lawless
action. Judge Bork rejects this tradition. Senator Arlen Specter of Pennsylvania extracted
from him a commitment to apply settled law rather than his own view. But even such
assurances failed to persuade the Judiciary Committees ablest questioner, who has decided
to oppose the nomination.
So lets get over this nonsense that Robert Bork was somehow wronged Robert Bork was denied appointment to the Supreme Court because his judicial views were too far out of step with what the U.S.
had come to expect from its Constitution in connection with protection against racial prejudice and restrictions on expression.
What does this have to do with Elena Kagan? Kagan believes that the Senate should explore a nominees
views, that the confirmation hearings should not continue to be what they have been since the days of
Robert Bork silly, ritual dances that permit the likes of John Roberts to evade completely straight
answers to questions that are of central importance to the operation of the Court. As Kagan has written:
The Bork hearings presented to the public a serious discussion of the meaning of the
Constitution, the role of the Court, and the views of the nominee; that discussion at once
educated the public and allowed it to determine whether the nominee would move the Court
459
in the proper direction. Subsequent hearings have presented to the public a vapid and hollow
charade, in which repetition of platitudes has replaced discussion of viewpoints and personal
anecdotes have supplanted legal analysis. Such hearings serve little educative function, except
perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither
can such hearings contribute toward an evaluation of the Court and a determination whether
the nominee would make it a better or worse institution. A process so empty may seem ever so
tidymuted, polite, and restrainedbut all that good order comes at great cost. And what is
worse even than the hearings themselves is a necessary condition of them: the evident belief of
many senators that serious substantive inquiry of nominees is usually not only inessential, but
illegitimatethat their insistent questioning of Judge Bork was justified, if at all, by his overt
radicalism and that a similar insistence with respect to other nominees, not so obviously
outside the mainstream, would be improper. This belief is not so often or so clearly stated;
but it underlies all that the Judiciary Committee now does with respect to Supreme Court
nominations. It is one reason that senators accede to the evasive answers they now have
received from five consecutive nominees. It is one reason that senators emphasize, even in
posing questions, that they are asking the nominee only about philosophy and not at all about
casesin effect, inviting the nominee to spout legal theory, but to spurn any demonstration
of what that theory might mean in practice. It is one reason that senators often act as if
their inquiry were a presumption-as if they, mere politicians, have no right to ask a real
lawyer (let alone a real judge) about what the law should look like and how it should work.
What has happened is that the Senate . . . has let slip the fundamental lesson of the Bork
hearings: the essential rightnessthe legitimacy and the desirabilityof exploring a Supreme
Court nominees set of constitutional views and commitments.
Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 619, 941-942 (footnotes omitted),
reviewing Stephen L. Carter, The Confirmation Mess (1994).
So Kagan doesnt have much of a paper trail. David Brooks therefore writes that she is a person
whose career has dovetailed with the incentives presented by the confirmation system, a system that
punishes creativity and rewards caginess. Consequently, he finds her kind of disturbing. Its almost
funny. Brooks wrote when John Roberts was nominated that
I love thee with the depth and breadth and height my soul can reach. I love thee freely,
as men strive for right. I love thee because this is the way government is supposed to work.
President Bush consulted widely, moved beyond the tokenism of identity politics and selected
a nominee based on substance, brains, careful judgment and good character.
What inspired this poetic passion from Brooks? According to Brooks, Roberts is principled and shares
the conservative preference for judicial restraint. And [a]nybody who is brilliant during Supreme Court
grillings, as Roberts is, will be impressive at confirmation hearings. Finally, Roberts has shown that
character and substance matter most.
So Kagan who has put on the record her belief that Supreme Court nominees should address the
issues that will come before the Court is disturbing, but Roberts, who lied about being a conservative
consensus builder with a deep respect for precedent has substance, brains, careful judgment and good
character.
Yeah, right. Heres my suggestion to all those who think Kagans a blank slate why dont you
withhold judgment until the confirmation hearings. Let her answer questions, questions shes on record
stating she thinks are legitimate and should be answered. Its more than we got from John Roberts.
460
Elena Kagan is no blank slate, and to say otherwise is to spout lies. (2010-05-13 08:28)
Enough already with this myth that Elena Kagan is a blank slate, typified by Michael Gerson: The
most prominent thing about Kagan is her extraordinary ability, while holding high-profile jobs in the
legal profession, to say nothing on the major issues of the day.
As I explained yesterday at some length, theres good reason to believe Kagan will be forthcoming in her
confirmation hearings about precisely what Gerson states it would be helpful to know: her political,
legal, and constitutional views.
But even more importantly, this view that Kagan has been silent on political, legal, and constitutional
issues is pure fiction. SCOTUS Blog, in almost 10,000 words, summarizes her career, and includes links
to her legal scholarship. Eugene Volokh, no liberal, writes the following:
Kagan was a working scholar from 1991 95, and then 1999 2003. Between those years, she
worked in the Clinton Administration; after those years, she was dean at Harvard Law School,
a position that these days leaves its holder with very little time to do serious scholarship. In
those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron s Nondelegation Doctrine (Harv. L. Rev. 2001,
cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First
Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of ContentBased Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial
pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi.
L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L.
Rev. 1993).
Quantitatively, this is quite good output for eight years as a working scholar. It looks a
lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor
General
but for the reasons I mentioned above, that s not the right way to look at it.
Moreover, two of her articles have been judged to be quite important by her colleagues.
Presidential Administration has been cited 305 times in law journal articles (according to a
search of Westlaw s JLR database)
an extraordinarily high number of citations for any
article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles
with more than 100 citations, run in August 2009, reports that her article was at the time the
6th most-cited law review article of all the articles published since 2000. Many legal scholars,
even ones working in the relatively high-citation fields of constitutional law and administrative
law, have never and will never write an article that is so much cited.
Chevron s Nondelegation Doctrine has been cited 75 times, a very high number for an article s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles
are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a
very high number. The Changing Faces of First Amendment Neutrality has been cited only
36 times, but that probably stems in large part from the fact that Supreme Court Review
articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited
journal with the Supreme Court Review s excellent reputation, and likely stemming from a
short-sighted non-licensing decision by the University of Chicago Press).
And while some articles might be heavily cited because they fit with academic ideological
fashions, I don t think these would qualify.
461
Blank slate, my ass.

My favorite part of her writing is her may be her reminiscence of Justice Thurgood Marshall, for whom
she clerked. It might be less in the scholarly mode, but it is perhaps as revealing as anything about what
she would be like as a judge:
Justice Marshall thought all lawyers (and certainly all judges) should be reminded . . .
that behind law there are stories-stories of peoples lives as shaped by law, stories of peoples
lives as might be changed by law. Justice Marshall had little use for law as abstraction, divorced from social reality (he muttered under his breath for days about Judge Borks remark
that he wished to serve on the Court because the experience would be an intellectual feast);
his stories kept us focused on law as a source of human well-being.
That this focus made the Justice no less a lawyers lawyer should be obvious; indeed, I
think, quite the opposite. I knew, of course, before I became his clerk that Justice Marshall
had been the most important-and probably the greatest-lawyer of the twentieth century. I
knew that he had shaped the strategy that led to Brown v. Board of Education and other
landmark civil rights cases; that he had achieved great renown (indeed, legendary status)
as a trial lawyer; that he had won twenty-nine of the thirty-two cases he argued before the
Supreme Court. But in my year of clerking, I think I saw what had made him great. Even at
the age of eighty, his mind was active and acute, and he was an almost instant study.
Above all, though, he had the great lawyers talent (a talent many judges do not possess)
for pinpointing a cases critical fact or core issue. That trait, I think, resulted from his understanding of the pragmatic-of the way in which law worked in practice as well as on the books,
of the way in which law acted on peoples lives. If a clerk wished for a year of spinning ever
more refined (and ever less plausible) law-school hypotheticals, she might wish for a clerkship
other than Justice Marshalls. If she thought it more important for a Justice to understand
what was truly going on in a case and to respond to those realities, she belonged in Justice
Marshalls chambers.
None of this meant that notions of equity governed Justice Marshalls vote in every case;
indeed, he could become quite the formalist at times. During the Term I clerked, the Court
heard argument in Torres v. Oakland Scavenger Co. There, a number of Hispanic employees
had brought suit alleging employment discrimination. The district court dismissed the suit,
and the employees lawyer filed a notice of appeal. The lawyers secretary, however, inadvertently omitted the name of one plaintiff from the notice. The question for the Court was
whether the appellate court had jurisdiction over the party whose name had been omitted;
on this question rode the continued existence of the employees discrimination claim. My
co-clerks and I pleaded with Justice Marshall to vote (as Justice Brennan eventually did)
that the appellate court could exercise jurisdiction. Justice Marshall refused. As always when
he disagreed with us, he pointed to the framed judicial commission hanging on his office
wall and asked whose name was on it. (Whenever we told Justice Marshall that he had to
dosomething-join an opinion, say-the Justice would look at us coldly and announce: There
are only two things I have to do-stay black and die.
A smarter group of clerks might have learned to avoid this unfortunate grammatical construction.) The Justice referred in our conversation to his own years of trying civil rights
claims. All you could hope for, he remarked, was that a court didnt rule against you for illegitimate reasons; you couldnt hope, and you had no right to expect, that a court would bend
the rules in your favor. Indeed, the Justice continued, it was the very existence of rules-along
with the judiciarys felt obligation to adhere to them-that best protected unpopular parties.
Contrary to some conservative critiques, Justice Marshall believed devoutly-believed in a near
462
mystical sense-in the rule of law. He had no trouble writing the Torres opinion.
Elena Kagan, For Justice Marshall, 71 Texas L. Rev. 1125, 1127-28 (1993).
Art builds on art, be it Shepard Faireys Obama Hope poster or the re-tellings of
myths and legends. (2010-05-14 01:26)
I have made clear, at length, my view that Shepard

Faireys Obama Hope poster is a legitimate, non-infringing fair use of the photo Fairey appropriated as
its source material. But I think Fairey himself expresses well in this interview from The Knowledge the
basis of that belief, that the very nature of a lot of art (and, I might argue, all art) is to build on and
refer to pieces of the culture in which we live and that without the freedom to appropriate pieces of that
culture in ways that dont merely exploit the value the creators of those pieces themselves have built we
will diminish our culture. Fairey explains:
I do think that copyrights and intellectual property are important it s important to be

able to keep people from making verbatim copies of a particular creation that could somehow
hurt the creator. If I spend time conceiving and making a piece of art and somebody else
sees that it has market value and replicates it in order to steal part of my market, then that s
not cool. But the way I make art the way a lot of people make art is as an extension of
language and communication, where references are incredibly important. It s about making
a work that is inspired by something preexisting but changes it to have a new value and
meaning that doesn t in any way take away from the original and, in fact, might provide the
original with a second life or a new audience.
He goes on to explain, in terms that are very personal to me, the implications of an alternative view,
often referred to as a position in favor of strong copyright protection:
The problem with copyright enforcement is that when the parameters aren t incredibly
well defined, it means big corporations, who have deeper pockets and better lawyers, can
bully people. I don t want to start making enemies in the corporate world, but there are
plenty of cases. For example, there is a tradition of certain fairy tales being reinterpreted,
and now, all of a sudden, a big corporation that has a mouse on its logo decides it s going
to copyright these fairy tales, which ends the cycle of these things being reinterpreted. What
happens with these big entertainment companies is that they start to get a monopoly on the
creation of culture. But I think that the more people participate in the creation of culture,
the richer the culture becomes. In the case of the Obama poster, I was just exercising my
First Amendment rights and my free speech is exercised visually. People who want to talk
or write in order to share an opinion about Obama can do that, but when I want to say
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what I think about him, I need to make a portrait. And if I can t make a picture based on a
reference because all references are copyrighted, then my only options are to pay a licensing
fee and possibly be turned down because the person licensing the image doesn t agree with
my political viewpoint or to try to get a personal sitting with Barack Obama to make a
portrait of him, which presents its own obstacles. So I don t think all this is good for free
speech.
This is a personal matter because my sister, Amy Friedman, writer and teacher extordinaire, has for
twenty years written on a weekly basis versions of fairy tales, folk tales, and legends from around the
world and throughout history, an enormous corpus of work that is syndicated by Universal Press Syndicates under the name Tell me a Story (entire archive available). Needless to say, copyright concerns
throughout this decades long endeavor, only one of many in which she engages, have been foremost in her
mind, but there has never been any doubt either that her stories, while based on pre-existing creations
from as many cultures and as many times as are virtually conceivable, are legitimate art in their own
right and, therefore, enjoy their own copyright protection.
Amys story is important in another way. Not only would the Disneys of the world co-opt the subject matter she makes her own, but she also is an artist in the truest sense. She is not a best-selling
author. No one Ive ever known works harder, and working at making a living as a writer, as she always
has, is as difficult a task as one would wish upon a sister. She doesnt depend on her copyrights to
make her living she depends on delivering a product that consumers want, whether they be students
or parents who want wonderful audio stories for their kids. People like Mark Halperin, rich best-selling
author and conservative pundit, , who bitch about copyright protection dont know what theyre talking
about. They live in an age in which digital information can be remixed and distributed worldwide by
anyone with a laptop and an internet connection, an age in which their views of authorship and artistic
production are, in a word, outmoded. The real artists are people like Amy, who eke out a living (one
whose comfort level she expresses no complaints about).
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It s not where you take things from it s where you take them to. (2010-05-17 18:10)
From Jim Jarmuschs Golden Rules,

which are about film making but have an awful lot of relevance to the practice of law:
Rule #1: There are no rules. There are as many ways to make a film as there are potential
filmmakers. . . . Therefore, disregard the rules you are presently reading, and instead consider them to be merely notes to myself. One should make one s own notes because there
is no one way to do anything. If anyone tells you there is only one way, their way, get as far
away from them as possible, both physically and philosophically.
Rule #2: Don t let the fuckers get ya. They can either help you, or not help you, but
they can t stop you. . . .
Rule #3: The production is there to serve the film. The film is not there to serve the
production. . . .
Rule #4: Filmmaking is a collaborative process. You get the chance to work with others
whose minds and ideas may be stronger than your own. . . . [T]reat all collaborators as
equals and with respect. A production assistant who is holding back traffic so the crew can
get a shot is no less important than the actors in the scene, the director of photography, the
production designer or the director. Hierarchy is for those whose egos are inflated or out of
control, or for people in the military. Those with whom you choose to collaborate, if you
make good choices, can elevate the quality and content of your film to a much higher plane
than any one mind could imagine on its own. If you don t want to work with other people,
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go paint a painting or write a book. . . .

Rule #5: Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs,
poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows. Select only things to steal from that speak directly to your
soul. If you do this, your work (and theft) will be authentic. Authenticity is invaluable;
originality is nonexistent. And don t bother concealing your thievery celebrate it if you feel
like it. In any case, always remember what Jean-Luc Godard said: It s not where you take
things from it s where you take them to.
[EMBED]
Princeton values money-grubbing over open contribution to current political debate.

(2010-05-18 09:24)
Whether or not it is merited, there is considerable political import being attributed to Elena Kagans
college thesis, a study of the collapse of Socialism as a political movement in the U.S. in the early decades
of the 20th Century. On the far right, the thesis is being touted as proof that Elena Kagan is an open
and avowed socialist. Slightly less conclusory, the Weekly Standard acknowledges that [o]bviously, one
imagines that Kagans views have evolved significantly over the last three decades since her work as an
undergraduate, but asserts that its certainly worth noting the radical roots of the nations top lawyer.
What is this evidence of the radical roots of Elena Kagans thinking? In the conclusion of the 130 page
undergraduate paper that describes the political dissolution of the organized socialist political movement
in New York City during the first couple of decades of the 1900s largely due to the conflicts the Socialists
came into with the Communists she wrote:
In our own times, a coherent socialist movement is nowhere to be found in the United
States. Americans are more likely to speak of a golden past than of a golden future, of
capitalisms glories than of socialisms greatness. Conformity overrides dissent; the desire to
conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.
Why, in a society by no means perfect, has a radical party never attained the status of a major
political force? Why, in particular, did the socialist movement never become an alternative
to the nations established parties? . . .
Through its own internal feuding, then, the [Socialist Party] exhausted itself forever and
further reduced labor radicalism in New York to the position of marginality and insignificance
from which it has never recovered. The story is a sad but also a chastening one for those who,
more than half a century after socialisms decline, still wish to change America. Radicals have
often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight ones
fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New
York shows anything, it is that American radicals cannot afford to become their own worst
enemies. In unity lies their only hope.
Ben Smith of Politico concludes that the thesis is written from a general sympathetic position, but that
really what it all adds up to is her practical minded conclusion that for those who . . . still wish to
change America the lesson is [i]n unity lies their only hope. Smith concludes that if there is a takeaway
for the Kagan of today, I think its that practical-minded conclusion, and the sense that she is, in the
end and like Obama a very practical pol.
Andrew Leonard takes an even more pro-Kagan view of the thesis, concluding that it proves her a
466
superb writer who grounds her argument in scrupulous attention to historical detail. Leonard, while he
may be over-inflating the importance of undergraduate work, at least recognizes that the thesis cannot
be viewed as propaganda but, instead, involves a complicated history completely ignored by those who
would reduce political debate to simplistic labels like socialist or fascist or conservative or liberal.
The history Kagan addressed in her thesis involved the fight against the truly atrocious labor standards
faced by U.S. factory workers, and to ignore that context and how far weve come would be to engage in
stupidity. Leonard writes:
Kagan makes a pretty good case that sectarian bickering and factionalism doomed the
Socialist Party to irrelevance. The leaders of the New York Socialist Party embraced a moderate, accommodationist approach to improving worker conditions that put them at odds
with rank-and-file workers who tended to be more militant. This made it easy for Communist
Party organizers to infiltrate the garment worker unions and challenge the Socialist Party
leaderships control. Ultimately, a disastrously mishandled strike destroyed the credibility of
both the Socialist and Communist factions, and worker demands for better conditions were
sublimated into Roosevelts New Deal.
It would be stupid to infer what I believe now from what I wrote as an Ivy League senior in 1981. Yes, Im
Kagans precise contemporary. It is also stupid to run fearfully under the cover of words like socialism
and radicalism without understanding that the history of a century ago that Kagan did write about
nearly 30 years ago involved fights against injustice in which almost everyone in this country today would
side with the socialists and radicals. I dont think we want to return to the days when labor in this
country was treated the way labor is in, say, China today.
But perhaps the stupidest thing of all is this: as Techdirt reports, Princeton has asserted that distribution of the thesis infringes the universitys copyright in it and has demanded that it be taken down
from sites that have posted it. The University is selling copies of her thesis, and apparently the commercial value just shot up:
It has been brought to my attention that you have posted Elena Kagans senior thesis
online.... Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited,
as noted on the first page of the copy that is on your website. Therefore I request that you
remove it immediately before further action is taken.
Even assuming the newsworthiness of the thesis, its age, the youth and inexperience of its author and
other factors do not make posting the thesis a non-infringing fair use, Princetons move is just stupid.
One year ago, Princetons endowment was nearly $13 billion. Money-grubbing over a few bucks to be
made on a new-found asset in the undergraduate work of a student from 30 years ago hardly seems a
worthy of an institution that prides itself on conferring true genuine education to its student body and
wisdom to the world.
A lesson for Rand Paul in the differences between the Constitution and statutory law
(2010-05-20 08:00)
In the interview below with Rachel Maddow, Rand Paul is taking the position that got Robert Borks
nomination to the Supreme Court rejected that the federal government in the Civil Rights Act of 1964
should not have outlawed private businesses open to the public from discriminating based on race.
Moreover, he is just plain wrong to suggest that the impact of the Civil Rights Act on private businesses is the same as the impact gun rights advocates argue the 2d Amendment to the Constitution
467
should have Paul says those gun rights activists are arguing that private businesses, including restaurants, do not have the right to ban them from carrying guns inside those businesses.
Hes just plain wrong because the Constitution only bans discrimination based on race by government,
and it only protects the right to bear arms against restrictions imposed by the government. It is a statute
passed by Congress the Civil Rights Act of 1964 that bans private businesses open to the public from
discriminating based on race. There is no such statute requiring private businesses to restrict ones right
to bear arms.
[EMBED]
Visit msnbc.com for breaking news, world news, and news about the economy
Is there a connection between the failure of law schools to teach legal practice and
the 2d class status of those who do teach legal practice? (2010-05-21 08:20)
I have of course made the point that law schools oddly enough do not emphasize training their students
to be lawyers. Some even say law schools are woefully inadequate in doing so.
I cant help but think theres some connection between this disconnect of the academy from the profession and the fact that the people in law schools who do focus on teaching students how to practice law
are generally not tenure track faculty. They are what Peter D.G. Brown in Confessions of a Tenured
Professor calls contingent faculty. Although he is writing about college faculty, his observations certainly have their analogs in law schools:
I must confess that belonging to the de facto elite minority makes me very uneasy. Most
tenured faculty view themselves as superior teachers with superior minds. In this view, the
arduous six-year tenure process clearly proves that all of us are superior to them and have
deservedly earned our superior jobs by our superior gifts and our superior efforts. I must also
confess that we tenured faculty really do appreciate the fact that ad-cons have unburdened us
from having to teach too many elementary foreign language courses, English composition and
the many other tedious introductory, repetitive and highly labor-intensive classes, to which
we tenured souls have such a strong aversion that it must be genetic.
And so we have a two-tiered system where [tenured faculty] make at least three times as much per course
as [contingent faculty] and enjoy all the other wonderful perks of tenure: lifetime job security and the
academic freedom it provides, regular opportunities for advancement and promotion, comfortable pensions, large furnished offices, telephones, computers, sabbaticals and other generous leave opportunities
the list goes on and on.
Brown is genuinely shocked at what legal writing professors and clinicians know too well is the predominant view of the scholars on law school faculties:
I confess that I must have been overly nave, but I was utterly dumbfounded when an
administrator repeatedly told me that he saw no value whatsoever to the institution in keeping any adjunct instructors more than a couple of years, after which they ought to simply
move on and find something else to do. I m sure my tenured colleagues would find it totally
unacceptable if they could be told at the end of any semester that they should simply leave,
that there was no value to their accumulated expertise, thank you, because the college wished
to hire a fresh young face at a lower salary.
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Brown is worried about the effects of this two-tier system on students, just as I am about the focus by
law faculties on legal scholarship at the expense of legal practice:
It is time that more tenured faculty woke up to the fact that their entire professional
existence, replete with their comfortable incomes, their fascinating research, their coveted
sabbaticals, their agreeable teaching loads of less labor-intensive and more satisfying courses
all this is made possible by the indispensable efforts of a million ad-cons doing so much
more for so much less. Equitable compensation, health and retirement benefits, opportunities
for advancement and professional development: all these should be available for everyone in
higher education and are long overdue. Since teachers working conditions equal students
learning conditions, it is a truly deplorable message we are sending our students!
His description of non-tenure track faculty at the college level matches my experience at the law school
level: they are trying desperately to find summer work, praying that their cars will run for another year
and wondering if their children will even be able to afford college. Moreover, these professors typically
focus on teaching, and the precarious nature of their employment drives them to excel in their classroom
performance. Not surprisingly, they often have a more lively interest in developing innovative pedagogy.
And so Brown issues a call for action from his tenured colleagues:
Tenured faculty members across the country need to wake up now and begin to play a
crucial role in supporting equity for their contingent colleagues. . . . If more tenure-track
faculty would summon the courage to speak out in support of their fourth-class colleagues, it
could really make a decisive difference . . . . Not only are tenured faculty members largely
immune from retaliation; they possess widespread credibility plus significant monetary and
other resources to help tip the scales in favor of equity.
3.6
June
What is the best preparation for law school? Id suggest it is a liberal arts education.
(2010-06-01 07:22)
I am often asked what type of undergraduate education best prepares a student for law school. Most
of my life Ive been completely baffled by the question. It never occurred to me that my very Classical
liberal arts education I double majored in Ancient Greek and Latin would be something to recommend, and while I have always been a huge supporter of liberal arts education, I never felt confident
in recommending it as preparation for law school. But neither was I ever persuaded that my students
who had thought long and hard about choosing the right major to prepare for law school and ended
up thereby majoring in political science, business, or economics were any better prepared than those
students who had not chosen an undergraduate major based on a desire to prepare for law school.
I was reminded of this question in reading Rebecca Meads commentary on the views of certain economists
that an undergraduate degree is not an economically wise way of earning a living. As Mead explains, this
conclusion is based in part on the fact that the greatest opportunities to earn money in the near future
are in fields in which a college degree is not required:
Economics majors aren t doing badly . . . : their starting salary averages about fifty
thousand a year, rising to a mid-career median of a hundred and one thousand. Special note
should be taken of the fact that if you have an economics degree you can, eventually, make
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a living proposing that other people shouldn t bother going to college. This, at least, is the
approach of Professor Richard K. Vedder, of Ohio University, who is the founder of the Center
for College Affordability and Productivity. According to the Times, eight out of the ten job
categories that will add the most employees during the next decade including home-health
aide, customer-service representative, and store clerk can be performed by someone without
a college degree. Professor Vedder likes to ask why fifteen percent of mail carriers have
bachelor s degrees, the paper reported.
In addition, [a]nother economist, Professor Robert I. Lerman, of American University (Ph.D., M.I.T.),
told the Times that high schools, rather than readying all students for college, should focus on the acquisition of skills appropriate to the workplace. According to the Times, these include the ability to
solve problems and make decisions, resolve conflict and negotiate, coperate with others, andlisten
actively.
These opinions awoke in me a gnawing feeling that has been building in me the past couple of years
the feeling that the best educational preparation for being a lawyer is a liberal arts education.
One particular moment in the last 2 years stands out form me in considering this question. I was
reviewing an exam with a student and explaining a clever argument another student had come up with in
connection with the interpretation of ambiguous contract language. The contract called for the supply of
sweetener to the manufacturer of a soda being marketed to the types of buyers who would be interested
in healthier alternatives to mass market sodas. The contract provided for the supply of sugar, and
the dispute arose when the supplier substituted high fructose corn syrup for granulated sugar as the
sweetener. The other students argument was based on the greater attractiveness of granulated sugar
to the buyers the soda manufacturer was targeting to argue in favor of an interpretation that would
limit sugar to granulated sugar even though high fructose corn syrup is also, chemically, a sugar. The
student with whom I was meeting thought about this point, realized the argument was a good one and
one she herself had not come up with, but still felt my point was objectionable because the argument was
grounded in facts about the world she didnt know. So she told me, Youre not testing us on Contracts.
Youre testing us on what we know about the world!
I smiled, and I explained: if you dont know about the world, you cant understand law. Law doesnt
supply answers that exist independent of the world it answers questions about. In contract interpretation, courts are asked to determine, based on the available evidence, what they believe people intended
contracts to mean. The rules that govern those interpretive acts dont work like mathematical formulas
they constitute a structured way of approaching the question of what people intended, nothing more,
and therefore dont provide any way out of answering the question; what do you think the people entering
this contract intended? While the rules might limit the scope of evidence that can be considered, within
that scope anything that persuades the court about the intended meaning is fair game for the court to
consider. So, in the question I was considering with my student, the attractiveness of granulated sugar
to the manufacturers target market was a very relevant consideration if you could show that both the
supplier and the manufacturer knew and understood the marketing strategy, you could argue persuasively
that they both intended sugar in the contract to mean only granulated sugar and not to include high
fructose corn syrup.
And so, more and more often I have found myself telling my students that in addition to studying
law they should be learning everything they possibly can about everything. I hate to be that vague, but,
at the same time, I am quite serious. Would a better education in decision making have helped BP
decision makers planning for offshore oil drilling than an education grounded in Greek Tragedy? I dont
think so.
Why would a mail carrier consider an undergraduate education worthwhile even if the tuition is economically out of balance with his earnings as a mail carrier? I hate to say it because I hate the thought
it needs to be said but the education might make him a happier person and the money he will earn is
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not the only measure of his happiness.

And what should you learn to prepare for law school? Anything and everything, but learn it well.
It aint over til its over Fairey Judge says Obama Hope poster is not fair use, but
dont necessarily believe him. (2010-06-02 09:13)
AP reported last week that in the lawsuit about whether

Shepard Faireys use of an AP photograph as source material for his Obama Hope poster constituted fair
use of the copyrighted photo, the judge, Alvin Hellerstein (with whom I worked 25 years ago), stated in
a hearing last week that I have a feeling ... that whether its sooner or later, The Associated Press is
going to win,
First, of course, I am convinced as a legal matter that Faireys appropriation of the photo constituted
fair use. Of course, Ive been wrong before.
But it is also important to note that, as APs story makes clear, Judge Hellerstein made his comment
during a hearing on matters in the case that did not pertain to the legitimacy of Faireys fair use claim
to urge that the parties settle the case. Moreover, the judge said a settlement might be possible if the
AP dropped some of its demands that Fairey be punished for copyright infringement and for his actions
in the case.
Judges do all sorts of things to promote settlement. They even make suggestions that one side will
win even before both sides have had the chance to present their evidence and make their legal arguments.
Judges like settlement. Private agreements to settle cannot be overturned on appeal, and they do not
constitute legal precedent that ties the hands of courts making later decisions. And, in fact, the vast
majority of civil cases settle (over 85 %). In short, I think Judge Hellerstein could have been strongly
promoting settlement without having prejudged the case.
But AP also stated that neither side embraced the judges suggestion that the parties settle and that
AP lawyer Dale Cendali told Hellerstein the news organization was seeking substantial damages. It
appears, in short, that AP doesnt want to settle because it wants to make an example of Fairey. And
I could imagine that Fairey, who began the lawsuit, wants to pursue the case as a matter of principle.
In fact, even if he does lose in front of Judge Hellerstein, he has an appeal as of right to the 2d Circuit,
which, given that it has extended the right of appropriation further than any other court, might well
represent his best shot at victory.
In short, I think the case is far from over, even if many others are reporting otherwise.
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Is Elena Kagans thin record of legal scholarship a disqualification for the Supreme
Court? Only if youre a law professor. (2010-06-03 08:39)
My one reservation about Elena Kagan as a Supreme Court justice has been her extensive experience in
legal academia. As readers of this blog know, the disconnect between law professors and law practice is a
matter of grave concern to me. I do not understand why the great mass of legal academics consider legal
practitioners lesser beings who really dont belong in law schools and, if they are there, certainly dont
deserve the same status that the pure scholars do.
But now I can rest easy law professors dont consider Kagan one of them. Why? Because shes
practiced law too much!
Kagan taught at the University of Chicago Law School before going to work for the Clinton White
House. During her time at Chicago, as the Chicago Tribune reports, [s]he did publish several articles
and won tenure in 1995, and was even chosen by students as teacher of the year. . . . [Se left to join the
office of legal counsel in the Clinton White House shortly after that. As fellow West Wing veterans tell
it, she quickly became an aide Clinton would pull aside for hallway conversations about his legislative
initiatives on the Hill.
In 1999, she sought to return to Chicago, but was unable to do so because, the law faculty decided
not to give her an offer. They rejected her because her talents were as a lawyer and an administrator!
We cant have any of them cluttering up legal faculty:
She turned out to be truly great at what she did, said David Strauss, a U. of C. law
professor and one of Kagans closest friends on the faculty. If things had gone as shed planned
at the time, he said, maybe she wouldnt be where she is now.
The truly perverse thing is that in retrospect the Chicago professors dont consider what they did a
mistake. Rather, they are proud of it. As Richard Epstein one of the most respected scholars in the
U.S. explains that her talents as a lawyer and an administrator dont qualify her to teach law students:
Her papers were well-done, but they show exactly the same qualities of mind that prevent
you from reaching the top ranks in academia. . . She is good at advising people, fixing things,
putting programs in place.
I am not suggesting that legal scholars dont belong on law faculties. I am suggesting that there are
talents other than those of legal scholars that do deserve to be on law faculties and deserve equal status
and respect. Why would you not want people who are good lawyers teaching law students who are in
law school to become lawyers?
But most of all, Im suggesting that the criticism of Obamas choice of Kagan on the grounds that she is
not sufficiently scholarly is a bunch of b.s. Why wouldnt being a great teacher, a great administrator,
and a great lawyer qualify you to be on the Supreme Court?
David Souter gives a lesson in judging and the failures of Originalism. (2010-06-04 10:08)
Former Supreme Court Justice David Souter recently gave the commencement address at Harvard. In
doing so, he set forth clearly and in ways anyone can understand why it is ridiculous to suggest that
interpretation of the Constitution merely requires a judge to engage in a straightforward exercise of
reading fairly and viewing facts objectively. He makes clear that, in his words, such a simplistic view
has only a tenuous connection to reality. In doing so, he answers criticism that the court is making up
472
the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and
that the court is engaging in activism to extend civil liberties.
The entire speech is worth reading for anyone interested in a high-level lesson in constitutional analysis given in clear, straightforward prose. I will try here to touch on a few of its highlights.
First, Souter points out that many of the Constitution guarantees are phrased in such open-ended
language that they necessarily will require a large degree of interpretive work to determine their application to new facts in new times: The Constitution has a good share of deliberately open-ended guarantees,
like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.
He contrasts these provisions to provisions that provide bright lines that make decision easy provisions
such as the requirement that Senators be 30 years old.
But, as he makes clear, pointing out that determining, for example, whether a given governmental
action satisfies the requirement of due process hardly scratches the surface of constitutional judging.
First, provisions may be clear and yet any consideration of their real implications makes obvious that
they cannot be applied literally. Second, as Ive pointed out before (in discussing why empathy plays
a far greater part in judging than implied those who would suggest empathy is merely soft-heartedness),
determining which facts are more or less significant makes all the difference in the world of a judge:
The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general
language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet
another reason is that the facts that determine whether a constitutional provision applies may
be very different from facts like a person s age or the amount of the grocery bill; constitutional
facts may require judges to understand the meaning that the facts may bear before the judges
can figure out what to make of them.
To make these points, Souter uses two examples. The first was the Pentagon Papers case, in which the
New York Times and the Washington Post had each obtained copies of classified documents prepared
and compiled by government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the
publication. While the Court ruled that the newspapers had the right under the First Amendment to
publish the Pentagon Papers, it did not do so on the simple basis that the First Amendment provides
that Congress shall make no law & abridging the freedom of speech, or of the press. (emphasis added.)
Instead, the Court adopted the interpretation advanced by Irwin Griswold, who responded to the suggestion by Justice Black that the case was a simple one of applying the rule that no law means no law
with the argument that it was not so simple:
Now Mr. Justice, your construction of that is well-known, and I certainly respect it. You
say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to
me it is equally obvious that no law does not mean no law, and I would seek to persuade
the Court that that is true.
Thus, the [C]ourt s majority decided only that the government had not met a high burden of showing
facts that could justify a prior restraint, and particular members of the court spoke of examples that
might have turned the case around, to go the other way. Threatened publication of something like the
D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk
a nuclear holocaust in peacetime.
How can it be that no law does not mean no law? Isnt that kind of interpretation exactly the
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kind of thing that gives judges a bad name? As Souter makes clear, it is nothing of the sort; its the
reason we consider judging an activity requiring the utmost in wisdom, intelligence, and experience. The
First Amendment guarantee of freedom of the press cannot possibly be absolute because the Constitution
provides for a plethora of other individual rights and governmental obligations, no one of which is entirely
consistent with the other. As the examples above illustrate, we also have to account for the constitutional
authority of the President to provide for national security . As anyone who has considered matters of
individual liberty at any depth know, individual liberty is often necessarily at odds with equality. Yet
the Constitution guarantees both individual liberty and equality. As Souter explains, an interpretation
based on merely believing no law in the First Amendment means no law
fails because the Constitution has to be read as a whole, and when it is, other values crop
up in potential conflict with an unfettered right to publish, the value of security for the nation
and the value of the president s authority in matters foreign and military. The explicit terms
of the Constitution, in other words, can create a conflict of approved values, and the explicit
terms of the Constitution do not resolve that conflict when it arises. The guarantee of the
right to publish is unconditional in its terms, and in its terms the power of the government to
govern is plenary. A choice may have to be made, not because language is vague but because
the Constitution embodies the desire of the American people, like most people, to have things
both ways. We want order and security, and we want liberty. And we want not only liberty
but equality as well. These paired desires of ours can clash, and when they do a court is
forced to choose between them, between one constitutional good and another one. The court
has to decide which of our approved desires has the better claim, right here, right now, and a
court has to do more than read fairly when it makes this kind of choice. And choices like the
ones that the justices envisioned in the Papers case make up much of what we call law.
Souters second example is The Supreme Courts decision in 1954 in Brown v. Board of Education,
in which the Court unanimously held that racial segregation in public schools imposed violated the
Constitutions guarantee of equal protection of the law. As Souter explains, Brown ended the era of
separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where
the Supreme Court had held it was no violation of the equal protection guarantee to require black people
to ride in a separate railroad car that was physically equal to the car for whites.
Souter, significantly, thinks that best explanation for the differences in the results between Plessy and
Brown is an explanation that is forbidden to those who would believe the Constitution means now what
it did in 1789 and must always mean what it meant in 1789: the difference between the cases is the
dates they were decided.
How can this be so? It is because the significance of facts differ from judge to judge, and, of course,
the significance of facts differs over time. What seemed equal treatment of the races in 1896 when the
contrast was to the recent legality of slavery no longer seemed equal in 1954, and it would be folly to
suggest otherwise:
[T]he generation in power in 1954 looked at enforced separation without the revolting
background of slavery to make it look unexceptional by contrast. As a consequence, the
judges of 1954 found a meaning in segregating the races by law that the majority of their
predecessors in 1896 did not see. That meaning is not captured by descriptions of physically
identical schools or physically identical railroad cars. The meaning of facts arises elsewhere,
and its judicial perception turns on the experience of the judges, and on their ability to
think from a point of view different from their own. Meaning comes from the capacity to
see what is not in some simple, objective sense there on the printed page. And when the
judges in 1954 read the record of enforced segregation it carried only one possible meaning:
It expressed a judgment of inherent inferiority on the part of the minority race. The judges
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who understood the meaning that was apparent in 1954 would have violated their oaths to
uphold the Constitution if they had not held the segregation mandate unconstitutional.
As Souter so succinctly puts the matter: So much for the assumption that facts just lie there waiting
for an objective judge to view them. And so much for the contention by John Roberts that judging is
merely a matter of calling balls and strikes. As Souter says, such a simplistic view of what judges do
fails to account for what the Constitution actually says, and it fails just as badly to understand what
judges have no choice but to do. Judges have to choose between the good things that the Constitution
approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.
Most fundamentally, Souter sees the contrast between his view of the Constitution and the view of
those who would have it that judging his way means that he is making it up along the way to evade the
plain language of the law as the contrast between those who would impose certainty in a world where
there is no certainty. Most importantly, Souter believes that, in the face of uncertainty, we fulfill our
national aspirations best by applying reason and judgment to the application of the principles that our
nation was established to uphold:
Where I suspect [I] differ most fundamentally[from the those who would apply a simple,
literal meaning to constitutional language] is in my belief that in an indeterminate world I
cannot control, it is still possible to live fully in the trust that a way will be found leading
through the uncertain future. And to me, the future of the Constitution as the Framers wrote
it can be staked only upon that same trust. If we cannot share every intellectual assumption
that formed the minds of those who framed the charter, we can still address the constitutional
uncertainties the way they must have envisioned, by relying on reason, by respecting all the
words the Framers wrote, by facing facts, and by seeking to understand their meaning for
living people.
That is how a judge lives in a state of trust, and I know of no other way to make good
on the aspirations that tell us who we are, and who we mean to be, as the people of the
United States.
Im one of the Top 100 Twitterers in the Legal World! (2010-06-04 11:43)
Hey, Im one of the Top 100 Twitterers in the Legal World! (Im @pbfriedman.)
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Woody Guthrie on copyright: we wrote it, thats all we wanted to do. (2010-06-05 17:28)
Woody Guthrie s view of copyright:
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28
years, and anybody caught singin it without our permission, will be mighty good friends of
ourn, cause we don t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We
wrote it, that s all we wanted to do.
A lawyer must separate bluster from truth and act accordingly: Halsey Minors fall.
(2010-06-07 09:31)
Being an effective lawyer requires an enormous amount of confidence in ones own judgment. As I tell
my students, when youre a lawyer, there is always someone who is telling you youre wrong. You have
to figure out the extent to which the person telling you youre wrong is right, adjust your position accordingly, and move on. Frequently, the person telling you youre wrong is wrong himself. Its not always
easy to tell the difference between wrong and right. But the real signs of maturity are (1) being able to
adjust your position to whats right in someone elses words, and (2) being able to reject disagreement
you judge for yourself is without merit.
[One of my pet peeves with contemporary journalists is precisely there lack of nerve rather than
making judgments and explaining them, most journalists merely report the words of people who disagree without judgment.]
An example of being told I was flat-out wrong occurred over a year and a half ago, when I wrote
about Sotheby s $16.8 million lawsuit against the art collector and Internet entrepreneur Halsey Minor
for refusing to pay the auction house for three paintings he bought in May (including The Peaceable
Kingdom and the Leopard of Serenity by Edward Hicks). I explained that I didnt see merit in Minors
claims that Sothebys had been in the wrong in failing to disclose to Minor that it had a security interest
in The Peacable Kingdom and that the paintings owner had agreed Sothebys would receive the proceeds
of the sale. Minor argued that he had relied on Sothebys expertise in connection with the painting, and
that if he had known of Sothebys security interest in the painting he would not have been willing to pay
so much. In short, he claimed, Sothebys had been supposed to be working on his behalf in giving him
advice regarding the painting but in fact had been acting on its own behalf and to his detriment.
Minor agreed to buy the paintings in May 2008. We all know what happened subsequently we all
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experienced financial disaster. As a result, the art market collapsed, and the paintings Minor had bought
were worth significantly less than he had agreed to pay. Moreover, one could presume,Minor might have
suffered severe financial problems in and after 2008. I suspected strongly that Minor either no longer
had the money to buy the paintings or, at least, no longer saw them as worth owning at the price he had
agreed to pay.
Minor, though, made plain in a comment to my post (as he had to other people who had written
skeptically of his claims) that he thought I was wrong, concluding
Sotheby s committed Fraud and will pay for it and its disappointing to see you allow them
to get away with charging outrageous fees and then blaming lack on knowledge on the victim.
What do you say to someone so vehement when you think hes full of it? You ignore him, and you let
the evidence speak for itself. Which, apparently, is what Sothebys did. As Donn Zaretetsky of the Art
Law Blog reported over 2 months ago, the federal judge who heard the case ruled on March 30 in favor of
Sothebys on all counts, entering judgment in Sothebys favor for $4.4 million plus interest, late charges,
and legal fees. (Decision embedded below.)
And now Zaretsky points out too that my suspicions regarding Minors financial hardships are, apparently, well-founded. According to the New York Post:
Fallen Internet tycoon Halsey Minor is so hard up for cash that he cant even afford to
send Sothebys his art collection to make good on his $6.6 million debt to the famed auction
house. Court papers filed yesterday say the CNet.com co-founder has represented that he
cannot pay shippers to transport his fine and decorative art as directed.
And Elizabeth Lesly Stevens of the Bay Citizen reports that Minor has defaulted on the rent for the
offices of his corporate home, offices which he has abandoned:
Minor Ventures, Minors investment vehicle and corporate home in recent years, has recently cleared out of its 12th-floor, 17,000-square-foot space at 199 Fremont, in San Franciscos
trendy SoMa neighborhood. Minor left behind artwork, office equipment and cubicles, says
Laura Binai, a staffer with the buildings management company.
All their mail comes here, but no one comes to get it, she said.
Minor Ventures is technically a subtenant of insurance giant Aon Corp., which is hunting down Minor for rent, Binai says. An Aon spokesman declined to comment, and efforts
to reach Minor have been unsuccessful.
And a second part of Minors design collection is set to be sold on Wednesday by some of Minors creditors. And a court has allowed Sothebys to register the $6.6 million judgment in the Western District
of Virginia and the District of Delaware, where Minor has significant assets, including a $6.52 million
mortgage for a farm near Charlottesville, Va., that he recently brought current after it was foreclosed
upon.
So what does it seem happened? Minor suffered severe financial losses in the second half of 2008 and his
emphatic assertions of wrongdoing by Sothebys were just so much bluster.
Sothebys v. Minor Judgment [EMBED]
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Is mistaken slot machine award of $11 million a mistake that excuses the casino
from paying? (2010-06-08 09:48)
Contract law problem: couple walks into a casino, plays

a slot machine, and wins $11 million. Casino representative claims the award was a mistake caused by
a computer glitch and that the proper the couple actually won $1627.82. The $11 million was what we
call a reset value. Its what the jackpot would have been after the prize was claimed.
Its a real situation, and, apparently, the second time in three months a Colorado slot machine has
made a multi-million dollar mistake. In March, a machine malfunction was blamed for a $42 million
dollar jackpot. (hat tip to techdirt.)
But heres the question the stories dont resolve: is the casino entitled to pay only $1,627.82? In legal jargon, the casino is seeking reformation of the contract it had entered into with the couple that
is, the casino is claiming it can rewrite the contract it had with the couple. I put rewrite in quotation
marks because the contract was not written but, instead, was implicitly understood by the couple and
the casino to provide that if they paid their money and pulled the lever on the slot machine theyd be
entitled to the winnings that appeared, if any. The reformed contract would be that the casino agreed
to pay any amount up to $1,627,82 in exchange for the couple paying the money necessary to play the
game.
I dont know enough about the regulation of casinos to supply the answer to this problem. It may
well be that casino bets are treated differently than other contracts. Nevertheless, if standard contract
law does apply, the basis of the casinos position would be a claim that it had made a mistake that
it understood the machine would operate in a manner that would make the top prize the lower amount
but, as events proved, that understanding was mistaken. The mistake would be unilateral rather than
mutual because the couple would not have been operating under the same assumption.
In order to prevail on a defense of mistake, mutual or unilateral, the person asserting the defense must
establish it did not assume the risk of the mistake. To prevail on a defense of unilateral mistake, the
person must also establish either (1) that enforcing the mistaken contract would be unconscionable or
(2) the other party knew of or caused the mistake.
Plainly, the couple did not know of or cause the mistake. Whether enforcement of the deal the couple
thought it was getting would be unconscionable is a difficult question to answer. A deal is unconscionable if it is so grossly unfair it would the court wont enforce it. The mere fact the casino makes
out so badly isnt unconscionable. We enjoy the freedom of contract, which means we are entitled to
take stupid risks and courts will enforce the deals we made that subjected us to those risks (unless, of
course, youre an investment bank).
But whether the deal is unconscionable really turns, to my mind, on the other question: did the
casino assume t his risk? On the one hand, the casino is the one responsible for the hardware or software
that caused the glitch. Moreover, if I read the casinos explanation correctly, the $11 million the machine
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originally indicated the couple had won is within the realm of reasonable payoffs on that machine. Its
what the jackpot would have been after the prize [I presume the $1,672] was claimed. But, given the
casinos online page of jackpot winners none of whom won more than $10,500 that doesnt really
seem to be what the casino intended to say.
Finally, the glitch is one the casino had reason to know might happen. It was the second time in
three months a Colorado slot machine had made a multi-million dollar mistake, and the earlier one was
for quite a bit more ( $42 million rather than merely $11 million).
On the other hand, if the couple had no reasonable grounds to believe their bet could earn them $11
million, it seems a lot less likely they could prevail. In essence, the defense of mistake does not enforce a
deal when it turns out the deal literally enforced would turn out to be something entirely different than
what the parties believed they were agreeing to. Were they entering into a bet that they knew might pay
$11 million? If so, the couple ought to win. If not, the casino ought to win.
Law struggling with changes in material reality: corporate confidentiality this time
(2010-06-09 08:43)
I have emphasized again and again the difficulties law faces when there are profound changes in the
material reality of our lives, including, for example, demand for new sources of energy. Law is not a set
of rules good for all time in all places and all things. It is, rather, an evolving system that tries to do
justice in the particular situations it addresses.
The new technologies for copying and disseminating information have of course thrown our legal system into confusion over copyright. Those technologies also are having a profound impact over notions of
confidentiality and privacy. Wikileaks is of course in the news in connection with its disclosures of U.S.
military secrets, including its release of an Apache helicopter attack in Iraq.
The efforts of a British court to deal with Wikileaks illustrate the difficulties courts often have in applying
legal rules that grow out of an era already long past to the new world. Wikileaks released of documents
from Barclays Bank detailing Barclays efforts to use offshore affiliates to evade taxes in Great Britain.
A judge ordered the Guardian newspaper, which had published the documents, to take the material
down because, he reasoned, the bank had a right to confidentiality. He also ordered the Guardian not to
publish links or other directions for finding the documents on the internet even though they were widely
available on sites not based in Great Britain.
As Alan Rusbridger, the editor of the Guardian, explains, the disconnect between the courts view of
confidentiality and the realities of the internet expose a certain degree of absurdity:
The Internet is throwing sharp relief to the illogical nature of our system. Technology is
way ahead of the law, and the law is limping along trying to make sense of it.
Professor James Edelman of Oxford believes the court order in connection with the Barclays documents
might be the last example of this particular type of confusion, particularly because Barclays may realize
that its legal efforts, even if successful in getting an order barring publication in the U.K., only serve
to publicize the existence of the documents the bank is trying to keep hidden:
What is significant about the ruling, he said, is that it will open people s eyes that
even if you can get an injunction to preserve information that is able to be obtained over the
Internet, I suspect that the injunction won t last. The publicity over the injunction creates
more interest in the material, leading other sites to publish it. The Guardian will be able to
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return to court, he said, and argue the injunction no longer serves any purpose.
Mr. Rusbridger said that the newspaper still had not decided whether to do that. The
cost for being wrong, he said, could be as much $300,000 in legal fees.
Seeming to prove Professor Edelman s larger point, however, when Wikileaks became overloaded by the traffic about a week ago, another site, techcrunch.org, published the seven
memos under the heading How Barclays Ensured That Everyone Would See Their Confidential Tax Documents.
A key to effective creative effort:
copying.
Or dont reinvent the wheel.
(2010-06-10 08:17)
A genius with whom I once worked, Gene Anderson, ran our firm pursuant to 10 principles (there were
more than 10, but that discrepancy was entirely consistent with the principles). An important one was
dont reinvent the wheel. Youre job is to represent the client as well as you can, and that means as
efficiently as you can. If someone else has written the great brief on the point youre arguing, start with
that brief (even if it was an adversarys). As Ive written in an article to be published, this notion is
entirely consistent with legal authorship. More importantly by far, it is good business. So Scott Berkun is
acting wisely in his most recent Bloomberg Businessweek column, Stop Trying to Reinvent the Wheel,
in which he identifies ignorance and the over-valuing of novelty as the principal reasons for failing to
appreciate the utility of recycling:
The key reason people look to reinvent things is that they dont know whats already been
done. Ignorance, one way or another, is the leading cause of wasted effort everywhere. People
who dont spend time studying the problems theyre trying to solve are bound to reinvent
something, and likely not nearly as well. There are only so many ways to design a website,
a marketing campaign, or even a product strategy. Instead of driving minions into further
brainstorming sessions, it would be wise to ask: Who else has tried to solve this problem?
Can we learn from what they have done?
The second reason for reinvention pertains to ego and rewards. In many corporations there is
more prestige to be gained for making something new than for reusing work done elsewhere
in the company or industry. This is true even when the newly made thing is much worse that
what already existed. An executive might proclaim the wonders of the new (worse) thing
to his division without encountering anyone willing to stand up for the old (better) thing.
Its harder to inflate the importance of ones own work if the key decision was to buy or
borrow from elsewhere. The verbs make, invent, and create lead to more promotions
than reuse, borrow, or convert. In Pavlovian terms, if a culture rewards unnecessary
reinvention more than it honors wise reuse, the ambitious will follow suit. Asking people to
behave one way while rewarding them for another has predictable results. The counter notion
to NIH PFE, or Proudly Found Elsewhere has been talked about before, but Ive rarely
seen it thrive.
Our courts and legislatures are bought and paid for the laws theyve made with
respect to oil spills prove it. (2010-06-10 17:35)
In March, I emphasized not for the first time the insanity of considering corporate and other business entities as rational actors of the sort many economists consider people to be. The problem is that
corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the
corporations (and their shareholders).
480
One reason corporations focus on short-term profits is that the individuals making the decisions for
a company will often take the cash made in the short term out of the company (by paying special dividends, for example) and then sell there stock, evading the long-term loss. Even if they hold onto their
stock, they may have taken so much cash out of the company before the stock crashes in value that
theyve profited mightily from their holdings regardless of the companys failures.
But still another reason is the idiocy of the regulation that is in place, regulation that instead of imposing
responsibility on the companies for problems they cause limits that responsibility.
10 days ago David Leonhardt wrote about the perversity of the federal limitations on corporate liability for oil spills and how they made BPs oil spill, in retrospect, no great surprise:
In a little-noticed provision in a 1990 law passed after the Exxon Valdez spill, Congress
capped a spiller s liability over and above cleanup costs at $75 million for a rig spill. Even
if the economic damages
to tourism, fishing and the like
stretch into the billions, the
responsible party is on the hook for only $75 million. (In this instance, BP has agreed to
waive the cap for claims it deems legitimate.) Michael Greenstone, an M.I.T. economist who
runs the Hamilton Project in Washington, says the law fundamentally distorts a company s
decision making. Without the cap, executives would have to weigh the possible revenue from
a well against the cost of drilling there and the risk of damage. With the cap, they can largely
ignore the potential damage beyond cleanup costs. So they end up drilling wells even in places
where the damage can be horrific, like close to a shoreline. To put it another way, human
frailty helped BP s executives underestimate the chance of a low-probability, high-cost event.
Federal law helped them underestimate the costs.
We shouldnt be surprised, then, at BPs pathetic safety record and the retrospective inevitability of the
Gulf spill:
Years before the Deepwater Horizon rig blew, BP was developing a reputation as an oil
company that took safety risks to save money. An explosion at a Texas refinery killed 15
workers in 2005, and federal regulators and a panel led by James A. Baker III, the former
secretary of state, said that cost cutting was partly to blame. The next year, a corroded
pipeline in Alaska poured oil into Prudhoe Bay. None other than Joe Barton, a Republican
congressman from Texas and a global-warming skeptic, upbraided BP managers for their
seeming indifference to safety and environmental issues.
BP was only acting rationally!
Unsurprisingly, the Supreme Court has teamed with Congress in being an accessory to the corporate
rape of the country. Even if compensatory damages are capped, conceivably courts can impose punitive
damages in civil lawsuits to deter particularly egregious conduct. And, indeed, courts reacted precisely
that way to the Exxon Valdez oil spill that is, until the Supreme Court stepped in. In 1994, a jury
imposed $5 billion in punitive damages on ExxonMobil for the Exxon Valdez oil spill. 12 years later an
appellate court reduced that amount to $2.5 billion, half the original amount.
2 years later, in a 5-3 vote (Sam Alito recused himself from the case because he owned Exxon stock),
the Supreme Court reduced the amount to $507.5 million, about 10 % of the jurys award. The Court
ruled that punitive damages (intended to punish bad behavior, not to compensate a plaintiff for his losses
caused by that behavior) cannot be greater than compensatory damages (which compensate victims for
their economic losses). As reported at the time, the reduced amount represented about 12 hours of
revenue for [Exxon], which reported record profits of $40.6 billion in February. Justice Souter, writing
481
for the Court, explained that a penalty should be reasonably predictable in its severity, so that even
Justice Holmess bad man can look ahead with some ability to know what the stakes are in choosing
one course of action or another. See The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897). Exxon
Shipping Co. v. Baker (U.S. 2008)(hyperlink added).
Of course, one might argue pretty cogently that neither the Exxon Valdez spill nor the BP Gulf spill
were conceivable in the minds of the people who made the decisions that resulted in disasters and that
it is precisely that failure to conceive of, much less consider, those consequences that is what the courts
should retain the power to punish.
Losing $500 million was a legal win: outcomes and predictions from a lawyers pointof-view (2010-06-11 09:40)
In case you havent read it already, theres a new study that purports to establish that lawyers consistently overestimate the chances of success in their cases (pdf). David Post of the Volokh Conspiracy
takes the study and applies the typical academic condescension to practitioners: I m constantly amazed,
given the obvious fact that half of all litigants are holding losing hands, at how easily most lawyers can
persuade themselves of the rightness of their client s cause.
Jeff Gamso, a criminal defense attorney (and former English professor!) in Toledo, Ohio who writes
a terrific blog, Gamso for the Defense, takes a much more nuanced approach to the study in his post,
Blessed are the Oddsmakers. First, its important to note the difference between criminal defense and
civil litigation. As Gamso reminds his readers, in his practice, [m]ost trials result in guilty verdicts. But
most cases arent tried; theyre resolved by pleas of one sort or another. It reminds me of what a friend
of mine, a public defender, once told my class in response to the question whats the hardest part of
your job? He answered, Losing 95 % of my cases.
But Gamso reminds us that pleas, the criminal analog to a civil settlement, is a strategic move made with
the best possible estimation of likelihood of success at trial, an estimation by no means easy to make:
The idea of the plea is that its a compromise because trials are problematic. Theyre a
lot of work and they are, ultimately, uncertain. Anyone whos been at this for a while can tell
you that juries and judges sometimes surprise. We win (whatver that means) some cases we
should lose. We lose (whatever that means) some cases we should win. The jury, the judge,
the world sometimes just gets it wrong.
Accordingly, the decision to accept an offer from the other side is a complicated combination of prediction
of an uncertain future, the ability to convey the relevant information to the client, the other sides own
predictions and resulting offer (if any), the clients own inclinations and decision (it is his decision), and
the adversarys response to the clients decision.
Perhaps most importantly, however, its fundamental to any effective legal representation to understand
that lawsuits and prosecutions are not binary, win/loss situations. Overcoming binary thinking is, in
fact, one of the most important and difficult tasks in teaching first year law students. Its difficult enough
to get students to understand that the outcome of a case is the only thing that matters to a client, but
then also to get them to realize that the result is usually a whole lot more complicated matter than
merely stating that the plaintiff or defendant won or lost. (And its a shame that Remedies is one of
the most neglected courses in law schools these days.) Lets get this straight: Exxon won the litigation
which resulted in it paying over $500 million in punitive damages. Or, as Gamso so pungently puts it in
connection with criminal defense:
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[David] Dow tells of Van Orman, an innocent man on death row. He simply didnt commit
the crime. Hes also got mental retardation. Dow proves the retardation and gets him off the
row. Now the innocent man will do life in prison. But Im a death-penalty lawyer and Van
Orman wont get executed, so I count it as a victory. One of my clients committed suicide a
week before his execution. Thats a victory. Another died of AIDS. A victory.
You bet. I had a client who died of hepatitis right after I filed the papers asking the U.S.
Supreme Court to hear the case. He died before the state had a chance to reply, certainly
before the Court ruled. That goes down as a win. Thats how it works when youre doing
death penalty defense. Whenever the government doesnt murder your client, youve got a
win.
All of which is a way of saying that in this business, winning often isnt an all-or-nothing
proposition. Confession suppressed? Win. Even if the drugs arent suppressed? Yep. Just
not a complete win.
"Get some of the charges dismissed? Win. Even if the clients found guilty of some things?
Yep. Just not a complete win.
"Get a five year sentence? Win if the client might have gotten 8. Or 50.
"LWOP? Win if the alternative was death.
"Continuance? Hung jury? Wins. Even if theyre only temporary. (The old line is that
a continuance is as good as an acquittal - it just doesnt last as long.)
"Client goes home after a not guilty verdict? Big Win.
And on it goes.
The key isnt that what counts as a win depends. The key is that you need to have a
sense of things. (emphasis added)
Yes, the key is to have a sense of things. A win is getting the best outcome the circumstances permit
you to get for a client. Do human beings tend to be overconfident in their predictions? Cognitive science
establishes that does indeed seem to be the case, and as a lawyer you ought to be aware of it, and you
ought to be aware that your adversary shares the same bias, and you ought to be aware of the risks
associated with going to trial, and you ought to be aware of your clients fears and desires and his ability
to deal with risk and loss. You need to have a sense of an infinite number of things, and the better your
sense of these things is and the better you are at communicating them to your client, the better you will
be as a lawyer and the better the outcomes you will produce. Will you be able to tally those outcomes
as wins and losses? Only if you have a very flexible understanding of what constitutes a win or a loss.
Just say it! (2010-06-11 10:01)

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in
legalese. There could be few more difficult assumptions to overcome in educating new lawyers.
One of my more profound light bulb moments as a young lawyer came a few months into my first
job, after Id written the first draft of a brief for a partner. After hed had a chance to review the draft
he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time Id
virtually memorized. He asked me why I thought wed win. I glanced at the draft and he said, No. Put
it down. I want you to tell me in your own words, in plain English, without telling me what the cases
483
say. So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be
painstaking, that the simple plain English explanation would be followed with a discussion of each case
and the reasoning of each judge in each case, and then wed have to cobble all these pieces together . . .
In response to my plain English explanation, he said, Then why didnt you just say that? I blinked,
and asked in stupid amazement, I can do that? He laughed, and answered, Thats exactly what you
are supposed to do. Wow, just explain in plain English, without resort to legalistic rules and long chains
of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly
difficult one to grasp.
I was reminded of this today when I read the post at Lawyerist.com entitled Improve Your Legal
Writing: Just Say It:
Say what you want to say. Do not imply it, do not hint at it, just say it. This can be
difficult at times, but it will improve your writing, and make your arguments more persuasive.
Sunday afternoon music break: Paint it Black (Oil Spill Mix) (2010-06-13 16:56)
[EMBED] [EMBED]
Stealing what you love (2010-06-14 09:04)
John Pareles wrote, in Plagiarism in Dylan, or a Cultural Collage?,that [i]deas arent meant to be carved in stone and left inviolate; theyre meant to
stimulate the next idea and the next. Accordingly, in words apropos of a point Ive made over and over
and over on this blog, he explains:
iconoclasm, argument and extension, emulation and mockery
thats how individual artists
and the arts themselves evolve. Its a process that is neatly summed up in Mr. Dylans album
title Love and Theft, which itself is a quotation from a book on minstrelsy by Eric Lott.
(hyperlinks added)
484
Another masterful artist, David Foster Wallace, wrote, No one who is invested in any kind of art . . .
can read [Lewis Hydes book] The Gift and remain unchanged. It is Hydes thesis not merely that all
art builds on earlier art, but that it is precisely the artists recognition that his creations are gifts that
sustains his creativity. In other words, the capacity to create is a gift given to the artist and is given
only if the artist understands his own creations as gifts themselves that other artists can use themselves
in their acts of creation:
It is the assumption of this book that a work of art is a gift, not a commodity. Or, to
state the modern case with more precision, that works of art exist simultaneously in two
economics, a market economy and a gift economy. Only one of these is essential, however:
a work of art can survive without the market, but where there is no gift there is no art.
So it should be no surprise that Andreas Hykade entitled this brilliant video Love & Theft:
[EMBED]
Does Westlaw infringe a lawyers copyright in his legal document? This lawsuit wont
tell us. (2010-06-15 09:52)
The Lawyers Weekly reports that lawyer Lorne Waldman has filed a class action in Canada alleging that
Westlaw infringes the copyrights held in the documents lawyers file in court and that Westlaw publishes
through its online, for pay research service:
The Toronto lawyer contends that the defendants Westlaw Litigator service is infringing
his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in
PDF, Microsoft Word and other downloadable formats), and making available on-line for a
fee, more than 50,000 pleadings, court motions and facta the defendants recently copied from
civil court files across Canada.
The case raises interesting copyright questions, but I dont think the court will ever decide those questions.
A class action is a lawsuit brought on behalf of a group of people who have identical legal claims against
a defendant arising out of identical facts. Rules of court procedure allow cases to be aggregated promotes
efficiency by, in the words of Wikipedia, aggregat[ing] a large number of individualized claims into one
representational lawsuit. There is a strong incentive too for plaintiffs lawyers to bring class actions the
lawyers for the plaintiff who represents the class by running the lawsuit (typically, though not necessarily,
the plaintiff who brings the lawsuit) earn fees based on a percentage of the award given to the entire class.
Allowing this bonanza is a better idea than it sounds in many cases without the promise of the large
payday at the end of the case, no one would sue a large corporation like Westlaw individually because the
cost would be so great for a minuscule recovery. Thus, the class action device protects against corporate
activity that would cheat individual consumers out of small amounts.
Before a case that has been filed as a class action, like Mr. Waldmans, can proceed, however, the
court must determine whether it should proceed as a class action. If the court determines the case should
not be a class action, it will deny certification of a class of plaintiffs and the case, should it proceed, will
have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldmans,
and Im not sure its worth his while to litigate against a behemoth like the owners of Westlaw for the
relatively small recovery hed win even should he prevail.
Why do i think the court likely will not find Waldmans case suitable for class action treatment? Because
485
determining whether a given document is even entitled to copyright protection in the first place requires
close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the
less likely it will be deemed worthy of copyright protection.
In short, determining whether Westlaw infringes the copyright on a specific legal document requires
inquiry into the nature of that specific document. Examination of every document created by lawyers
and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action
is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified
as a class action.
Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if hes willing to go it
alone and establish both that his documents are entitled to copyright protection and that Westlaws
activities are an infringement of those copyrights.
Law students: what you learn is more important than your grade! (2010-06-16 08:42)
Ray Ward is a wise man. He sums up in a sentence what I often spend a year trying to get through to
my students:
What you learn in a course is more important than your grade for that course.
Its a particularly difficult point to get across to law students. One reason is that law school itself is packed
almost entirely with people who feel that theres a strong correlation between what youve learned, your
intelligence, and your grade. Virtually all law professors had the highest or near the highest GPAs in
their graduating classes from elite law schools. In my experience, people who succeed in an institution
tend to believe that institution is very good at measuring success. Thus, law professors tend to think
law school grades are good measure of success at learning law. And law students dont know any better.
They have no way to measure their success but grades. There is virtually no other feedback on their
performance and their progress.
Lawyers I know genuinely do feel differently that law school grades are poor predictors of success
as a lawyer, and what studies there are confirm that the typical predictors of law school success are not
good predictors of success in legal practice.
But its not easy getting that message across to law students, especially when your law professor colleagues
dont agree.
Students dont like professors who teach them the really difficult things.
(2010-06-18 15:08)
As I wrote the other day, one of my most difficult tasks as a teacher is to get students to focus on learning
rather than on grades, to try to master the skills I am teaching rather than insist on being told what
they need to know in order to get an A. In doing so, I may be insisting on what I ought to be insisting
on if in fact I am trying to advance my students on the exceedingly difficult road to becoming excellent
lawyers, but I may also be undermining my own professional advancement. How can that be? Well,
its been clear to me for a long time that I pay a price with students when I am unable to simply tell
them that they need to know and do A, B, and C to get a good grade. Those students give me terrible
evaluations. And, indeed, Ive found students tend to either love me or hate me. Those students who get
that Im pushing them to learn and do things theyve never been taught to do and learn before love me.
They realize learning is the result of the work they put into learning, not the result of what I give them
486
in nice, neat packages to regurgitate to me as information theyve memorized. But the bad evaluations
not only hurt; they have an impact in the evaluation of my performance that would perhaps astonish
those outside academia. (Why in the world would an organization give credence to the evaluations of
terrible students (whose evaluations, done anonymously, cannot be distinguished from the evaluations
of excellent students?)
And now I have evidence that my deep doubts about the reliability and use of student evaluations
are well founded. In a study entitled Does Professor Quality Matter? Evidence from Random Assignment of Students to Professors, (pdf) Scott E. Carrell of the University of California, Davis and National
Bureau of Economic Research and James E. West of the U.S. Air Force Academy conclude that students
give good evaluations to professors who teach students what they need for a good grade in their course
but punish professors who teach subject matter that provides knowledge and skills that have long-term
value:
[S]tudents appear to reward higher grades in the introductory course but punish professors
who increase deep learning (introductory course professor value-added in follow-on courses).
Since many U.S. colleges and universities use student evaluations as a measurement of teaching
quality for academic promotion and tenure decisions, this latter finding draws into question
the value and accuracy of this practice. (emphasis added)
Addendum: Stanley Fish expresses feelings similar to mine about students abilities to judge the quality
of teaching in connection with proposals in Texas for college and university teachers to contract with
their customers
that is, students
and to be rewarded by as much as $10,000 depending on whether
they meet the contract s terms. The idea is to hold tenured professors more accountable ( A &M regents push reforms, The Eagle, June 13, 2010), and what they will be accountable to are not professional
standards but the preferences of their students, who, in advance of being instructed, are presumed to be
authorities on how best they should be taught:
[S]ometimes (although not always) effective teaching involves the deliberate inducing of
confusion, the withholding of clarity, the refusal to provide answers; sometimes a class or an
entire semester is spent being taken down various garden paths leading to dead ends that require inquiry to begin all over again, with the same discombobulating result; sometimes your
expectations have been systematically disappointed. And sometimes that disappointment,
while extremely annoying at the moment, is the sign that you ve just been the beneficiary of
a great course, although you may not realize it for decades.
Needless to say, that kind of teaching is unlikely to receive high marks on a questionnaire
that rewards the linear delivery of information and penalizes a pedagogy that probes, discomforts and fails to provide closure. Student evaluations, by their very nature, can only
recognize, and by recognizing encourage, assembly-line teaching that delivers a nicely packaged product that can be assessed as easily and immediately as one assesses the quality of a
hamburger.
And I dont mean to suggest student evaluations are pointless. Like at least one commenter, I have
gleaned very valuable things from my student evaluations. But I know too that they are also rife with
the kind of hostility and irrationality that can only come from anonymity and the kind of profound
discomfort that can come from genuinely educational experience. Finally, I know too that everyone gets
negative student evaluations. The biggest problem is that the process of evaluating teachers has become
so dependent on evaluations that the availability of negative evaluations means that the evaluators always
have available evidence to support their desire to refuse promotion to a faculty member they dont like
for reasons that have nothing to do with the quality of their teaching.
487
Friday Night Innovation Night: If You Want to Sing Out, Sing Out (2010-06-18 17:45)
[EMBED]
Slow reading: one piece in a good readers arsenal. (2010-06-21 10:17)
I sometimes read very slowly, and sometimes very

quickly. It may be that attention spans are shrinking. I often have a difficult time getting my students to simply stop and think about what theyve read. And so Im all on board with the slow reading
movement:
The idea is not to read everything as slowly as possible, however. As with the slow food
movement, the goal is a closer connection between readers and their information, said John
Miedema, whose 2009 book Slow Reading explores the movement.
Its not just about students reading as slowly as possible, he said. To me, slow reading is
about bringing more of the person to bear on the book.
Even my 17 year old son makes fun of how slowly I read the many novels and history books Im always
trudging through, but, as I tell him, I tend to remember almost everything I read in those books. And
as I research, I come across articles and books I move very slowly through, trying to make sense of every
last word. It drives me particularly crazy when I ask my students what a new legal word means and none
of them know. How can they read law something theyre trying to learn without a dictionary and
without the effort to understand what it is theyre reading?
But sometimes I have to read quickly too. If you research a difficult legal question, youll often have to
read, literally, hundreds of cases. You dont engage in slow reading to find your way through hundreds
of cases to the handful that merit serious study and will genuinely help answer the question youre researching.
So, slow reading is good. So is fast reading, skimming. What makes a truly good reader is doing
both and deploying them effectively.
488
The good thing about being a lawyer is theres always someone to tell you youre
wrong. (2010-06-22 10:09)
Jeffrey R. Di Leo, Dean of Arts and Sciences at the University of Houston-Victoria, writes in In Praise
of Tough Criticism that academics are reluctant to criticize one another and that, as a result, their
disagreements are couched either in faint praise or anonymity, both of which neutralize the very disagreement that ought to be the foundation of intellectual life:
[G]iving faint praise is far worse than saying nothing at all. Why? Because silence is
not a critical judgment but faint praise, in contrast to honest and direct criticism, is empty
criticism, the most banal form imaginable.
Another way that compassionate, caring critics get around their credo is to shroud their
negative comments in anonymity. . . .
Like faint praise, anonymous criticism is empty criticism. Consider a recent example from
The Chronicle Review. Carlin Romanos article Heil Heidegger! was savaged in numerous
anonymous comments. Romano writes like an undergrad convinced by the argument of the
last book he has read, wrote one critic. And, yes, he is a professor of philosophy, and yes, he
was a Pulitzer Prize finalist, but his understanding of philosophy is so paltry that it beggars
belief. To that and other similar comments, Romano responded: Those who savage me and
my article from behind anonymous Internet tags emulate the cowardice, dishonesty, and taste
for mobbing of the Nazi thinker they revere. It has often been that way with dupes who
defend Heidegger an abysmal thinker and writer, an immoral monster, and a disgrace to the
historic enterprise of philosophy.
Whether or not one agrees with Romanos views of Heidegger, his take on anonymity is worth
thinking about. Anonymity has more in common with cowardice than with courage and
is antithetical to critical dialogue. The common rationale for academic anonymity is quite
clear: Honesty and truth require anonymity. To offer critical judgment anonymously, or, as
Michel Foucault puts it in The Archaeology of Knowledge (Pantheon Books, 1972), as a
nameless voice, allows one to stand outside the order of discourse, dialogue, and language.
Writes Foucault, I dont want to have to enter this risky world of discourse; I want nothing
to do with it insofar as it is decisive and final; I would like to feel it all around me, calm and
transparent, profound, infinitely open, with others responding to my expectations, and truth
emerging, one by one. In other words, anonymity is more calming and less risky or even
more cowardly than named criticism.
The inclination to pull ones punches, to refrain from stating straight out ones disagreement with ones
colleagues and the reasons for the disagreement, seems to me a particular problem in law schools. I always
tell my students that one of the blessings of being a lawyer is that theres always someone telling you
youre wrong, whether its your adversary, a judge, or even your client. That constant challenge to your
views forces you to both be as thoughtful and well-spoken as is possible, and it forces you too to trust in
your own judgment, not to defer always to authority. Lawyers disagree as a matter of professional duty.
If law professors refuse to voice disagreement, they are therefore doing their students a disservice. they
are like parents who model irresponsible behavior to their children.
Im not suggesting one not be civil. Nasty adversaries make wonderful work unpleasant. But professional adversaries are a pleasure. They recognize that disagreement is ones professional duty, and they
dont take your disagreement with them personally.
Addendum: Law professors dont like telling their students theyre wrong either.
489
Judge Dismisses Viacoms Lawsuit against Google for Infringing Videos Uploaded to
YouTube. (2010-06-23 17:40)
Judge Louis L. Stanton of the United States District Court for the Southern District of New York has
granted Googles motion for summary judgment (opinion and order embedded below) and dismissed
Viacoms lawsuit that alleged that that Google was liable under the Digital Millennium Copyright Act
(DMCA) for videos uploaded to YouTube that infringed Viacom s copyrights because Google had actual
knowledge and was aware of facts and circumstances from which infringing activity [was] apparent
but failed to act[] expeditiously to stop it, received a financial benefit directly attirubutable to the
infringing activity and had the right and ability to control such activity and did not engage in these
infringements solely by providing storage at the direction of the user or any other Internet function
specificied in the DMCA.
The decision is a straightforward application of the DMCAs safe harbor provision, which insulates
service providers from liability for activities by their users that infringe copyrights. The judge acknowledged that Viacom was right about its central contention: Google was not only aware of, but welcomed,
copyright-infringing material being placed on their website. (Opinion and Order at 6) Nonetheless, he
also noted that Google designates an agent who, when he receives a takedown notice, swiftly removes
infringing videos. (Id.)
The judge concluded that for Google to be liable under the DMCA Viacom would have to show more than
that Google knew that infringing activity in general was occurring on YouTube because the DMCA
does not require that degree of responsibility on service providers for the actions of its users:
To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover
which of their users postings infringe a copyright would contravene the structure and operation of the DMCA.
By insulating service providers from liability for infringements by their users, the Judge Stanton concluded, the DMCA makes perfect sense because it would be far too burdensome for the service provider
to make individual judgments on each of its user s activities to determine whether those activities were
infringing:
The infringing works . . . may be a small fraction of millions of works posted [on the
service provider s] platform, [and the service provider] cannot by inspection whether the use
has been licensed by the owner, or whether its posting is a fair use of the material, or even
whether its copyright owner or licensee objects to its posting. The DMCA is explicit: it shall
not be construed to condition safe harbor protection on a service provider monitoring its
service or affirmatively seeking facts indicating infringing activity . . . . (citations omitted)
Moreover, the fact Google took down over 100,000 videos within one business day in response to a single, mass take-down notice sent by Viacom was proof to Judge Stanton that the existing regime works
perfectly well:
Indeed, the present case shows that the DMCA notification regime works efficiently: when
Viacom over a period ov months accumulated some 100,000 videos and then sent one mass
take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.
Viacom v YouTube Summary Judgment [EMBED]
490
EMI goes Zombie:
its business is now owning and exploiting its copyrights.
(2010-06-24 10:45)
Ive written before that the publishing industry is a

walking corpse because the virtual monopoly the industry once had over the production and distribution of texts is gone:
The ways we produce, copy, and disseminate information have entirely changed. Anyone
sitting in a coffee shop can produce a document that looks as if it s been typeset. (And I m
sure my students have no clue what typesetting is.) That document can be copied at virtually
no cost, and disseminated world-wide at virtually no cost.
The same, of course, goes for the music industry. And now EMI is proving that it is no more than a
zombie preying off of the vitality of living art rather than producing life. As The Economist reports,
EMI is abandoning the business of producing music and instead converting to a business that exploits
intellectual property rights:
In recent days EMI s owner, Terra Firma, a private-equity firm, has had to pump in fresh
capital because it had breached its banking covenants. On June 18th it announced drastic
management changes and an important strategic shift. Two of its bosses, Charles Allen and
John Birt, will leave, and the head of EMI s music-publishing division, Roger Faxon, will
become chief executive of the whole company. EMI also announced that it would reposition
itself as a comprehensive rights-management company serving artists and songwriters worldwide . Rough translation: owning and exploiting the copyright to songs, rather than selling
recordings of songs, is where the money s going to be from now on.
Viacoms
schizophrenia
over
YouTube:
the
industry
cries
serial
killer!
(2010-06-25 17:09)
Does YouTube threaten the entertainment industry? On the one hand, Viacom and others will scream
that it threatens the very livelihood of those who produce our entertainment. On the other, Viacom and
others use it effectively to promote their products. And would you really prefer a regime that required
YouTube to approve the legitimacy of every video uploaded to it? Frankly, it simply wouldnt exist if that
were required. To me it makes sense that if a copyright holder believes his copyright is being infringed by
an online video, he can have it removed upon request. And if the person who uploaded the video believes
the request is mistaken, he can ask Google to review it and make its determination at that point whether
it will allow it to remain.
Moreover, history teaches that you should view with extreme skepticism the cries of alarm from the
491
entertainment industry. In doing so, you likely would be doing them a favor.
As I wrote the other day in connection with the decision dismissing Viacoms lawsuit against Google
alleging copyright infringement for the posting on YouTube of videos infringing Viacoms copyrights, As
I wrote above, the existing regime makes sense to me and, as I wrote in that recent post, [t]he decision
is a straightforward application of the DMCA s safe harbor provision, which insulates service providers
from liability for activities by their users that infringe copyrights. Viacom, of course, disagrees, stating
in its press release:
We believe that this ruling by the lower court is fundamentally flawed and contrary to the
language of the Digital Millennium Copyright Act, the intent of Congress, and the views of
the Supreme Court as expressed in its most recent decisions. We intend to seek to have these
issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.
And those who represent the interests of large corporate copyright holders such as Viacom, like the
Washington Legal Foundation (whose mission is to champion free market principles [and] limited and
accountable government) argue that the decision allows Google to exploit the statute s safe harbors by
designing an entire business model based on improperly profiting from copyrighted content. Ronald Cass
writes in Forbes that the decision is broad enough to sink the protection copyright holders had enjoyed
under the law. And the Directors Guild of America claims its members very livelihoods are at stake:
We fear that the precedent established in this ruling, if not overturned by the appeals
court, could result in a drastic rising tide of Internet theft that could decimate our members
livelihoods, their pension and health plans, and their ability to continue creating the content
that is beloved by people all over the world.
Reading these dire warnings you might not realize that as the judge stated in his decision Google took
down the offending videos the day after Viacom delivered a mass takedown notice identifying the ones
it claimed a copyright in. Nor would you realize that Viacom recognized the value of YouTube to its
business by employing people to post its videos to YouTube to promote its productions while at the same
time other Viacom employees were adding those same videos to the list for the takedown notice:
For years, Viacom continuously and secretly uploaded its content to YouTube, even while
publicly complaining about its presence there. It hired no fewer than 18 different marketing
agencies to upload its content to the site. It deliberately roughed up the videos to make
them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even
sent employees to Kinkos to upload clips from computers that couldnt be traced to Viacom.
And in an effort to promote its own shows, as a matter of company policy Viacom routinely
left up clips from shows that had been uploaded to YouTube by ordinary users. Executives
as high up as the president of Comedy Central and the head of MTV Networks felt very
strongly that clips from shows like The Daily Show and The Colbert Report should remain
on YouTube.
Viacoms efforts to disguise its promotional use of YouTube worked so well that even its
own employees could not keep track of everything it was posting or leaving up on the site. As
a result, on countless occasions Viacom demanded the removal of clips that it had uploaded
to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of
the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
492
Fear that directors will have their livelihoods decimated and that the decision sinks copyright protection
is of course, nothing new for an entertainment industry that can profit enormously from new technologies
they demonize, so Viacoms schizophrenia is, perhaps, progress over Hollywoods reaction to the VCR,
which was 100 % self-destructive. In 1982, Jack Valenti, in sworn testimony before Congress , stated
that the VCR is to the American film producer and the American public as the Boston Strangler is to
the woman home alone. But, as Digital America explains, Valenti was not merely crying wolf he was
describing the greatest benefit to the movie industry in the last 40 years as a serial killer:
As the VCR became more important to the consuming public, the Hollywood establishment that fought it bowed to its inevitable benefits. In January 1984, the U.S. Supreme Court
concluded 5-4 that VCRs were legal products and that home taping of copyrighted works fell
under the fair use exception to copyright. While Congress passed the Audio Home Recording Act of 1992 (AHRA), legislative attempts to codify the Betamax decision and fair video
recording rights are still pending before Congress. CEA (at that time known as the Consumer
Electronics Group of the Electronic Industries Association), in cooperation with the Home
Recording Rights Coalition, protected the legality of home recording and promoted the acceptance of the new technology.
Additionally Hollywood studios established home video divisions to reap the profits from
a technology it once considered a threat. Blays idea sparked a retail revolution as hundreds
of mom-and-pop video rental and sales stores popped up in every community in America. In
1987, video rental income reached $5.25 billion for the year, surpassing movie theater ticket
sales for the first time. Today, movie studios regularly make more money on a film from home
video sales and rentals than from the theatrical box office.
If Girl Talk does get sued, Id love to represent him. (2010-06-28 07:11)
Greg Gillis and I see things very similarly, and Im a big fan too:
[EMBED]
Khan Academy:
an invaluable new resource in your effort to learn everything
(2010-06-29 08:40)
As Ive written before, good lawyers need to know everything. In other words, your professional life is
a constant and endless process of learning. One of the foremost skills you bring to your clients is an
ability to become fluent in their affairs and to be able to communicate your understanding of those affairs
clearly, concisely, and persuasively to audiences who may never have encountered those things.
Libraries, of course, are therefore invaluable. And the internet is a miracle. But still, finding the right
resources to learn a particular topic is difficult. I came out of college and law school knowing Latin and
Ancient Greek and a lot of history and literature, but I needed to learn an awful lot very quickly about
things like finance, insurance, economics, and business, and the effort to educate myself was an adventure.
The internet has, of course, only multiplied the tedious, obscure, and downright erroneous authorities.
So I am always thrilled to find a source that speaks to me and genuinely teaches me. And I am thrilled
to have found Khan Academy. As the home page explains:
The Khan Academy is a not-for-profit organization with the mission of providing a high
quality education to anyone, anywhere.
493
We have 1400+ videos on YouTube covering everything from basic arithmetic and algebra
to differential equations, physics, chemistry, biology and finance which have been recorded by
Salman Khan. . . .
The Khan Academy and Salman Khan have received a 2009 Tech Award in Education. The
Tech Awards is an international awards program that honors innovators from around the
world who are applying technology to benefit humanity.
Here is Mr. Khans introductory video:
[EMBED]
3.7
July
Was Kagan forthcoming? So far it seems to depend on whether you thought shed
be. (2010-07-01 13:06)
I suggested about 7 weeks ago that Elena Kagan might be more forthcoming in her confirmation hearings
about the substance of her legal views than has any nominee since Robert Borks nomination was rejected
over 20 years ago. Now that the hearings are complete, my colleague on the Case Western Reserve Law
School faculty, Jon Adler, voiced what seems to be the common wisdom iyesterday Kagan continued
in the recent tradition and avoided answering direct questions:
Wednesdays hearings offered more of the kabuki theater we have come to expect from
Supreme Court confirmation hearings. Senate Republicans tried to elicit evidence she would
be a doctrinaire liberal on the court, with little success. Peppered with questions on topics
from Habeas Corpus and the Commerce Clause to gun rights and gay marriage, Kagan refused
to show her hand.
Jeffrey Rosen, however, has what seems to be a very different view, that [f]ar from turning into a vapid
and hollow charade, to use Elena Kagan s now-famous condemnation of other Supreme Court confirmation hearings, her own have been impressively substantive.
Kagan, of course, did refuse to answer any questions regarding how she would rule in pending or future cases. As a lawyer, I would expect nothing else. No responsible legal mind would prejudge a case
before allowing the lawyers for the parties to the case present their evidence and arguments to the court.
Only law professors think legal questions can and ought to be decided based on the possible circumstances
and arguments they can imagine without input from people whose lives will genuinely be affected by the
decisions.
As Rosen points out, Kagan was asked about and did answer that she considered certain matters that
existing precedent ignores important, no small thing. Thus, for example, Kagan was asked whether the
decision in New York Times v. Sullivan, which insulates from liability false statements about public
figures unless they are made with knowledge of their falsity, is sufficient in an age of social media and
blogging. Kagan first graciously stated that I think people should be able to write anything they want
about me, and I don t think that I should be able to sue them for libel (again, no small thing), but then
acknowledged that the legal system does have to recognize the reality of harm posed by current media:
Even as we understand the absolute necessity for a kind of New York Times versus Sullivan
sort of rule and for protection of speakers from libel suits, defamation suits, even as we
494
understand that, we should also appreciate that people who did nothing to ask for trouble,
who didnt put themselves into the public sphere can be greatly harmed when something goes
around the Internet and everybody believes something false about a person. Thats a real
harm. And the legal system should not pretend that its not.
As a lawyer I respect the nuances she displayed on issues pertaining to gay rights, though its plain to
me too that people with fixed views on these matters would like her to share their fixed views.
After I have had a bit of time to review the transcript of the hearings, I hope to include my own
evaluation of her performance.
Happy Independence Day from Johnny Cash (2010-07-04 11:39)

[EMBED]
Professors, replace your textbooks! (2010-07-05 08:32)

If the book industry is changing, it can only be for the good as far as law school texts are concerned.
The books are huge, large parts of them are left unassigned in many courses, and they are ridiculously
expensive. And to the surprise of most non-lawyers, they are largely useless outside of law school; one
does not refer to ones casebooks when doing legal research as a lawyer.
As David W. Lewis writes, what is true for law school texts is true for all textbooks:
It is clear to anyone who looks at the state of textbooks today that the system is broken.
It does not work well for anyone, but it is especially hard on students, who typically pay
$1,000 a year or more for textbooks.
And so, [e]veryone with a financial stake in the textbook business is looking for a new model. That is
especially true for publishers, but also for bookstores and authors. Among Lewiss suggestions are the
following:
" Encourage and embrace rental programs.
" Establish metrics for textbook costs and goals for their reduction.
" Set up an investment fund that would allow faculty members, programs, and departments
to acquire or create alternative content.
I have made some progress (not much, but far more than most) in creating alternative content.
Cuckoo Kookabura Continues (2010-07-06 17:47)

The travesty continues first, there was the court decision in Australia finding Men at Work liable for
copyright infringement for appropriating a riff from the Australian chestnut Kookaburra Sits in the Old
Gum Tree in their 1981 #1 hit Down Under. Now the judge has ordered the group to pay 5 percent of the
royalties it earned from the song. I suppose its better than the 60 % the publishing company that owns
the copyright sought. Kookaburra, incidentally, was composed over 70 years ago, and its composer died
22 years ago. It doesnt appear, in short, that the copyright here is serving to motivate creation; rather,
its serving as a disincentive Down Under stood on its own as an Australian anthem. As Wikipedia
reports:
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The song is a perennial favourite on Australian radio and television, and topped the charts
in the U.S. and U.K. simultaneously in early 1983. It was later used as a theme song by the
crew of Australia II in their successful bid to win the Americas Cup in 1983.[citation needed]
Men at Work played this song in the closing ceremony of the 2000 Sydney Olympics, alongside other Australian artists. It was also often played after Australian athletes had received
medals during competition, as they walked around the venue on a parade lap after the medal
ceremony.
In May 2001, Australasian Performing Rights Association (APRA) celebrated its 75th anniversary by naming the Best Australian Songs of all time, as decided by a 100 strong industry
panel, Down Under was ranked as the fourth song on the list.[5]
In October 2006, Triple M had the Essential 2006 Countdown of the most popular songs of
all time, voted by the listeners. Down Under was the number 3 voted/ranked song.[citation
needed]
The song was voted #96 on VH1s 100 Greatest Songs of the 80s.[when?]
The song has been used as the entrance music for various professional Australian sportsmen, including darts player Simon Whitlock, cruiserweight boxer Danny Green (for his fight
against Roy Jones, Jr. on 2 December 2009) and snooker player Neil Robertson.
The song was played extensively during the September 2009 One-Day International cricket
series between England and Australia, which Australia took by six matches to one.
Moreover, as Ive previously noted, the Sydney Morning Herald reported that [t]he key, harmony, structure and rhythm of Down Under s famous riff changed the sound of it so much that nobody not the
band, [the managing director of the company that owned the copyright to Kookaburra], or even five out
of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.
And to the extent the riff is recognizable it is doing what a quotation does in a piece of art using
a culturally resonant symbol to sound that resonance.
At least Men at Work is going to appeal the decision.
[EMBED] [EMBED]
When someone tells you they have an objective method of judging value, run!
(2010-07-08 11:45)
One of the reasons I find disputes concerning the authenticity and provenance of works of art so fascinating is that the art market often magnifies the subjectivity and volatility that all markets are subject
to. In practice 20 years ago I often deposed investment bankers at great length on their methods and
judgments in valuing companies. I was always amazed at the subjectivity that went into numbers that
got translated into hard dollar amounts that investors treated like objective, indisputable measures of
value. Now, in a fascinating piece in the New Yorker, David Garan writes about
Canadian forensic art expert named Peter Paul Biro, who, during the past several years,
has pioneered a radical new approach to authenticating pictures. He does not merely try to
detect the artist s invisible hand; he scours a painting for the artist s fingerprints, impressed
in the paint or on the canvas. Treating each painting as a crime scene, in which an artist has
496
left behind traces of evidence, Biro has tried to render objective what has historically been
subjective. In the process, he has shaken the priesthood of connoisseurship, raising questions
about the nature of art, about the commodification of aesthetic beauty, and about the very
legitimacy of the art world. Biro s research seems to confirm what many people have long
suspected: that the system of authenticating art works can be arbitrary and, at times, even
a fraud.
Of course, as Garan writes, the desire to replace subjective judgment regarding the authenticity of artworks with some objective scientific method is longstanding:
The desire to transform the authentication process through science to supplant a subjective eye with objective tools was not new. During the late nineteenth century, the Italian art
critic Giovanni Morelli, dismissing many traditional connoisseurs as charlatans, proposed
a new scientific method based on indisputable and practical facts. Rather than search a
painting for its creator s intangible essence, he argued, connoisseurs should focus on minor
details such as fingernails, toes, and earlobes, which an artist tended to render almost unconsciously. Just as most men, both speakers and writers, make use of habitual modes of
expression, favorite words or sayings, that they employ involuntarily, even inappropriately, so
too every painter has his own peculiarities that escape him without his being aware, Morelli
wrote. He believed that not only did an Old Master expose his identity with these material
trifles ; forgers and imitators were also less likely to pay sufficient attention to them, and thus
betray themselves. Morelli became known as the Sherlock Holmes of the art world.
To many connoisseurs, however, the nature of art was antithetical to cold science. Worse,
Morelli made his own share of false attributions, prompting one art historian to dismiss him
as a quack doctor.
But Garans article reveals that Biro may not be all hes cracked up to be. Neither are objective methods
of valuing business.
Court decides federal government cannot refuse to give legal effect to state laws that
recognize same sex marriage. (2010-07-08 20:43)
A federal court in Massachusetts today struck down the Defense of Marriage Act (DOMA), which states
that for purposes of determining rights to federal benefits the word marriage means only a legal union
between one man and one woman as husband and wife, and the word spouse refers only to a person
of the opposite sex who is a husband or wife. A copy of the decision is here (pdf). In passing DOMA,
Congress had, in the words of the laws legislative history, sought a means to both preserve[] each State s
ability to decide what should constitute a marriage under its own laws and to lay[] down clear rules
regarding what constitutes a marriage for purposes of federal law. (Opinion at 3)
In other words, Congress acknowledged and no one disputes that states have the exclusive right to
define what marriage is. Nevertheless, in response in particular to the decision of the Hawaii Supreme
Court to recognize the right of same sex couples to marry one another in Baehr v. Lewin (a/k/a Baehr
v. Miike), Congress expressed concern that the redefinition of marriage at the state level to include
homosexual couples could make such couples eligible for a whole range of federal rights and benefits.
That indeed is the case. As the court stated, [t]here can be no dispute that the subject of domestic
relations is the exclusive province of the states. And so if you are entitled to a benefit under federal law
as a spouse, whether or not you are a spouse is determined by the state in which you were married.
Again, as the court stated, there is no federal law of domestic relations. (Opinion at 29) Thus, even
though individual states have often differed in what they have defined as marriage, federal rights based
497
on marriage have always depended on those individual state determinations:
Indeed, pursuant to the sovereign power over family law granted to the states by virtue of
the federalist system, as well as the states well-established right to experiment[] and exercis[e]
their own judgment in an area to which States lay claim by right of history and expertise,
individual states have changed their marital eligibility requirements in myriad ways over time.
And yet the federal government has fully embraced these variations and inconsistencies in state
marriage laws by recognizing as valid for federal purposes any heterosexual marriage which
has been declared valid pursuant to state law. (Opinion at 29)
In fact, before the Supreme Court in 1967 ruled that state laws outlawing interracial marriage were
unconstitutional (in Loving v. Virginia), federal law deferred to state law on marriage and refused to
recognize interracial marriages in those states which made them illegal. Importantly, the passage of
DOMA marks the first time that the federal government has ever attempted to legislatively mandate a
uniform federal definition of marriage or any other core concept of domestic relations, for that matter.
(Opinion at 30)
It will be interesting to see if those who usually tout states rights come down hard on this decision,
which merely binds the federal government to the deference to state law on matters it has always deferred to the states on.
Plagiarizing about Plagiarism (2010-07-09 11:03)

You could write a column entitled When it comes to songwriting, theres a fine line between inspiration
and plagiarism any day of the week, and I believe I have, though I only stole the idea from the KLF (or
Negativland or Bob Dylan, or Jim Jarmusch or Jonathan Lethem or David Shields or David Markson or
Shepard Fairey or . . . )
[EMBED] [EMBED] [EMBED] [EMBED]
Faireys Obama Hope poster copied nothing from Garcias photo that could be copyrighted. (2010-07-12 10:09)
Ive made clear my view that Shepard Faireys Obama

Hope poster does not infringe the copyright in the photograph that Fairey used as the source of the image
because it is so transformative of the image imagine the impact a poster of the original photograph
with the word Hope emblazoned on it might have had and then consider the question. Remember, too,
that Manny Garcia, who took the photograph, did not recognize that his photo was the source of the
posters image for months after the poster rose to prominence; in fact, someone else made the identification.
Ive also, however, contended that the poster is not infringing because it did not appropriate elements of
498
the photograph that can be considered sufficiently original to even be protected by copyright. And now
Ive come across a case that applies precisely this thinking to a very similar dispute.
In Reece v. Island Treasures Art Gallery, Inc., 468 F. Supp. 2d 1197 (D. Hawaii 2006), the court
ruled that a stained glass artwork entitled Nohe did not infringe the copyright in a photograph entitled
Makanani despite the fact both works depict, from the same angle, a woman kneeling on Oahus Kailua
beach performing an ike motion from the hula noho (sitting) position. The two images are pictured
above.
The court recognized that some parts of the photograph could be copyrighted, but only those that
are the result of the photographer s creative decision-making:
[T]he creative decisions involved in producing a photograph may render it sufficiently

original to be copyrightable and [courts] have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectible elements of a
photographers work. Los Angeles News Serv. v. Tullo, 973 F.2d 791, 794 (9th Cir.1992)
(citation and quotation signals omitted). The court concludes, for the purposes of the instant
motion, that [the] photograph is copyrightable, although elements derived from the public
domain or otherwise unprotected by copyright cannot serve as the basis of [an infringement]
claim.
Another way of putting it is that [t]he protectable elements of a photograph generally include lighting,
selection of film and camera, angle of photograph, and determination of the precise time when the photograph is to be taken. (citation omitted). But the stained glass window of the dancer in the identical
position did not appropriate a sufficient amount of the original elements of the photograph because the
stained glass image has none of the detail of the person or of the background of the photographer and
the sepia tone of the photograph is so very different than the vibrant colors of the stained glass:
Although the position of the dancer in the ike motion is common to both artworks and
both are set on Kailua beach, they cannot be described as substantially or virtually identical.
The appearance of the dancers is different; notably, the absence of detail in the stained glass.
The dancer represented in [the stained glass image] has no facial features, hand details, or
muscular differentiation, but simply shows the outline of the body. The mountains and ocean
dominate the upper half of the stained glass, but not the photograph. The dancers hairstyles
are notably different lengths and shapes.

Finally, the sepia tone of the photograph is markedly contrasted by the vibrant colors of the
stained glass.
One can easily see, I think, how this reasoning is applicable to the comparison between Garcia s photograph and Fairey s poster. While the position of Obama s face is virtually identical in both, Fairey s
499
image has none of the detail the photograph shows from the face, Obama s suit or the background shown
in the photograph. In fact, the poster entirely changes these details by transforming them into a stylized
combination of red, white, and blue. Moreover, it is plain the colors of the photograph are in marked
contrast to the colors of the poster.
Legal decisions based on what the law is not the permission culture and copyright
overclaiming (2010-07-13 07:27)
One thing law students dont get at all is the ways lawyers negotiate a world in which legal decisions are
based on what the law is not.
Mike Masnick over at techdirt, , writing about the Permission Culture (that is, the culture that insists
that sampling and quoting should only be done with permission), puts his finger directly on one of the
biggest problems the fear of even frivolous lawsuits, even by big publishing concerns, prevents writers,
musicians, and artists from quoting, sampling, and appropriating parts of copyrighted works they dont
need permission to take:
The unfortunate reality these days is that publishers wont touch such quotes without
permission being granted. Its almost impossible to find a publisher these days that would
sign off on even that snippet of eight words, claiming that they dont want the liability of a
lawsuit. Ive had this discussion a few times with authors and publishers, and they all say
the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be
fair use, its just not worth using the quote. In fact, we discussed this point here last year,
where we wrote about an author who had to drop an entire section of a book, because of a
few short quotes. Clear fair use... but his publisher wouldnt touch it.
I would suggest too that one reason publishers wont publish books without permission for the use of
quotations is that they perceive it to be in their interests not to do so. That way, other publishers will
ask and pay for permission to use quotations from their own books. That is why, I am convinced, the
music industry never has seriously challenged lower court decisions requiring permission (and, presumably, payment) for the use of any recorded sample the practice makes each companys record vaults
sources of income.
The problem, of course is exacerbated considerably because the wealth and of the corporate conglomerates
that own so much of our intellectual property. Who is going to fight Disney, even if he s right? Another
problem is the widespread ignorance in the media about copyright. As Richard Posner has written, the
fear of litigating against rich copyright holders who place a premium on their fear of losing something of
value leads to behavior based on law that isnt at all what the law is supposed to be:
Look at the copyright page in virtually any book, or the copyright notice at the beginning
of a DVD or VHS film recording. The notice will almost always state that no part of the
work can be reproduced without the publisher s (or movie studio s) permission. This is a flat
denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks
receiving a threatening letter from the copyright owner. He doesn t know whether he will be
sued, and because the fair use doctrine is vague, he may not be altogether confident about
the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc.
and he will find that his publisher or studio is a strict copyright policeman. That is, since
a publisher worries about expansive fair uses of the books he publishes, he doesn t want to
encourage such uses by permitting his own authors to copy from other publishers works. So
you have a whole law in action law invented by publishers, including ridiculous rules such
as that any quotation of more than two lines of a poem requires a copyright license.
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Donald Rosenbergs lawsuit against the Cleveland Orchestra goes to trial, but stupidity is not an actionable offense. (2010-07-15 12:07)
Back in 2008 I wrote about Donald Rosenbergs lawsuit against the Plain Dealer, the Cleveland Orchestra, its conductor Franz Welser-Mst, and members of both organizations. Rosenberg alleges that
the defendants engaged in a conspiracy to remove him as the Plain Dealers music critic. As the Plain
Dealer reports, the trial of Rosenbergs claims began this week. Apparently, Rosenberg has amended his
complaint since he originally filed the lawsuit to add an age discrimination claim:
Rosenbergs complaint against the newspaper is that his reassignment was an act of age
discrimination and that the paper retaliated against him for filing the lawsuit by preventing
him from even mentioning the orchestra in the course of his reporting.
My guess is that the age discrimination claim against the newspaper was added because there was no
breach of contract that resulted from the newspapers reassignment of Rosenberg to a different beat. He
might not have liked it, and, indeed, the move might have been monumentally stupid, but there is no legal
right to recover damages for being treated stupidly. I really dont see the connection, though, between
the age discrimination claim and what Rosenberg alleges the newspaper did wrong in caving to pressure
from the Cleveland Orchestra, which did not like Rosenbergs scathing reviews of the orchestra under
Welser-Msts direction. If they reassigned him because of the complaints, how does that constitute a
reassignment based on Rosenbergs age (57)?
As to the claims against Welser-Mst, the Cleveland Orchestra, and other Orchestra employees, I will
assume that Rosenbergs lawyer is telling the truth when he explained to the jury in his opening statement
that the Orchestra had waged a campaign to get Rosenberg removed from the orchestra beat, that the
Plain Dealer caved into that pressure, and that the case about powerful and influential people in the
community trying to manipulate the news.
Which confirms that in the words of Baltimore Sun classical music critic Tim Smith, as reported
in the Cleveland Scene the Plain Dealer and the Cleveland Orchestra look ridiculous in their hamhanded efforts to influence the publics opinion of the Orchestra:
It looks ridiculous, [Smith] says of the fracas. You wouldnt dream of doing this to
your political commentator because he attacks the mayor week in and week out, or your local
sports team. Who hasnt been in a town with a sports columnist who is constantly knocking
the hell out of the coach of the football team? And who then would take him off that beat?
As Smith wrote in 2008, both the Plain Dealer and the Orchestra have had their credibility irrevocably
damaged:
In the end, it may not matter too much who led the charge, who exerted influence, who
gave in to pressure or doubt. The damage has been done. Zach Lewis, who has been told he
will now cover the Cleveland Orchestra for the paper, is a good guy and good writer placed
in an impossible situation. If he says positive things about Welser-Most, some people will
think hes just doing that to keep his job. If he says negative things, some people will think
hes under Dons influence and will have to be replaced, too. As I said before, the Cleveland
Orchestra and the Plain Dealer are worse off, not better off, as a result of this controversy.
Music and journalism have taken a painful hit.
But if you could sue someone for doing something monumentally stupid that damaged their credibility
and that you didnt like, Northeast Ohio would have filed a class action lawsuit last week against LeBron
501
James. As I stated above, I dont see what legal duty the Plain Dealer violated in reassigning Rosenberg.
And as long as what the Orchestras employees said about Rosenberg was truthful or a matter of opinion,
there is no legal claim against them either. As the Orchestras lawyer put it to the jury:
Don Rosenberg had a mighty bully pulpit to print whatever he thought of Franz WelserMost and [the defendants] were only using the pulpit available to them by contacting newspaper editors to complain about Rosenbergs coverage of the orchestra.
Finally, even if Rosenberg can establish that employees of the Orchestra lied about him, he needs to
prove that he has suffered damages that is, he must establish that he has suffered some loss that can be
compensated with money. He hasnt lost any income as a result of his reassignment by the Plain Dealer.
And, indeed, his prominence as a music critic should he wish to engage in music criticism in places
other than the Plain Dealer only seems to have been increased.
Harvey Pekar, R.I.P. (2010-07-15 13:47)
Anthony Bourdain says it as well as anyone:
. . . Harvey captured and chronicled every day what wasand will always bebeautiful
about Cleveland: the still majestic gorgeousness of what once wasthe uniquely quirky charm
of what remains, the delightfully offbeat attitude of those who struggle to go on in a city they
love and would never dream of leaving.
What a two minute overview might depict as a dying, post-industrial town, Harvey celebrated as a living, breathing, richly textured society.
A place so incongruously and uniquely...seductive that I often fantasize about making my
home there. . . .
A few great artists come to own their territory.
As Joseph Mitchell once owned New York and Zola owned Paris, Harvey Pekar owned not
just Cleveland but all those places in the American Heartland where people wake up every
day, go to work, do the best they canand in spite of the vast and overwhelming forces that
conspire to disappoint themgo on, try as best as possible to do right by the people around
them, to attain that most difficult of ideals: to be good people.
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Goldman Sachs is a bunch of big fat liars. (2010-07-15 21:18)
Lets make sure we understand why Goldman Sachs was willing to pay $550 million to settle the SECs
lawsuit against it one of the largest penalties ever paid by a Wall Street Firm. Goldman Sachs committed fraud to get investors to buy into a fund of securities. It isnt even a difficult fraud to understand.
Goldman agreed with John A. Paulson, a prominent hedge fund manager who earned an estimated
$3.7 billion in 2007, that Paulson could choose the particular mortgage-backed securities that Goldman
would sell. Paulson chose securities he knew would default. At the same time he bought credit default
swaps on those same securities in essence, insurance policies that would pay him the value of those
securities if they defaulted. In short, he chose the securities for the fund because he knew they would fail
and their failure would profit him mightily.
Goldmans problem, of course, is that no one would buy the securities if they knew Paulson had chosen
them. As the complaint filed in the case by the SEC (embedded below) states: Goldman knew that
it would be difficult, if not impossible, to sell the securities in the fund if they disclosed to investors
that someone who had shorted the securities, such as Paulson, played a significant role in selecting
the securities.
So Goldman went out and got ACA Management LLC, a company with experience in analyzing the
credit risks associated with funds like that it was selling, to agree to be Portfolio Selection Agent
that is, to represent itself as the entity that had chosen the securities Goldman was selling. Of course,
ACA was not the Portfolio Selection Agent, but Goldman knew what it needed. As Goldmans Fabrice
B. Tourre wrote in a memo:
One thing that we need to make sure ACA understands is that we want their name on
this transaction. This is a transaction for which they are acting as portfolio selection agent,
this will be important that we can use ACA s branding to help distribute the bonds.
Tourre later wrote in another memo:
We expect to leverage ACA s credibility and franchise to help distribute this Transaction.
Im happy to learn that the settlement does not include any agreement with Tourre personally. One thing
I wonder, though: wasnt Paulson part of a conspiracy to defraud investors? Why has he gotten to go
off with his billions untouched by the SEC?
S.E.C.s Civil Lawsuit Against Goldman Over C.D.O [EMBED]

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Art for Justice: Harvey Finkle (2010-07-19 17:12)
Art genuinely does have the power

to advance justice. A body of work that does just that is on display right now at Painted Bride Art Center in Philadelphia, which is exhibiting the work of Harvey Finkle, a documentary still photographer
who has produced a substantialbody of work concerned with social, political, and cultural issues. As
explained on Finkles web site:
His recent work includes a documentation of the Kensington Welfare Rights Union
(KWRU), a poor peoples movement emanating from the poorest neighborhood in Pennsylvania; and The Jews of South Philadelphia, interviews and photographs of the remnants
of what once was among the largest Jewish communities in the nation.
His ongoing work includes documenting the activities of many progressive organizations including a death penalty abolitionist group, ACT-UP, ADAPT (disabled activists), KWRU,
and other groups concerned with housing and homelessness. Also, his work includes an extensive inventory of images depicting all aspects of life in Deaf culture, plus a substantial
collection of photos dealing with education.
504
Works in progress are about the new wave of immigrant and refugee families who have settled
in urban areas and the evolving Transgender community.
[EMBED] (hat tip to the art blog)
Creative Commons licensing is a simple and straightforward application of traditional

legal concepts, but the perception it is something more and even radical is partly the
fault of Creative Commons. (2010-07-20 00:22)
Much has been written about the absurdity of ASCAPs fundraising letter that claims that Creative
Commons, among others, is mobilizing to promote Copyleft in order to undermine our Copyright and
that [i]f their views are allowed to gain strength, music creators will find it harder and harder to make
a living as traditional media shifts to online and wireless services. We all know what will happen next:
the music will dry up, and the ultimate loser will be the music consumer.
As Drew Wilson explains, this description of Creative Commons is ridiculous. And it is. But let me
explain why I think in part Creative Commons has made the perception of what it does murkier than
need be.
Last year I spent a day at the invitation of a professor at Wooster College lecturing on and discussing
copyright with a number of his students. The students were terrific bright, imaginative, and enthusiastic. At the end of the day we had a two hour, informal discussion section, and finally they were able
to pin me down to explain what a few throughout the day had wanted me to explain: what is Creative
Commons all about? I hadnt responded to the question earlier because we had so much to cover in a
very limited amount of time and it just didnt seem like that big of a deal or that complicated to me.
But I realized the simplicity of a Creative Commons license had escaped them.
All a Creative Commons does is provide suggested language to anyone who creates copyrighted content that will alert those who use the content whether and under what conditions the creator will allow
those users to re-use the content without worry of copyright infringement. If I were to post on my blog
that anyone may use any or all of my writing for any purpose provided that in doing so they credit me,
make clear what words are mine, and provide hyper-links back to the posts they are using, I would not
thereafter be able to sue anyone for copyright infringement who had complied with my conditions. By
posting those instructions, I would have made an offer that use under those conditions was permissible.
The use by someone of the material in compliance with those conditions would be an acceptance of the
offer that would create a binding contract. That contract would bind me to my promise not to consider
that use an infringement.
Its no more complicated than that. Creative Commons provides here a menu of restrictions you might
want to put on the use of your creation and the language that will enforce your promise not to consider
use that complies with those restrictions.
But somehow the whole enterprise has been perceived to be something much more profound. First
theres the name Creative Commons which in the current political environment evokes misbegotten
fears of socialism and even communism that naturally enough feed rhetoric that accuses comrades of
the CopyLeft of stealing artists precious Property.
Good god, were just talking contract language that copyright holders can use to make explicit to consumers the extent those consumers can feel comfortable re-using the copyrighted works in ways they are
certain are consistent with the copyright holders desires. This has nothing to do with a commons except in that any published, copyrighted work is part of what some people call our intellectual commons.
505
One should also note that even if someone includes with their work a Creative Commons license (or
language they draft themselves) that states that re-use under certain conditions will not be considered an
infringement, that does not mean that such a re-use would necessarily be an infringement in the absence
of that language. Some stuff I post is not original enough to be subject to copyright. Some stuff I post
can be re-used in ways that constitute fair use. Just because Ive told you that youre free to re-use my
stuff as long as you give me credit and a hyper-link doesnt mean, in other words, that if you dont give
me credit or a hyper-link youve infringed my copyright. That would depend on copyright law. But if
you did follow my instructions, your worries would be over.
Unfortunately, too, even many of the efforts to provide straightforward explanations of what a Creative Commons license is founder on the shoals of legalese. License itself is a term most non-lawyers
cannot easily grasp. And to jump immediately into screaming that an attack on Creative Commons is an
attack on artistic freedom as Drew Wilson does in the post I link to and praise above is to descend
into rhetoric of war, of right versus left, of freedom versus tyranny, of property versus availability. We
shouldnt need to go there.
Creative Commons licensing is simple, straightforward application of traditional legal concepts. Thats
all. Can we please move on now?
Own your words. Anonymity is cowardice, and cowards arent known for their wisdom. (2010-07-22 08:42)
An important lesson for my legal writing students: you must own your words to be genuinely persuasive.
By that, of course, I do not mean that their words are their property. Theres a lot of confusion about
that issue, but thats not todays lesson.
What I mean is that its not enough to parrot words you believe are authoritative to make your case.
You must use words you know in your heart state what you mean. Parroting the words of others, even if
they are authoritative, wont do that. Which is why one of my favorite quotes is Ralph Waldo Emersons:
I hate quotations. Tell me what you know. (I love paradox too.)
But in order to own your words you have to have the courage to stand behind them too. Its one
reason I bemoan the influence of anonymous student evaluations. Its why too Im all in with Dan Hull
in this insane exchange about his insistence that anonymity is the death of productive discussion on the
internet.
What possible conviction can you hold in your words if youre not even willing to put your name to
them? As Dan makes clear, there are of course exceptions to this rule there are times anonymity is
necessary to preserve ones safety. But legitimate fear for ones safety for stating disagreement is a rare
thing that we dont encounter terribly often in 2010 on the internet in the United States. Its almost
hilarious to find people disputing Dan under the pseudonyms Publius and Marcus Agrippa. Almost
hilarious. Really, its pathetic.
If you cant own your words, put yourself forward as the authority behind your words and rely on
the force of those words and your own integrity for their persuasive effects, you cannot be a lawyer. Ive
said it recently: a good thing about being a lawyer is there is always someone telling you your wrong.
You have to be willing to put your ideas and words to the test, and you have to be willing to adapt and
adjust when your words have been successfully challenged. To hide behind a pseudonym is nothing but
cowardice, and cowards arent known for their wisdom.
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Property is not always the foundation of liberty:
fashion and copyright.
(2010-07-23 07:28)
Its difficult in this era in which property is considered the source of liberty for people to get their heads
around the idea that treating the products of creativity as part of a cultural commons is in fact more
conducive to creativity and innovation than is strict copyright protection. Heres some strong evidence
of exactly that:
There is no copyright protection afforded to fashion designs. As a result copying is a matter of course
in fashion design. You dont exactly see a dearth of creativity and innovation in fashion design, do you?
Here, Johanna Blakely expands on this point:
[EMBED] And yet, of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of property our way of
life is doomed) trumps reality.
Making creations property does not promote creation:
fashion this time
(2010-07-23 07:30)
Its difficult in this era in which property is considered the source of liberty for people to get their heads
around the idea that treating the products of creativity as part of a cultural commons is in fact more
conducive to creativity and innovation than is strict copyright protection. Heres some strong evidence
of exactly that:
There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in
fashion design. You dont exactly see a dearth of creativity and innovation in fashion design, do you? In
the video below, Johanna Blakely expands on this point. Of course, fashion designers are seeking federal
legislation extending copyright protection to their designs. I hate it when ideology (here, that without
the worship of property our way of life is doomed) trumps reality.
[EMBED]
Friday Music Break The Perfect Disaster: 55 (2010-07-23 13:12)

[EMBED]
Anonymous online writing: bad writing that wouldnt see the light of day if the writer
knew readers could match the words to the person. (2010-07-26 01:12)
Wow. I apparently touched a nerve the other day when I blogged on this post and the thread of comments
following it and expressed my preference for Dan Hulls view that anonymous blogging is cowardly.
At the risk of offending one anonymous commenter who desperately wants me to condemn Dans insistence on insulting him and forget what I care about writing words that one is willing to stand behind
and justify I will try to clarify and expand upon what I wrote:
I never said one cannot write anonymously. Quite plainly I dont ban anonymous comments on my blog.
Quite plainly Ill never be Lord of the Internet with the power to ban anonymous writers. Nor, if I were
Lord of the Internet, would I ban anonymous writing. I believe in the freedom of speech, even speech
that expresses views I despise. Views I think are stupid are another tolerable phenomenon.
507
But I do care deeply about the quality of writing. I teach law students how to write as lawyers, and
the vast majority of my professional life as a law professor and a lawyer depends on the effectiveness
of what I write. One thing I am convinced of and try passionately to convince my students of is that
that you cannot be an effective writer if you do not have the courage to own your words. By that I
mean, among other things, that you must believe in your words, believe those are the best words you
could come up with under the circumstances to express your point of view. If you dont do so, youre
just parroting things you havent truly thought through. Your failure to think them through typically
means you havent entirely grasped what it is youre trying to say (and what the writer of what youre
parroting meant to say). It also means your words will not convince the intelligent reader who isnt
already convinced that youre right.
One necessary implication of my belief in the necessity of owning your words is that anonymous online
writing loses a lot of its credibility by the very fact that it is anonymous.
My view does not mean that anonymous writing entirely lacks credibility.The anonymous authors character (and an anonymous author has a character, one that makes an alert reader wonder why he isnt
willing to claim his words as his own) detracts from the readers valuation of that anonymous authors
writing. But a myriad of factors go into influencing a given texts persuasive force. The authors character
is only one, albeit an important one.
The point that really seems to have hit a nerve is that it seems plain to me that choosing to write
anonymously is for all relevant purposes grounded in fear. Sometimes that fear justifies the anonymity
because (a) the authors fear is of sufficient immediate and substantial harm and (b) the message is so
important that even if it is compromised by anonymity it is worth getting out. Where those so offended
by my views and I differ is in the amount of courage we think is appropriate. They have fears of the
consequences of identifying themselves online when they write and theyre deeply offended that I dont
believe those fears justify their ways of using anonymity.
Thinking he had caught me questioning the courage of one of my colleagues (whose views, not courage,
I question) one anonymous commenter pointed out that Jonathan Adler blogged anonymously on the
Volokh Conspiracy as Juan non-Volokh prior to being granted tenure. At the time, Jonathan had a
legitimate fear that the mere act of blogging would jeopardize his shot at tenure. As a general matter
at that time, blogging was not only considered beneath legal scholars, but also to be an actual drain on
time better devoted to real scholarship. (While blogging is no longer a negative in the eyes of most
professors, it still is considered by most entirely irrelevant to scholarly achievement). I have absolutely
no reason to believe Jonathan chose anonymity to hide the substance of the views he expressed on the
Volokh Conspiracy. Those views were quite well known among his colleagues (and to the public) and in
substance were entirely of a piece with the public writing he did under his own name. Nonetheless, I do
believe that Jonathans writing under his own name has more force than his writing did under his chosen
pseudonym. Nor do I have any reason to believe he would disagree.
To take one of Dan Hulls more obvious examples of non-cowardly fear justifying anonymity, an Iranian
dissident has good reasons for writing under a pseudonym. But one question his anonymous identity
might raise, among others is this: is he really a dissident or is he in fact a CIA or Saudi plant? All sorts
of credibility problems arise when one chooses to separate ones writing from ones identity.
Ken, who chooses anonymity, has written that he prefers to remain anonymous because his favorite styles
are, as he describes them, satire, sarcasm, and ridicule. Ken also believes that these are potent weapons
in the fight over ideas. But, unfortunately, poor Ken is too subtle for most people and he therefore fears
their reactions:
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People don t like being made fun of. Moreover, some people are functionally incapable of
understanding irony, sarcasm, and satire. Other people are offended easily, and particularly
by pop culture, sexual references, and the various forms of juvenile self-indulgence occasionally
featured here to the extent it amuses us.
I would suggest to Ken words he so proudly identifies as satire, sarcasm, and ridicule are not really
the potent weapons he believes they are. It is well known that online writing in particular is a very
poor medium for the effective use sarcasm. Effective satire that actually persuades someone previously
unconvinced of the writers point of view is a very rare thing. Far more often, satire is just the words
of someone seeking affirmation from others who share the writers contempt for the object of the satire.
And ridicule? Ridicule amuses your toadies. To everyone else, its just name-calling.
But Ken is no Jonathan Swift, and I think he knows it. In fact, Kens satire, sarcasm, and ridicule
are, to my mind (and to the mind of those who are convinced by me, but plainly not to Ken and his
anonymous colleagues), merely the lazy expression of hostility and disagreement.
But, regardless of how we characterize the writing that Ken believes to be a potent weapon in the war
of ideas, what he fears is the risk those functionally incapable of understanding his meaning would
pose to him. Who are these people? Well, he once worked for big firms that would so dislike what he
wrote he feared his employment would be threatened. He has clients he fears hed lose if they knew the
truth of his views on social issues. He fears needing to justify his writing to opposing lawyers or judges
who might use those words against him. He fears he or his family will be stalked or threatened like other
bloggers have been. And he bravely wrote critically once about a white supremacist who lived just one
town over from him.
Are these fears the legitimate fears of a brilliant writer wielding potent tools in the war of ideas? You
can judge for yourself. The fear of the law firms, the clients, and opposing counsel and judges seems to
me more likely fears of being busted for using stupid words by people to whom one has the responsibility
to express oneself intelligently. The fear of being stalked seems to me the fear of something so unlikely
(even though it does happen, of course) that its really nothing but an empty rationalization. The fear
of the white supremacist? I might grant Ken that one, but then why does all of his writing need to be
anonymous?
To address the question more generally: are your political views so inconsistent with your employment
that your job would be threatened if you really expressed them? Are you so desperate for a job you need
to keep that one despite the fact it is inconsistent with true expression of what you believe? Are you
writing online about your employer despite an employment policy that forbids you to do so? Is that a
legitimate exercise of anonymity? If youre Karen Silkwood or Daniel Ellsberg, it would be, but I have
grave doubts that the people complaining to me are in that league.
And if its your clients reactions you fear, why would they not like what you write? Would they like it
if they knew you were hiding your real thoughts from them? Why do you represent them if legitimate
expression of what you really believe would offend them? Are you really capable of representing them
zealously if you harbor secret thoughts that, if known, would cause them to retain different lawyers? Is
a blog really an appropriate place for telling stories about how dumb your clients are? You enjoy doing
it. You want to do it. But does being able to do that justify anonymous blogging?
I AM NOT suggesting that fears are always illegitimate. What I am suggesting is that a free-floating fear
of being stalked as a result of online writing is pretty far off the wall. And Ive worked for big law firms
and clients of all sorts. Its not the everyday law firm or client who would fire you for thoughtful writing
online. There would have to be something really atrocious about the employer. And clients care far more
509
about courage, skill, and passion than they do about disagreements on social issues that are irrelevant
to their representation, especially if those views are expressed cogently and the lawyer is willing to stand
behind those views. The last thing clients want is a lawyer whos afraid to let the world know that he
believes in and will stand behind his words.
And are these fears so real that they justify anonymity on everything a blogger writes? Selective, tactical
anonymity is an option, guys. And choosing to remain silent on matters that you cant write about in
ways that wont endanger you with people who matter to you is an option too. That of course, is a whole
other topic: a good lawyer takes a lot of really interesting stuff to his grave with him.
And, honestly, I dont see substance on Popehat (the site I originally linked to and from which the hostile
commenters came) that would usually be the sort of thing that would threaten the livelihood of its authors or commenters. Theyre a bunch of guys who might like to romanticize the subversiveness of what
they write, but, really, theyre not exactly a threat to anyone or anything.
Nor am I.
Then again, while the content at Popehat is pretty run of the mill, the words themselves do not really
do that substance a lot of justice. And that indeed is a major part of the problem. As Charles wrote,
anonymity allows you to write that a cop was a fascist without people who know you and would be
offended by those words know that you wrote them. But merely writing that a cop is a fascist is just
nasty name-calling, not credible writing. And Patrick, in the very first comment responding to my blog
post writing anonymously, of course explained that hes never heard about me but that if he really
cared he could write a blogpost mocking [me], that would stick to the front page of a Google search for
[my] name forever.
A put down and a threat as an opening move? Thats a perfect example of why I called anonymous
writing online cowardly. If one is going to insult and threaten, one ought to have the courage to let ones
employers, clients, loved ones, and targets know that being a bully is what one is in the business of doing.
Or one could claim to use insults rhetorically, to highlight a point, but thats a dangerous game, and it
takes a special person to get away with it, and Dan Hull happens to be a special person.
But the most important thing about Dan Hull for purposes of this discussion (though quite plainly Patrick
and his Popehat People want to make anyone who happens upon this post or the last one on this point
think otherwise) is that Dan Hull wrote those insults under his own name! Hes willing to own and justify
those insults. And doing so has benefited him immensely. Clients love lawyers who make the work their
own. And it sure doesnt seem that the Popehat guys are big believers in political correctness, so I cant
believe they were genuinely hurt by his words except to the extent the substance behind his insults hit
home.
My point is that if you dont own your writing you cannot truly be persuasive. Thats why I emphasized
that my students, as lawyers in training, must learn to own their words, to be ready to justify the choices
they made in writing the words they wrote.
And Charles happens to be right about one thing outside the law (and too much within it, truth be
told) the courage to own ones words is sorely lacking. I think thats a real shame and a major loss for the
quality of any discourse, be it about politics, literature, science, religion, etc. Charles, I guess, expects
less of people than I do. I also think that people would be surprised how much theyd benefit from saying
510
what they mean in ways theyd be proud to claim as their own to anyone.
Finally, I am making no demands. I am stating my point of view. Yes, I am an Associate Professor of
Legal Writing, but thats just a title. And I hardly use it to put on airs. Anyone who knows anything
of the status wars within academia or has read much into my archives knows I write quite openly, under
my own name, about (1) the fact my title is reflective of a remarkably low status and an absence of job
security and (2) my opinion that (contra Patrick) law professors are NOT an elevated class.
Am I a nobody? Well, Mike (whoever he might be) certainly things so. One thing I do know anyone
with access to an internet connection has about as good an opportunity to determine that for themselves
as they would for anyone who writes openly under his own name.
And they can take that information and factor it into their judgment whether and the extent to which
they agree with me.
Heres my suggestion to everyone, including the Popehat guys: try writing under your own names. You
might find your words and views become far more compelling not only to your readers but also, far more
importantly, to yourselves. But be careful: being thoughtful and precise writing things that youre
willing to justify to those who challenge them might make you rethink some of the stuff you hold to so
passionately.
Or you can ignore me entirely. Thats entirely your prerogative. You can even, if you wish, go on thinking
of me as a narcissistic nobody who doesnt matter, and Ill go on thinking of of most anonymous bloggers
as a bunch of cowards who write to please themselves and dont persuade anyone who hasnt already
bought into their point of view.
And when it gets down to it, tthe vast majority of anonymous online writing is simply bad writing that
wouldnt see the light of day if the writer knew everyone he knows could match the words to the person.
Donald Rosenberg v. Plain Dealer & Cleveland Orchestra, continued (2010-07-28 09:09)
The Plain Dealer reports that attorneys for Donald Rosenberg completed the presentation of their evidence to the jury in Rosenbergs lawsuit against the Plain Dealer and the Musical Arts Association, the
governing body of the Cleveland Orchestra. I expressed a lot of my views on what I perceive to be the
weaknesses of Rosenbergs case a couple of weeks ago. What I have read so far has not changed my
opinion.
First, it is important to note that Rosenberg is not claiming that the Plain Dealer was in breach of
contract when it reassigned him to a different beat after his many years of writing reviews of the Orchestra. His only legal claim against the newspaper is that the reassignment constituted age discrimination.
As I wrote previously, thats an odd claim, since the entire thrust of the case is that the reassignment
was wrongful because it was done at the Orchestras behest. Reassignment under pressure of someone
who doesnt like whats being written doesnt sound like age discrimination to me. And he testified that
he never mentioned age discrimination at the time of the reassignment. According to the Plain Dealer
story, he thought it was onerous and unusual that the person doing the reassigning had told him hed
covered the Orchestra for a long time. I guess hes claiming the Plain Dealer reassigned him because
the beat had become too burdensome after his many years, but I cannot imagine that the physical and
mental burden of covering the Orchestra formed any part of the Plain Dealers thinking in reassigning a
57 year old guy to a different beat.
511
Its also not clear at all what legal damages Rosenberg suffered. He testified that he had not lost pay or
benefits under his reassignment in 2008. He had no legal right to the position reviewing the Orchestra,
and try as he might to establish that his critical reputation has suffered, he by all appearances seems
to have skyrocketed in reputation in the music community, which sees him as a martyr on the altar of
critical integrity.
Its funny: the music community never seemed to be particularly concerned with Rosenbergs critical
integrity during his years covering the Orchestra under the direction of Christoph von Dohnnyi despite
his close friendship with von Dohnnyi.
Rosenbergs claims against the Musical Arts Association are in the nature of defamation claims. The
problem is that unless he can establish that someone affiliated with the Orchestra lied about him, there
doesnt seem much there there. Theres nothing illicit about someone whos being reviewed complaining
about the review. Nor is there anything illicit in the employer of the reviewer listening to and even
responding to those complaints. And its not as if there havent been complaints about Rosenberg.
Rosenberg admitted on the stand that, in the Plain Dealers words, others including newspaper readers, members of the orchestra and others in the community had complained about what was perceived
as a pervasive negative tenor to his reviews of [Franz] Welser-Most [the Orchestras conductor and von
Dohnnyis succesaor] .
Dont get me wrong. Im not thrilled with the idea of newspapers shaping their coverage to please
the subjects. I just dont see the newspapers employees having any legal right to ensure that the newspapers dont do so. Nor is the Plain Dealers alleged favoritism of its subject in this instance, even if true,
one of the more glaring instances of this aspect of journalism. Theres no First Amendment requirement
that the media be objective.
Now that Rosenbergs lawyers have called all of their own witnesses, the Plain Dealer and the Musical Arts Association will have an opportunity to call their own. Then the lawyers will give closing
arguments, the judge will instruct the jury in the law applicable to the evidence, and the jury will deliberate. At several steps on the way, as well, the judge could conceivably stop the trial and rule in favor of
the defendants if the judge decides no reasonable jury could find that Rosenberg can recover on his legal
claims.
Stay tuned.
Eugene R. Anderson, R.I.P. (2010-07-30 11:15)

Gene Anderson, one of the truly great people I have had the pleasure of knowing personally, died this
morning. Gene was a brilliant lawyer, a wonderful human being, and one of those genuinely creative and
original souls who did things the way he believed they should be done, not merely the way everyone is
told they should be done. I consider myself blessed to have had the opportunity to learn from him. It
doesnt surprise me to have heard that yesterday, knowing he had only a brief time left, Gene planned
his funeral, which will go on as hed decided on Monday, August 2nd, at 4 PM at the Frank E. Campbell
Funeral Home, 1076 Madison Avenue (between 81st and 82nd Streets), NY, NY.
Addendum: heres Genes obituary in the NY Times. The Wall Street Journal adds the following:
Born in 1927 in Portland, Ore., and the son of a single mother who was frequently disabled,
he grew up partly in foster homes and orphanages. He put himself through the University
of California, Los Angeles. Upon graduation, he began hitchhiking across the country. One
person who gave him a ride was a lawyer who would later help him get into Harvard Law
School.
512
After becoming a partner at Chadbourne & Parke, he went to the U.S. Attorneys office in
the Southern District of New York, where he worked for Robert M. Morgenthau, who would
later become Manhattan District Attorney. Mr. Anderson married Mr. Morgenthaus daughter, Jenny.
Mr. Andersons office was decorated with a moose head his brother carved with a chainsaw, and instead of his law degree, he hung his kindergarten certificate on the wall alongside
plaques from pro bono clients.
Old School Mashup Tape-beatles: The Grand Delusion, Part 3 (2010-07-31 21:37)
[EMBED]
3.8
August
Judge dismisses one of Donald Rosenbergs claims against the Plain Dealer.
(2010-08-02 09:02)
As the Plain Dealer reports, on Friday, the judge in Donald Rosenbergs lawsuit against the Plain Dealer
and the Musical Arts Association (the body that manages the Cleveland Orchestra) dismissed one of two
of Rosenbergs claims against the Plain Dealer the claim that the Plain Dealer had unlawfully retaliated
against Rosenberg in forbidding him to use the words Cleveland Orchestra in his reporting after he had
filed his lawsuit. The judge granted what is called a directed verdict on the claim even before the Plain
Dealer has presented its evidence to the jury, deciding that either the facts are undisputed and do not
establish Rosenbergs legal right to recover or that even assuming the facts are as Rosenberg contends
they are he is not entitled to recover.
In order to recover on a retaliation claim, an employee must show that in response to a discrimination
claim the employer made changes in the terms of employment that might have dissuaded a reasonable
worker from making or supporting the claim. It doesnt seem particularly controversial that the judge
decided that forbidding Rosenberg from referring to one of the parties he was suing would have dissuaded
him from filing the lawsuit or that the Plain Dealer intended to punish him for filing the lawsuit. The
Plain Dealer argued, in fact, that the restriction was intended to protect against any claim that Rosenberg
had a conflict of interest. Rosenberg, on the other hand, argued that the restriction effectively limited
his reporting about other fine arts matters in Northeast Ohio because so many of them could also involve
Cleveland Orchestra players.
My access to the case thus far has largely been limited to what has been reported in the press, but
its difficult for me to imagine the inability to identify someone as a member of the Orchestra constituted
any real restriction on Rosenbergs reporting. Its much easier for me to imagine that argument is a
lawyers effort to support a very weak claim.
513
You cant own facts Trem belongs to all of us. (2010-08-03 08:12)
Trem is a neighborhood in New Orleans.

Treme is an HBO series about New Orleans residents rebuilding their lives after Hurricane Katrina. The
Chicory opines correctly that the t-shirt pictured to the left does not infringe any rights anyone holds in
the television series. There cannot be a copyright in a fact, so there can be no copyright in the name
Treme. And while trademark is a distinctive sign or symbol (a mark), the t-shirt bears no font or
insignia distinctive to the television show. So get your Treme t-shirts and show your support for my
friends in New Orleans.
Hat tip to Ray Ward.
514
Campbell Soups response to Andy Warhols appropriation (2010-08-03 11:06)
Artists learn to cobble together successful careers. (2010-08-03 18:48)
QuestionCopyright.org describes an emerging new paradigm for

artists in The Cobbler: A New Career Model for Artists and Entertainers:
Filmmakers, musicians, and writers now have the opportunity to work in a more stable,
less risky way
with an economic model like a corner shoe cobbler, with a skill and a loyal
515
clientele. While it may not have the glamour of red carpets and stadium shows, it can be a
life in which ones vocation is sustainable, at a level that pays a living wage and allows one to
be ones own boss. One trades a small chance of making a lot of money quickly for a greatly
improved chance of making some money steadily. For many artists, thats a good trade-off.
In short, artists are using the new means of production and distribution to control the creation, marketing, and sale of their work. Its the inevitable outcome of what I described last January at Critical
Mass regarding the future of books the loss by the publishing, recording, and entertainment industries
of control over the means of production and distribution of their products. As I wrote then, [t]he entire
publishing industry as we ve known it is a walking corpse. You can almost imagine it as a zombie
composed of parts of Sarah Palin, Oprah, Dan Brown, and Tiger Woods lumbering down Manhattan s
avenues.
This new paradigm is no hypothetical. My sister, Amy Friedman, has written over 1000 stories over
the past 20 years for Universal Press Syndicate (UPS) under the title Tell Me a Story. Since UPS was
doing nothing to further develop the content, Amy managed to persuade them to sign back over to her
the copyright for a handful of the stories. She, herself, put together musicians, actors, and recording
engineers to produce three CD compilations of the stories. The first is 14th on Amazons list of audio
books today. The third won a 2010 Audie Award, the equivalent of an Oscar in the world of audio books
and spoken word entertainment. The second is pretty great too.
Amy is not alone. Matthew Rose is a dear friend, an artist who lives in Paris, and the inspiration
that, through the resources of the online world has produced A Book About Death, a phenomenal exhibition that is ever evolving and ever-appearing in new incarnations in the physical world,
I could go on among just my acquaintances. The long and the short of it is this: dont wait for the
publisher, the recording company, the agent, the gallery, the production company.
The ADL forgets things that we should never forget. (2010-08-03 21:44)
I share wholeheartedly Paul Krugmans shock at the Anti-Defamation Leagues opposition to the construction of a mosque near Ground Zero. The temple I grew up as a member of and at which my older
son and I each were bar mitzvahed has a long history, exemplified by Rabbi Arthur Lelyveld, in the fight
for civil rights and interfaith relations. Even more to the point, however, the temples present building
was completed in 1957, but only after a bitter lawsuit against the City of Beachwood that required the
temple to go all the way to the U.S. Supreme Court. The litigation was over zoning matters, but youre
quite naive if you think the opposition was motivated by zoning concerns.
The decision in Perry v. City and County of San Francisco trial court decision
striking down Proposition 8, which banned gay marriage. (2010-08-04 18:53)
Proposition 8 Gay Marriage Trial Court Decision, Perry v. City and County of San Francisco
On tossing aside centuries of tradition. (2010-08-05 20:32)

New York Times, May 2009:
Racially segregated proms have been held in Montgomery County [,Georgia]

where
about two-thirds of the population is white
almost every year since its schools were integrated in 1971. Such proms are, by many accounts, longstanding traditions in towns across
the rural South, though in recent years a number of communities have successfully pushed
516
for change. . . . The senior proms held by Montgomery County High School students
referred to by many students as the black-folks prom and the white-folks prom
are
organized outside school through student committees with the help of parents. All students
are welcome at the black prom, though generally few if any white students show up. The
white prom, students say, remains governed by a largely unspoken set of rules about who
may come. Black members of the student council say they have asked school administrators
about holding a single school-sponsored prom, but that, along with efforts to collaborate with
white prom planners, has failed. According to Timothy Wiggs, the outgoing student council
president and one of 21 black students graduating this year, We just never get anywhere
with it. Principal Luke Smith says the school has no plans to sponsor a prom, noting that
when it did so in 1995, attendance was poor.
Students of both races say that interracial friendships are common at Montgomery County
High School. Black and white students also date one another, though often out of sight of
judgmental parents. Most of the students do want to have a prom together, says Terra
Fountain, a white 18-year-old who graduated from Montgomery County High School last year
and is now living with her black boyfriend. But it s the white parents who say no. & They re
like, if you re going with the black people, I m not going to pay for it.
It s awkward, acknowledges JonPaul Edge, a senior who is white. I have as many black
friends as I do white friends. We do everything else together. We hang out. We play sports
together. We go to class together. I don t think anybody at our school is racist. Trying to
explain the continued existence of segregated proms, Edge falls back on the same reasoning
offered by a number of white students and their parents. It s how it s always been, he says.
It s just a tradition.
California Gurls quotes California Girls. Can you imagine the nerve? (2010-08-05 20:52)
Its sad when artists mistake the nature of their creations, when they somehow think they exist apart
from culture as lone innovators. Its especially pathetic when they believe their work is something like
the real property they buy with whatever theyre lucky enough to earn from those works, something they
can fence off from the rest of the world and keep trespassers off of. Techdirt points out an exceedingly
outrageous instance of this:
[T]he Beach Boys are threatening to sue Katy Perry and/or her label if theyre not given
songwriting credits for her song California Gurls. The Beach Boys, of course, did have a
famous song back in 1965, called California Girls, with the classic line I wish they all could
be California Girls... In the Katy Perry song, which is very different than the Beach Boys
song, at the very, very, very end, Snoop Dogg says I really wish you all could be California
girls, so the quote isnt even a direct one.
I share techdirts hope that Katy Perry and her label stick to their guns. Its tough to imagine a more
obvious non-infringing use. Quite plainly, Perry was paying homage to the Beach Boys. Could you
imagine requiring permission every time an artist riffs on an earlier work of art? Wed have no culture.
Mike Love says, I think [Perrys song] brings the Beach Boys 1965 classic to mind, thats for sure. You
think? Would that mean the producers of the Dukes of Hazzard have their own claim?
[EMBED] [EMBED]
517
Judge refuses to sanction Shepard Fairey. (2010-08-06 08:31)
The common wisdom seems to be that the judge in

Shepard Faireys lawsuit with AP and Manny Garcia over the use Fairey made of Garcias photo in
creating the Obama Hope poster would be sanctioned for having lied during the course of the lawsuit
about knowing he used the photo that was identified in February 2009 as his source. The sanctions could
range from monetary fines all the way up to ruling against Fairey without ever having determined the
legitimacy of his legal claims. But earlier this week the judge, Alvin K. Hellerstein, issued an order
in which he denied APs pending motion for sanctions. The order states that AP has engaged in an
endless quest for information from Fairey in an effort to pin him down. At the same time, the judge
acknowledged that Faireys carefully phrased answers to questions and his earlier dishonesty would be
left to be judged for themselves during trial: The Associated Press, in its effort to pin down Fairey, has
engaged in an endless quest for discovery. If there has been willfulness, it will be proved at trial through
Fairey s evasiveness.
Friday Night Music: DJ Earworm - Like, OMG Baby (Capital FM Summertime Ball
Mashup) (2010-08-06 20:27)
[EMBED]
Friday Night Music (paranoid edition):
Steinski - The Motorcade Sped On
(2010-08-06 21:02)
[EMBED]
Friday Night Music: Rolling Stones vs. Moguai & Tocodisco - Gimme Shelter Freaks
( DJ Earworm Mash-Up ) (2010-08-07 00:27)
[EMBED]
Jury rules against Donald Rosenberg (2010-08-07 13:18)

A jury found for the Plain Dealer and the Cleveland Orchestras governing body yesterday, rejecting all
of reporter Donald Rosenbergs legal claims arising out of the decision by the Plain Dealer to relieve him
of his duties as the Orchestras reviewer and reassign him.
As anyone who has followed my speculations on this lawsuit knows, I have always been skeptical of
the legal merits of Rosenbergs claims. As the NY Times article linked to above explains, the lawsuit
became a cause clbre among music critics, who charged that The Plain Dealer had caved in to complaints from a subject of its reviews, touching a raw nerve among those who review arts for a living.
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Nevertheless, I could not discern any contractual right Rosenberg had to the job reviewing the Orchestra,
so the reassignment didnt seem to constitute any breach of contract. The Orchestras representatives
have every right to complain about negative reviews to the Plain Dealers management as long as they
didnt lie about him in expressing those complaints. And the addition of an age discrimination claim
simply didnt fit the gist of the complaint how could it be that the Plain Dealers reassignment of
Rosenberg under pressure from the Orchestra constituted age discrimination?
If I were Rosenbergs lawyer, Id advise him not to appeal. The Los Angeles Times reports, however, that
he hasnt ruled out that possibility. Its not that I dont care if the Plain Dealer did cave into pressure
from the Orchestra (certainly not the only quarter from which complaints about Rosenberg were heard).
Its that I dont think a lawsuit by an individual who is reassigned as a result of that kind of pressure is
the means of ensuring journalistic integrity.
Why I didnt like Donald Rosenbergs lawsuit against the Plain Dealer and Cleveland
Orchestra. (2010-08-07 15:35)
I want to expand a bit on why I dont believe a lawsuit of the sort Donald Rosenberg brought is a useful
way of enforcing journalistic integrity. My opinion, of course, is grounded in the belief Ive had since I
first heard of the lawsuit that there was little if any legal merit in it.
First, our legal system is intended to remedy individual harm. It does so by limiting the power of
courts to decide individual cases brought be people with a genuine stake in the controversies they sue
over. Courts do not have the power to decide hypothetical questions. They do not have the power to
decide concrete questions if they parties who sue arent the parties who have actually suffered direct harm
resulting from the alleged wrong. And our legal system is overwhelmed. People wait years for justice
in cases where the harm is serious and direct. To allow lawsuits to proceed merely because they involve
behavior we dont like, therefore, is to do plenty of harm.
Some have suggested that, regardless of the merits of Rosenbergs lawsuit, the discovery forced by the
litigation serves a useful function in disclosing information about behavior they didnt like. Discovery is
a powerful mechanism for forcing people to disclose information. And so it is a dangerous game. When
you seek discovery, discovery is sought from you as well, and its tough to put a limit on things. So, if
you sue, be ready to open up your own life to the public. And if you are sued, dont believe for a minute
that you wont have to open up your life. Litigation is a dangerous game.
Paradoxically, while discovery discloses a lot, we should understand too that it doesnt disclose everything.
Parties to a lawsuit seek discovery about the matters they care about and deem it worth their while and
their money to go after. They disclose to the court and the public only portions of the information they
seek and obtain. So what the public actually receives is never the entire picture. It is as selected, shaped,
and manipulated as is any other set of facts.
Its plain that those rooting for Rosenberg in his lawsuit were convinced of the soundness of his critical writings regarding the Cleveland Orchestra. But Im not exactly sure whether they want courts
and juries to start engaging in the kind of aesthetic and critical evaluation that would be required to
distinguish Rosenbergs legal claims from those brought by some hack they would consider the Cleveland
Orchestra to be entirely right to complain about. To do so would require the court to determine which
reviews the Orchestra had a legitimate beef about and which reviews the Orchestra did not have a legitimate beef about. I cant believe that anyone would be happy with that going on.
And the only other answer to that problem would be to forbid the Cleveland Orchestra or any other
journalistic subject to opine about the quality of the coverage afforded them. Besides the obvious First
Amendment problems, that alternative is plainly unworkable.
519
Has the Plain Dealers credibility been damaged? I think so, though to be honest Im not sure that
Rosenbergs lawsuit caused that damage. Rather, the decision to reassign Rosenberg and the ensuing hue
and cry from the musical and critical worlds did that. If anything, I suspect that having lost the lawsuit,
Rosenberg may have revived some of the Plain Dealers lost reputation.
Finally, I hate the fact that Rosenberg likely paid good money for what plainly to me seemed a losing set of claims. And if, as I hope, his lawyer was representing him on a contingency basis, Id be pretty
pissed off if I were his lawyers partner or employee.
Addendum: Ive been asked why, given that Rosenbergs age discrimination arises under Title VII, which
is federal law, the case was heard in state court. Federal courts do not have exclusive jurisdiction (that
is, judicial power) over Title VII claims. State courts are courts of general jurisdiction and therefore can
exercise judicial power over any claims, though Congress can restrict jurisdiction over federal claims to
federal courts. In 1990, the Supreme Court ruled that Congress had not done so (explicitly or implicitly)
in Title VII.
Tweet chat at 9pm tonight on Donald Rosenberg v. PD and Cleveland Orchestra

(2010-08-09 08:00)
Janice Harayda has arranged and agreed to moderate a twitter chat on the Donald Rosenberg lawsuit
against the Plain Dealer and the Cleveland Orchestra tonight at 9 p.m. EDT. I will be fortunate enough
to be participating with Tim Smith, the classical music critic for the Baltimore Sun. The hashtag for the
chat will be #DonR.
Addendum: Rosenbergs claims against the Plain Dealer are grounded in an article he wrote for the
newspaper on August 25, 2004, an article which, he claimed, provoked a concerted campaign on behalf
of the Cleveland Orchestra to have the Plain Dealer assign someone else to review their concerts. Four
years later, in 2008, the Plain Dealer reassigned him. For informational purposes, the relevant portions
of the 2004 article are set forth below:
Welser-Mst speaks out

Some of Welser-Mst s comments in current Swiss magazines have raised eyebrows.
In Weltwoche, under the headline, Many Rich Widows, he discusses private funding for
culture in the United States, deeming it necessary to find rich widows and that charm
certainly is no disadvantage when you want the ladies to understand you well.
Welser-Mst refers to the Friday-matinee audiences in Cleveland that are filled with Blue
Hair Ladies because of the coloring of their hair and states that these so-called Blue Hair
Audiences largely comprise retirees who are too tired to attend performances at night.
Asked what the ladies must donate to meet Welser-Mst personally, he answers: For $500,
you don t get a handshake from the music director.
And for $5,000? No, it has to be a little more than that. A few years ago, an enthusiastic middle-age fan, in this case a man, moved a check across the table for $10 million. With
such a person, of course, you go to dinner.
How do you like Cleveland? Cleveland is an island. Here we have a world-class orchestra in what I call an inflated farmer s village. For me, who loves the country, it is wonderful
520
to live there among the green. Recently in the street in front of my home, I found a huge
turtle. It had not escaped from the zoo. It was just walking in the street.
A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland
Orchestra (2010-08-11 07:39)
Tim Smith, with whom I participated in a twitter chat 2 nights ago, expressed there and on his blog
yesterday, the kind of thinking about the conflict between Donald Rosenberg, the Plain Dealer, and the
Cleveland Orchestra that represents a problem and dispute resolving attitude that, I think, the best
lawyers embody. Theres no question Rosenberg was no fan of Franz Welser-Mst, the Orchestras conductor. Theres no question his views on Welser-Mst were shared by many (though by no means all).
Theres no question the repeated expression of those views irritated the Orchestra. So, what should have
happened? Perhaps the Plain Dealer could have split up the reviews of the Orchestra between Rosenberg
and another reviewer. Perhaps they could have published dueling reviews.
In short, there were things the Plain Dealer could have done to address the problems they perceived
short of the ham-handed way they did handle it. Indeed, it may have been a better idea to have reassigned Rosenberg years earlier, at the point the Orchestra replaced Christoph von Dohnnyi, whom
Rosenberg was a fan and friend of, with Welser-Mst.
Let that be a lesson. Anticipate and address problems, and address them creatively, not in blunt fashion
that exploits nothing more than your clients power.
Thats not to say, as should be clear from all Ive written on this affair, that I think Rosenberg did
a wise thing in suing in response to the Plain Dealers ham-handed way of dealing with the problem.
As Ive said from the beginning, it was very unlikely that Rosenberg would prevail on any claim in his
lawsuit. Nor was it a situation the defendants were likely to settle in order to resolve what little legal
uncertainty did exist for them. The Plain Dealer and Cleveland Orchestras biggest problem resulting
from the lawsuit wasnt any potential damages they might have to pay, no matter how unlikely rather,
the biggest problem was the hit Rosenbergs claims had on their reputations. His claims resonated in the
larger world. At times he seemed almost like a martyr to the cause of critical integrity. And, indeed, the
problems caused by our corporate medias corruption by the subjects they cover is a huge one (though I
happen to think Rosenbergs situation is a rather minor instance of it, if it even is an instance of it).
If the Plain Dealer and the Orchestra had settled the lawsuit, the perception would have been that
they had conceded on the issue of undue influence by the Orchestra over the newspaper. Since the perception of that influence was their biggest problem vis-a-vis Rosenberg, they could ill afford to settle.
Settlement was even less attractive since their legal position was so strong. So this lawsuit was not going
to settle. And in all likelihood a very strong likelihood that I would never deem a certainty only because
law doesnt permit certainty any more than does, say, medicine Rosenberg was going to lose (as Ive
said from the very beginning).
And what did Rosenberg have to gain by suing and losing? I dont think he gained anything. If anything,
having had a jury declare his claims without merit, he seems less compelling a figure than he did before
the trial. Theres the virtual certainty the lawsuit cost him quite a bit of money. And lawsuits are not
fun for litigants.
Some suggest that the mere fact of discovery in the lawsuit made it a worthwhile endeavor. But what did
we learn as a result of the evidence compelled by the lawsuit? That the Orchestra didnt like Rosenbergs
repeated negativity, and that the Orchestra wasnt alone. That the Orchestra expressed these views to
the Plain Dealer. Unlike Tim Smith, I see nothing noteworthy in Anne Midgettes belief that the trial
disclosed something new about the Orchestras role in Rosenbergs reassignment. One would have to be
particularly naive to believe that the Orchestra would not express its disagreement to the Plain Dealer
521
with Rosenbergs repeated negative views regarding Welser-Mst. Finally, we also learned, as we would
have known with a seconds thought before the lawsuit, that the Plain Dealers editors know less about
music than Rosenberg.
We knew all these things already. So the lawsuit did nothing but hurt Rosenberg, cost the defendants
and taxpayers money, and generate a lot of material for a few writers.
One final word: I do not mean to say Donald Rosenberg had no right to file the lawsuit. He had
every right, and assuming he knew that he was very likely to lose, I would even have been happy to
represent him. I would have been clear to him, however, that I did not see the benefit he was deriving
from it. Theres no question I would have derived a lot of benefit from it. He would have paid me, and
it would have been a fun and interesting lawsuit to be part of.
Hot Tuna: Uncle Sam Blues (2010-08-11 23:57)

[EMBED]
Why Shepard Faireys deceit should not stop the court from finding that the
Obama Hope poster did not infringe the copyright in the photo it was based on.
(2010-08-12 15:17)
There has been a lot of discussion (here, for example)

about whether Shepard Faireys deceit in the course of discovery in his lawsuit with the Associated Press
and photographer Manny Garcia constitutes bad faith that will tilt the fair use analysis against him
and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo
that Garcia shot.
I dont think so, and the discussion of the issue of an infringers bad faith in NXVIM Corp. v. The
Ross Institute, 364 F.3d 471 (2d Cir. 2004) helps illuminate why. The Second Circuit Court of Appeals
(whose decisions are binding on the court deciding Fairey v. AP) in NXVIM affirmed the lower courts
denial of a preliminary injunction on the grounds that NXVIM, the producer of a business training
seminar, had been unable to show it would likely prevail on its claim that the defendants had infringed
NXVIMs copyright in a training manual for one of their online courses. The defendants had posted to
the internet quotations from the manual in support of their analyses and criticisms of NXVIMs activities.
NXVIM argued to the Second Circuit that the lower court had inadequately considered the defendants
bad faith in obtaining the manual from a former participant in the seminar rather than by purchasing
it, as anyone could do.
The majority did in fact state that it was error for the district court not to have fully and explicitly considered the defendants bad faith, which presumably included inducing the former course participant to
breach a confidentiality agreement by disclosing the course materials to them. The court did not reverse
522
the district courts decision, however, because the bad faith did not alter the conclusions that the use was
a non-infringing one. In short, according to the majority, a defendants bad faith is not dispositive on
the fair use question and consideration of all of the factors and in particular the first, the purpose and
character of the defendants use of the copyrighted material was so great: the first factor still favors
defendants in light of the transformative nature of the secondary use.
It is difficult to get a handle on how much weight, if any, the majority would therefore give to bad
faith in the fair use analysis. It would have some weight, the majority seems to indicate, but not that
much. Judge Dennis Jacobs concurring decision is even more illuminating, however, and gives good
reason to believe that the true weight to be given bad faith as a factor independent of the rest of the fair
use analysis should be zero. After reviewing the rather recent history of the role of a defendants bad
faith in fair use analysis, Judge Jacobs states rather bluntly:
I think that the secondary users good or bad faith in gaining access to the original copyrighted material ought to have no bearing on the availability of a fair use defense. Fair use
defines the outer boundary of copyright protection, and that perimeter should be drawn by
reference to the central objectives of copyright. Copyright itself would be distorted if its
contours were made to depend on the morality and good behavior of secondary users.
To support his reasoning, Judge Jacobs pointed out first that the use of bad faith in fair use analysis had
its origins in the Supreme Courts 1985 decision in Harper & Row v. Nation Enterprises, in which the
Court held that the Nation magazine had infringed Harper & Rows copyright in the memoirs of former
President Gerald Ford when it published a chapter from the memoir in the magazine in advance of the
publication of the memoir. As Judge Jacobs makes clear in NXVIM, the fact the Nation obtained the
manuscript illicitly tipped what was generally considered a close case in favor of the publisher.
One might question in retrospect precisely how close a case Harper & Row really was. The chapter
the Nation published was the chapter Ford wrote about his pardon of the disgraced Richard Nixon. It
seems quite likely that many people who would have purchased the book for that chapter alone (it was
clearly the most noteworthy event of Fords political career) would have purchased the magazine and
therefore not bothered with the book. In other words, the infringement very directly robbed the copyright holder of a significant amount of value that the copyright holder had every reasonable expectation
it would derive from the sale of the book.
But Judge Jacobs points out too that in its post-Harper & Row decision in Campbell v. Acuff Rose
Music, Inc., 510 U.S. 569 (1994), the Supreme Court backed off the suggestion that bad faith was part of
the fair use analysis, stating that the core of the fair use analysis must remain on (1) the transformative
purpose of the appropriating work and (2) whether the appropriating market usurps a market that
belongs to the copyright holder:
Campbells footnoted discussion questioning the pertinence of good faith reinforces the
entire thrust of the decision, which requires that fair use be assessed primarily in light of
whether the secondary work quotes the original with a transformative purpose and whether
it usurps a market that properly belongs to the original author
issues as to which the
defendants good faith in accessing the plaintiffs original work does not matter.
In other words, according to Judge Dennis, the fair use defense exists to encourage the creation of original works that do not supersede the objects
and thus the market value
of the original. Nor is
fair use a doctrine a privilege we confer on people we like. It is not earned by good works and clean
morals; it is a right
codified in 107 and recognized since shortly after the Statute of Anne
that is
necessary to fulfill copyrights very purpose, [t]o promote the Progress of science and the useful arts....
Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (quoting U.S. Const., art. I, 8, cl. 8).
523
Thus, while someones bad acts may subject him to criminal or civil prosecution on a number of grounds,
they should not bear on the fair use analysis:
A person who acquires the original work by crooked or unsavory means may expose himself
to all sorts of civil claims and criminal charges; but the question of fair use itself should be
decided on the basis of the transformative character and commercial effects of the secondary
use. If the use satisfies the criteria of 107 [of the Copyright Act], it is fair because it advances
the utilitarian goals of copyright.
Shepard Faireys deceit in the course of discovery in the lawsuit has been uncovered, and it can be
punished through civil sanctions or even criminal prosecution. But it should not affect the courts determination of the artistic legitimacy of the Obama Hope poster. [C]opyright is not about virtue; it
is about the encouragement of creative output, including the output of transformative quotation. Its
goals are not advanced if bad faith can defeat a fair use defense. Nor is good faith a factor in fair use
determinations. Willing as you may be to pay a license fee, if the copyright holder refuses to sell you a
license and your subsequent unauthorized use is infringing, your willingness to pay is of no credit to you
in the fair use analysis.
In short, as Judge Dennis so cogently puts it, fair use is central to the copyright regime; it is not a
tolerated exception to the copyright holders domain:
Fair use is not a permitted infringement; it lies wholly outside the domain protected by
the authors copyright.
Friday Night Mashup:
Evolution Control Committee Rocked by Rape
(2010-08-13 20:16)
[EMBED]
Saturday Night Music: Glenn Gould Goldberg Variations ## 29 & 30 (a quodlibet, look it up) (2010-08-14 20:02)
[EMBED]
524
Andy Warhol was sued, but the cases were never decided. (2010-08-17 21:17)
After posting Campbell Soups letter to Andy Warhol expressing admiration for his Campbell Soup paintings 2 weeks ago, Ive been asked by several people whether Warhol
was ever sued for his appropriations of copyrighted photographs. He was indeed, though all of the cases
settled out of court with Warhol paying by giving the plaintiffs pieces he had created. They therefore
provide no guidance how courts would rule on those claims. Heres the account from Patricia Searchs
article, Electronic Art and the Law: Intellectual Property Rights in Cyberspace, Leonardo, Vol. 32, No.
3, 191, 193 (June 1999):
Andy Warhol received legal complaints from photogra-phers Charles Moore, Fred Ward, and PatriciaCaulfield. Warhol used three of Charles Moore s photographs of the Birmingham race riots in a 1964
painting called Race Riot. He also used a Life magazine cover photo of Jacqueline Kennedy Onassis,
taken by Fred Ward after President Kennedy s assassination, in several prints and paintings. Patricia
Caulfield sued Warhol when she discovered that he had used one of her photographs in his1964 series of
paintings and prints called Flowers.
All of these cases were settled out of court. The photographers and their agents or attorneys received
works of art from . . . Warhol . . . . Caulfield received a promise of royalties on future uses of her
image by Warhol. Unfortunately, because these cases were settled out of court,no legal precedents were
set concerning artistic appropriation of copyrighted material.
Blanch v. Koons, transformative appropriation art, and Fairey v. AP (2010-08-18 21:15)

Its well worth revisiting the decision by the United States Court of Appeals for the 2d Circuit (the
Circuit in which the court hearing Shepard Faireys lawsuit against AP and Manny Garcia is pending)
in Blanch v. Koons, 467 F.3d 244 (2006). Andrea Blanch, an accomplished professional fashion and
portrait photographer, unsuccessfully sued Jeff Koons for copyright infringement of a photograph she
had shot entitled Silk Sandals by Gucci (Silk Sandals), [which] depicts a womans lower legs and feet,
adorned with bronze nail polish and glittery Gucci sandals, resting on a mans lap in what appears to
be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph.
Allure published Silk Sandalsas part of a six-page feature on metallic cosmetics entitled Gilt Trip.
The court explained how Koons appropriated and used Silk Sandals as follows:
Koons scanned the image of Silk Sandals into his computer and incorporated a version of
the scanned image into [his painting entitled] Niagara. He included in the painting [pictured
525
at left] only the legs and feet from the photograph, discarding the background of the airplane
cabin and the mans lap on which the legs rest. Koons inverted the orientation of the legs
so that they dangle vertically downward above the other elements of Niagara rather than
slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one
of the feet and modified the photographs coloring. The legs from Silk Sandals are second
from the left among the four pairs of legs that form the focal images of Niagara. Koons did
not seek permission from Blanch or anyone else before using the image
Koons was paid $126,877 for Niagra. Allure had paid

Blanch $750 for Silk Sandals. In addressing whether Koons appropriation of Silk Sandals was fair use
or a copyright infringement, the court highlighted the fact that answering this question requires balancing the conflicting interests in protecting the intellectual property rights of creators and protecting the
freedom of expression, including referencing the works of others in new works of creation:
Copyright law thus must address the inevitable tension between the property rights it
establishes in creative works, which must be protected up to a point, and the ability of
authors, artists, and the rest of us to express them
or ourselves by reference to the works
of others, which must be protected up to a point. The fair-use doctrine mediates between the
two sets of interests, determining where each set of interests ceases to control.
At the heart of the fair use analysis is the nature of the allegedly infringing work. As the 2d Circuit
notes, it considers with respect to this factor whether the work is transformative that is, whether it
adds something new to the original work so that it stands on its own as an original work of creation. The
court thus quoted the Supreme Courts decision in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994):
The central purpose of this investigation is to see, in Justice Storys words, whether the new
work merely supersedes the objects of the original creation, or instead adds something new,
with a further purpose or different character, altering the first with new expression, meaning,
or message ..., in other words, whether and to what extent the new work is transformative.
Although such transformative use is not absolutely necessary for a finding of fair use, the
goal of copyright, to promote science and the arts, is generally furthered by the creation of
transformative works. Such transformative works thus lie at the heart of the fair use doctrines
guarantee of breathing space .... Campbell, 510 U.S. at 579, 114 S.Ct. 1164(citations omitted).
The courts conclusion that Niagra is genuinely transformative in its use of Silk Stockings is worth
quoting almost in its entirety (citations omitted) because it is the very heart of the decision to find in
favor of Koons:
Koons asserts
and Blanch does not deny
that his purposes in using Blanchs image
are sharply different from Blanchs goals in creating it. Compare Koons Aff. at 4 (I want
526
the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.) with Blanch Dep.
at 112-113 (I wanted to show some sort of erotic sense[;] ... to get ... more of a sexuality
to the photographs.). The sharply different objectives that Koons had in using, and Blanch
had in creating, Silk Sandals confirms the transformative nature of the use.
Koons is, by his own undisputed description, using Blanchs image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus
not to repackage Blanchs Silk Sandals, but to employ it in the creation of new information,
new aesthetics, new insights and understandings. When, as here, the copyrighted work is
used as raw material, in the furtherance of distinct creative or communicative objectives,
the use is transformative.
The test for whether Niagaras use of Silk Sandals is transformative, then, is whether it
merely supersedes the objects of the original creation, or instead adds something new, with
a further purpose or different character, altering the first with new expression, meaning, or
message.The test almost perfectly describes Koonss adaptation of Silk Sandals: the use
of a fashion photograph created for publication in a glossy American lifestyles magazine
with changes of its colors, the background against which it is portrayed, the medium, the size
of the objects pictured, the objects details and, crucially, their entirely different purpose and
meaning
as part of a massive painting commissioned for exhibition in a German art-gallery
space. We therefore conclude that the use in question was transformative.
The court also noted that in Campbell the Supreme Court had rejected the notion that athe commercial nature of [a] use could by itself be a dispositive consideration. The Campbell opinion observes that
nearly all of the illustrative uses listed in the preamble paragraph of 107 [setting forth the fair use
test], including news reporting, comment, criticism, teaching, scholarship, and research ... are generally
conducted for profit. Thus, the more transformative the new work, the less will be the significance of
other factors, like commercialism, that may weigh against a finding of fair use. (Quoting NXIVM Corp.
v. Ross Inst., 364 F.3d 471 (2d Cir.2004)). Moreover, since Niagra is substantially transformative, the
significance of other factors, [including] commercialism, are of [less significance], [w]e therefore discount[]
the secondary commercial nature of the use. (citations omitted.)
I by no means would suggest that Blanch is so obviously on point in all respects that it requires the
court hearing the Fairey v. AP case to find in favor of Fairey. But it certainly is quite meaningful in that
respect. If only because of the tremendous resonance the Obama Hope poster had in the course of the
2008 presidential, a resonance that would have been inconceivable had the poster substituted Garcias
photo for Faireys reworking of that source material, it seems at the very least quite arguable that Faireys
reworking of the photo meets the 2d Circuits test of a transformative work one that adds something
new, with a further purpose or different character, altering the first with new expression, meaning, or
message.
527
Blanch also makes clear that it is of no moment that, Dan Hellers assertions notwithstanding, Faireys
work (1) was intended to convey a message, (2) was intended to make a buck.
It also makes plain that Heller is just plain misunderstanding the law when he states that you cannot misappropriate someones likeness or their property without their consent. (Emphasis in Hellers
original.) Koons neither sought nor received Blanchs consent to use her photograph. Koons plainly
made more than a buck in the transaction. And the fact that Koons message might have been a commentary on the world of mass communication does not seem any more worthy of fair use analysis even
if we do assume, as does Heller, that Faireys poster was merely a piece of political advocacy. Finally,
there is no applicable right of publicity that Fairey violated in appropriating Obamas image (nor does
the Associated Press or its photographer, Manny Garcia, have any right to assert any right of publicity
Obama hypothetically could enjoy on his behalf).
ADDENDUM: J OShea on Shepard Fairey and the Art of Appropriation.
Special Friday Night Mashup: Negativlands U2, a lesson in copyright (not least
because its available online now) (2010-08-20 18:27)
[EMBED] The facts re U2 v. Negativland:
August 20, 1991: SST Records releases a CD single by Negativland called U2, a tapecollage parody of U2s I Still Havent Found What Im Looking For featuring sampled
and scrambled portions of the U2 song itself and a found tape of radio personality Casey
Kasem losing his cool. As part of the joke, the CD packaging features the titlethe letter
U and the numeral 2largely and prominently with the attribution Negativland in much
smaller letters below it. October 5, 1991: two weeks later, a federal judge issues a temporary
restraining order at the behest of Island Records and Warner-Chappell Music. Preferring
retreat to total annihilation, Negativland and SST immediately capitulate to every demand.
These demands are: Everyone who received a copy of the recordreviewers, record stores,
radio stations, etc.must be notified to return it. If they fail to comply, they may be subject
to penalties which may include imprisonment and fines. Once returned, the records will
be forwarded to Island for destruction. All of SSTs on-hand stock of the recordin vinyl,
cassette, and CDis to be delivered to Island, where it will be destroyed. All mechanical
parts used to prepare and manufacture the record are to be delivered to Island, presumably
also for destruction. This includes all tapes, stampers, molds, lacquers and other parts
used in the manufacturing and all artwork, labels, packaging, promotional, marketing, and
advertising or similar material. Negativlands copyrights in the recordings themselves are
assigned to Island and Warner-Chappell. Negativland no longer own what they have created.
Negativland and SST must pay $25,000 and half the wholesale proceeds from the copies of
528
the record that were sold and not returned. Estimated cost to Negativland is $70,000more
than they have made in their 14 years of existence.
From Wikipedia, more of interest on the entire incident:
In June, 1992, R. U. Sirius, publisher of the magazine Mondo 2000 came up with an interesting idea. Publicists from U2 had contacted him regarding the possibility of interviewing
Dave Evans (aka The Edge) hoping to promote U2s impending multi-million dollar Zoo
TV Tour, which featured found sounds and live sampling from mass media outlets (things for
which Negativland had been known for some time). Sirius, unbeknownst to Edge, decided to
have his friends Joyce and Hosler of Negativland conduct the interview. Joyce and Hosler,
fresh from Islands lawsuit, peppered the Edge with questions regarding his ideas about the
use of sampling in their new tour, and the legality of using copyrighted material without permission. Midway through the interview, Joyce and Hosler revealed their identities as members
of Negativland. An embarrassed Edge reported that U2 were bothered by the sledgehammer
legal approach Island Records took in their lawsuit, and furthermore that much of the legal
wrangling took place without U2s knowledge: by the time we [U2] realized what was going
on it was kinda too late, and we actually did approach the record company on your [Negativlands] behalf and said, Look, cmon, this is just, this is very heavy... Island Records
reported to Negativland that U2 never authorized samples of their material; Evans response
was, thats complete bollocks, theres like, theres at least six records out there that are direct
samples from our stuff. The U2 single (along with other related material) was re-released
in 2001 on a bootleg album entitled These Guys Are from England and Who Gives a Shit,
released on Seelard Records (a parody of Negativlands record label Seeland Records). It is
thought likely that Negativland themselves were responsible for the re-release, and that U2
gave their blessing; although the Negativland website refers to this release as a bootleg, it is
available from major retailers like Best Buy, Amazon, and Tower Records, as well as Negativlands own mail-order business. Negativland are interested in intellectual property rights,
and argue that their use of U2s and others material falls under the fair use clause. In 1995,
they released a book, with accompanying CD, called Fair Use: The Story of the Letter U
and the Numeral 2, about the whole U2 incident (from Island Records first suing Negativland
for the release to Negativland gaining back control of their work four years later). The book
ends with a large appendix of essays about fair use and copyright by Negativland and others,
telling the story with newspaper clippings, court papers, faxes, press releases and other documents arranged in chronological order. An unfortunate side effect of the Negativland-Island
lawsuit was another one brought on between Negativland and SST, which served to sever all
remaining ties the two had. To get back at Negativland (while wryly circumventing their
name), Ginn later released the Negativ(e)land: Live on Tour album on SST.
Here is Negativlands interview with The Edge.
Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as
plagiarists (2010-08-21 13:15)
In yesterdays New York Times, Robert Darnton reviewed Lewis Hydes newly published Common as
Air: Revolution, Art, and Ownership, describing it as an eloquent and erudite plea for protecting our
cultural patrimony from appropriation by commercial interests. As Darnton explains, Hyde invokes the
[founding fathers] in order to warn us against a new enclosure movement, one that would fence off large
sectors of the public domain
in science, the arts, literature, and the entire world of knowledge
in
order to exploit monopolies. Acknowledging that Hydes historical approach might seem a dubious way
of defending the cultural commons and that in other hands it could amount to nothing more than picking and choosing among a stockpile of quotable chunks of wisdom, Darnton finds the book compelling:
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[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches
his argument at a level where historians and political philosophers have contributed most to
our understanding of intellectual history. Instead of treating the ideas of the founders as selfcontained units of meaning, he explores their interconnections and shows how they shared
a common conceptual frame. Not that he pretends to have uncovered anything unknown
to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic
republicanism reveal how early modern philosophers drew on a current of thought about the
nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument
by telling stories, and he tells them well. His book brims with vignettes, which may be familiar
but complement one other in ways that produce original insights.
It is one of the genuine highlights of my professional career that Hyde draws on an article Ive written.
Hydes scope is wide, and he explores in depth the practices of many different communities including,
among others, the world of scientific research and the programmers that collectively created the World
Wide Web to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held
understanding that your intellectual product is as much your property as is your house is such a legalistic
conception:
Many . . . communities of practice have common holdings made durable and lively
through normative rather than legal stints.
One of these may be found, oddly enough, in the legal community itself, where, as in some
scientific circles, collective tasks get done and collective beings come to life through the
agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges
issue opinions they often plagiarize from the briefs presented by contending parties. To
take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration s brief in his decision upholding
the Social Security system. Of course, plagiarism is the wrong term here, for legal writing
does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are
public documents, belonging to no one because they belong to all of us. Nobody has ever
successfully claimed copyright infringement for the unauthorized use of someone else s legal
argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a
lawyer whose analysis I m drawing on here, has written: I knew I had written the best brief
I possibly could on a motion when the court s opinion announcing its decision was directly
cut-and-pasted from my brief.
If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century
pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer s
entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with
copyduties rather than copyrights. In this context, to sample someone else s brief is a favor,
not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public
life possible. (Common as Air at 248-249.)
Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly
accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley
Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but,
rather, the product of particular rules against the use in particular contexts of others words and ideas
without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.]
The necessary corollary of Fishs point is that in other contexts the use of others words and ideas without
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attribution is perfectly acceptable. Greenfields disagreement with Fish focused on Fishs assertion that
lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the
benefit or hindrance of any metaphysical rap. Greenfield wrote, No, Stanley, I will not turn the other
cheek, no matter how much I love the platitude about reinventing the wheel.
I tried to explain in the comments to Greenfields post where I thought he had missed Fishs point
(which is very much related to Hydes). I will try to do so more clearly here inasmuch as he and I seemed
to speak past one another in that particular exchange.
In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave
offense that can lead to harsh discipline and even might threaten the students ability to someday be
certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others
is deemed necessary because the point of the academic process is to teach the students to put together and
convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without
attribution is tantamount to fraud the reader of those words and the ideas they convey is misled into
believing they are the product of the students intellectual processes alone, and the reader conducts an
activity central to the academic process grading those words in reliance on that belief. If I were to
read Scott Greenfields words under the mistaken belief they were the words of a student whose paper I
was grading, I would give him a much better grade than he would earn if I knew he were just quoting
Greenfield.
In legal practice, however, it is only the quality of the words that matter. Whether contract language
originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the briefs argument was cut-and-pasted from a brief the lawyer who submitted the brief
found online doesnt matter. What matters is the effect of the words themselves. And, in fact, lawyers
almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite
to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage
from Hyde above makes clear, judges cut-and-paste from lawyers briefs. In fact, the entire arena of legal
writing in practice is rife with unacknowledged borrowing.
And of course its no sin. Thats the point. Which Greenfield acknowledges without realizing its the
point when he writes that a judge who appropriates the words from a lawyers brief is accepting a gift,
not engaging in plagiarism:
As for judges taking language out of my brief, thats not plagiarizing, but the purpose of
a legal brief, to provide the court with the language to use in his decision. Thats exactly
what Ive written it for, as my gift to the judge to use in deciding the case. Again, entirely
different from plagiarizing.
But that precisely is Fishs point. Appropriation without attribution isnt the moral equivalent of the
theft of private property. Its wrong in some contexts and not in others. So in some contexts it is defined
as plagiarism and in others to call it plagiarism is to misspeak.
Greenfields other retort to Fish also reflects his misunderstanding of the point. Greenfield states that
lawyers do provide attribution to the words and ideas for others. Thats what the whole obsession with
citation is about:
[W]e do not lift language without attribution. Indeed, thats what all those silly case
names and the 358 U.S. 973 stuff is all about. Its the lawyers way of attributing, Stanley.
Its called a citation, and its our regime. What you do not see at the end of a court decision
is the copyright and command that it not be used without permission. Use of court decisions
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is not merely anticipated, but required in most circumstances. Thats the peculiar way law
works.
But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as
does attribution to a students sources. Lawyers dont provide citations to the authorities they quote
and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers
provide citations because the citations signal the identity of sources for words, actions, and ideas that
have persuasive weight because of who those sources are.
In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere
hypothetical, but you would be wrong. If an argument and even precise words come from a court
that has no controlling weight in the court to whom I am submitting the brief and I have no reason to
believe the identity of the court would lend any genuine persuasive weight to the argument, I would be
remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to
whom I was submitting the brief why should I care about this courts words, ideas, or actions? that
would distract from the persuasive effect of the argument itself.
And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight.
A judges reaction otherwise is likely to be along the lines of this: A law review article can pretty much
assert anything that can win the approval of a student editor. Why should I assume it has any authority
merely because its published in a law review?
Would the articles author have any claim against a lawyer who lifted words or ideas from his article
and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or
rule the lawyer would be violating.
And in contract and instrument drafting, of course, lawyers dont even provide citation for the sources
of their words.
I think it is important in understanding what Fish was writing about to understand these different
functions of citation. On the one hand, theres citation to validate the relationship between the words
and ideas and the authors identity. On the other, theres citation to signal that particular words and
ideas come from a source that must be reckoned with by the reader. They are two entirely different
functions, and in legal practice the latter is the one that matters. The former does not. And so you have
never seen a lawyer suffer any adverse consequences for plagiarizing.
But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.
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Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright
in the photo he shot and that Shepard Fairey used as the source of the image in the
Obama Hope poster. (2010-08-24 11:26)
Manny Garcia has dropped all the claims in the lawsuit

over whether Shepard Faireys Obama Hope poster infringed the copyright in the photo Garcia had taken
and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice
filed in the case is embedded below.
What this means is that Garcia has given up his claim that he rather than the Associated Press owns
the copyright in the photo. The Associated Press claims that it owns the copyright in the photo on the
grounds that Garcia shot it as a work for hire. The fact that the claims by Garcia and against him have
been discontinued by agreement of the parties with prejudice means that Garcia has given up any right
to re-assert those claims in the future. The agreement constitutes a final, binding determination that the
copyright in the photo belongs to the Associated Press.
It does nothing, however, to illuminate the outcome of the claim by the Associated Press that Faireys
poster infringes the copyright in the photo. But it does illuminate those familiar with the history of
copyright know the enlargement and enforcement of copyright has always been more about protecting
the interests of publishers than it has been of promoting artistic creation:
There is one group of people not shocked by the record industrys policy of suing randomly
chosen file sharers: historians of copyright. They already know what everyone else is slowly
finding out: that copyright was never primarily about paying artists for their work, and that
far from being designed to support creators, copyright was designed by and for distributors
that is, publishers . . .
[EMBED]
If you think lawyers lifting other lawyers language is proof lawyering is easy, you
know nothing about true creativity. (2010-08-25 09:27)
Theres always the danger that when someone suggests that genuine creativity can and is built from
earlier creative works that someone else will believe the implication is that creativity is no big deal. If I
feel I can cut-and-paste from other lawyers works then lawyering must be nothing but a cut-and-paste
job, right?
Its not as if Ive never dealt with these matters for real, as if Im dealing with it from an academic
perspective unsullied by the realities of practice. A client who retained me to draft a contract for him
once said to me, after wed spent a considerable amount of time discussing the details of his deal, Its
all boilerplate, right?
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I responded, I dont do boilerplate. Every deal is different, and if you know the lawyer whos done
exactly your deal before and youre confident the contract he wrote then is just fine for you, go hire him.
Which isnt to say I didnt review a lot of other contracts or that I didnt lift language from those
other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the
language Id lifted from other sources, wrote far more language necessary to express what was necessary
to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at
the end I had a document that set forth the clients deal in all its precision, breadth, and ambiguity. It
wasnt boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts?
Of course.
I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises
because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So
there are a lot of people who will look at Shepard Faireys Obama Hope poster and the photo Fairey used
as the poster images source, and write things like the following:
Any director, writer or actor interested in making long-term money in the entertainment
industry should be calling Fairey what he is: A plagiarist.
While I recognize the attitudes underlying these views no one else is entitled to make a buck from my
work! the blindness to the creativity involved, even acknowledging the appropriation, is astounding.
Ive gone on at length about my view on this, but no one can deny that Faireys poster had a profound
resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster
would have had any similar impact if the original photo had appeared on the poster rather than Faireys
reworking. So how can anyone possibly suggest the level of creativity in the poster wasnt profound?
The KLF were one of the seminal bands of the British acid house movement during the late 1980s
and early 1990s. Their relevance here is that, despite their protestations of 1988 about not wishing to
be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which
retrospectively bundles together those literary and artistic works that make use of creative plagiarism.
1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music
in the United Kingdom. Their #1 British hit, Doctorin the Tardis is predominantly a mash-up of the
Doctor Who theme music, Gary Glitters Rock and Roll (Part Two) with sections from Blockbuster!
by Sweet and Lets Get Together Tonite by Steve Walsh.
Jimmy Cauty and Bill Drummond who were the KLF are also very smart fellows. Among a neverending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number
One the Easy Way, which Ive heard some describe as a cynical con job but that is far more intelligent
and complicated than that. On the one hand, The Manual explains
chance before they stumbled across the tried and tested. They have to believe it is through
this sojourn they arrive at the grail; the great and original song that the world will be unable
to resist.
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But Drummond and Cauty are not accusing successful musical artists of being mere plagiarists. They
recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius
in great pop music:
So why dont all songs sound the same? Why are some artists great, write dozens of
classics that move you to tears, say it like its never been said before, make you laugh, dance,
blow your mind, fall in love, take to the streets and riot? Well, its because although the
chords, notes, harmonies, beats and words have all been used before their own soul shines
through; their personality demands attention. This doesnt just come via the great vocalist or
virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed
music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire.
The creators of that music just press a few buttons and out comes - a million years of pain
and lust.
Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my
exploration the other day of lawyerly plagiarism:
Intellectual property is the phrase now used to denote ownership of art and ideas, but
what exactly does it mean? Does it make sense, to begin with, to say that intellect is the
source of the properties in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jrs Dream speech, the poems of Rimbaud, Andy Warhol
screen prints, Mississippi Delta blues, the source code for electronic voting machines: who
could name the range of human powers and historical conditions that attends such creations?
All that we make and do is shaped by the communities and traditions that contain us, not
to mention by money, power, politics, and luck. And even should the artist or scientist think
she has extracted herself from the world to stand alone in the studio, a tremendous array of
faculties and mind- states may well attend her creativity.
There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence,
fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude,
fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically
opposed states of mind into harmonious wholes . . . We would need quite a few new categories
to fully map this territory
dream property, courage property, grief property
and
even if we had that list, only half the problem would have been addressed.
Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers
into his work. But please dont believe for a second that means that lawyering can be reduced to
cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth if I didnt believe
that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a
matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together
to due the present job, the skill borne of years of work to write in the stuff that cant be found anywhere
else and without which those bits and pieces would be just a bunch of crude boilerplate that doesnt fit
well into any specific situation at all, the passion and energy necessary to do the work to bring all this
stuff together, the courage to stick to ones vision even as ones adversary is insisting youre wrong, the
delight without which the strength to do all of these difficult things would be impossible to muster, the
generosity of spirit that can identify a clients problems as your own, and a million other things.
So dont you dare suggest that taking some language that is useful for doing the job that needs to
be done from another lawyer is evidence lawyering is like putting together tinker toys.
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Why dont law professors know how to be lawyers? (2010-08-25 15:41)

Ive made plain my disdain for the ways law schools neglect what anyone outside law school faculties would
presume is the central purpose of law schools to train law students how to be lawyers. Among the ways
this neglect manifests itself is the second class status accorded most clinicians and legal writing professors those professors whose focus is on teaching practice in most law schools. Now Brent E. Newton,
an adjunct professor at Georgetown and the Deputy Staff Director of the U.S. Sentencing Commission)
has written Preaching What They Dont Practice: Why Law Faculties Preoccupation with Impractical
Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C.
L. Rev.
(2010). Heres a taste of Newtons article:
Especially at law schools in the upper echelons of the U.S. News & World Report rankings,
the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. ... Regardless
whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called elite law schools, which not coincidentally employ the largest percentage
of impractical faculty. Law professors are a self-perpetuating elite, chosen in overwhelming
part for a single skill: the ability to do well consistently on law school examinations, primarily
those taken as 1Ls, and preferably ones taken at elite national law schools. Some critics
contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure,
jealous of their privileged positions. Other critics contend that many law professors are so
absorbed in their scholarly pursuits that they are largely unconcerned with students needs
academic or otherwise. ...
Could [a typical law school] professor whose primary scholarly interest is criminal law and
procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such
a professor who writes law review articles about the First Amendment effectively represent a
client in a civil rights litigation? Could such a professor whose expertise is securities regulation
effectively represent a client or the government in an S.E.C. enforcement action? Imagine such
professors being first-chair counsel in a complex civil or criminal litigation who must interview
potential witnesses, take depositions and engage in electronic discovery, file and respond to
summary judgment motions, conduct voir dire, present the testimony of an expert witness,
cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There
are some full-time non-clinical law professors capable of competently representing clients in
real cases, but they are the exception, not the rule, particularly among professors hired in
recent years at highly-ranked law schools.
How can we expect law students to become competent practitioners if the core of full-time
law faculties, notwithstanding their scholarly prowess, do not themselves possess even the
basic skills required to practice the type of law about which they teach and write? How
can we expect law students to become competent and ethical practitioners when the faculty
members best suited to teach them the necessary practical skills and ethical lessons from
real-world cases clinicians, LRW [Legal Research & Writing] professors, and adjuncts are
marginalized and even openly held in disdain by some members of the main faculty?
August 28, 1963 (2010-08-28 08:20)

[EMBED]
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Richard Posner: Law Schools need to hire more professors who identify more strongly
with legal practice. (2010-08-28 16:34)
From Richard Posner writing in honor of the memory of Bernard Meltzer:
What has happened since the 1960s that watershed decade in modern American history is the growing apart, especially but not only at the elite law schools, of the lawyer and
the judge on the one hand and the law professor on the other hand. Law professors used to
identify primarily with the legal profession and secondarily with the university. The sequence
has been reversed. Law professors in that earlier era were hired after a few years of practice,
on the basis of evidence (heavily weighted by performance as a law student) of possessing
superlative skills of legal analysis. A law professor was expected to be a superb lawyer and
to see his primary role as instructing generations of law students so that they would become
good, and some of them superb, lawyers instructing them by precept but also by example,
by being a role model; and the role was that of a practicing lawyer. . . .
By the late 1960s this model was almost a century old and ripe for challenge. The challenges
came from two directions, which though opposed to each other turned out to be complementary in their effect on the traditional model. . . .
These challenges to the conventional model of the law professor s vocation so far succeeded
as to bring about a fundamental change in the character of legal teaching and scholarship
and the method of recruitment into academic law. From the challenge mounted by social
science came a novel emphasis on basing legal scholarship on the insights of other fields, such
as economics, philosophy, and history, and from the challenge mounted by the Left came a
reinforcing skepticism about the capacity of conventional legal analysis to yield intellectually
cogent answers to legal questions. These ideologically opposed challenges complemented each
other by agreeing that the traditional model was narrow and stale.
The model was largely buried in these twin avalanches, especially in the elite law schools.
. . .
Even at the most intellectually ambitious of the modern law schools, a large majority of
students will become and remain practicing lawyers; and there is a good deal more to the
practice of law than economics, or philosophy,or feminism, or theories of race. There is the
knack of reading cases and statutes creatively, there is a largish body of basic legal concepts
that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle
sense ( judgment ) of just how far one can go in stretching the limits of established legal
doctrines to be absorbed. These things cannot be the entirety of the modern lawyer s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal
education, because the law has become too deeply interfused with the methods and insights
of other fields and the law schools are still lagging badly in attempting to overcome the
shameful aversion of most law students to statistics, math, science, and technology. Maybe at
the law schools that have the brightest students only a third of the instruction should be in
the traditional mold. But to reach that level the law schools will have to start hiring teachers
who identify more strongly with the practicing profession than they do with academia.
The myth of authorship and the rise of a new artistic culture (2010-08-30 18:41)
As Ive pointed out previously, my colleague and friend Martha Woodmansees scholarship is fundamental
to the reexamination of the historical bases of our present conceptions of authorship:
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An author in the modern sense is the creator of unique literary, or artistic, works the
originality of which warrants their protection under laws of intellectual property
Anglo
American copyright and European authors rights.
Now Abram Sinnreich, in Mashed Up: Music, Technology, and the Rise of Configurable Culture, extends
these insights into the quirks that have produced our notion of authorship and the ways the radical
changes in the technological realities governing the creation and distribution of artistic works is undermines that notion. truthdig has posted a substantial excerpt, the entirety of which (like the book, no
doubt) is well worth reading. Heres just a taste, one that begins to develop the relationship between
the current conventional wisdom of what an author is and its relationship to our social obsession with
converting public goods into private property:
The biggest myth of all is the Romantic notion that artists somehow create their work
uniquely and from scratch, that paintings and sculptures and songs emerge fully-formed from
their fertile minds like Athena sprang from Zeus. Running a close second is the myth that
only a handful of us possess the raw talent or the genius to be an artist. According to
this myth, the vast majority of us may be able to appreciate art to some degree, but we will
never have what it takes to make it. The third myth is that an artist s success (posthumous
though it may be) is proof positive of his worthiness, that the marketplace for art and music
functions as some kind of aesthetic meritocracy.
Of course, these myths fly in the face of our everyday experience. We know rationally that
Picasso s cubism looks a lot like Braque s, and that Michael Jackson sounds a lot like James
Brown at 45 RPM. We doodle and sing and dance our way through our days, improvising and
embellishing the mundane aspects of our existence with countless unheralded acts of creativity. And we all know that American Idol and its ilk are total B.S. (very entertaining B.S., of
course!). Each of us can number among our acquaintance wonderful singers, dancers, painters
or writers whose creations rival or outstrip those of their famous counterparts, just as each of
us knows at least one beauty who puts the faces on the covers of glossy magazines to shame.
And yet, we believe the myths. How could we not? Who among us has the time, the energy,
or even the motivation to buck the overwhelming support the myth of the Artist receives from
the institutions that govern our society to dispute our schools, our churches, even our laws?
What is copyright, after all, but the legal assertion of an individual s sole ownership over a
unique artifact of creative expression? These laws, sometimes enforced at gunpoint, require
us to believe the myths, or face the consequences.
Of course, there s a reason the myths exist. Our economy runs on the privatization of hitherto
public goods. Our legal system is premised on the individual as the locus of all rights, all
liability, all blame. Our society s profound inequalities are only acceptable because we believe
ourselves to live in a meritocracy, a world where a person s success is de facto proof of his or
her inherent worthiness. In short, the myth of the Artist-with-a-capital-A allows us to believe
in America-with-a-capital-A.
Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on
Mashup & Remix (2010-08-31 11:12)
[EMBED]
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3.9
September
Judges: you never really understand a person until you consider things from his point
of view. (2010-09-01 13:33)
Dahlia Lithwick writes of her legal hero, Atticus Finch, and the noxious myth that empathy has nothing
to do with being an effective judge:
Atticuss life instruction to his daughter, Scout. As he explains, If you can learn a simple
trick, Scout, youll get along a lot better with all kinds of folks. You never really understand
a person until you consider things from his point of view, until you climb inside of his skin
and walk around in it. In summer 2009, and again this July, the United States was roiled by
debate about Barack Obamas promise to appoint a supreme court justice who embodies this
quality of empathy. Scores of critics asserted that judicial empathy is the same as judicial
bias; that judges are at their best when they coldly and mechanically apply the law. There is
no place for climbing inside anyone elses skin as a judge. There is only truth and cold fact.
How strange it is, that we have come to a place in the national debate about justice when
Atticus Finchs mild admonition to his daughter to try to walk a mile in someone elses shoes
has become the definition of dangerous judicial activism. While Atticus still has much to
teach lawyers about race and violence and prejudice and the rule of law, I have also come to
think of him as the patron saint of patient, quiet listening; a quality to which all of us ought
to aspire.
Happy Labor Day! President Eisenhower on Unions. (2010-09-06 09:42)

President Dwight D. Eisenhower to the AFL-CIO, December 5, 1955:
You of organized labor and those who have gone before you in the union movement have
helped make a unique contribution to the general welfare of the Republicthe development
of the American philosophy of labor. This philosophy, if adopted globally, could bring about
a world, prosperous, at peace, sharing the fruits of the earth with justice to all men. It
would raise to freedom and prosperity hundreds of millions of men and womenand their
childrenwho toil in slavery behind the Curtain.
One principle of this philosophy is: the ultimate values of mankind are spiritual; these
values include liberty, human dignity, opportunity and equal rights and justice.
Workers want recognition as human beings and as individuals-before everything else.
They want a job that gives them a feeling of satisfaction and self-expression. Good wages,
respectable working conditions, reasonable hours, protection of status and security; these
constitute the necessary foundations on which you build to reach your higher aims.
Moreover, we cannot be satisfied with welfare in the aggregate; if any group or section of citizens is denied its fair place in the common prosperity, all others among us are
thereby endangered.
The second principle of this American labor philosophy is this: the economic interest
of employer and employee is a mutual prosperity.
Their economic future is inseparable.
Together they must advance in mutual respect,

539
in mutual understanding, toward mutual prosperity. Of course, there will be contest over
the sharing of the benefits of production; and so we have the right to strike and to argue all
night, when necessary, in collective bargaining sessions. But in a deeper sense, this surface
struggle is subordinate to the overwhelming common interest in greater production and a
better life for all to share.
The American worker strives for betterment not by destroying his employer and his
employers business, but by understanding his employers problems of competition, prices,
markets. And the American employer can never forget that, since mass production assumes
a mass market, good wages and progressive employment practices for his employee are good
business.
The Class Struggle Doctrine of Marx was the invention of a lonely refugee scribbling
in a dark recess of the British Museum. He abhorred and detested the middle class. He
did not foresee that, in America, labor, respected and prosperous, would constitutewith
the farmer and businessmanhis hated middle class. But our second principlethat mutual
interest of employer and employeeis the natural outgrowth of teamwork for progress,
characteristic of the American economy where the barriers of class do not exist.
The third principle is this: labor relations will be managed best when worked out in
honest negotiation between employers and unions, without Governments unwarranted
interference.
This principle requires maturity in the private handling of labor matters within a
framework of law, for the protection of the public interest and the rights of both labor and
management. The splendid record of labor peace and unparalleled prosperity during the last
3 years demonstrates our industrial maturity.
Some of the most difficult and unprecedented negotiations in the history of collective
bargaining took place during this period, against the backdrop of non-interference by
Government except only to protect the public interest, in the rare cases of genuine national
emergency. This third principle, relying as it does on collective bargaining, assumes that
labor organizations and management will both observe the highest standards of integrity,
responsibility, and concern for the national welfare.
You are more than union members bound together by a common goal of better wages, better
working conditions, and protection of your security. You are American citizens.
The roads you travel, the schools your children attend, the taxes you pay, the standards of integrity in Government, the conduct of the public business is your business as
Americans. And while all of you, as to the public business, have a common goala stronger
and better Americayour views as to the best means of reaching that goal vary widely, just
as they do in any other group of American citizens.
So in your new national organization, as well as in your many constituent organizations, you have a great opportunity of making your meetings the worlds most effective
exhibit of democratic processes. In those meetings the rights of minorities holding differing
social, economic, and political views must be scrupulously protected and their views
accurately reflected. In this way, as American citizens you will help the Republic correct
the faulty, fortify the good, build stoutly for the future, and reinforce the most cherished
freedoms of each individual citizen.
This country has long understood that by helping other peoples to a better under540
standing and practice of representative government, we strengthen both them and ourselves.
The same truth applies to the economic field. We strengthen other peoples and ourselves
when we help them to understand the workings of a free economy, to improve their own
standards of living, and to join with us in world trade that serves to unite us all.
In the world struggle, some of the finest weapons for all Americans are these simple
tenets of free labor. They are again: mart is created in the Divine image and has spiritual
aspirations that transcend the material; second, the real interests of employers and employees
are mutual; third, unions and employers can and should work out their own destinies. As
we preach and practice that message without cease, we will wage a triumphant crusade for
prosperity, freedom, and peace among men.
To close, it is fitting that we let our hearts be filled with the earnest prayer that,
with the help of a kind Providence, the world may be led out of bitterness and materialism
and force into a new era of harmony and spiritual growth and self-realization for all men.
Thank you very much.
Arbitration often isnt fast and cheap. (2010-09-06 17:14)

Ive written before that the instinctive preference many express for arbitration over litigation in court is
not always good for the client. But now it seems, according to Law.com, that litigators are beginning to
question the very basis of that instinctive preference that arbitration is faster and cheaper:
Large-scale commercial contracts often include arbitration clauses in the hopes of avoiding
large-scale commercial litigation. But litigators are starting to find the quicker, cheaper, more
private aspects of arbitration have turned into lengthy, expensive and often public quasi-trials.
This has a growing number of attorneys advising clients to either take their chances in court
or tailor very specific arbitration clauses with the hopes of limiting the expense of arbitration. Its a slow-moving process, however, as litigators are rarely consulted when corporate
attorneys are drafting contracts.
In the old days, Cozen OConnor litigator Philip G. Kircher said, arbitration used to mean
a six-month process from cradle to grave. There was very little discovery, fewer depositions
and less case management. The parties would go before one or three arbitrators and have a
short, informal hearing with the rules of evidence more relaxed than in court.
As arbitration became more popular because of the expense of litigation, corporations growing distrust of juries and the length of time it took a case to get to trial, the arbitrators became
all the more sophisticated. That resulted in the parties asking more of those arbitrators in
terms of complex discovery, more depositions and pretrial conferences, he said.
Slowly but surely, what was once supposed to be fast and cheap was becoming probably
just as expensive, if not more so, than going to court, Kircher said.
Kircher had two arbitrations recently that have gone through weeks of trial, hundreds if
not thousands of exhibits, dozens of witnesses and lots of briefing. The panel then sits with
the cases for months to review all of that material.
Even when theres a final award, more often than not the losing party tries to find a way
to appeal it anyway, so [it gets] hung up for another year before the award is rendered to
judgment, Kircher said.
541
He is part of a growing segment of attorneys who would rather have the security of an appeal
and the finality of a court decision by taking their cases to court. Kircher is advising his
clients to create clauses in their contracts that agree to have a nonjury trial in the event of a
dispute or at least agree on a certain jurisdiction, preferably in federal court.
[Hat tip to Philip Loree.]
Is Damien Hirst a plagiarist? And what does that even mean? (2010-09-07 11:39)
The Guardian reports that Damien Hirst has been accused of plagiarism. More specifically:
Charles Thomson, the artist and co-founder of the Stuckists, a group campaigning for
traditional artistry, collated the number of plagiarism claims relating to Hirsts work for the
latest issue of the Jackdaw art magazine.
He came up with 15 examples, with eight said to be new instances of plagiarism. The tally
includes the medicine cabinets that Hirst first displayed in 1989, and its development in 1992
- a room-size installation called Pharmacy.
Joseph Cornell displayed a cabinet with bottles on shelves called Pharmacy in 1943, said
Thomson. Nor were Hirsts spin paintings or his installation of a ball on a jet of air original,
he said, noting that both were done in the 1960s.
Hirst puts himself forward as a great artist, but a lot of his work exists only because other
artists have come up with original ideas which he has stolen, said Thomson. Hirst is a
plagiarist in a way that would be totally unacceptable in science or literature. (hyperlinks
added.)
Here we go again. First of all, plagiarism is a loaded word that

means nothing in the way that Thomson uses it except that he thinks that Hirst is a bad artist. There
is no legal claim for plagiarism. There is for copyright infringement, though I can t imagine that whoever owns the copyright to Cornell s work would prevail on a claim against Hirst for infringement of the
copyright in Pharmacy. You can t copyright an idea.
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Having not seen the works that Hirst supposedly plagiarized, I can t say with any degree of confidence whether the other examples brought up in the Guardian article constitute infringment:
Aggrieved artists include John LeKay, a Briton who says he first thought of nailing a lamb s
carcass to wood like a cross in 1987, only to see it reproduced by Hirst. Lekay previously
claimed in 2007 that he had been producing jewel-encrusted skulls since 1993, before Hirst
did so. Lori Precious, an American, says she first arranged butterfly wings into patterns to
suggest stained-glass windows in 1994, years before Hirst.
It
is
interesting,
think,
that
neither
LeKay
nor
Precious
intends to sue.
LeKay has become more interested
in Buddhism than material wealth, so he does not plan to seek compensation. (One could wish the
owners of the copyrights in John Cage s work were more attuned to the implications of Buddhism for a
claim grounded in appropriation.) Precious is [w]ithout the funds to pursue legal action. She does note
that, although the patterns in her work and Hirst s are not identical, [i]t s the same material (butterfly
wings) and the same idea (recreations of stained-glass windows).
Perhaps Jackdaw ought to be more attuned to the importance of consistency. Laura Gascoigne, in a
Jackdaw column entitled Whose Art is it Anyway? , argues that in contemporary art copying by fellow
artists is a non-issue grounded in outdated notions of what originality is:
The insistence on the uniqueness of an artist s imagery is a pathetic fallacy of the Romantic era which, like DACs, has only ever enriched already rich artists. Work by unknown
artists has no rarity value. But the fallacy does, it s true, provide artistic nobodies with the
chance to rake back a quid or two from the big names.
In contemporary art, copying by fellow artists is a non-issue the real issue is corporate
theft of artistic capital. Gillian Wearing was quite right to complain that the use of her signs
idea in ads for Volkswagen and Levi Jeans stops me doing my work because people think
I m working for an advertising agency, as was Andy Goldsworthy to prosecute Habitat for
stealing his snowball idea to advertise chairs. Conceptual art is particularly vulnerable to this
sort of abuse, as ideas in themselves cannot be copyrighted. Of course there s an argument
for saying that once an idea or an image is out in the world it belongs to everyone; but what
belongs to everyone should then be protected from commercial hijack. The corruption of
artistic meaning by advertisers is as repugnant as the appropriation of common language by
corporations. Who gave Starbucks the right to trademark the phrase Shared Planet ?
What is clear is that Jackdaw s aim is to slag Hirst. In fact, that appears to be a central aim of the
magazine, which on its homepage quotes Celia Walden from the Daily Telegraph:
543
[Jackdaw] is cultural samizdat, packed with earthy jokes and scandals that are ignored
elsewhere in the interests of keeping folk such as the Margate Express (Tracey Emin) or Dick
Flasher (Damien Hirst) sweet.
Whatever works, works. If its not hot news, its copyrighted opinion. (2010-09-08 07:51)
Whatever works, works. Its a message I always try to pound into my students. No matter how brilliant
you think one argument is, the judges mind might be captured by another. Which makes the editing
out of an argument so weak it detracts from the strongest arguments so tricky. I remember one time
winning a case on an argument my colleagues and I had concluded was too silly to bother making. But
in that situation at least we knew one of our clients co-parties in the case had made it so we knew the
judge would see it. Sure enough, it was the argument that one us the case. The client was happy. And
so were we.
As the Copyright Litigation Blog reports, just such a thing happened in Agora Financial, LLC v. Samler
(D. Md. June 17, 2010) (pdf). The plaintiff, a financial newsletter, sued a website that had had lifted and
republished the plaintiffs investment recommendations. The plaintiff sued, claiming that the defendants
actions were Hot news misappropriation and violated Section 43(a) of the Lanham Act.
Hot news is a relatively recent coinage that, in the words of Thomas Shevory, refers to written material, often facts, that have value for a short duration, and which will soon move into the public realm
losing their value completely. Thus, news organizations have argued that hot news is entitled to protection. One problem with the argument is that facts alone cannot be copyrighted. As Shevory writes,
[g]iven the short time-frames at stake, questions of how to determine value, and underlying doubts about
whether it should be protected at all, analysis of hot news can quickly become an extremely complicated
undertaking.
So what did the court in Agora Financial do? It ruled for the plaintiff-financial newsletter and held
that the defendants appropriation was unlawful, but it avoided the difficult question altogether. It held
instead that the appropriated material constituted opinion not fact and thus are entitled to copyright protection. The appropriation, therefore, constituted copyright infringement.
Not only does the case illustrate that you can win and welcome the win on different grounds than
you argue, but that courts tend to find whatever way they can to avoid controversial reasons to find the
way they want to find.
A Funk/Klezmer Song for Rosh Hashanah: Happy New Year! (2010-09-08 20:33)
[EMBED] Abraham Inc. Moskowitz and Loops of It - Live in studio Uploaded by hydearck. - Music
videos, artist interviews, concerts and more.
544
Wind of Change? It seems were becalmed. (2010-09-10 08:33)
In May of 2009 I asked whether there would be a wind

farm on Lake Erie off of Cleveland soon. But it seems were stuck between environmental roadblocks on
one side and free-market enthusiasts who oppose any governmental subsidies on the other. So far, all we
have is repeated news that a Lake Erie wind farm is in the works. And, inevitably, opposition to Lake
Erie wind farms has arisen. So it shouldnt be a huge surprise that Salon reports today:
You could not ask for a more drastic demonstration of the contrast between how the
United States and China are rolling out renewable energy technologies than the current state
of offshore windmill deployment in the two countries.
The U.S. does not have a single offshore windmill currently in operation.
China, of course, is charging ahead. And while the Chinese dont bother with things like environmental
and economic regulations that otherwise would limit what they are doing, Salon emphasizes that the
important point to notice is that [s]lowly but surely, the West is losing its long-held domination of the
technological high ground. In short, [w]hen research and development migrates from one country to
another, so does innovation. I cant help but second Salons conclusion:
The strategic imperative is simply overwhelming. The struggle over energy policy
shouldnt be seen as a culture war between environmentalists and free-market fundamentalists. It should be a matter of basic common sense do we want to be involved with making
the future, or just buy it from China?
Lawyers need typefaces too. (2010-09-21 14:15)

Ive said it before: lawyers must pay attention to everything, including typography:
using good typography is like dressing well for court, a way we signal to clients, other
attorneys, and judges that we take our work seriously and we take court seriously. Moreover,
bad typography detracts from your goal of persuading your audience your client is right.
When you show up to make an oral argument, you make sure that you present yourself as
professionally and persuasively as possible. Similarly, your written documents should reflect
the same level of attention to typography.
And its not just typography in court documents we must worry about. Theres typography in presentations, on web sites, and in e-mail. Typography is everywhere. What do we do when we cant afford
a designer? How do we evaluate the designers we do encounter? From Inspiration Lab comes reference
545
to Julian Hansen, whos designed a poster depicting a flowchart of the choices we go through choosing
fonts, with a humorous approach.
Who owns Franz Kafkas papers? (2010-09-22 14:09)
Ive written before about my skepticism over allowing

the dead to exert control over the living to a sufficient degree that we the living are deprived of cultural riches. And just last week I discussed this point with a student in connection with copyright. She
expressed disappointment in Douglas Adams posthumously published work and wondered whether it
wouldnt have been better for him if nothing he hadnt authorized for publication had been published.
I explained that I dont think it affects Douglas Adams, a dead man, one bit whether or not stuff he
didnt want published is published but that it might affect us a great deal. Not being the greatest fan
of Adams, I brought up Franz Kafka, who legendarily told his friend Max Brod to burn his papers upon
his death. Brod, of course, ignored the request. It seems to me it wouldve been an undeniable tragedy
if instead Brod had obeyed his friends wishes.
My real point and the point that drives a lot of what I write on this blog is that we confuse things and
act to our cultural detriment when we treat intellectual property like we treat real property. And that
confusion of course extends to the ways we give dead people continued influence over their intellectual
and artistic creations. So it seems serendipitous that in this coming Sundays New York Times Magazine
Elif Bautman has an article about the ongoing legal battle in the Israeli courts over the fate of Franz
Kafkas personal papers.
Bautman asks precisely what I would:
546
The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness
of the idea that Kafka can be anyone s private property. Isn t that what Brod demonstrated,
when he disregarded Kafka s last testament: that Kafka s works weren t even Kafka s private
property but, rather, belonged to humanity?
But Eva Hoffe and Ruth Wiesler, the daughters of Max Brods secretary and presumed lover, are claiming
that Kafkas paper are their property and that they should be permitted to sell them. They are being
opposed by the National Library of Israel, which is claiming a right to the papers under Brods will. Brod
brought the papers along with him when he emigrated to Palestine after Kafkas death.
Its an interesting legal case there are Brods inconsistencies, including words that indicate he meant to
convey the papers to public authorities in Israel and actions that might seem to indicate otherwise; the
eccentric daughters of Brods secretary/lover, the more important of whom in this battle seems to fit the
caricature of a batty old cat lady; and, of course, the overarching presence of Kafka himself, over whose
legacy this kind of legal battle seems, in retrospect, well . . . almost inevitable.
As one Israeli writer interviewed in the story explains:
If Brod could see what was happening now, . . . he would be horrified. Kafka, on the
other hand, might be O.K. with it: The next best thing to having your stuff burned, if you re
ambivalent, is giving it to some guy who gives it to some lady who gives it to her daughters
who keep it in an apartment full of cats, right?
Theft, a History of Music (2010-09-29 15:33)
Okay, no more Times New Roman. But then what? (2010-09-30 16:01)
Its a week, I guess, to think about typefaces. Im convinced now by Kendall Gray that I should no longer
require my students to hand in their documents using Times New Roman as their font. In legal writing,
the default move is typically the conventional move I dont want to offend my readers, and if the vast
majority of people do something a certain way, I can be relatively confident that doing it that way wont
offend my readers.
547
But if theres a better way of doing something that wont offend my readers Ill always opt for the
better way of doing things. And, as Gray points out, as esteemed a judge as Judge Frank Easterbrook
has stated that [d]esktop publishing does not imply a license to use ugly or inappropriate type and
formatting and I assure you that Times New Roman is utterly inappropriate for long documents . . . .
It is designed for narrow columns in newspapers, not for briefs.
But I wish Gray hadnt left me hanging, wondering what font I should choose. The flow chart I referred to the other day doesnt give me an alternative for legal documents, and the nearest analog (a
book), leads me to fonts that arent available in Word. I do know from Ruth Anne Robbins article,
Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal
Writing Documents, Journal of the Association of Legal Writing Directors, Vol. 2, p. 108, 2004 , that
because at least some designers believe that serif fonts are easier to read when dealing with large amounts
of text, it makes sense for attorneys to choose serif fonts for the body of their documents. Id. at 127
(hyperlink added). Sans serif fonts, on the other hand, are easier to read on computers, overheads, and
the like. Id. But Robbins concludes, for the text of legal documents, you should, [g]iven the choice, use
a proportionally spaced font such as Times New Roman or Garamond. Id at 133.
So Im back, waiting on the resolution to Grays cliffhanger. Any suggestions out there? Again, note
that I want something that works. I am convinced that, as Robbins puts it, [v]isual effects . . . are
as critical an element of persuasion as proper grammar and adherence to the rules of court and citation
form. Id. at 111. But at the same time Im operating in a field in which, Easterbrook notwithstanding,
Times New Roman is the conventional font, and I dont want my documents to stand out because of the
font I use.
3.10
October
Copyright killing culture. Old news. (2010-10-04 10:24)
A recent report by the Library of Congress has brought

attention to the ways in which our copyright laws threaten the very existence of those parts of our historical memory that have been recorded. As Ars Technica explains:
The Library of Congress has released a sobering new report on the state of digital audio
preservation in the United States. The Librarys National Recording Preservation Board concludes that most of the nations audio libraries are ill-equipped to handle the complex array
of streams and digital formats by which music and other recorded sounds are released today.
It is relatively easy to recognize the importance of recorded sound from decades ago, the
survey notes. What is not so evident is that older recordings actually have better prospects
to survive another 150 years than recordings made last week using digital technologies.
548
But even those older artifacts face the prospect of being lost to posterity because of our nations copyright laws. So concludes The State of Recorded Sound Preservation in the United
States: A National Legacy at Risk in the Digital Age (PDF).
Were copyright law followed to the letter, little audio preservation would be undertaken,
the report warns. Were the law strictly enforced, it would brand virtually all audio preservation as illegal.
But this threat to our culture isnt news. My friend Andrew Dubber, among others, has been on about
this issue for years. His blog, Deleting Music
is a scrapbook of material for a book I m writing about the music industries and intellectual property in the digital age.
Specifically, it s about the problems that arise when music is only considered in terms of
its function as commerce, rather than as culture.
I m interested in archives, identity, education, research, memory, discourse, politics, artistic expression and the ways in which people use music as part of their everyday lives.
My concern is that because music is only represented as an economic force at a policy level,
decisions are being made that threaten our collective cultural capital. And sadly, most of
these decisions are being made purely in the short-term interests of corporations, rather than
in the interest of citizens, for the preservation or propagation of culture or, for that matter,
the good of artists.
In following this path, we are quite literally Deleting Music.
Weve got loads and loads of music and movies stored away, and the people who have those recordings
typically have no incentive to go to the efforts necessary to preserve them because they dont own the
copyright and often cant even determine who does. But its even worse than the fact the people (libraries,
individuals, corporations, etc.) dont have the promise of being able to sell the recordings. They even
fear that copying the recordings so that they are stored on media that arent deteriorating can alone get
them in trouble. As Dubber points out in quoting a recent San Francisco Chronicle story:
Did you ever imagine you could be held liable for copyright infringement for storing your
music collection on your hard drive, downloading photos from the Internet or forwarding news
articles to your friends?
If you did not get the copyright owner s permission for these actions, you could be violating the law. It sounds absurd, but copyright owners have the right to control reproductions
of their works and claim statutory damages even when a use does not harm the market for
their works.
Fighting Facebooks overreaching. (2010-10-05 11:05)

Ive written plenty about copyright overclaiming and its pernicious tendency to stifle clearly legitimate
appropriation of copyrighted works. As Richard Posner has written, the fear of litigating against rich
copyright holders who place a premium on their fear of losing something of value leads to behavior based
on law that isn t at all what the law is supposed to be.
549
Of course, the over zealous assertion of purported legal rights by wealthy litigants to cow the less wealthy
is not the type of behavior limited to copyright. It comes arises in all legal fields. And, unsurprisingly,
Facebook apparently is prone to the practice. As Boston.com reports:
Boston-based Where Inc. has developed an application that helps users find places they
might like to visit. You can save it in something called a Placebook.
Just one small problem. The owners of Facebook have apparently decided that Placebook
is in violation of its intellectual property rights. Facebook argues that companies like Placebook create confusion among consumers, thereby diluting the value of their unique brand.
(Hyperlink added.)
It seems to me a bit of a stretch to worry that someone would consider Placebook to be a product of
Facebook. And while Facebook is a pretty brilliant name, its hardly original filched as it was, after
all, from the colloquial term that Harvard and many other colleges give to the photo directories they
distribute to students. (At my undergraduate institution it was known as the Pigbook.)
But Facebook doesnt have to worry too much about the legitimacy of its claim as long as its just
legitimate enough to pass the giggle test and thereby scare potential defendants into giving up without
a fight:
In a cease-and-desist letter to Placebook s lawyer a couple of weeks ago, Facebook s lawyer
wrote that, in the US alone, it has successfully intervened to prevent the registration of the
trademarks Officebook, Flickbook, Geezerbook, Doctorbook, Lawyerbook, and my personal
favorite, Redneckbook, which would have been a website for the hunting-and fishing crowd.
Placebook, however, is not so easily bullied. Just as importantly, Placebook has a lawyer who recognizes
bullying when she sees it:
I think Facebook is having an identity crisis and they are acting like predators, said
Kimberly B. Herman, an attorney at Sullivan and Worcester who is representing Placebook.
It s very predatory and not reasonable.
In previous cases, Facebook has gotten its way simply by firing off a threatening letter,
according to Herman. That s what happens when a company valued at nearly $7 billion unleashes its legal might against start-ups. Every entity has rolled over and died, because no
one has $6.9 billion to fight them, Herman said. (Hyperlink added.)
The writer of the Boston.com piece agrees with me in thinking that consumers are smarter than Facebook
gives them credit for and are not likely to get Placebook and Facebook confused. Unfortunately, a court
may have to decide that
if, of course, Placebook doesn t back down, as others have. Heres hoping
Placebook has the resources to send Ms. Herman out to fight for them.
Curated by Interesting People. (2010-10-06 17:52)

One of the remarkable things about having an internet presence is the gratification of being recognized
by genuinely interesting people. I wouldve never guessed Id deserve inclusion among this group.
Friday Night Music Break: Moby Grape, Murder In My Heart For The Judge
(2010-10-08 20:05)
[EMBED]
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Appropriation can be original, but sometimes it can be theft too. :) (2010-10-18 09:14)
In an installation entitled Whose Coat is that Jacket Youre Wearing?, British artist Mike Ballard fills
a store doubling here as an art gallery with expensive brand name leather jackets, parkas, sport coats
and their contents. As my long-time friend Matthew Rose reports, Ballard stole all the coats and is not
only capitalizing on his years as a thief to make it as an artist hes also welcoming the owners to come
reclaim their goods:
Ballard says he lifted the jackets in a decade-long revenge binge, nicking them from pubs,
and once back in his studio, emptied the pockets, cataloged the contents, scribbled poetic
notes about each item and never told a soul. The artist s kleptomania, inspired by the theft
of his own prized blue Diesel 55 jacket when he moved to London from North Wales, came to
an end in 2009 when he sought therapeutic help. . . .
Since 1999 [Ballard has] walked out of crowded pubs with more than 200 jackets by simply putting them on his own jacket on top and sailing out the door. Cheers, folks!
And now, a week before the annual London art orgy the Frieze Art Fair Mike Ballard
lifts the veil on his secret store of stolen jackets, asking the world to come and get them, to
please forgive him, and at the same time lift his star high above the door as he exits through
the cloak room, a nod to fellow Brit guerrilla street artist Banksy. The installation in the
abandoned Walker s Tailor shop near the Great Portland Street tube station is a wall-to-wall
closet: The jackets hang from the ceiling like sides of beef, tagged, dated and numbered, ready
for pick up.
The cocoon of cotton, wool, leather and nylon is impressive in this tiny store. You can t
stand up without getting lost in the stink of beery bars, smoke and body odor which is overwhelming. (The artist is considering spraying Febreze around to deodorize the show, but
remains undecided.) He hasn t worn any of these jackets since he stole them, nor has he
smoked any of the hash or spent the cash (about 1000 pounds) he s found in the pockets;
nor has even thought about selling off the diamond ring he discovered. Instead, Mike Ballard
turned into an archivist of sorts, cataloging everything down to the loose rolling papers and
2 penny coins, photographing them, and scribbling a bit of prose and poetry as well as the
relevant dates and locations of each theft. The texts are printed on tags hanging from the
sleeves, along with the cross-referencing numbers which, when flashed against the petitioner s
claim, will prove if in fact this is their stolen jacket.
Why is boilerplate called boilerplate? Its durable enough to use over and over.
(2010-10-18 20:29)
Thinking about the uses and abuses of boilerplate, I began wondering where the term came from. Boilerplate is language that consists of a standard formulation uniformly found in certain types of legal
documents or news stories or a thick plate iron used in the production of boilers. Why did the latter
become the former? As David K. Israel explains over at mental floss:
[S]team boilers were built from very heavy tough steel sheets. Similar sheets of steel were
also used for engraving copy that was intended for widespread reproduction in multiple issues
of newspapers things like ads and syndicated columns. Regular, here today, gone tomorrow
copy was set in much softer, durable lead.
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Is Shepard Fairey entitled to a jury trial on fair use?
Good authority says yes.
(2010-10-19 08:08)
Quite plainly the question is a vexed one: does a defendant in a copyright infringement lawsuit have the
right to have a jury decide whether his use of the copyrighted material constitutes non-infringing fair use
as a question of fact? Or is the fair use defense a question of law that a judge can decide without a
jury?
We may have that question decided early next year in the lawsuit between Shepard Fairey and the
Associated Press over Faireys use of a copyrighted AP photo as the source of the image in Faireys
Obama Hope Poster. Fairey has requested a jury trial.
But no less an authority than Bill Patry believes that the question is one for a jury and thus that
Faireys defense to APs claim of infringement should be determined by a jury.
And now comes Christopher E. Meatto to point us to another authority pointing the same way: Professor
Ned Snow has published Untangling Fair Use as a Matter of Law. In his abstract to the article, Snow
writes:
Fair use is an issue of fact for the jury. Or at least it should be. Recently courts have
been perverting the centuries-old practice of treating fair use as a factual issue. Courts must
therefore repent: they must return to construing the issue as factual. Yet even if they do, the
question remains whether courts should ever decide fair use as a matter of law. To answer this
question, this Article examines whether appellate courts should ever review fair use decisions
under a de novo standard. It also examines whether trial courts should ever decide fair use
on summary judgment. The Article concludes that the speech nature of fair use necessitates
deciding the issue as a matter of law in certain circumstances: appellate courts should review
constitutional findings under a de novo standard, but only where a bench trial occurs or where
a jury verdict favors the copyright holder; trial courts should rule on summary judgment, but
only for fair users. In short, ruling as a matter of law must serve the speech-protective function
of fair use. Fair use as a matter of law must favor fair users.
It is hereby permitted to reprint my silliness. (2010-10-20 12:56)

In a call for a National Digital Library, and borrowing heavily from Lewis Hydes Common as Air, Robert
Darnton contrasts 18th Century views on the free exchange of information with certain views today:
I know: the devil can cite Jefferson. Anyone can cull through the papers of the Founding
Fathers in order to find quotations in support of a cause. But I can t resist. Here is Jefferson
again:
If nature has made any one thing less susceptible than all others of exclusive property, it is
the action of the thinking power called an idea&. He who receives an idea from me, receives
instruction himself without lessening mine; as he who lights his taper at mine, receives light
without darkening me.
Jefferson was thinking about the effects of printing, of books, and of reading a favorite subject of the Founding Fathers. Here is Franklin:
The art of printing&diffuses so general a light&that all the window shutters despotism
and priestcraft can oppose to keep it out, prove insufficient.
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And John Adams:

And you, Messieurs printers, whatever the tyrants of the earth may say of your paper&are
so much the more to your honor; for the jaws of power are always opened to devour, and her
arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and
writing.
Despotism and priestcraft have an antiquated ring to them, but the danger of restricting
access to knowledge is as great today as it was two hundred years ago. Here is a copyright
notice attached to a recent electronic edition of Alice s Adventures in Wonderland, which was
first published in 1865:
Copy: No text selections can be copied from the book to the clipboard&.
Lend: This book cannot be lent to someone else.
Give: This book cannot be given to someone else.
Read aloud: This book cannot be read aloud.
Contrast that statement, made only yesterday, with the following remarks by Voltaire after
the publication of his Questions sur l Encyclopdie in 1772: It is hereby permitted to any
bookseller to [re]print my silliness, be it true or false, at his risk, peril, and profit. As Lewis
Hyde put it in his recent book, Common as Air, an enclosure movement is threatening to
destroy our cultural commons, the world of knowledge that belongs to us all.
Jonathan McIntoshs Buffy vs. Edward (Twilight Remix) (2010-10-20 13:35)

[EMBED]
On the internet, theyll find out youre a dog if you bite. (2010-10-21 11:20)
Ive made clear I consider anonymity on the internet a stance often abused and almost always one that
detracts from the speakers credibility, but it also can be a legal problem when anonymous writers do
real damage, without justification, to the targets of their words. As SignOn San Diego reports:
A business consultant who wants to know whos been anonymously disparaging and fixating on her online has gotten a court to force Google to tell her.
As she joined a growing number of people who have persuaded courts to unmask troublesome cyber ciphers, Carla Franklin said Wednesday she hoped her case would help others
combat similar problems.
As Bennet Kelley makes clear, you do have a right to speak anonymously, but that right doesnt mean
you have the right to use your words to harm someone without justification:
Theres a tension there - theres a First Amendment right to be able to speak anonymously, but theres no First Amendment right to violate the law, said Bennet G. Kelley, a
Santa Monica, Calif., attorney who specializes in Internet law.
People think: Its the Internet. I can do whatever I want, he said, but the law applies,
online and offline.
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Pissed off by Parody (2010-10-22 15:51)

Citizens Against Government Waste is one of those private, corporate-fed entities freed by the Citizens
United decision to pour as much money as they want into political campaigns. It has produced an ad
ridiculing stimulus spending by the government that promises to be the source of many a parody, including the one embedded below (which appears to be the first).
CAGW, however, believes this parody is a copyright violation and has sent YouTube a takedown notice. Campus Progress, which produced the video, disagrees:
Citizens Against Government Waste must have spent all their money on the video, and
didn t have any left over for legal advice. Our video is a parody, not a copyright violation.
And we aren t raising money off it. We re only raising awareness and highlighting the concern
of young people that corporate interests are drowning out their voices this fall.
[EMBED]
Monday Mashup: Stayin Alive In The Wall (2010-10-25 15:31)

[EMBED]
Bo Carter: The Law Gonna Step on You (2010-10-29 11:48)

[EMBED]
3.11
November
Innovation comes from remixing what we already have. (2010-11-01 07:59)

Ive written frequently about the myth that creative genius is the product of solitary inspiration and the
ways that myth reinforces notions of intellectual property that, under the pretense of rewarding innovation, in fact stifle innovation by preventing the re-use and remixing of existing ideas, creations, and
inventions. In reviewing Steven Johnsons Where New Ideas Come From, Paul Crowe makes the point
that
Greek philosophers said nothing comes from nothing, a new idea, actually a new anything,
is simply a rearrangement or unique new combination of things that already exist. When you
think of it that way, coming up with new ideas isnt about having that mysterious creative
ability, it might be more about a willingness to try lots of new combinations to see what might
work, and, hey, anyone can do that, you just need desire and effort.
There are legal remedies, and there are other remedies too. (2010-11-05 12:06)
From Mary Elizabeth Williams in Salon, heres a story of blatant copyright infringement, utter ignorance
on the part of the infringer, and the force of non-legal remedies. The culinary magazine Cooks Source
lifted a 5-year old article by writer Monica Gaudio entitled A Tale of Two Tarts, and, without attribution, republished it. When Gaudio contacted Cooks Sources editor, the editor responded by claiming I
have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut
Woman Magazine. I do know about copyright laws. The editor than proceeded to demonstrate that she
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knows very little about copyright laws, claiming that anything posted to the internet is public domain
and that Gaudio should feel grateful and even consider compensating Cooks Source!
[Y]ou should be happy we just didnt lift your whole article and put someone elses name
on it! It happens a lot, clearly more than you are aware of, especially on college campuses,
and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional
should know that the article we used written by you was in very bad need of editing, and is
much better now than was originally. Now it will work well for your portfolio. . . . We put
some time into rewrites, you should compensate me! I never charge young writers for advice
or rewriting poorly written pieces, and have many who write for me... ALWAYS for free!
But this is not a tale of a lawsuit. It is a tale of far more effective remedies. Gaudio blogged about her
experience, the incident began to be noticed, and, in Williams words:
[The reactions] snowballed as the collective outrage moved off Gaudios LiveJournal page
and onto where else? Facebook and Twitter. Suddenly the [Cook Sources] Facebook page
was accumulating new fans like a warm apple pie attracts scoops of vanilla ice cream. Let
the hilarious public shaming commence!
As Williams recognizes, these type of remedy may be far more satisfying not to mention far more
effective than any remedy a lawsuit could obtain:
[W]hat [Guadio] and all of us whove been watching along with her
different and in many ways greater victory. It tastes mighty sweet.
have received is a
Steinski talks about the origins of musical mashups (2010-11-06 13:49)

[EMBED]
Be creative? Question Authority. Even the CIA thinks so. (2010-11-15 11:15)
Who wouldve thought that the Central Intelligence Agency often ridiculed by describing its name as
an oxymoron might have such useful resources on creative thinking and problem solving. A chapter
on Keeping and Open Mind from The Psychology of Intelligence Analysis, sums up the attitude and
mind-set any lawyer and law student must cultivate to address the problems they face, problems that
due to the infinite variety of human experience cannot be solved by merely finding and applying rules:
Creativity, in the sense of new and useful ideas, is at least as important in intelligence
analysis as in any other human endeavor. Procedures to enhance innovative thinking are
not new. Creative thinkers have employed them successfully for centuries. The only new
elementsand even they may not be new anymoreare the grounding of these procedures in
psychological theory to explain how and why they work, and their formalization in systematic
creativity programs.
Learning creative problem-solving techniques does not change an analysts native-born talents but helps an analyst achieve his or her full potential. Most people have the ability to be
more innovative than they themselves realize. The effectiveness of these procedures depends,
in large measure, upon the analysts motivation, drive, and perseverance in taking the time
555
required for thoughtful analysis despite the pressures of day-to-day duties, mail, and current
intelligence reporting.
A questioning attitude is a prerequisite to a successful search for new ideas. Any analyst
who is confident that he or she already knows the answer, and that this answer has not
changed recently, is unlikely to produce innovative or imaginative work. Another prerequisite
to creativity is sufficient strength of character to suggest new ideas to others, possibly at the
expense of being rejected or even ridiculed on occasion. The ideas of creative people often
lead them into direct conflict with the trends of their time, and they need the courage to be
able to stand alone.
Why hasnt Girl Talk been sued? My answer, sampled and remixed in a new article
(2010-11-17 08:48)
Why hasnt Greg Gillis, who performs and records as Girl Talk, been sued despite (1) the fact his music
consists entirely of recorded samples of other recordings, (2) his high profile and success, and (3) the music
industrys insistence based on very shaky legal grounds that no recorded sample can be appropriated
without permission?
Well, Ive been saying it for a long time, and I believe I was the first Gillis is just too good:
I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else
whose work has been sampled and repurposed by Gillis. And if were advising one of these
clients (or I were representing the RIAA and could influence the lawyers for Metallica and
the Guess Who), I would advise that client not to sue Girl Talk; Gillis s argument that he has
transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair
use is just too good. I d go after someone I am more likely to beat. Othewise, I d lose all the
leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand
Upright Music and Bridgeport Music.
And now comes Joe Mullin, of paidContent.org explaining Why The Music Industry Isn t Suing Mashup
Star Girl Talk:
So why hasn t Gillis been hauled in front of a judge by the music industry? Probably
because he s the most unappealing defendant imaginable. Gillis would be a ready-made hero
for copyright reformers; if he were sued, he d have some of the best copyright lawyers in the
country knocking on his door asking to take his case for free.
At the Electronic Frontier Foundation, probably the most well-funded public interest group
working in the copyright space, lawyers have made it clear for years that they re positively
eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.
And Ive said it before myself. Id love to represent Gillis in that case should it ever come about.
Matt Ridley: When ideas have sex (2010-11-20 18:48)

[EMBED]
Steinski: The Motorcade Sped On (for November 22) (2010-11-22 18:23)

[EMBED]
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Happy Thanksgiving: Arlo Guthrie - Alices Restaurant (2010-11-24 18:54)

IFRAME: http://www.youtube.com/embed/b8DtpdXZi0M?rel=0
What does overclaiming look like? Just watch Facebook. (2010-11-25 22:33)
We have a remarkable legal system, but its greatest defect by far is the influence sheer economic weight
can have on the outcomes it produces.
Back in October, I praised the lawyer for the site formerly known as Placebook for not easily being
bullied, for stating straight out that Facebooks cease-and-desist letter insisting that Placebooks name
would cause customer confusion with Facebooks trademark very was very predatory and not reasonable. Of course, she also said that every company Facebook had asserted such a trademark infringement
claim against has rolled over and died, because no one has $6.9 billion to fight them.
Sure enough, the client decided that the expense of fighting Facebook, even on a meritorious claim,
wasnt worth it. As Melissa Bell of the Washington Post reports, Placebook cried uncle and is now calling itself TripTrace. And now Facebook has taken Teachbook, a teachers network, to court, for rid[ing]
on the coattails of the fame and enormous goodwill of the Facebook trademark.
The parody site Lamebook, however, has taken the fight straight to Facebook:
the parody site, Lamebook, however, a more direct course of action seemed the right tack. The Austinbased Web site filed a complaint in Texas against Facebook, asserting its right to the name Lamebook.
3.12
December
30 years on, John Lennon is still a Working Class Hero (2010-12-08 15:57)
[EMBED]
Friedman to judges and lawyers:
dont friend or tweet one another!
(2010-12-10 11:03)
Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio
Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of
Commissioners on Grievances & Discipline advises judges that social media use is permitted but must
be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new
waters of social media without violating judicial canons that require judges to avoid even the appearance
of bias or impropriety.
My reaction to the opinion that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them is one people close
to me would describe as paranoid. Perhaps Im just risk averse. I think, though, that Im principally
concerned with integrity.
The issue is one that pertains to what are known as ex parte communciations communication between
a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit
in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under
very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are
absolutely forbidden. Our legal system is founded on its adversary nature not in the sense that it
557
requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal
access to the judge. If my adversary communicates with the judge, I have the opportunity to judge
whether its worthy of a response and how to respond. We dont leave to the judge to decide whether I
should or can respond the system ensures I make that decision.
The importance of avoiding ex parte communications was brought home to me in law school by the
professor who was my supervising attorney in the clinic I was part of. I was representing a child as
guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene
was grim it was 1983, and Michigan had started the precipitous economic descent it suffered at the
hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse
and neglect claims had increased. That day it was freezing and pouring rain.
After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse,
hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we
stood there, the door opened and the judge before whom wed just appeared stepped out, smiled, and
started speaking with us, obviously intent on the same endeavor we were waiting out the rain in the
doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into
the deluge. When wed made it to the car I asked her what in the world she had been thinking. She
responded, You do not communicate with a judge without the other side present. Its wrong!
It makes perfect sense to me. If the other side has an opportunity to communicate with the judge
without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately,
some important people seem to have underestimated the fundamental importance of this rule. Justice
Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the
integrity of his court judging a case in which Cheney was a party. Justice Thomass willingness to speak
before and maintain other relationships with conservative groups with a stake in cases before the Supreme
Court are notorious.
And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can
communicate via social networks with people who are litigating cases in his court. I think it stinks. I
would tell a judge not to allow access via social networks to litigants or potential litigants. And Id tell
any lawyer to stay away from networking with a judge before whom he will or may appear.
Incidentally, I dont think the Ohio Supreme Courts guidance really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging
there are no bright lines distinguishing between the two:
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To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every
comment, photograph, and other information shared on the social networking site.
To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking
interactions with individuals or organizations if such communications erode confidence
in the independence of judicial decision making.
To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social
networking site about any matters pending before the judge not to a party, not to a
counsel for a party, not to anyone.
To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party s or witnesses
pages on a social networking site and should not use social networking sites to obtain
information regarding the matter before the judge.
To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on
a social networking site about a pending or impending matter in any court.
To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself
from a proceeding when the judge s social networking relationship with a lawyer creates
bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all
social relationships, online or otherwise, require a judge disqualification.
To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a
social networking site.
Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op 10-007, 12-3-10
[EMBED]
Friday Night Mashup (in further memory of John Lennon): DJ Danger Mouse - The
Grey Video (2010-12-10 21:52)
[EMBED]
Retired Justice John Paul Stevens:
the death penalty does us no good.
(2010-12-12 12:28)
In the New York Review of Books, in the course of reviewing David Garland s Peculiar Institution: America s Death Penalty in an Age of Abolition, retired
Supreme Court Justice John Paul Stevens provides a critique of the continuing utility and wisdom of the
death penalty.
Any human institution is better understood if one understands its history. I ve often made this point in
connection with our understanding of what it means to be an author, a creator, or an artist. But the
point is a general one and quite plainly also applicable to an understanding of the death penalty, which,
as Justice Stevens points out, has roots in gruesome and public spectacles: unspeakable torture and
postmortem desecrations of offenders remains designed, respectively, to maximize suffering and exalt the
omnipotence of the sovereign.
The increasing availability of deportation and imprisonment as a means of coping with people deemed
undesirable by the sovereign, however, led to a reduction in executions, a new found concern with making
executions more humane, and, eventually, the lengthy and elaborate legal process [that] has become a
central feature of American capital punishment. As a result, several people have been executed over 20
years after their crimes, and some prisoners have now been on death row for over 30 years. Garland
concludes that [s]uch delays do not just undermine the death penalty s deterrent effect; they also spoil
its capacity for satisfying retribution. He also believes that efforts t o make executions more humane
similarly minimize the deterrent and retributive qualities of the death penalty:
What once was a frightening public spectacle now resembles painless administration of
preoperative anesthesia in the presence of few witnesses. American officials do not enjoy
executions; they seem, in short, embarrassed, as if caught in a transgression.
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Nevertheless, in the U.S., the political strength of localities relative to the federal government has led
to the retention of the death penalty, which has disappeared from Western Europe. There is a long
history of community-level executions in America dating to colonial times. Thus, in reaction to Furman
v. Georgia, 408 U.S. 238 (1972), the 1972 Supreme Court case resulting in a moratorium on executions
in the forty-two jurisdictions that authorized them, 34 states enacted new death penalty laws by 1980.
Much of the political rhetoric behind the new capital punishment laws was grounded in states rights,
the all purpose justification for resistance to nationwide standards going back to slavery and, as Justice
Stevens points out, like the related vigorous and continuing criticism of liberal Warren Court decisions
protecting the rights of criminal defendants and minority voters, an important part of the Republican
Party s Southern strategy. Because of this unintended consequence of Furman, Garland argues that
since the 70s
[T]he Supreme Court [has] focused on transforming capital punishment, requiring new procedural protections, reducing the cruelty of executions, and devolving power to the people
at the local level. The concern with local policymaking that Garland emphasizes, however,
has not prevented Supreme Court decisions from eliminating categories of defendants (juveniles and the mentally retarded) and offenses (rape and unintentional killings) from exposure
to capital punishment nationwide.
The persistence of the death penalty in the U.S., however, begs for explanation. Garland s explanation is
largely cultural. The persistence of the death penalty satisfies a cultural need to address issues pertaining
to death:
Garland concludes that capital punishment today is reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent
among them. Instead, the death penalty promotes gratifications, of professional and political users, of the mass media, and of its public audience. In particular, he contends, capital
punishment derives its emotional power, its popular interest, and its perennial appeal from
five types of death penalty discourse. They are: (1) political exploitation of the gap between
the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural
tensions between capital punishment and liberal humanism; (3) the political association of
capital punishment with larger political and cultural issues, such as civil rights, states rights,
and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing
and death. He concludes that the American death penalty has been transformed from a
penal instrument that puts persons to death to a peculiar institution that puts death into
discourse for political and cultural purposes.
The cultural importance of death in American political and cultural life is illustrated by political avowals
for support for capital punishment to express support for law and order. Thus, California Senator
Barbara Boxer bragged that she voted 100 times for the death penalty. And George W. Bush first ran
for president in a year when, as governor of Texas, he had presided over the largest number of state
executions ever carried out in a single twelve-month period a total of forty in the year 2000. Where
judges are elected and have the power to overrule jury verdicts, as in Alabama, they override and impose
the death penalty 10 times more often than they override to impose a punishment other than death. In
contrast, where judges with the power to overrule jury verdicts are not subject to election, judge-imposed
verdicts favor defendants. In short, if you want to get elected to office in the U.S., it is a good idea to
support the death penalty.
Justice Stevens does not believe, however, that the political and cultural interests advanced by the
death penalty can justify its continued vitality. Nor does he see any justification for it in the 5 groups of
people affected by it victims, survivors, participants in the judicial process, the general public, and the
defendants themselves:
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To be reasonable, legislative imposition of death eligibility must be rooted in benefits for

at least one of the five classes of persons affected by capital offenses.
First, of course, are victims. By definition murder victims are no longer alive and so have no
continuing interest.
Second are survivors family and close friends of victims who often suffer enormous grief
and tangible losses. The harm to this class is immeasurable; but punishment of the defendant
cannot reverse or adequately compensate any survivor s loss. An execution may provide revenge and therapeutic benefits. But important as that may be, it cannot alone justify death
sentences. We do not, after all, execute drunken drivers who cause fatal accidents.
Third are participants in judicial processes that end in executions detectives, prosecutors,
witnesses, judges, jurors, defense counsel, investigators, clemency board members, and the
medically trained personnel who carry out the execution process and whom Garland describes
as being somewhat embarrassed by doing so. While support of the death penalty wins votes
for some elected officials, all participants in the process must realize the monumental costs
that capital cases impose on the judicial system. The financial costs (which Garland estimates
are at least double those of noncapital murder cases) are obvious; seldom mentioned is the
impact on the conscientious juror obliged to make a life-or-death decision despite residual
doubts about a defendant s guilt.
The fourth category consists of the general public. If Garland s comprehensive analysis is
accurate that the primary public benefits of the death penalty are political exchange and
cultural consumption and as long as the remedy of life imprisonment without the possibility
of parole is available, those partisan and cultural considerations provide woefully inadequate
justifications for putting anyone to death.
Fifth, of course, is the class of thousands of condemned inmates on death row who spend
years in solitary confinement awaiting their executions. Many of them have repented and
made positive contributions to society. The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually
innocent person to death.
A National Public Library? Theres nothing to stop it other than a lack of political
will to do anything useful. (2010-12-12 17:33)
Robert Darnton calls for a National Digital Library a digital library composed of virtually all the books
in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the
world. I agree with him that the project is neither naive nor utopian. Several countries have already
committed themselves to the creation of their own national digital libraries:
In December 2009 President Nicolas Sarkozy of France announced that he would make 750
million available for digitizing the French cultural patrimony. The National Library of the
Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical
produced from 1470 to the present. National libraries in Japan, Australia, Norway, and
Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate
digital collections on an international scale, will have made over ten million objects from
libraries, archives, museums, and audiovisual holdings freely accessible online by the end of
2010.
Darnton concludes that the U.S. should be possible to digitize everything in the Library of Congress for
less than Sarkozy s 750 million and the cost could be spread out over a decade. And he therefore sees
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the legal issues particularly dealing with orphan works as the principal barrier to a U.S. National
Digital Library.
Unfortunately, I disagree with Darnton regarding the main impediment. As Ive explained orphan
works are works whose copyright holders cannot be identified, a common problem because there is no
registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the
copyright holders might include unidentifiable heirs or even corporate entities that have gone through
mergers,
dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.
Im not sure I see any particular problem with Congress enacting legislation amending the Copyright Act
to authorize a National Public Library to use works whose copyright owners cannot be identified under
terms that provide for reasonable compensation when and if owners make and establish their claims.
I think, however, the cost is a real impediment in the current economic climate. 750 million is almost $1 billion. While the U.S. military budget for 2010 totals approximately 685 times this amount,
the current political climate hardly seems ripe for Congress to take the initiative on a project that would
strike much of the citizenry and certainly most U.S. politicians as intellectual frivolity. It isnt, of
course, but one can be sure that massive confusion over the rights of authors (as Ive touched on here,
among other places) could be used to demagogue to death a billion dollar project longed for by a bunch
of professors.
Free markets and the end of education as we know it (2010-12-14 17:04)
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Ive mentioned it before I have watched through the course of my professional career as free market ideology has come to dominate legal thought. But it isnt merely that many legal thinkers and
politicians believe that so-called economic efficiency is the overriding purpose of law. Capitalist absolutism infects my teaching too because I am now teaching students who have grown up during a time in
which they have learned never even to question the belief that markets are better than government at
providing anything and everything.
As a result, fewer and fewer students arrive at law school with the kind of education I think is the
best preparation. They come as business majors, poli sci majors, accounting majors, finance majors . .
. Some come as engineers, and they tend to be the best educated, albeit a bit narrowly, but invariably
they believe backgrounds in engineering put them behind the others.
Why this change, this narrowing in outlook? Its the attitude Stanley Fish writes about today the
unquestioned acceptance that maximizing student choice provides the best means of improving education. Its the same market thinking in another place students are consumers, and if we leave to them
the choice of what to pursue, those educational institutions that are chosen by the most students will
be the most rewarded. And, of course, what students choose must be the most valued and therefore the
best. Fish explains this thinking while cogently explaining its most fundamental defect students dont
have the judgment to make good choices. Education is precisely about teaching them such judgment:
Judgment is what education is supposed to produce; if students possessed it at the get-go,

there would be nothing for courses and programs to do. But that objection would be entirely
beside the point in the context of the assumption . . . that what students want to get from
participating in higher education is money.
But now, under Britains new approach to higher education, government support of higher education
in the form of block grants to universities (which are free to allocate funds as they see fit) would be
replaced by monies given directly to matriculating students, who would then vote with their pocketbooks
by choosing which courses to invest in.
The problem, of course, is that the only measure of value such a mindset accepts is money:
A course s key selling point will be that it provides improved employability and students will be asked to pay higher charges for a course only if there is a proven path to
higher earnings.
Not only is this attitude remarkably narrow about what constitutes value. It also assumes that the only
people interested in the results of our educational system are people who go through it. Theres no social
interest in education apart from the sum total of the financial interests of those student-consumers:
The logic is the logic of privatization. Higher education is no longer conceived of as a

public good
as a good the effects of which permeate society
but is rather a private
benefit, and as such it should be supported by those who enjoy the benefit. It is reasonable
to ask those who gain private benefits from higher education to help fund it rather than rely
. . . on public funds collected through taxation from people who have not participated in
higher education themselves. No one who has not been to a university has any stake in the
health or survival of the system.
I couldnt agree with Fish more on the pathetic narrow-mindedness of this logic of privatization:
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There is no recognition . . . at all of the value of learning; quality is a measure nowhere

referenced; civilization, as far as one can see, will have to take care of itself.
But at second thought this paean of self-praise is merited once we remember that that the
report s relentless monetization of everything in sight has redefined its every word: value now
means return on the dollar; quality of life now means the number of cars or houses you can
buy; a civilized society is a society where the material goods a society offers can be enjoyed
by more people.
I was a double major in Latin and Ancient Greek. Classics departments are disappearing, and the privatization of education will only accelerate their disappearance. I did not pursue a Ph.D. merely because
my job prospects after the 6 or so years I would have loved getting that degree were virtually non-existent.
But I wouldnt trade my education for anything. It made me the successful lawyer I am. I find myself
returning again and again to what I learned and to further study in my current professional life about
matters that I first discovered in my undergraduate years. And I genuinely think that my education
taught me that value is something money can barely begin to measure in any meaningful way.
John Lanchesters I.O.U. is a book I would encourage all my students to read. One more piece of
conventional wisdom too many of them accept without question is that what happened and continues
to happen in the financial markets (matters I learned of first-hand in the course of my near 12 years in
practice) are too difficult for even the brightest people to understand. That is a piece of mystification
that people who profited from the financial markets (at the profound expense of the rest of us) would
prefer my students not look behind. Lanchester does a terrific job of explicating the causes of the 2008
financial crisis and the persistence of those causes today.
But whats disturbing about what Lanchester writes in the context of this post is his realization that the
financial crisis resulted from precisely what I am writing of a generation during which we have come
to really believe that communism fell and capitalism triumphed because of the unalloyed power of free
markets. Its not at all that Lanchester (or I) are advocates of communism. He is explicit in arguing that
the liberal democracies of the 20th Centurys 2d half were the best societies that ever existed. But the
pressure communism put on those societies to balance market forces with programs that promoted social
justice were an indispensable part of those societies enormous success. With the fall of communism and
the removal of that pressure, free markets have found an ideological open field in which those programs
promoting social justice are being dismantled. As Dwight Garner explains in his review of I.O.U.:
It s a story that begins, as these stories are wont to do, with the fall of the Berlin Wall. The
capitalist West won its ideological beauty contest with the communist East, Mr. Lanchester
writes, which was good news except for this: Suddenly there was no global antagonist to
point at and jeer at the rise in the number and size of the fat cats; there was no embarrassment
about allowing the rich to get so much richer so very quickly.
Once upon a time in America and Britain, he observes, the jet engine of capitalism was
harnessed to the ox cart of social justice, to much bleating from the advocates of pure capitalism, but with the effect that the Western liberal democracies became the most admired
societies that the world had ever seen.
Then the Wall crumbled, and the jet engine was unhooked from the ox cart and allowed
to roar off at its own speed. The result was an unprecedented boom, which had two big
things wrong with it: It wasn t fair, and it wasn t sustainable.
And it leads to poorly educated students and unhappy people.
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Chapter 4
2011
4.1
January
The future of newspapers? Who knows? But there is one. (2011-01-04 18:32)
I dont know where books are going. I dont know what will happen to newspapers. But I am confident
that both will survive and perhaps even prosper in the new environment we find ourselves in. John
Lanchesters article in the London Review of Books on the future of newspapers is well worth reading.
Among other things, he reminds us that the future cannot be foreseen:
As for the new media, they are clearly a work in progress, and it would be premature to
say what their impact will be on the fundamentals of public and political life. Their impact
on private life is more apparent, and seems to focus on an increase in the number of ways for
people to meet and connect, both online and off. In some ways, the story of text messaging is
a parable for the way the net has evolved. SMS messaging was taken up by Nokia in Finland
as a way of allowing engineers to communicate short, factual messages about where they were,
what they were doing and how long it would take. Nokia then made the service available on
their phones, since, well, there it was, so you might as well let the punters have a go. They
were amazed to see the spike in data traffic which suddenly showed up. The reason: Finnish
teenagers were using SMS to organise their social lives. From there, texting hasn t looked
back. Nobody decided what the purpose of SMS would be, it just evolved. It would be hard
to deny that texting is a new thing; also hard to argue that it has fundamentally changed
the world. I d say that s roughly where we are with the journalistic uses of the new media.
Their democratising and decentralising effects have barely begun, and aren t going to go away.
In a sense, the WikiLeaks episode(s) shows both what the digital media can and can t do.
Its release of information is unprecedented: but it is not journalism. The data need to be
interpreted, studied, made into a story. For that we need . . . the press.
And the elimination of printing and distribution costs is profound. Lanchester explains that the New
York Times could give its subscribers for free four Kindles with worldwide 3G per year coverage for the
costs it currently expends in printing and distributing its newspaper:
If newspapers switched over to being all online, the cost base would be instantly and
permanently transformed. The OECD report puts the cost of printing a typical paper at
28 per cent and the cost of sales and distribution at 24 per cent: so the physical being of
the paper absorbs 52 per cent of all costs. (Administration costs another 8 per cent and
advertising another 16.) That figure may well be conservative. A persuasive looking analysis
in the Business Insider put the cost of printing and distributing the New York Times at $644
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million, and then added this: a source with knowledge of the real numbers tells us we re so
low in our estimate of the Times s printing costs that we re not even in the ballpark. Taking
the lower figure, that means that New York Times, if it stopped printing a physical edition of
the paper, could afford to give every subscriber a free Kindle. Not the bog-standard Kindle,
but the one with free global data access. And not just one Kindle, but four Kindles. And not
just once, but every year. And that s using the low estimate for the costs of printing.
I might even subscribe if they did that. Though my e-reader is not a Kindle.
The negative impact of the internet on music sales has been greatly exaggerated. Im
shocked, shocked. (2011-01-10 19:59)
From Ernesto at TorrentFreak, an excerpt:
In 2010 the BPI reports that there were 281.7 million units sold, which is an all-time
record. Never in the history of recorded music have so many pieces of music been sold, but
you wont hear the music industry shouting about that. In fact, the music industry is selling
more music year after year and today s figure is up 27 % compared to the 221.6 million copies
sold in 2006.
But, instead of praising the increasing consumer demand for music, the industry cuts up
the numbers and prefers to focus on the evil enemy called piracy. By doing so they spin their
message in a way that makes it appear that piracy is cannibalizing music sales. But is it?
In their press release the BPI points out that album sales overall were down by 7 %. Although digital album sales were up 30.6 %, physical CDs were down by 12.4 %. If we believe
the music industry, this drop in sales of physical CDs can be solely attributed to piracy. This
is an interesting conclusion, because one would expect that piracy would mostly have an effect
on digital sales.
We have a different theory.
Could it be that album sales have been declining over recent years because people now have
the ability to buy single tracks? If someone likes three tracks from an album he or she no
longer has to buy the full album, something that was unimaginable 10 years ago.
This theory would also fit the sales patterns of the last few years, where album sales are
down year after year while the number of individual tracks sold is increasing rapidly. In 2010
the UK music industry sold 161.8 million singles (digital and physical) compared to 66.9 million in 2006. Where does piracy fit in here?
Could it possibly be that piracy is only affecting album sales and not single sales? Would
that make sense?
Or could it be that the consumption habits of the average music consumer have changed
in the last decade?
There s no such thing as a free sample? Thats ridiculous. (2011-01-11 13:57)

Its arguments like those set forth in Curtis Smolars column, Theres no such thing as a free sample,
that give the music industry and its advocates a bad name. Hes wrong or, at the very least, more
566
prescient than I, in concluding that [t]heres no such thing as a free sample. As Ive written about at
length in the past, the music industrys practice of requiring payment for any sample of recorded music
was a self-interested decision by the music companies themselves in the wake of 2 court decisions, the
legitimacy of which are subject to serious question, that are not controlling precedent in most of the
country.
Smolar begins his column stating, Just because something is commonplace doesn t always mean it s
legal. I would counter that with this: just because the record companies made a decision back in 1991
that they each would pay for permission to use recorded samples of each others music doesnt mean that
payment is required.
Smolar also seems to imply that because fair use is used as a defense to copyright claims and can be
characterized as an exception to the real rule that any use of a copyrighted work constitutes infringement it somehow has little importance. One could just as easily characterize fair use in this way: Under
the First Amendment to the Constitution, we can express ourselves any way we want, even in ways that
steal your own forms of expression, unless there s a good reason to stop us. In short, copyright is an
exception to the foundational right to free expression.
But Smolar isnt interested in being accurate he appears interested only in scaring anyone off of unlicensed sampling. He and his ilk havent been too successful in that effort. But then why would he be
successful in scaring people if he misrepresents the law as egregiously as he does when he states that
[sampling fails to meet each and every one of the four prongs of the statutory elements courts consider
in determining whether the use of copyrighted material constitutes fair use. Its a whole lot more complicated than that. First, of course, the four-part test does not call for an either-or determination on each
factor. So its just plain wrong to write [t]he use must be for non-commercial purposes. Its not true
either that [t]he nature of the copyrighted must be in the public interest. The mere fact someone samples
the identifiable part of a song does not make the sampling an infringement either. Finally, Smolar states
that sampling damages the market for the song from which the excerpt was taken because the new song
may be purchased for as much as the original. Im not sure what that means. He cant possibly mean
that if I get Girl Talks Triple Double I therefore wouldnt buy Steppin Out by Joe Jackson. But all
he might otherwise mean is that if Girl Talks songs are so good that people are willing to pay a lot of
money for them (though they can get them for free), that cant be right. The more the appropriation is
valued in its own right, the more transformative it is and, therefore, the more likely it constitutes fair
use.
But Smolar isnt interested in the law. He just interested in scaring people into believing theyll be
sued by the record industry if they sample anything.
Addendum: For an good discussion of fair use and its complexities (in a context entirely divorced from
music), see Fair Use Controversy: The Gift That Keeps On Giving.
Martin Luther King, Jr., April 4, 1967: (2011-01-17 17:05)

A true revolution of values will soon cause us to question the fairness and justice of many of our past and
present policies. n the one hand we are called to play the good Samaritan on lifes roadside; but that will
be only an initial act. One day we must come to see that the whole Jericho road must be transformed
so that men and women will not be constantly beaten and robbed as they make their journey on lifes
highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial.
It comes to see that an edifice which produces beggars needs restructuring. A true revolution of values
will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will
look across the seas and see individual capitalists of the West investing huge sums of money in Asia,
Africa and South America, only to take the profits out with no concern for the social betterment of the
countries, and say: This is not just. It will look at our alliance with the landed gentry of Latin America
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and say: This is not just. The Western arrogance of feeling that it has everything to teach others and
nothing to learn from them is not just. A true revolution of values will lay hands on the world order
and say of war: This way of settling differences is not just. This business of burning human beings
with napalm, of filling our nations homes with orphans and widows, of injecting poisonous drugs of hate
into veins of people normally humane, of sending men home from dark and bloody battlefields physically
handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation
that continues year after year to spend more money on military defense than on programs of social uplift
is approaching spiritual death.
America, the richest and most powerful nation in the world, can well lead the way in this revolution
of values. There is nothing, except a tragic death wish, to prevent us from reordering our priorities, so
that the pursuit of peace will take precedence over the pursuit of war. There is nothing to keep us from
molding a recalcitrant status quo with bruised hands until we have fashioned it into a brotherhood.
This kind of positive revolution of values is our best defense against communism. War is not the answer.
Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those
who shout war and through their misguided passions urge the United States to relinquish its participation
in the United Nations. These are days which demand wise restraint and calm reasonableness. We must
not call everyone a Communist or an appeaser who advocates the seating of Red China in the United
Nations and who recognizes that hate and hysteria are not the final answers to the problem of these
turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for
democracy, realizing that our greatest defense against communism is to take offensive action in behalf of
justice. We must with positive action seek to remove thosse conditions of poverty, insecurity and injustice
which are the fertile soil in which the seed of communism grows and develops.
The People Are Important
These are revolutionary times. All over the globe men are revolting against old systems of exploitation
and oppression and out of the wombs of a frail world new systems of justice and equality are being
born. The shirtless and barefoot people of the land are rising up as never before. The people who sat
in darkness have seen a great light. We in the West must support these revolutions. It is a sad fact
that, because of comfort, complacency, a morbid fear of communism, and our proneness to adjust to
injustice, the Western nations that initiated so much of the revolutionary spirit of the modern world
have now become the arch anti-revolutionaries. This has driven many to feel that only Marxism has the
revolutionary spirit. Therefore, communism is a judgement against our failure to make democracy real
and follow through on the revolutions we initiated. Our only hope today lies in our ability to recapture
the revolutionary spirit and go out into a sometimes hostile world declaring eternal hostility to poverty,
racism, and militarism. With this powerful commitment we shall boldly challenge the status quo and
unjust mores and thereby speed the day when every valley shall be exalted, and every moutain and hill
shall be made low, and the crooked shall be made straight and the rough places plain.
A genuine revolution of values means in the final analysis that our loyalties must become ecumenical
rather than sectional. Every nation must now develop an overriding loyalty to mankind as a whole in
order to preserve the best in their individual societies.
This call for a world-wide fellowship that lifts neighborly concern beyond ones tribe, race, class and
nation is in reality a call for an all-embracing and unconditional love for all men. This oft misunderstood
and misinterpreted concept so readily dismissed by the Nietzsches of the world as a weak and cowardly
force has now become an absolute necessity for the survival of man. When I speak of love I am not
speaking of some sentimental and weak response. I am speaking of that force which all of the great
religions have seen as the supreme unifying principle of life. Love is somehow the key that unlocks the
door which leads to ultimate reality. This Hindu-Moslem-Christian-Jewish-Buddhist belief about ultimate reality is beautifully summed up in the first epistle of Saint John:
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Let us love one another; for love is God and everyone that loveth is born of God and knoweth God.
He that loveth not knoweth not God; for God is love. If we love one another God dwelleth in us, and his
love is perfected in us.
Let us hope that this spirit will become the order of the day. We can no longer afford to worship
the god of hate or bow before the altar of retaliation. The oceans of history are made turbulent by the
ever-rising tides of hate. History is cluttered with the wreckage of nations and individuals that pursued
this self-defeating path of hate. As Arnold Toynbee says : Love is the ultimate force that makes for the
saving choice of life and good against the damning choice of death and evil. Therefore the first hope in
our inventory must be the hope that love is going to have the last word.
We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency
of now. In this unfolding conundrum of life and history there is such a thing as being too late. Procrastination is still the thief of time. Life often leaves us standing bare, naked and dejected with a lost
opportunity. The tide in the affairs of men does not remain at the flood; it ebbs. We may cry out deperately for time to pause in her passage, but time is deaf to every plea and rushes on. Over the bleached
bones and jumbled residue of numerous civilizations are written the pathetic words: Too late. There is
an invisible book of life that faithfully records our vigilance or our neglect. The moving finger writes, and
having writ moves on... We still have a choice today; nonviolent coexistence or violent co-annihilation.
We must move past indecision to action. We must find new ways to speak for peace in Vietnam and
justice throughout the developing world a world that borders on our doors. If we do not act we shall
surely be dragged down the long dark and shameful corridors of time reserved for those who possess
power without compassion, might without morality, and strength without sight.
Now let us begin. Now let us rededicate ourselves to the long and bitter but beautiful struggle
for a new world. This is the callling of the sons of God, and our brothers wait eagerly for our response.
Shall we say the odds are too great? Shall we tell them the struggle is too hard? Will our message be
that the forces of American life militate against their arrival as full men, and we send our deepest regrets?
Or will there be another message, of longing, of hope, of solidarity with their yearnings, of commitment
to their cause, whatever the cost? The choice is ours, and though we might prefer it otherwise we must
choose in this crucial moment of human history.
As that noble bard of yesterday, James Russell Lowell, eloquently stated:
Once to every man and nation

Comes the moment to decide,
In the strife of truth and falsehood,
For the good or evil side;
Some great cause, Gods new Messiah,
Offring each the bloom or blight,
And the choice goes by forever
Twixt that darkness and that light.
Though the cause of evil prosper,
Yet tis truth alone is strong;
Though her portion be the scaffold,
And upon the throne be wrong:
Yet that scaffold sways the future,
And behind the dim unknown,
Standeth God within the shadow
Keeping watch above his own.
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Stanley Fish on How to Write a Sentence. (2011-01-26 10:28)

[EMBED]
We have a responsibility, as artists, to fight for better conditions. (2011-01-31 14:37)
Ai Weiwei, the co-designer of Chinas Olympic stadium

and target of Chinese government repression, on the duties of artists:
We have a responsibility, as artists, to fight for better conditions. I see freedom and
justice as basic, fundamental rights for everyone. Im just in this position to make my voice
heard. He acknowledges that his fame, and friends around the world, afford him that ability.
But there are a million people like me in China. I dont think they can stop us all.
4.2
February
Can Congress constitutionally require individuals to purchase health insurance? It

seems the Founding Fathers assumed so. (2011-02-09 16:40)
Rick Ungar suggests that believing our Founding Fathers would not have approved of requiring individuals purchasing health insurance is belied by what Congress did just twelve years after the Constitution
was adopted:
In July of 1798, Congress passed and President John Adams signed - An Act for the
Relief of Sick and Disabled Seamen. The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to
purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the
drafters of the Constitutions in creating this Act as many of its members were the drafters of
the Constitution.And when the Bill came to the desk of President John Adams for signature,
I think it s safe to assume that the man in that chair had a pretty good grasp on what the
framers had in mind. . . .
The law did a number of fascinating things.
First, it created the Marine Hospital Service, a series of hospitals built and operated by
the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime
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sailors (a little more than 1 % of a sailor s wages), the same to be withheld from a sailor s pay
and turned over to the government by the ship s owner. The payment of this tax for health
care was not optional. If a sailor wanted to work, he had to pay up.
Would Shakespeare have survived the Internet? Scott Turow and the morality of
propertizing creativity. (2011-02-15 11:06)
In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would
have survived the Internet:
The rise of the Internet has led to a view among many users and Web companies that
copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider
the dedicated file-sharers
actually, traffickers in stolen music movies and, increasingly,
books
who transmit and receive copyrighted material without the slightest guilt.
They are abetted by a handful of law professors and other experts who have made careers of
fashioning counterintuitive arguments holding that copyright impedes creativity and progress.
Their theory is that if we severely weaken copyright protections, innovation will truly flourish.
It s a seductive thought, but it ignores centuries of scientific and technological progress based
on the principle that a creative person should have some assurance of being rewarded for his
innovative work.
There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one,
there are not many law professors other than the notoriously ineffective Charles Nesson who defend the
legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact
on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing
with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And
Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go
together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that
artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers
prior to the advent of what the Turow and his colleagues describe as paywalls around theaters or before
copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote
innovation. The very premise of Turows argument that in the absence of the economic monopoly
conferred by copyright creativity like Shakespeares simply wont happen is hardly indisputable.
Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th
Circuits refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating
her right of publicity by appropriating her identity, emphasizing that overprotecting intellectual
property is as dangerous as underprotecting it (footnotes omitted):
Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts.
Clint Eastwood doesnt want tabloids to write about him. Rudolf Valentinos heirs want to
control his film biography. The Girl Scouts dont want their image soiled by association with
certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it
Star Wars. Pepsico doesnt want singers to use the word Pepsi in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Years
Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through
telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring
corpulent bearded chefs. And scads of copyright holders see purple when their creations are
made fun of.
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Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation;
it stimulates the flourishing of our culture; it protects the moral entitlements of people to
the fruits of their labors. But reducing too much to private property can be bad medicine.
Private land, for instance, is far more useful if separated from other private land by public
streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount
of land in private hands, but vastly enhance the value of the property that remains.
So too it is with intellectual property. Overprotecting intellectual property is as harmful
as underprotecting it. Creativity is impossible without a rich public domain. Nothing today,
likely nothing since we tamed fire, is genuinely new: Culture, like science and technology,
grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces its supposed to nurture. . . .
But what does evisceration mean in intellectual property law? Intellectual property rights
arent like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very
point of intellectual property laws is that they protect only against certain specific kinds of
appropriation. I cant publish unauthorized copies of, say, Presumed Innocent; I cant make
a movie out of it. But Im perfectly free to write a book about an idealistic young prosecutor
on trial for a crime he didnt commit. So what if I got the idea from Presumed Innocent?
So what if it reminds readers of the original? Have I eviscerated Scott Turows intellectual
property rights? Certainly not. All creators draw in part on the work of those who came
before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.
Turow and his colleagues are guilty, I think, of the bad medicine of reducing too much to private
property. Perhaps Turow would describe me as a law professor advancing counterintuitive arguments,
but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented
tendency to propertize everything it can and a blindness to the ways law cannot stem new practices
made possible by technology. The inarguable truth is that the music and publishing industries once had
virtual monopolies on the production and distribution of their products and that they no longer do.
Those industries have largely reacted by trying to enforce a legal regime that grew up with and required
the old means of production and distribution, which seems to me at least not the most productive way
of promoting creativity.
Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year
he complained that publishers had made a mistake in making publishing e-book versions of writers works
at the same time they published the book versions, agreeing with a publishers assertion that theres
something radically wrong when a market has the power to cause the value of a book to plummet. When
the publisher expanded on the point by stating that I want to be able to say that a new book by Scott
Turow is worth $28, and people should be willing to pay that, Turow agreed, justifying his entitlement
to the price by arguing that [t]here is nothing wrong with [copyright holders] maximizing their profits .
. . . If we really want to have a robust literary culture, then we have to think about the compensation
system.
I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs
of printing and distributing books when the market now can deliver a product that need not be printed
and that can be delivered virtually for free.
What is intuitive to Turow and the point of view he represents is that your creations are as much
your property as your car or your computer. But intellectual property is not property in the same way
as personal or real property. The very source of our nations copyright laws, the Constitutions Copyright
Clause, makes clear that copyright law exists to promote invention and creativity, and to the extent it
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discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot
seem to overcome some moral conviction that to allow others to profit off of your creations is somehow
to steal something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently
states the response to this moral claim (footnotes omitted; hyperlinks added):
Moreover, consider the moral dimension, about which the panel majority seems to have
gotten so exercised. Saying Samsung appropriated something of Whites begs the question:
Should White have the exclusive right to something as broad and amorphous as her identity?
Samsungs ad didnt simply copy Whites schticklike all parody, it created something new.
True, Samsung did it to make money, but White does whatever she does to make money,
too; the majority talks of the difference between fun and profit, 971 F.2d at 1401, but in
the entertainment industry fun is profit. Why is Vanna Whites right to exclusive for-profit
use of her personaa persona that might not even be her own creation, but that of a writer,
director or producersuperior to Samsungs right to profit by creating its own inventions?
Why should she have such absolute rights to control the conduct of others, unlimited by the
idea-expression dichotomy or by the fair use doctrine?
To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S340], , 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much
of the fruit of a creators labor may be used by others without compensation. But this is
not some unforeseen byproduct of our intellectual property system; it is the systems very
essence. Intellectual property law assures authors the right to their original expression, but
encourages others to build freely on the ideas that underlie it. This result is neither unfair
nor unfortunate: It is the means by which intellectual property law advances the progress of
science and art. We give authors certain exclusive rights, but in exchange we get a richer
public domain. The majority ignores this wise teaching, and all of us are the poorer for it
The Perfect Storm in University Education and the Birth of the Slackoisie
(2011-02-24 13:20)
Thomas H. Benton, in the Chronicle of Higher Education, in A Perfect Storm in Undergraduate Education, Part I, writes of a crisis in undergraduate education, observing that [s]tudents are adrift almost
everywhere, floating in the wreckage of a perfect storm that has transformed higher education almost beyond recognition. Benton identifies numerous reasons for the ineffectiveness of undergraduate education.
What concerns me is the remarkable number of ways those reasons overlap with what is going on in law
school education.
Thus, for example, Benton writes that undergraduates are not prepared adequately in any academic
area but often arrive with strong convictions about their abilities. This point rings particularly loudly
for me. I teach legal writing, and while a lot of people seem to believe the topic involves nothing more
than grammar, style, and legal citation, anyone who has actually engaged in legal writing in practice
knows that high level achievement in matters of grammar and style are prerequisites to learning and
mastering the sophisticated analytic and persuasive abilities that are part and parcel of the skills of legal
writing. In other words, if you havent already mastered English Composition, you are not ready for first
year legal writing. Moreover, even if you have mastered English Composition, that does not mean you
will earn an A in first year legal writing.
Benton doesnt address the matter quite as squarely as I might, but he does recognize that the huge
cost of education is a large part of the problem:
As the college-age population declines, many tuition-driven institutions struggle to find

enough paying customers to balance their budgets. That makes it necessary to recruit even
573
more unprepared students, who then must be retained, shifting the burden for academic
success away from the student and on to the teacher.
At my law school, tuition is $40,000 per year. As a result, the students are the schools most valuable
resource. Let a student walk away and you let a huge chunk of revenue walk away. Thus, the institutions
desire to retain students threatens to override other institutional goals. Teaching first year law students
what they need to know to become effective lawyers often is something that does not make them terribly
happy, but keeping students happy often is imperative to keep them from walking away. Would you
rather discourage someone who does not have the fortitude to be a lawyer from becoming one or keep
him happy enough to pay $120,000 to you over 3 years? The threat to a law schools legitimate purposes
posed by that dilemma is obvious.
Even apart from financial incentives, the importance of student evaluations in making faculty promotion and retention decisions especially in a system that is increasingly dependent on non-tenure track
faculty can drive professors to value keeping students happy more highly than challenging students to
the extent they need to be challenged, as Benton points out: The common wisdom, for the untenured,
at least whether it is true or not is to find ways to keep the students happy.
Finally, it is difficult to maintain rigor in a course when others teach the course from very different
foundations of experience and, consequently, have very different expectations. As Benton writes, [i]t
is impossible to maintain high expectations for long unless everyone holds the line in all comparable
courses and we face strong incentives not to do that. A course in which the professor assigns a 20-page
paper and 200 pages of reading every week cannot compete with one that fills the same requirement with
half of those assignments.
What precisely is the purpose of a law school? Is it to keep students happy? To train good lawyers?
To train legal scholars? I wonder too whether the failures of our universities have something to do with
what, as the New York Times recently noted, a couple of lawyer friends of mine are expressing when they
criticize younger lawyers as the members of the slackoisie:
Two well-known legal bloggers, Dan Hull of What About Clients? and Scott Greenfield of
Simple Justice have respectively coined and popularized the term slackoisie to describe Gen-Y
attorneys as narcissists who believe:
that having a job is an entitlement, rather than a privilege & complain about the work
they have (if working), opine on the lack of real lawyer jobs available in the market, and
& criticize the long hours and inadequate pay found at most small firms [while asserting]
entitle[ment] to work/life balance [and complaining that] whatever benefits they enjoy are
inadequate.
Five Seconds Of Every #1 Pop Single Part 1 (2011-02-24 14:49)

[EMBED] Five Seconds Of Every #1 Pop Single Part 1 by mjs538
And adult approach to digitizing library holdings (2011-02-25 12:51)

I have long believed the copyright concerns that have hampered the digitization of library holdings are
way overblown, especially in light of the value to be gained by digitizing the contents of libraries and
making them available for research online. So it is gratifying to see that the libraries of Duke University,
North Carolina Central University (NCCU), North Carolina State University (NCSU), and the University of North Carolina at Chapel Hill (UNC) have issued a report The Triangle Research Libraries
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Networks Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and
Archival Records Groups (pdf) that, as Library Journal describes it, urges libraries to make large-scale
special collections available online, even if some question about the copyright status of certain elements
remains.
The document sets forth a comprehensive strategy for addressing copyright concerns that digitization
raises. It doesnt shy, however, from asserting the legitimacy of the project as an exercise of fair use:
In the unlikely event that a TRLN member library is challenged on the presentation of the digitized
collections/groups, and in the even more unlikely event that the library is unable to resolve those challenges...the library will rely on a fair use argument.
And the document sets forth its fair use analysis clearly and concisely, addressing each of the factors
of the 4-part fair use test as follows:
Fair use is a balancing test based on . . . four factors. The factors are not a list of requirements, and all four factors need not be met to have a successful fair use argument. Each
factor as it might pertain to the CCC project s selected manuscript collections and archival
record groups is addressed below.
The purpose and character of the use
The CCC project is not for profit; the project s purpose is to promote historical scholarship and support educational uses of primary sources by providing free and open online access
to a large corpus of research materials: the digitized manuscript collections and archival record
groups from the four libraries. Individual documents contained in the collections and groups
may remain under copyright protection, but they are used in this project for research and
educational purposes.
The character of the use is transformative. An individual document s original use was temporally bound, its value practical. For example, at the time that any individual letter in the
Frank Porter Graham papers was written, it served only to share information with Graham.
But now that letter is part of a manuscript collection that contains more than one hundred
thousand documents. And as with any individual item in a manuscript collection/archival
record group, the document serves as a small part of a larger resource, one used in scholarly
inquiry and education. The aggregation and organization of individual documents to create
manuscript collections/archival record groups transform the purpose and function of the individual documents, as do the finding aids for these collections/groups, which also add to
the research value. The digitization and online presentation of the documents in the collection/group further remove the individual document from its original purpose, and deepen its
transformed purpose and use as a historical resource that contributes to our understanding
of the past.
The nature of the copyrighted work
Most of the documents in the manuscript collections/archival record groups were created
in the course of the daily life of an individual or in the routine business of an organization.
Created without commercial motivation or artistic intent, these works were not meant for
publication at the time of creation, and today are not publishable in isolation. The research
value of manuscripts lies not with the individual document, but rather with the collection of
documents that together provide context and insight into the past.
The amount and substantiality of the portion used
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The presentation of entire documents and entire collections/record groups is therefore appropriate for the intended use by students, educators, and scholars. Individual documents
in the collections/groups are the copyright?protected works; but the law does not specify a
particular amount of a work that can be used without permission.
The educational and transformative purposes of the use require the presentation of the works
in their entirety and so satisfy this factor.
The effect of the use upon the potential market
The scholarly research value and educational significance of these collections are incalculable,
but their aggregated online presentation will have little to no effect on the market value of
individual documents. In virtually all cases, no such market exists. In the rare instance in
which an individual document has a commercial market, the downloadable digital images will
not be of commercial quality and therefore will pose no threat to that market.
DIY, from This American Life: you get justice in the next world, in this world you
have the law? (2011-02-26 18:34)
Its easy sometimes to lose sight of the fact our legal system is called a justice system and that law doesnt
exist for its own sake. I suppose, however, that William Gaddis had that confusion in mind when he
opened one of his novels with this line:
You get justice in the next world, in this world you have the law
Today I made a brief car ride with my son last an hour so I could hear all of the latest episode of This
American Life. Entitled DIY, the summary set forth below, from the This American Life web sitem
fails to do justice to a story that brought me to tears, that reminds me again what this whole life of
the law ultimately boils down to. Fortunately, you can hear the whole episode yourself from the player
pasted in below the summary:
PROLOGUE.
Carl King, a self-taught investigator, talks about the murder case hes working on now one the police
think theyve already solved. Carl got started in this business after freeing his close friend from prison. He
now runs an organization, called Success to Freedom, devoted to helping wrongfully convicted inmates.
(2 minutes)
ACT ONE.
Reporter Anya Bourg tells the story of Carl Kings first case, where hes able to accomplish what experienced detectives and lawyers were not. He proves that his friend was innocent. In this first half of
the show, we hear the story of the crime. In 1980, Mario Hamilton was gunned down in the street in
Brooklyn. A teenager claimed to have seen it happen. With police prompting, he fingered a guy named
Collin Warner as the shooter. No matter that everyone in the neighborhood said someone else murdered
Hamilton and that Warner had nothing to do with it. And no matter that the teenager hadnt witnessed
the murder at all. A jury convicted Warner, and he was sentenced to 15 years to life for killing a man hed
never even heard of. Carl, his childhood friend couldnt let it rest, and started to fight the conviction.
He tells everyone he can about the case. He tracks down witnesses. He teaches himself to read court
documents. Eventually, he gets a real estate lawyer hooked on the case. (29 minutes)
ACT TWO.
The story of Collin Warner continues. His friend Carl manages to convince the real shooter and the
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victims brother (who watched him die on the sidewalk) to testify on Collins behalf. After 21 years in
prison, Collin goes free. (24 minutes)
4.3
March
Noy Alooshe: Zenga Zenga (2011-03-01 09:52)

IFRAME: http://www.youtube.com/embed/cBY-0n4esNY?rel=0
Welcome to the future of publishing. (2011-03-03 11:30)

Amanda Hocking lives in Minnesota, and writes young adult paranormal romance and urban fantasy. Her
My Blood Approves series is about vampires in Minneapolis. She also wrote the Trylle Trilogy, which is
a paranormal romance without vampires, shifters, mermaids, fae, angels, dragons, ghosts, or ninjas.
But whats remarkable about Ms. Hocking is that shes experienced enormous success by self-publishing
her works exclusively as electronic texts, as the Huffington Post reports:
Unknown, living paycheck to paycheck in Austin, Minnesota, rejected by publishers all

over New York, Amanda Hocking decided to self-publish on ebook platforms only. She sold
100,000 of her works in December, and over 10 months shes had more than 900,000 in sales.
Shes 26 and is now making enough money to quit her day job and become a full time writer,
in fact shes a millionaire.
Paranormal romance is not precisely to my taste, but no one interested in culture can ignore the economics
of popular culture. And at least this comment from the Huffington Post article, while acknowledging the
fear provoked by the ongoing revolution in publishing, acknowledges what Ive long seen as the need to
embrace the inevitable:
As a long-time author it frightens me somewhat to see the industry change so much so

quickly. Yet its also exciting to witness this kind of people power in the making. The Internet
is the great equalizer. I firmly believe that those of us in the industry need to embrace the
change or we will eventually go down in flames. You cant stop progress, only delay it.
Legal writing:
analytic, interactive, and nonroutine.
A computer cant do it.
(2011-03-06 19:00)
One of the most difficult lessons to get across to my students is that good legal writing requires them
to exercise their imaginations, that I cannot merely tell them what they are supposed to do. Its no
surprise that its so difficult to get this message across; even within law schools there are many who
believe legal writing is nothing more than composition and citation. So I thought it was interesting that
Paul Krugman wrote today on his blog about the influential analysis of Autor, Levy, and Murnane . .
. , which argued that the crucial difference in terms of possible replacement of humans by machines was
one of routine versus non-routine, rather than white-collar versus blue-collar . . . .
In the article Krugman refers to, the authors set forth a chart dividing different tasks into analytic
and interactive tasks and manual tasks. They also then divide each of those categories into those that
577
are routine and nonroutine. I was relieved, but not surprised, to find that legal writing is an analytic
and interactive task that is nonroutine:
If you think youll come up with a really original idea, youre just kidding yourself.
(2011-03-16 15:52)
In The City and the City, China Mieville writes a police procedural that takes place in [t]win southern
European cities Beszel and Ul Qoma, which coexist in the same physical location but are separated
by their citizens determination to see only one city at a time. When I read the novel I marveled at
the originality of the premise. Of course, as Mieville himself recognizes in an interview on BLDGBLOG,
theres nothing new under the sun:
I should say, also, that with the whole idea of a divided city there are analogies in the real
world, as well as precursors within fantastic fiction. C. J. Cherryh wrote a book that had a
divided city like that, in some ways, as did Jack Vance. Now I didn t know this at the time,
but I m also not getting my knickers in a twist about it. If you think what you re trying to do
is come up with a really original idea one that absolutely no one has ever had before you re
just kidding yourself.
You re inevitably going to tread the ground that the greats have trodden before, and that s
fine. It simply depends on what you re able to do with it.
That indeed is where artistic genius resides not in the originality of the thought, but in what the artist
does with the thought.
Is the NY Times new paywall a platypus? (2011-03-17 15:14)

Will the new New York Times paywall survive longer than its last one? The Times sent me an e-mail
explaining the plan, but Felix Salmon explains it more succinctly and clearly:
578
[T]he website is free, so long as you read fewer than 20 items per month, and so are the
apps, so long as you confine yourself to the Top News section. You can also read articles for
free by going in through a side door. Following links from Twitter or Facebook or Reuters.com
should never be a problem, unless and until you try to navigate away from the item that was
linked to.
Beyond that, $15 per four-week period gives you access to the website and also its smartphone app, while $20 gives you access to the website also its iPad app. But if you want
to read the NYT on both your smartphone and your iPad, you ll need to buy both digital
subscriptions separately, and pay an eye-popping $35 every four weeks. That s $455 a year.
I cant say I disagree with Salmons take: The message being sent here is weird: that access to the
website is worth nothing. Mathematically, if A+B= $15, A+C= $20, and A+B+C= $35, then A= $0.
And I suspect Mike Masnicks is correct in his belief this plan was spawned by a committee that either
lacked or utterly ignored any member who suggested the idea was stupid:
It feels like something that was completely developed by committee group-think. Its one
of those things where theyre sitting around and someone timidly suggests a dumb idea (I
know, for $5 more we take away their smartphone access) and, because they have to come
up with something, someone else says sure and then they think theres validation of a good
idea. But theres no one brave enough in the room to say: Guys, the newspaper is digital.
Charging different amounts based on the hardware is like charging people different prices for
listening to the same music on headphones vs. speakers. But no one did that. And because
they had a committee, who kept making bad suggestions like this, and 14-months to keep
upping the stupid, they spent over $40 million on it.
The result for me will be that Ill read the New York Times less than I do now. Whether the newspaper
will in fact be hurt by losing page views by readers like me or will make more money than it does now
with its content online for free remains to be seen, but something tells me this isnt the best solution
to the world we live in now, one in which newspapers no longer control the means of producing and
distributing journalism.
Stay tuned. Well see what the New York Times is doing online in a year or two.
Cariou v. Prince: the damage to plaintiff is far more important than Richard Princes
inability to articulate an artistic intent. (2011-03-22 11:06)
I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince
alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I
wrote then that the lawsuit could have a profound impact on the art world, either clarifying that the
widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to
an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire,
and any number of other genres that have become increasingly easy to engage in with the digitalization
of media and the rise of the internet.
The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded
below.
On the one hand, the decision is not as far reaching as it might have been. The court emphasized
that it was declining to accept Prince s argument that appropriation art is per se fair use, regardless
of whether or not the new artwork comments on the original works appropriated. Slip Op. at 17-18.
579
On the other, the court limited the scope of fair use in appropriation art to work that comments on the
original works, insisting that, to the extent that [Prince s works] merely recast, transform, or adapt the
photos, [they] are . . . infringing derivative works. Id. at 18.
There are a several interesting aspects of the case. First, the court emphasized that Prince testified
that he has doesn t really have a message he attempts to communicate when he making art, and that
[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or
the broader [Rastafarian] culture.
It may be a dangerous thing to depend on the artist s intent in judging the transformative nature of
his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so
well accepted they are almost trite,
not even the artists own. He or she can tell us the intent of the work, but the actual meaning
and significance of the art, what the artist achieved, is a very different matter. (It is pitiable
to hear the grandiose discussions of artists work by the least talented of our contemporaries.)
We should listen to the appreciations of others, but then we should put them aside and
advance toward a work of art in the loneliness of our own truth. Each of us encounters the
work alone, and how much we receive from it is wholly the effect of our will to accept this
responsibility.
What was Jackson Pollocks purpose in painting Lavender Mist? Van Goghs in painting The Irises?
Havent we accepted by now the limitations focus on artistic intention would impose on our appreciation
of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second
Circuit, in holding that Jeff Koons appropriation of a copyrighted photograph constituted fair use, based
its conclusion that Koons use of the photograph was transformative precisely on Koons statements
regarding what he intended:
Koons asserts and Blanch does not deny that his purposes in using Blanchs image are
sharply different from Blanchs goals in creating it. Compare Koons Aff. at P4 (I want the
viewer to think about his/her personal experience with these objects, products, and images
and at the same time gain new insight into how these affect our lives.) with Blanch Dep.
at 112-113 (I wanted to show some sort of erotic sense[;] . . . to get . . . more of a
sexuality to the photographs.). The sharply different objectives that Koons had in using,
and Blanch had in creating, Silk Sandals confirms the transformative nature of the use. See
Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendants purpose
in using copyrighted concert poster was plainly different from the [*253] original purpose for
which they were created); see also 17 U.S.C. 107(1) (first fair-use factor is the purpose
and character of the use (emphasis added)).
Koons is, by his own undisputed description, using Blanchs image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entmt, 150
F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted
work is used as raw material,Castle Rock Entmt, 150 F.3d at 142 (internal quotation marks
and citation omitted), in the furtherance of distinct creative or communicative objectives, the
use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert
posters as historical artifacts in a biography was transformative); Leibovitz v. Paramount
Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster
was transformative when the ad [was] not merely different; it differ[ed] in a way that may
reasonably be perceived as commenting on the original). His stated objective is thus not to
repackage Blanchs Silk Sandals, but to employ it in the creation of new information, new
580
aesthetics, new insights and understandings.

The test for whether Niagaras use of Silk Sandals is transformative, then, is whether
it merely supersedes the objects of the original creation, or instead adds something new,
with a further purpose or different character, altering the first with new expression, meaning, or message.Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted,
alteration incorporated);Davis, 246 F.3d at 174 (same). The test almost perfectly describes
Koonss adaptation of Silk Sandals: the use of a fashion photograph created for publication
in a glossy American lifestyles magazine with changes of its colors, the background against
which it is portrayed, the medium, the size of the objects pictured, the objects details and,
crucially, their entirely different purpose and meaning as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use
in question was transformative.
In short, courts seem to be basing the transformative nature of alleged infringements on the avowed
intentions of the artists themselves. Thus, in the decision enjoining the publication of a sequel to The
Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives
had described the work in words that didnt fit the legal standard they wanted to meet:
Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new
works, rather than explaining that60 Years was a parody or critique of Catcher, Colting s
freestanding novel that has nothing to do with the original Catcher in the Rye. Opinion and
Order at 16, n. 3.
Colting, obviously, should have called his work a parody and critique, not a sequel or a freestanding
novel. It s odd to think that makes a difference, though. No matter what he said, his work would be the
same.
In the same way, it seems odd that Prince s refusal to articulate an artistic intent and Koons elaborate
description of his own intent are the most significant determinants of the legitimacy of their respective
artworks.
Of course, there are more obvious was to distinguish Prince s case from Koons . Koons use of a fashion
photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that
fashion photograph. In contrast, Prince s work quite obviously did have an impact on the commercial
value of Cariou s work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes
Rasta photographs when the Gagosian Gallery began showing Prince s works that appropriated Cariou s
photographs. As a result, the gallery owner considering a show for Cariou s works backed off, because
she did not want to exhibit work which had been done already at another gallery. Slip op. at 6-7.
So we need not go so far as to conclude that Cariou s lawsuit signals the death of appropriation art
in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how
plainly and directly Prince s appropriations damaged Cariou s opportunities to economically benefit from
his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.
Cariou v Richard Prince
IFRAME: http://www.scribd.com/embeds/51214313/content?start page=1 &view mode=list &access
key=key-16e4iuvwv8izv7ti4ex7
581
Substantially similar or original? Cant it be both? (2011-03-23 10:48)
From The Millions: Substantially Similar? (after Koons 2010), [right] is composed of 36 rectangular panels, each contributed by a different artist and then assembled by the artist who conceived the
piece, Alfred Steiner. The result was an instantly recognizable riff on Jeff Koons s Popeye series [left]
an appropriation from an appropriator who has made headlines in several highly publicized copyright
cases. A note beside Substantially Similar? left no doubt about its creator s stance on the passionate
arguments for and against copyright laws: By engaging these issues, the project may also suggest how
copyright antagonizes artistic freedom while providing artists no discernible benefit.
Steiner is a lawyer who happens to be an artist. Steiner described his methods in composing Substantially Similar? (after Koons 2010):
I took an electronic version of the Koons original and divided it up into 36 pieces and sent
each artist just one little piece, via e-mail, so they wouldn t recognize the whole thing. I gave
them instructions on how to create an image based on the image that I d e-mailed them. The
only other instructions were a very close paraphrase of the 2nd Circuit s test for copyright
infringement which is, would a reasonable person regard the two works esthetic impact as
the same?
TM: In other words, would a layman recognize these two works as being the same thing?
AS: Right.
TM: So the contributors didn t know what they were reproducing?
AS: Right.
TM: And the result was a piece that looked vaguely like Koons, but was different.
AS: It had the essence of the original but was clearly a new work.
In connection with Girl Talk, Steiner states what is very much my thinking why would we want to stop
something so good?
582
[Greg Gillis] will make songs that are totally based on samples. One song may have 200
samples, so many that there s no way you could pay each artist. He s very well received
critically. The question is, should it be possible to make that kind of work or not? I kind of
think, yes, it should be possible.
Can you be original if you do nothing but appropriate the work of others?
(2011-03-24 10:12)
From Wikipedia: Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project
ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009.
Here is This is What it Became, one cut from ThruYOU:
[EMBED]
Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:
[T]o hear some people talk about these things, none of this is creative. Its all just
copying. In some cases its outright piracy. After all, Kutiman is using the works of others,
and doing so entirely without permission. And yet, I have trouble seeing how anyone can
legitimately claim that these songs are piracy in any real sense of the word. Kutiman is
clearly a musician. That he uses a note played by someone else on a YouTube video, and then
plays it himself, strikes me as no different than playing a keyboard that plays a recorded
sounded, or even strumming a guitar. A musician is putting different sounds together to
create music. Does it really make a huge difference if that music involves someone making
a note from an instrument directly themselves... or by taking the note originally played by
someone else and doing something creative and amazing with it?
I think Masnick is right on in stating that the use of technology widely available only in the last several
years to compose a work from pieces of other recorded work is no different than playing a keyboard that
plays a recorded sounded, or even strumming a guitar. What many fail to recognize is that the music
the likes of Kutiman, Gillis, DJ Earworm and a myriad of others are producing today is the result of new
technology, not a new mindset. There are plenty of people out there who would tell you that rampant
sampling is the consequence of a generation without respect for property rights. But I think people who
say such things are missing the real point: ten years ago, it would have been very difficult for people
like Gillis and Kutiman to compose the work they compose today. Twenty years ago it would have been
impossible without efforts few but the most dedicated would resort to.
In short, we have new instruments today. That those instruments produce their sounds by means of
reproducing pre-recorded sounds does not make them any less instruments than instruments that can
produce only a limited number of notes.
Appropriation art: is Richard Princes loss its end? I dont think so. (2011-03-25 16:27)
The decision holding Richard Prince liable for infringing Patrick Carious copyright in photographs Prince
appropriated (which I wrote about 3 days ago) continues to inspire commentary. Donn Zaretsky does his
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typically excellent work in collecting the range of intelligent commentary and adding his own. He points
to what he considers the key point in the decision, the judges belief that Princes appropriation was not
sufficiently transformative to constitute fair use of Carious photographs because Princes work did not
sufficiently comment on or otherwise refer back to Carious photographs (hyperlinks in original):
[T]he key bit is that the court rejected the fair use defense because, as Artnets Walter
Robinson puts it, Princes works do not specifically comment on Carious originals. (Robinson says: Face it, the notion of appropriation just doesnt play well in our law courts.) The
NYTs Randy Kennedy writes that Judge Batts wrote that for fair-use exceptions to apply,
a new work of art must be transformative in the sense that it must in some way comment
on, relate to the historical context of, or critically refer back to the original works it borrows
from.
That hasnt always seemed to be a requirement in other fair use cases. In Blanch v. Koons,
for example, the Second Circuit noted that Koons used Blanchs image as fodder for his
commentary on the social and aesthetic consequences of mass media (rather than, as Judge
Batts would seem to require, fodder for his commentary on Blanchs image). Quoting the
Supreme Courts Campbell decision, the court said the test of transformativeness is whether
the later work adds something new, with a further purpose or different character, altering
the first with new expression, meaning, or message.
As I wrote the other day, I think the key element in the case is the evidence that Cariou had (and that
the court apparently found credible) that he had been directly damaged by the appropriation. Cariou
had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the
Gagosian Gallery began showing Prince s works that appropriated Cariou s photographs. As a result,
the gallery owner considering a show for Cariou s works backed off, because she did not want to exhibit
work which had been done already at another gallery. Slip op. at 6-7. In other words, Princes work
essentially was functioning as a direct market substitute for Carious work.
That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons appropriation of a photograph in a collage constituted fair use. There was
no reason in Blanch to believe that Koons work in any way damaged any market for the appropriated
photograph.
Moreover, Carious case does not and cannot conceivably be interpreted to overturn Blanch, in which, as
Zaretsky correctly notes, the Second Circuit approved Koons use of Blanchs image as fodder for his
commentary on the social and aesthetic consequences of mass media (rather than, as Judge Batts would
seem to require, fodder for his commentary on Blanchs image).
Judge Batts apparent belief that in order to be sufficiently transformative to qualify as fair use an
artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly
open to question even apart from the unquestionable continuing vitality of Blanch. The proposition
that an appropriation must comment on the original to constitute fair use originates in commentary on
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, (1994), in which the Supreme Court held that 2 Live
Crews appropriation of Roy Orbisons Oh, Pretty Woman was a non-infringing fair use. While the Court
did stress the ways in which 2 Live Crews reworking of the song parodied Oh, Pretty Woman, I think
it is worth wondering whether ones principal reaction to 2 Live Crews song is that it is making fun of
Orbisons song. More importantly, Justice Souter, writing for the Court, emphasized that the less an
appropriating work damages the market for the original work it appropriates, the less it needs to reflect
directly back on the original to the degree to constitute a non-infringing fair use:
A parody that more loosely targets an original than the parody presented here may still
be sufficiently aimed at an original work to come within our analysis of parody. If a parody
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whose wide dissemination in the market runs the risk of serving as a substitute for the original
or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming
fair use to establish the extent of transformation and the parodys critical relationship to the
original. By contrast, when there is little or no risk of market substitution, whether because
of the large extent of transformation of the earlier work, the new works minimal distribution
in the market, the small extent to which it borrows from an original, or other factors, taking
parodic aim at an original is a less critical factor in the analysis, and looser forms of parody
may be found to be fair use, as may satire with lesser justification for the borrowing than
would otherwise be required.
Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would
be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than
using it to comment on the worlds of commercial and fashion photography in general:
Koons is, by his own undisputed description, using Blanch s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus
not to repackage Blanch s Silk Sandals, but to employ it in the creation of new information, new aesthetics, new insights and understandings. When, as here, the copyrighted work
is used as raw material, in the furtherance of distinct creative or communicative objectives,
the use is transformative.
The test for whether Niagara s use of Silk Sandals is transformative, then, is whether it
merely supersedes the objects of the original creation, or instead adds something new, with
a further purpose or different character, altering the first with new expression, meaning, or
message. The test almost perfectly describes Koons s adaptation of Silk Sandals : the use
of a fashion photograph created for publication in a glossy American lifestyles magazine
with changes of its colors, the background against which it is portrayed, the medium, the size
of the objects pictured, the objects details and, crucially, their entirely different purpose and
meaning
as part of a massive painting commissioned for exhibition in a German art-gallery
space. We therefore conclude that the use in question was transformative.
Blanch v. Koons, at 467 F.3d at 252-53.
I think it is crucial to remain cognizant of the fact that the case law establishes that there can be
transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone
on at great length on this blog about the ways our conventional notions of authorship are too narrow and
historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over
at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with
helpful illustrations, is well worth your read. Heres an excerpt:
Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes
a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of
Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others
and fetishized by the artists.
And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the
public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others
and try to make you believe that they have crafted them. But Princes cutouts from advertising, porn and outlaw biker magazines never misled the consumer.
But somewhere, something bothers me about shutting a highly respected fine artist down
completely and burning his works when the first sale doctrine would permit him to buy a
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copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard
and the contemporary art world says it is art, I have a problem with the government burning
it.
To me, an original work of fine art properly labeled as such by a new artist is almost pure
speech - or in some way pure idea - even if it includes major appropriations. Things change
when the artwork is widely reproduced. When the consumers are paying tens of thousands for
Prince to take something no one is interested in, put his spin on it, and add value. Princes
appropriation added ten million dollars worth of value to a pile of books. Everyone knew
he didnt create the original.
This is not a question of consumers being defrauded, these are wealthy ultrasophisticates
on the cutting edge who are the purchasers - surrounded by the top art advisers and critics
-if these people feel that Princes value added is that great, what is the harm in letting them
indulge, as long as Prince legally purchased the original books? In fact, Princes prices will
probably soar - scarcity and scandal drive art prices up.
From a semiotic perspective, isnt Prince simply holding up a mirror to people who may
not want to look at themselves or their art as art in the hands of another? And if your
message is mirror-like, is it less valid? And if you dont have the verbal skills to articulate
what you are doing, is that any less a mirror?
In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung
without reason. Finally, I think that if Cariou convinced the court that Princes appropriations robbed
Cariou of real opportunities to sell his photographs, the outcome of Carious case is obviously correct and
does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we
talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.
Friday Night Mashup: Kutiman Im New (2011-03-25 22:37)
[EMBED]
Friday Night Mashup: Girl Walk//All Day (2011-03-26 00:02)
<
IFRAME: http://player.vimeo.com/video/18446531
Girl Walk // All Day from jacob krupnick on Vimeo.
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Doesnt anyone understand that just because you can make money off of it doesnt
mean it should be property? (2011-03-28 11:34)
Our cultures obsession with ownership and control seems

to know no bounds. Ray Madoff writes in the New York Times about ownership of a persons identity
after death:
According to Hebrew University of Jerusalem . . ., when it inherited Einstein s estate, the

bequest included ownership of Einstein s very identity, giving it exclusive legal control over
who could use Einstein s name and image, and at what cost.
Einstein is not the only example. While we might think of people like the Rev. Dr. Martin
Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of
our cultural heritage, available for all to use, the identities of each of them, and thousands
more, are claimed as private property, usable only with permission and for a fee.
This phenomenon is fairly recent
and it s getting out of control. For most of this country s
history, a person s identity was not something that could be owned. . . .
Today the right of publicity clearly allows people to control the commercial use of their
names and images during their lives. What happens after death is much murkier.
Throughout much of the world, the right of publicity ends at death, after which a person s
identity becomes generally available for public use. In the United States, however, this issue
is governed by state laws, which have taken a remarkably varied approach. In New York, the
right of publicity terminates at death; other states provide that the right of publicity survives
death for limited terms. But in Tennessee (whose laws govern the use of Elvis Presley s image,
since he died there), Washington (home of a company that purports to own Jimi Hendrix s
right of publicity) and Indiana (where CMG Worldwide, which manages the identities of hundreds of dead people, is based), control over the identities of the dead has been secured for
terms ranging from 100 years to, potentially, eternity.
Extending control over the identity of important people to their estates after death is, I think, to mistake
how culture and art work and to elevate property rights to an importance that does us very little good.
The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part
of our cultures language. That cultural meaning then becomes part of the language of our cultural
conversations, and as a part of that language it then has meaning that can be used in the sorts of
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compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people
from this language in the absence of payment for their use would substantially damage our culture.
Madoff suggests congressional legislation limiting control over a persons identity to a short term of, for
example, ten years. To extend control at all past death seems to me to be problematic as a cultural and
expressive matter (and Madoff raises all sorts of ways in which it is problematic as a matter of estate
law). But to extend it any longer than ten years seems just plain obtuse doing so would raise the threat
that by the time an identity becomes available for use as part of the public domain it would have lost
much if not all of its expressive value.
4.4
April
Again: Culture is Collaborative. Kembrew McLeod this time. (2011-04-13 14:32)

In the Atlantic, there is an interview with intellectual property scholar (and Atlantic contributor) Kembrew McLeod, who, with copyright lawyer Peter DiCola, argues in Creative License: The Law and
Culture of Digital Sampling that current digital copyright practices unfairly burden musicians who sample snippets of other artists songs in their own music. begins by taking us back to the golden age of
hip-hop, demonstrating how lawsuits quashed a nascent art form during its artistic ascendancy. In the
course of the interview, McLeod touches on several points I have emphasized in this blog, including the
ways sampling (like any sort of artistic appropriation) serves perfectly traditional and ordinary artistic
purposes:
Sounds can bring back memories. Some samples remind the listener of a particular era, or
connect a song with a particular moment in time. Artists want to transport themselves, and
the listener, for nostalgic reasons or to provide historical resonance. Sampling can function
like an audio time machine.
McLeod also articulates a point I have made over and over again: that our conventional notions of authorship as the creation of wholly original art from the mind of an inspired genius is not at all consistent
with the reality of artistic creation:
The old-school notion of the individual genius author is embedded in European and American copyright law the lone individual genius toiling away until a burst of creativity creates
a truly original work unlike anything else that previously exists. But we know that, in the
world of music, you cant really create a new song without referring to an old song in some
way. So the law itself assumes a Romantic notion of authorship, though we know this isnt
how culture is produced. Culture is collaborative.
The entire interview is worthwhile. It covers a wide range of matters relevant to these issues and is
especially informative on the history of the music industrys ways of dealing with sampling.
Tasini v. Huffington Post frivolous, not creative. (2011-04-18 10:09)

Im not normally one to bemoan the bringing of lawsuits, and Im not even bemoaning the fact Jonathan
Tasini is able to bring his lawsuit (pdf) against the Huffington Post [that] hinges . . . on the idea that
the site, and Arianna Huffington herself, were unjustly enriched in the $315 million sale to AOL because
bloggers like him worked for free.
But I do think b.s. is b.s., and no matter how creative Tasini believes his lawyers are, there is no
588
claim here for unjust enrichment. As Wests Encyclopedia of American Law explains, unjust enrichment is a theory of legal recovery for a benefit conferred upon someone under circumstances that make
it just to pay for that benefit:
Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant
must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third,
the plaintiff must show that it would be inequitable or unconscionable for the defendant to
enjoy the benefit of the plaintiffs actions without paying for it.
The problem with Tasinis theory is that neither he nor the other people who wrote for the Huffington
Post expected compensation. In fact, they agreed to write for the publication on the understanding they
would not be paid. In short, Tasinin had a contract he would write his pieces, and the Huffington
Post would publish them. That he had a contract is, precisely, the problem with his legal claim. Unjust
enrichment is only available as a means of legal recovery where there is no contract governing the transaction in question. If there is a contract, the contract determines the terms of the relationship, and it is
is by definition not unjust for people to be bound to the terms of a contract they freely entered into.
Tasini is plain wrong when he says otherwise:
The whole legal theory is clear. For unjust enrichment it s almost irrelevant what agreement was done up front. Unjust enrichment is irrelevant to whether I blog for free or not.
It is true that there is always room for creativity. And it is true that in the face of novel claims one should
keep an open mind and pay attention to the evidence and the arguments. But being open to creative
legal claims is one thing and being just plain wrong is another. Tasini is just plain wrong:
It s a novel claim, using some creative thinking by a couple smart young lawyers. You
never know how a court is going to rule.
Is Righthaven committing Champerty? It sure seems so. (2011-04-20 13:23)

Ive long thought of writing about Righthaven as an embodiment of copyright gone mad. As explained
at Righthaven Lawsuits, Righthaven is an entity set up to purchase the rights to newspaper stories and
sue for copyright infringement anyone who dares to quote from those stories online. There has been so
much coverage, however, that anything I might have to say would have been redundant. And Im not
first on this point, but its one I cannot leave alone. Nate Anderson writes that it appears the agreements
pursuant to which Righthaven purchased the rights to sue for the infringements of articles does no such
thing. The problem, according to Anderson, is that Righthavens agreement
appears to give Righthaven only the right to sue over the story or photograph at issue, but
not to exploit it in any other way. Past court cases have ruled that companies cannot bring
copyright suits unless they control one of the exclusive rights enumerated in the Copyright
Acts, rights including copying, distribution, public performance, etc. The right to sue is not
among them.
Indeed, Anderson seems to be right. The Strategic Alliance Agreement between Righthaven and
Stephens Media LLC (embedded below) states in its section 7.2 that Righthaven has no rights in the
works it is purchasing rights in except those rights associated with suing for suing for copyright infringement in those works:
589
Despite any such Copyright Assigmnent, Stephens Media shall retain (and ishereby granted
by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for
any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or
participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned
Copyrights other than the right to proceeds in association with a Recovery. (emphasis added).
In his treatise on copyright, William Patry states Plaintiff must plead ownership of the right sought to
be vindicated. Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that
is not yours to enforce. To allow Righthaven to do otherwise is to allow it to engage in the common
law sin of champerty, which is the sale to someone with no interest in the alleged wrong being sued on
of a right to sue for a percentage of the amount recovered in the suit. As the Second Circuit Court of
Appeals has explained it, champerty is a bargain between a stranger and a party to a lawsuit by which
the stranger pursues the partys claim in consideration of receiving part in consideration of receiving part
of any judgment proceeds. Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir.
1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:
As applied to copyright, champerty may be found only when there is an assignment of the
copyright and preexisting causes of action and where the assignment of the copyright was a
sham designed to disguise the real intent of conveying the chose in action. For example, if the
assignment required the assignee to reconvey the copyright at the conclusion of the litigation,
this would be very strong evidence of champerty. If, however, the assignor continued to exploit
the work in a manner inconsistent with an assignment of rights, a claim of champerty might
prove out.
Patry on Copyrght, Section 5:36 (emphasis added).
Strategic Alliance Agreement Between Righthaven and Stephens Media
Bratz, Mattel, and Work for Hire:
does copyright really protect the artist?
(2011-04-27 12:42)
I often wonder if artists who cry loudly about the threat posed to creativity by insufficient protection of
copyright are really useful idiots. That copyright is primarily about protecting the artist is questionable,
not least because of the work for hire doctrine. In short, as the Stanford Copyright & Fair Use site puts
it:
If a work is created by an employee in the course of his or her employment, the employer
owns the copyright.
The recent victory by MGA Entertainment over Mattel in the fight over the ownership of the copyright
in Bratz dolls highlights the difficulties creators might face in connection with the work for hire doctrine.
In part, the case turned on the distinction between an idea, which cannot be copyrighted, and its particular expression, which can. Carter Bryant was an employee of Mattel at the time he first developed
and sold to MGA the idea for the Bratz dolls. As Judge Alex Kozinski of the U.S. Court of Appeals for
the Ninth Circuit explained in the 2010 decision overturning an earlier jury verdict in favor of Mattel,
that idea in and of itself could not be claimed by Mattel merely because Bryant was its employee at the
time:
Assuming that Mattel owns Bryant s preliminary drawings and sculpt, its copyrights in
the works would cover only its particular expression of the bratty-doll idea, not the idea itself.
590
See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).
Otherwise, the first person to express any idea would have a monopoly over it. Degas can t
prohibit other artists from painting ballerinas, and Charlaine Harris can t stop Stephenie
Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to
look at Bryant s sketches and say, Good idea! We want to create bratty dolls too.
But, as Jonathan Bailey at Plagiarism Today explains, Mattels claim was based in part on Carters
employment contract, which stated that
I agree to communicate to the Company as promptly and fully as practicable all inventions
(as defined below) conceived or reduced to practice by me (alone or jointly by others) at any
time during my employment by the Company. I hereby assign to the Company ... all my
right, title and interest in such inventions, and all my right, title and interest in any patents,
copyrights, patent applications or copyright applications based thereon. (emphasis added)
The contract further specified that the term inventions includes, but is not limited to, all discoveries, improvements, processes, developments, designs, knowhow, data computer programs and formulae,
whether patentable or unpatentable.
Mattel argued that the contracts definition of inventions therefore gave it rights to any ideas Carter
developed during the time of his employment. The 9th Circuit conclude[d] that the agreement could be
interpreted to cover ideas, but the text doesnt compel that reading. (emphasis added) It therefore left
to the jury in the new trial to decide what in fact Carter and Mattel had intended the contract to cover.
Plainly, the jury did not buy Mattels argument.
As Bailey points out, the issues involved in the case have very meaningful implications for all creators:
Generally, any work you create for an employer as part of your job becomes copyright of
the employer, not you. However, almost instantly there becomes issues as to what is and is
not part of your employment, especially when you do creative work on the side that is similar
to the work you do for a living.
If you are an artist and do artistic work for your employer, when is your creative work done in the course
of employment and when is it not? That is a difficult question in and of itself, but an artist must also
pay close attention to his or her contract. While Carter and MGA prevailed over Mattel, your contract,
might give your employer ownership over your very ideas if it states so clearly enough.
4.5
May
Is a mans home his castle? Apparently not in Indiana. (2011-05-14 14:27)

Heres a breathtakingly broad decision: The Indiana Supreme Court, in Barnes v. State (pdf), ruled 2
days ago that there is no right to reasonably resist unlawful entry by police officers into your home. As
NWI.com explains the decision:
In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants
to enter a home for any reason or no reason at all, a homeowner cannot do anything to block
the officers entry.
591
We believe ... a right to resist an unlawful police entry into a home is against public policy
and is incompatible with modern Fourth Amendment jurisprudence, David said. We also
find that allowing resistance unnecessarily escalates the level of violence and therefore the risk
of injuries to all parties involved without preventing the arrest.
David said a person arrested following an unlawful entry by police still can be released on bail
and has plenty of opportunities to protest the illegal entry through the court system.
Justice Robert D. Rucker, in dissent, relied on the formerly well-founded belief that ones home is ones
castle:
In Miller v. United States, 357 U.S. 301, 313-14 (1958) the United States Supreme Court
held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest
was conducted by police officers breaking and entering the defendant s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the
historical perspective for its holding the Court quoted eighteenth century remarks attributed
to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may
be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may
enter; but the King of England cannot enter all his force dares not cross the threshold of
the ruined tenement!
Id. at 307. The same is no less true today and applies equally to forces of the State.
Audacity: fundamental to the practice of art and of law (2011-05-19 11:40)

I tend more often on this blog to write about the impact of law on creative endeavors, but it has always
been my intent to address as well the ways creativity informs the practice of law.
In fact, the first major breakthrough moment in any good legal education is that one when the student
realizes law is not what she thought it is the learning of rules that she then applies to facts but is
instead that legal reasoning involves the enormously creative and imaginative ability to relate legal rules,
earlier applications of those rules, and the myriad of other considerations that go into our conceptions
of justice. As importantly, legal practice is also a matter of being able to communicate that complex
reasoning, and the ability to communicate it well is inextricably intertwined with the ability to imagine
it in the first place. Creativity and imagination, of course, are required to find the law as well.
These are not controversial views. They are central, however, to my fascination with the interplay
between law and art.
One enormous component of genuinely creative work is audacity, which, in an article entitled Audacity in Contemporary Art, Diogenes March 1969 vol. 17 no. 65 1-19, Eduardo Gonzalez Lanuza defines
very aptly in this way:
Audacity is an attitude which consists of ignoring what is expected of you and daring to
do what no one else dares to do.
And yet most everyone believes law is authority that determines what is expected of you and requires
you do what everyone else does.
592
So it is with enormous pleasure that I note that Corporate Counsel magazine has awarded Google its
Best Legal Department award because of, as the magazines editor explained, the groups audacity:
Past years winners were often defined by sedate virtues like superior systems and organization, but this year I d have to say the key quality was audacity.
Ive long been a fan of Google (though not an unqualified one), and theres no doubt that its daring has
been no small part of my admiration. I can think of few things I would want more as a lawyer than to
represent Google in connection with the Google Library Project. So heres to Google, and if anyone there
in the legal department is reading this, Id love to become your colleague.
Addendum: Speaking of Googles audacity, not more than a few minutes after posting the above, I
came across this, via Plagiarism Today:
Google has signaled that the company is prepared to oppose the major film and music
companies as well as Congress and the president of the United States on a controversial bill
designed to thwart online piracy.
Google Chairman Eric Schmidt said today in London that the company is prepared to go
on fighting the bill should it become law, according to published reports. U.K. publication
the Guardian is reporting that in a discussion with reporters during a London business conference, Schmidt said: If there is a law that requires DNS [domain name systems, the protocol
that allows users to connect to Web sites], to do x, and its passed by both houses of Congress
and signed by the president of the United States, and we disagree with it, then we would still
fight it...If its a request, the answer is we wouldnt do it; if its a discussion, we wouldnt do
it.
Search engines pre-filter your results; one more roadblock to effective research
(2011-05-27 11:12)
I have been for some time deeply concerned both by the inadequacy of most of my students research
skills in recent years and the wider sense that most fields are losing a true understanding of what effective
research consists of.
As Ive previously written, research is barely begun, if even begun at all, by merely finding a source or set
of sources in which answers might lie. The real art of research lies in careful consideration, observation,
or study:
Research that is genuine research not only requires Sisyphean patience in combing through
the sources, it requires also consideration, observation, and study of what one finds within
those sources so that one can, first, identify the elements that matter, and, second, put those
important, buried, and isolated elements together in some useful and novel way.
Perhaps more importantly, the identification of the elements that matter cannot be done
without simultaneously developing ways of putting those elements together in some useful
and novel way. How can you know what matters without knowing what purpose you are
putting it to? And how can you decide what purpose you are trying to accomplish if you
don t know what elements you ll have to use?
593
My belief that there is a decreasing recognition of the complexity and creativity of research is only compounded by the following talk by Eli Pariser, who explains in graphic detail the ways online search engines
are constraining our abilities to use them effectively by filtering the results pursuant to algorithms that
seek to give us what the designers believe we are looking for. If they know algorithmically what we
are looking for before we even see the results of our initial searches, what hope do we have beyond even
redoubled persistence and imagination of finding anything new?
[EMBED]
Metaphors really do twist your mind. (2011-05-27 11:42)

Lawyers especially those like me who write pieces of legal advocacy and teach others to do so as well
know well the power of words. So do politicians. Paul Ryan and the Republicans are proposing to replace Medicare (which supplies government-paid medical care for senior citizens) with a plan that instead
provides money to senior citizens to buy their own private medical insurance on the open market. Their
plan utterly destroys what Medicare is, but they describe it as one to save Medicare, . . . to reform it
so that it delivers the high quality we expect, at a price we can afford. (emphasis added)
And taxes on wealth passed to those who didnt earn the wealth are described as death taxes.
As I wrote above, however, lawyers are well-attuned to these tricks. Sometimes, therefore we underestimate their impacts. We see through the metaphorical frames our adversaries use.
But Psychology Today describes a study vividly demonstrating the impact metaphors have on judgment
by documenting the radically different proposed solutions college students proposed for urban crime depending on whether the crime was described as a wild beast preying on and lurking in the city or,
instead, a virus plaguing the city:
Researchers Paul Thibodeau and Lera Boroditsky from Stanford University demonstrated
how influential metaphors can be through a series of five experiments designed to tease apart
the why and when of a metaphors power. First, the researchers asked 482 students to read
one of two reports about crime in the City of Addison. Later, they had to suggest solutions
for the problem. In the first report, crime was described as a wild beast preying on the city
and lurking in neighborhoods.
After reading these words, 75 % of the students put forward solutions that involved enforcement or punishment, such as building more jails or even calling in the military for help. Only
25 % suggested social reforms such as fixing the economy, improving education or providing
better health care. The second report was exactly the same, except it described crime as a
virus infecting the city and plaguing communities. After reading this version, only 56 %
opted for great law enforcement, while 44 % suggested social reforms.
Interestingly, very few of the participants realized how affected they were by the differing
crime metaphors. When Thibodeau and Boroditsky asked the participants to identify which
parts of the text had most influenced their decisions, the vast majority pointed to the crime
statistics, not the language. Only 3 % identified the metaphors as culprits. The researchers
confirmed their results with more experiments that used the same reports without the vivid
words. Even though they described crime as a beast or virus only once, they found the same
trend as before.
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In memory of Gill Scott-Heron No New Thing (2011-05-28 18:06)

[EMBED]
In memory of my fathers friends who died on their Odyssey through Germany.

(2011-05-30 12:59)
My father is still going strong at 87. It seems, though, that not a week goes by without him mentioning
the death of one of his friends. The friends he has almost never spoken of, however, are the ones whose
deaths he witnessed as a member of the 106th Infantry Division in the Ardennes during the Battle of the
Bulge and during his time as a POW thereafter.
The 106th Divisions experience was extreme even in a time of extremes. As one concise summary
puts it, when the division caught the brunt of the German Offensive on 16 December 1944, its members:
" had been on the Continent only 15 days,

" had been in place in a quiet sector for orientation,
" had the youngest troops (average age - 22) of any American Division on line,
" had been in their new positions only five days,
" had no prior warning that the Germans were going to attack, and
" occupied a front line that covered over three times the normal distance.
My dad, a member of the HQ Company of the 422nd Regiment of the 106 (pictured at left at Camp
Atterbury, Indiana; my dad is the 2nd from the left in the top row), has told me that on the night of
December 15, 1944, he was on sentry duty in the snowbound forest, believing there wasnt another soul
within hundreds of miles off to the east. In fact, there were over 500,000 German troops readying the
last Nazi counteroffensive of the war.
The After Action Report submitted prepared by the Army one month laterlays out the devastation
suffered by the 106th Division in bureaucratic terms that cannot hide the reality:
It is presumed that the 422nd Infantry Regiment, 423rd Infantry Regiment, 589th FA
Bn, 590th FA Bn and the 106th Reconnaissance Troop were eventually overpowered by the
German forces east of ST VITH and the bulk of the personnel captured about 19 or 20
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December. The strength of the German attack in the division sector and the forces available
to the division at the time prevented their being relieved. Attempts to supply the units by
air failed because of the weather, although, as learned later, two drops were made but not
within their reach. It is known that they were still in the fight early 19 December. It is also
known that prisoners were taken by the Germans. However, the final chapter in the defense
of the SCHNEE EIFFEL penetration of the SEIGFRIED LINE held by these units is not now
known.
The estimated losses sustained during this period were 8490, including 415 killed in action, 1254 wounded in action and 6821 missing in action. A large part of the organizational
equipment and most of the individual clothing and equipment of CT 422, CT 423 and the
106th Reconnaissance Troop were lost when these units were cut off in the SCHNEE EIFFEL
region.
What followed for my father were months during which he was solaced by only 2 thoughts. Each day he
realized he still was alive. He has also confessed to me that throughout he was regularly struck by the
astounding nature of the events he was living through.
But it was hell. You can go here to read several accounts that overlap with his to a considerable degree.
He was marched hundreds of miles through a frozen winter. He was transported in suffocating boxcars
that were strafed and bombed by Allied planes. He and his fellow Jewish-Americans were segregated from
the other American GIs; it is only because the Nazi bureaucracy required that he, a non-commissioned
officer, be removed from a camp reserved for privates that he escaped being shipped to Berga, about
which his army buddy Charles Guggenheim made a film many years later. Finally, he ended up in Stalag
IX-A in Ziegenhain, Germany. He has told me that one of the most horrifying sights while in Stalag IX-A
was not within the camp itself but nearby a hospital for German Army amputees, with its countless
number of men with missing limbs.
Richard Peterson, a fellow POW in Stalag IX-A, describes their liberation:
The tanks of the 6th Armored Division arrived almost too late to use what remained of
the daylight. But before darkness came on Good Friday in 1945 they roared down the main
street of Stammlager IXA, Ziegenhain, Germany, liberating over 6,000 Allied prisoners of war,
including me. We cheered them until we were hoarse, and begged for cigarettes and food. The
tankers did not know they would find Americans in the camp, and had made no preparations
for the starvation they discovered. They gave us all their own rations, promising to send more
food and medicine to us the next day.
As I wrote above, my dad rarely speaks of those he lost along the way to liberation. But I know he thinks
of them all the time.
4.6
June
What Lebron lost when he left Cleveland (2011-06-14 11:48)

For a year Ive been flabbergasted by the thoroughness with which Lebron James destroyed the image
hed spent his life constructing. I still am. Dan Wetzel describes quite well what Lebron once seemed too
smart to give up:
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It s too trite and small to view Cleveland as some bottomed-out, post-industrial postcard
to the past. These aren t all people trapped in awful times or terrible circumstances or living
small lives in jealousy of LeBron s big one.
There s money here. There is success in Cleveland. There is contentment. As sure as
there are poor in Miami, as sure as the VIP area of the Mansion Nightclub isn t the full
reality of South Florida, neither is some boarded-up East Cleveland warehouse the story
here.
There are doctors and lawyers and entrepreneurs and financial planners and artists
and teachers and dreamers and, yes, insulation installers. ( In the column can you mention
the company, Pure Seal Inc.? )
There are happy families and neighborhoods and the American Dream in full view.
There are plenty of people who don t have any personal problems who are quite content to
keep their talents in Cleveland, a place they love just the way it is.
We get a bad rep, said Pawel Wencel, who happily moved back from Washington,
D.C., and watched the game at Flannery s. It s not New York. It s not L.A. And we don t
want it to be.
Why New York or L.A. can never seem to get that is anyone s guess.
The distaste for James didn t come solely from the desperate and the depressed, and
to suggest as much is to miss the entire point, to insult the entire region all over again.
The bitter storyline has been told so many times that fans here are as sick of it as
they are LeBron. There s been an overcorrection of late, a trend to say they are over LeBron,
that they are better than to bother with him.
That s not honest either, though.
for it.
This mattered.
No one should have to apologize
It s not just how LeBron left but how he operated when he was still here. He talked
such a big game. He promised to end the title drought. He gave them all those endless
playoff runs, all those spring nights of entertainment. He was good to them. Then he wasn t,
bailing before the proper Hollywood ending.
And for what? . . .
With LeBron, a championship felt inevitable.
That was the destination. What was also lost was the journey.
The Cavs drew people together, city and suburb, white and black, rich and poor.
They also connected family and friends. They gave reason to send a text message to someone
you had drifted away from. They provided a reason to share an experience with your parents
or your children or both. They offered an excuse to catch a game with a high school buddy.
And it gave all those ex-Clevelanders who had to chase their professional and personal
dreams elsewhere feel that pull to these old neighborhoods, those old sunsets over the lake,
those old memories of days and people back home.
597
At its best, that s what professional sports can do for a place. It makes a city come
together in the shared pursuit of something simple and tangible, even if, in the end, it s not
all that important. It just feels that way in the moment.
And that s what many here feel James stole when he left.
was gone.
In one swift Decision, it
Downtown was marked by desolate streets, empty parking garages and half-filled bars on
Sunday. The place should ve been popping. That game in Miami should ve been that game
right here at the Q. Those fans screaming in Florida should ve been right here in Ohio.
LeBron left, and that s what he took with him to South Beach.
Kutiman: Thru Jerusualem (2011-06-16 16:51)

[EMBED]
One more step away from old (scholarly) publishing practices (2011-06-16 17:22)
Jeffrery Pomerantz writes of the difficulties he and his colleague, Diane Harvey, had in trying to negotiate a fair allocation of rights between themselves as authors and the journal The Reference Librarian
in connection with an article Pomerantz and Harvey had been asked to write for an issue of the journal
dedicated to the future of reference and library education.
The story reveals several important points. One I am clearly interested in is the importance of sound
legal advice in locating and interpreting the precise matters authors are being asked to agree to. Simply
figuring out what rights are being allocated and how they are being allocated is not an easy thing. First,
the agreement the authors were asked to sign did not set forth the relevant policies they were agreeing
to. Second, even after the journal had appeared to back off its original position, insightful legal reading
of the new position showed it was the old one repackaged in new form.
Another point to be take is the leverage publishers have over certain authors Pomerantz and Harvey are fortunate; they are sufficiently well established in their academic fields that they could afford to
stand their ground and risk the journals refusal to accede to their demands on rights and the resulting
refusal to publish their article.
A third point is that Pomerantz and Harvey were able to self-publish their paper with the ability to
represent that it had already passed the journals peer review process, thus eliminating the only real
weakness of self-publication: the absence of validation provided by peer-review. They have also published it in a manner that will permit ongoing comment, which in itself will provide a further level of peer
review.
Is publication changing, or what?
hat tip to @asawusch on twitter.
It may be old fashioned to say so, but what Righthaven is doing is Champerty.
(2011-06-23 12:16)
There is a lot being written about Righthavens most recent loss in its campaign to enforce the copyrights
in newspaper articles it purportedly purchased the right to enforce. Ive pasted in a copy of the decision,
Righthaven, LLC v. Hoehn, below. What seems most significant about the decision to me is the judges
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finding that Righthaven does not have legal standing to pursue the copyright infringement claim for the
unlicensed use of an entire Las Vegas Review Journal article. Ive previously written about this problem
with Righthavens business model.
The problem is that Righthaven does not actually buy the copyright to the articles it subsequently
claims infringement of. Rather, it only buys the right to sue for infringement if infringement occurs. The
copyright owner retains all the other rights that go along with the copyright. Thus, in Hoehn, as Judge
Philip M. Pro explains, the agreements between Stephens Media, the owner of the Las Vegas Review
Journal, and Righthaven deprive Righthaven of any of the rights normally associated with ownership
of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights
except to pursue infringement actions, a right which itself is subject to Stephens Medias veto.
In his treatise on copyright, William Patry states that a plaintiff in a copyright lawsuit must plead
ownership of the right sought to be vindicated. Patry on Copyright, Section 19:7. In short, you cannot
sue for violation of a right that is not yours to enforce. To allow Righthaven to do otherwise is to allow
it to engage in the common law sin of champerty, which is the sale of a right to sue to someone with
no interest in the alleged wrong being sued on for a percentage of the amount recovered. As the Second
Circuit Court of Appeals has explained, champerty is a bargain between a stranger and a party to a
lawsuit by which the stranger pursues the party s claim in consideration of receiving part in consideration
of receiving part of any judgment proceeds. Alexander v. Unification Church of America, 634 F.2d 673,
677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging
in Champerty:
As applied to copyright, champerty may be found only when there is an assignment of the
copyright and preexisting causes of action and where the assignment of the copyright was a
sham designed to disguise the real intent of conveying the chose in action. For example, if the
assignment required the assignee to reconvey the copyright at the conclusion of the litigation,
this would be very strong evidence of champerty. If, however, the assignor continued to exploit
the work in a manner inconsistent with an assignment of rights, a claim of champerty might
prove out.
Patry on Copyrght, Section 5:36 (emphasis added).
Right Haven, LLC v Hoehn (D Nevada 2011)
key=key-2m3oc41jymi12cokfaig
Artists dont protect their purity through copyright overclaiming. (2011-06-24 04:27)
Readers of this blog know I feel pretty strongly about this, particularly in connection with genres often
disparagingly referred to as appropriation art.
Well, my friend Andrew Dubber pointed me to this very cool 8 bit, chiptune reworking of an alltime favorite of mine (and just about everybodys my age) Miles Davis Kind of Blue dubbed Kind
of Bloop.
Andy Baio, Kind of Bloops creator, unfortunately ran into the type of problem with which I am all
too familiar. As he writes,
Before the project launched, I knew exactly what I wanted for the cover
a pixel art
recreation of the original album cover, the only thing that made sense for an 8-bit tribute to
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Kind of Blue. I tried to draw it myself, but if youve ever attempted pixel art, you know how
demanding it is. After several failed attempts, I asked a talented friend to do it.
You can see the results below, with the original album cover for comparison.
Unfortunately, Jay Maisel, the photographer who shot the original photo of Miles Davis used for the
cover of Kind of Blue. threatened a lawsuit for copyright infringement seeking hundreds of thousands of
dollars in damages. Baio settled, agreeing to pay Maisel $32,500 and not to use the artwork again. And
he writes, in words I firmly endorse:
But this is important: the fact that I settled is not an admission of guilt. My lawyers and
I firmly believe that the pixel art is fair use and Maisel and his counsel firmly disagree. I
settled for one reason: this was the least expensive option available.
At the heart of this settlement is a debate thats been going on for decades, playing out
between artists and copyright holders in and out of the courts. In particular, I think this
settlement raises some interesting issues about the state of copyright for anyone involved in
digital reinterpretations of copyrighted works.
Baio includes in the account of his ordeal several works of art that reinterpret earlier copyrighted works
as well as a list of links to other such works. They are all worth checking out and almost all add to those
referred to in the posts in that appropriation art link above.
One thing both Baio and I find particularly troubling is a statement Maisels lawyer made in a letter to Baio in explaining that Maisel never even would have licensed the use of the image:
He is a purist when it comes to his photography, his lawyer wrote. With this in mind,
I am certain you can understand that he felt violated to find his image of Miles Davis, one of
his most well-known and highly-regarded images, had been pixellated, without his permission,
and used in a number of forms including on several websites accessible around the world.
I am no cynic, and I have respect for peoples work and spiritual purity, but this is nonsense. Copyright
does not give an artist the power to control the way his work is used to the point that he can forbid
transformative uses of it. Or, rather, it does, but only if he is willing to use his financial weight and the
ways our legal system allows that financial weight to coerce those without the same resources. And that
is hardly the behavior of a purist. But it is copyright overclaiming.
Art builds on art. Maybe Maisel should read The Gift, by Lewis Hyde. The introduction is available
here (pdf).
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Kasumi presents: Geniocity, the Magazine of Innovation & Creativity (2011-06-30 13:32)
IFRAME: http://www.kickstarter.com/projects/552365867/geniocitycom-the-magazin e-of-creativityand-innova/widget/video.html
4.7
July
Please be a supporter of Geniocity, the Magazine of Creativity & Innovation

(2011-07-01 12:43)
Help give creativity a news outlet on the Internet! Please contribute to Geniocity.com, The Magazine of
Creativity & Innovation, on Kickstarter.

[EMBED]
Justice is too expensive: photography and public art this time. (2011-07-08 14:05)
As a lawyer, I am of course very invested in my belief in our justice system, but one thing is abundantly
clear: it is too expensive. The prohibitive expense of vindicating ones rights tilts the entire system in
favor of those with wealth. Copyright is a field rife with illustrations of this principle, but it is a problem
that permeates the entire system. And now we have another example. As I wrote in February 2010, photographer Mike Hipple was sued by sculptor Jack Mackie over the photo Hipple took about 10 years ago
of a woman standing near the Dance Steps on Broadway sculpture in Seattle s Capitol Hill. (Hipples
photo is below and to the right.)

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Now comes word from Hipple that he has decided to settle the case. Why? Because, though he continues
to believe in the legitimacy of his position, it is not worth it financially to go to trial:
I am writing to let you know that I have settled Jack Mackies copyright claim against
me. I believe I have good defenses but have come to understand that he has good claims. I
also believe now that the financial stakes are such that it is not worth continuing to fight.
I understand Jack Mackies ardent desire to protect his copyright in Dance Steps on Broadway. I, too, want to protect my own photography copyrights. Mr. Mackies Dance Steps
is a Seattle icon and a well known work. I understand why he is so protective. I did not
intend to attack his copyright when I took my photo, and I did not realize then that selling
a photograph which includes part of a copyrighted public artwork can violate that copyright.
I did not intend, in defending myself in the lawsuit, to attack Mr. Mackie personally. I
intend to let this matter go and urge my supporters to do the same.
I can, of course, let this matter go. It would be difficult to push hard against a clients decision to settle
such a case given the costs and risks of pursuing it through trial and, possibly, appeal. But the larger
issue is one that I cant let go.
First, I do not see what benefit there is to anyone in allowing Mackie to stop Hipple from making
and selling his photographs. And, of course, I also agree with Hipple that the photo constitutes fair use
of the sculptures image. Why? Because the photo stands on its own as a creative work. Hipple has
taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image
that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in
a myriad of different directions. I don t know how often I can say it: art builds on art. Culture builds on
culture. And the sooner we ease up on our madness to monetize everything the sooner we ll be sane.
Bo Diddley: You Cant Judge a Book by the Cover (2011-07-09 21:20)

[EMBED]
Interview with me on News of the World scandal and its US implications

(2011-07-15 08:07)
Charon QC, a UK lawyer (after a fashion his words), interviewed me yesterday about the News of
the World scandal and its potential legal and political implications for Murdoch in the U.S.
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This American Life tells the story of a patent troll. (2011-07-25 14:08)
NPR reporter Laura Sydell and This American Life producer/Planet Money co-host Alex Blumberg tell
the story of Intellectual Ventures, which is accused of being the largest of the patent trolls, a derogatory
term in Silicon Valley for companies that amass huge troves of patents and make money by threatening
lawsuits:
You convince people by confirming that what they believe about the world is true.
(2011-07-31 14:49)
One of the most difficult things to convince law students of is that law is not merely the application of
law to facts. Students start out believing that learning law is learning the rules that will answer whatever
questions arise. Some students never get past that idea. The ones who become good lawyers do.
There are instances in which there are clear rules that are easy to apply. But if that were the whole of
the law, we wouldnt need lawyers, and law students certainly wouldnt have to pay $45,000 a year for
three years to earn a law degree.
Instead, convincing someone that your view of the law is the correct one requires not only finding and
applying the correct rule but also in convincing whomever you are trying to convince that the rule and
your interpretation of it make sense, are just, are convincing at a gut level. If you cant do that, youll
never become a good lawyer.
An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules
that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer
explains in Under the Banner of Heaven, literalism the conviction that there are rules set forth in
hallowed texts (which need not be religious, as strains of constitutional originalism demonstrate) that
answer all the important questions one encounters makes people resistant to the idea that answering
the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and
sensitivity to situational specifics:
For people . . . who view existence through the narrow lens of literalism, the language in
certain select documents is assumed to possess extraordinary power. Such language is to be
taken assiduously at face value, according to a single incontrovertible interpretation that makes
no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano
observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually
(though not necessarily) politically conservative view of the world: one with a stop-time
notion of history and a we-and-they approach to people, in which we are possessed of truth,
virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative
language, which, so long as its symbols and metaphors are vital, can open promiscuously in
the eyes of the strict literalist the world and its imaginative possibilities.
Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority
cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other reasons.
Im reminded of these things by the TED talk embedded below, in which Simon Sinek explains that
success in realms as diverse as commerce, invention, and social change depend on making the why of
what you do your principle focus.
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Thus, in the commercial world, for example, people don t buy what you do; they buy why you do
it. Nevertheless, companies and people typically sell their product or services by explaining what they
do and how they do it. They don t typically even know why they do what they do, and they certainly
don t explain it well.
But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing
beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer sellers approach (1) we sell computers, (2) we make
them user friendly does not.
Simek explains the phenomenon in market terms: the only way to get the majority of consumers to
buy a new product or service is to first convince innovators and early adopters, and those people are only
persuaded by the conviction they share the seller s convictions.
But his message about the market is one applicable in all contexts in which one is trying to convince an
audience:
People buy what they buy to confirm what they believe about the world.
[EMBED]
4.8
September
The Barnes Foundation and Ownership: Outsmarting Albert Barnes (2011-09-01 14:54)
James Panero sets forth the historical detail on Albert Barnes and his foundation, much discussed on
this blog, in his article Outstmarting Albert Barnes:
All in all, the same brilliance that created a legacy for Albert Barnes would ultimately
undo his legacy. Since the time of Barnes death in an automobile accident in 1951, the Barnes
Foundation has been a case study in how an institution, created by a brilliant mind with clear
intentions, can become irrevocably damaged through overly restrictive operating guidelines,
unanticipated leadership problems, and the competing missions of other organizations and
institutions. Much attention has been paid to the forces at work against the foundation, but
in fact the seeds of destruction were sown by the hands of Barnes himself. As history has
proven, decisions he made in life imperiled the perpetuity of his collection after death.
Barnes made every effort to preserve the vision of his creation after his death. For the
past 60 years, what we have seen at the Barnes is what Barnes put there himself. At this
moment, however, Barnes art collection is being removed forever from the walls he built for
it. Barnes knew he was creating something unique in the annals of American art. He was
also right that outside forces would emerge to alter his project after his death. What he
never anticipated was that the very defenses he put in place to preserve his collection would
eventually contribute to its undoing.
I cant help but feel that part of the problem in the Barnes Foundation dispute was the way we glorify
ownership. As Panero reports, Julian Bond, the son of Barnes compatriot and Lincoln president Horace
Mann Bond, expresses the view of those who opposed the move of the Barnes Foundation collection to
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urban Philadelphia by stating: The art belonged to him. He had the right to do with it as he chose,
and these people, these vandals, stepped in and took it away from him.
But do we really want someone controlling the fate of $30 billion of art (much of it bought from desperate
sellers during the Depression) 60 years after his death pursuant to instructions that make no sense at all
if one is concerned about the art as culture?
PBF on the interrelationships between law, technology, and the arts on 9/15
(2011-09-09 09:01)
On September 15 at 6pm Ill be speaking at SPACES on the interrelationships of art, law, and technology. SPACES is a gallery, a resource, and a public forum for artists who explore and experiment.
To find it, go here. There will some minor similarities, I suppose, to the talk I gave at the Cleveland
Institute of Art two years ago, but this one promises to be significantly different and better.
The principle of collage is the central principle of all art. (2011-09-17 10:05)
No one who has spent more than a few days reading this blog in its 3+ years can have missed the fact
that I have been strongly persuaded that the common notion of authorship that true artists are solitary originating geniuses is a myth. Kenneth Smith, in Its Not Plagiarism. In the Digital Age, Its
Repurposing, adresses the same issues and covers much of the same ground, but he brings up a a few
very interesting things that I had not previously encountered. The first is the prominent literary critic
Marjorie Perloffs use of the term unoriginal genius to describe someone with skill at making his or her
way through the contemporary flood of information. A genius in this sense is not someone who as
convention has it comes up with a creation that no one has ever dreamt of before, but, rather, someone
with an extraordinary ability to manage available information, parse it, organize it, and distribute it.
Perloff believes that in the end it is this type of genius, not the mythical conventional sort, that distinguishes your writing from mine:
Her idea is that, because of changes brought on by technology and the Internet, our notion
of the genius a romantic, isolated figure is outdated. An updated notion of genius would
have to center around ones mastery of information and its dissemination. Perloff has coined
605
another term, moving information, to signify both the act of pushing language around as
well as the act of being emotionally moved by that process. She posits that todays writer resembles more a programmer than a tortured genius, brilliantly conceptualizing, constructing,
executing, and maintaining a writing machine.
Perloffs notion of unoriginal genius should not be seen merely as a theoretical conceit but
rather as a realized writing practice, one that dates back to the early part of the 20th century,
embodying an ethos in which the construction or conception of a text is as important as what
the text says or does. Think, for example, of the collated, note-taking practice of Walter
Benjamins Arcades Project or the mathematically driven constraint-based works by Oulipo,
a group of writers and mathematicians. (hyperlinks added)
Even more interesting, however, is what Smith did. Hes taught a class at the University of Pennsylvania
he calls Uncreative Writing.
In it, students are penalized for showing any shred of originality and creativity. Instead
they are rewarded for plagiarism, identity theft, repurposing papers, patchwriting, sampling,
plundering, and stealing. Not surprisingly, they thrive. Suddenly what theyve surreptitiously
become expert at is brought out into the open and explored in a safe environment, reframed
in terms of responsibility instead of recklessness.
We retype documents and transcribe audio clips. We make small changes to Wikipedia pages
(changing an a to an or inserting an extra space between words). We hold classes in chat
rooms, and entire semesters are spent exclusively in Second Life. Each semester, for their
final paper, I have them purchase a term paper from an online paper mill and sign their name
to it, surely the most forbidden action in all of academia. Students then must get up and
present the paper to the class as if they wrote it themselves, defending it from attacks by the
other students. What paper did they choose? Is it possible to defend something you didnt
write? Something, perhaps, you dont agree with? Convince us.
All this, of course, is technology-driven. When the students arrive in class, they are told
that they must have their laptops open and connected. And so we have a glimpse into the
future. And after seeing what the spectacular results of this are, how completely engaged and
democratic the classroom is, I am more convinced that I can never go back to a traditional
classroom pedagogy. I learn more from the students than they can ever learn from me. The
role of the professor now is part party host, part traffic cop, full-time enabler.
The secret: the suppression of self-expression is impossible. Even when we do something
as seemingly uncreative as retyping a few pages, we express ourselves in a variety of ways.
The act of choosing and reframing tells us as much about ourselves as our story about our
mothers cancer operation. Its just that weve never been taught to value such choices.
After a semester of my forcibly suppressing a students creativity by making her plagiarize
and transcribe, she will tell me how disappointed she was because, in fact, what we had
accomplished was not uncreative at all; by not being creative, she had produced the most
creative body of work in her life. By taking an opposite approach to creativity the most
trite, overused, and ill-defined concept in a writers training she had emerged renewed and
rejuvenated, on fire and in love again with writing.
Smith has thus provided another instance of what I already know in a different context there are more
and less original legal writers even though legal writing is one vast collaborative writing enterprise consisting primarily of texts cobbled together from pieces of other legal texts.
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Finally, Smith suggests that the insights he provides (which he would no more claim are original to
him than I would claim them mine) have been largely resisted in one profoundly important world of
writing: literature:
Im sensing that literature infinite in its potential of ranges and expressions is in a rut,
tending to hit the same note again and again, confining itself to the narrowest of spectrums,
resulting in a practice that has fallen out of step and is unable to take part in arguably the
most vital and exciting cultural discourses of our time. I find this to be a profoundly sad
moment and a great lost opportunity for literary creativity to revitalize itself in ways it
hasnt imagined.
Perhaps one reason writing is stuck might be the way creative writing is taught. In regard
to the many sophisticated ideas concerning media, identity, and sampling developed over the
past century, books about how to be a creative writer have relied on clichd notions of what
it means to be creative. These books are peppered with advice like: A creative writer is an
explorer, a groundbreaker. Creative writing allows you to chart your own course and boldly
go where no one has gone before. Or, ignoring giants like de Certeau, Cage, and Warhol,
they suggest that creative writing is liberation from the constraints of everyday life.
As John Pareles wrote in Plagiarism in Dylan, or a Cultural Collage?, Bob Dylan is another one of
those giants leading the way:
iconoclasm, argument and extension, emulation and mockery thats how individual artists
and the arts themselves evolve. Its a process that is neatly summed up in Mr. Dylans album
title Love and Theft, which itself is a quotation from a book on minstrelsy by Eric Lott.
Of course, literature has not completely ignored these artistic trends. The group of authors comprising
Oulipo were exemplars of what Smith might call writers as programmers, and Donald Barthelme wrote:
The principle of collage is the central principle of all art in the Twentieth Century.
And, believe me: if youve never read Georges Perec or Barthelme, youve never read anything like what
theyve written. Or maybe you have.
4.9
November
Originality relies on a good deal of imitation and even a bit of theft Picasso this
time. (2011-11-07 22:25)
James Polchin, Cezanne, Michelangelo, and Greek sculpture in Picassos early drawings:
To look at Picasso s drawings is to better understand his paintings as something greater

than Picasso, an artistic vision based on imitation and purloined art. If we look beyond the
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artist, we might actually see his art and access his creative process without the shadow and
burden of Picasso s name getting in the way. We might call what Picasso created invention
or reinvention, but it is hard to look at these drawings and not have a sense that so much
of what we call originality relies on a good deal of imitation and even a bit of theft.
An Introduction to Copyright,
Fair Use,
and Appropriation Art,
Part 1
(2011-11-09 10:30)
In September, I spoke at SPACES on copyright and art, an opportunity that I used to go introduce
copyright and fair use and the contentious issues that remain entirely unresolved in connection with
appropriation art. I had an opportunity to give a similar talk last week at Wooster College.
You can see my presentation here. But the presentation, obviously, is only the starting point of a
talk, so I thought Id take this opportunity to annotate the presentation, providing some commentary
and a lot of links to provide most of the content of the talk here and to supplement it for those who were
there.
This post constitutes the first part of these annotations. I will continue this supplement to the presentation in the near future.
The first slide (I used Prezi, not PowerPoint, for the first time in this talk) is a video by Kutiman, a
musician, composer, producer and animator from Israel. He is best known for creating an online video
music project entitled ThruYOU consisting of individual videos mixed entirely from samples of YouTube
videos.
The second slide is the title slide: What does an artist need to know about copyright law? Although I
spoke a lot about appropriation art and copyright law, I emphasized my sincere belief that to negotiate
the difficulties posed by copyright law in an era of novel and breathtaking technologies requires the gifts
of an artist. I used Warhols Campbells Soup Can and Shepard Faireys Obama Hope poster as 2 examples of what I was talking about in part because they encountered such different responses from the
corporation from whom the artist appropriated his image. Warhol received an amusing and appreciative
letter from Campbells Soup. Fairey was sued by the Associated Press, a lawsuit that was eventually
settled and thus left unresolved the underlying legal questions.
The next 2 slides ask, What is an artist? and give one answer, provided by performance artist Guillermo
Gmez Pea:
[T]he artist doesn t really give answers. That is the role of the theorist, the scientist, the
political activist, and the religious leader. The role of the artist is to ask impertinent and
complex questions, irritating questions, and also to make the audience aware of the process
of inquiry, and that s where the pedagogical dimension lies when the performance becomes
the search, and when the process of search becomes the performance; and people see you
struggling with meaning, with your own philosophical despair, with your political demons,
and your own aesthetics.
Not only does this confrontation with questions that confront all of us strike me as central to the role
of the artist; it also strikes me as central to the role of the lawyer. Moreover, one of the most difficult
stumbling blocks in teaching law students is getting them over the belief that they will learn answers to
the questions they will confront in their careers rather than the skill to identify the right questions and
to best move forward in light of those questions.
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Thus, the next 2 slides ask, What is a lawyer? and provide a quote from from Edward Levi, a legal scholar studied by first year law students when I went to law school but now largely neglected, to the
effect that legal rules are not the sort of rules people typically expect:
[T]he rules change from case to case and are remade with each case. Yet this change in the
rules is the indispensable dynamic quality of law. It occurs because the scope of a rule of law,
and therefore its meaning, depends upon a determination of what facts will be considered
similar to those present when the rule was first announced. The finding of similarity or
difference is the key step in the legal process.
Lawyers then, like artists, must always be attentive to the similarities and differences that abound in the
infinite complexity of human life. If you present me with a legal problem and an answer and then change
one fact about the problem, the entire answer may change. Or may not. It depends. So if youre looking
for answers, youve come to the wrong place. Another situation is always different. But I can certainly
let you in on what I deem important and why.
For the basic rules on copyright and fair use, the U.S. Copyright Office is a terrific starting point on
all things copyright. If you are interested in knowing the basics about what you have to do to register a
copyright and other nuts and bolts matters, go there. Stanfords Copyright and Fair Use Center is also
a great resource on all of the questions addressed in my talk. I like the Copyright Website too.
In order to be protected by copyright, a work must be, among other things, original. The quintessential
illustration of this requirement which emphasizes that the mere sweat of the brow invested by the
works creator is not sufficient to earn the work copyright protection is Feist Publications, Inc., v. Rural
Telephone Service Co., 499 U.S. 340 (1991), in which the U.S. Supreme Court ruled that the substantial
work of compiling and organizing the information required to put together a rural telephone directory
did not entitle the directory to copyright protection. The information itself, though the result of the
plaintiffs hard work, constituted mere facts, and there was nothing original about the alphabetical
arrangement. Thus, the defendant could not be stopped from copying the plaintiffs directory and selling
it as his own.
A more recent example of this principle with some bearing on appropriation art is the case of Meshwerks v. Toyota Motor Sales, Inc. (10th Cir. 2008), in wich the 10th Circuit Court of Appeals dismissed
the copyright infringement case brought against Toyota by Meshwerks, which had created digital models
of Toyota cars for use in Toyota s advertising. The digital models are useful because if the art director
wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one
needs to do is move the digital model around on a computer screen within the digital photograph of the
background.
The digital model, while the product of skill, resulted merely in the reproduction of a car. The image itself is nothing more than an image of a fact. While the court noted the obvious difficulties of
applying existing law to new technologies, it compared the digital images of cars created by Meshwerks
to photographs. Since the invention of photography in the 19th Century when it was believed by
some that photography as a mere transmission of reality did not constitute art courts have concluded
that photographs are entitled to copyright protection but only to the extent the photograph consists of
elements resulting from the photographers choices. Thus, a photograph is entitled to copyright solely
based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.

posing and arrangement of [the subject] so as to present graceful outlines ; the selection
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decisions by the photographer or, more precisely, the elements of photographs that result from
these decisions are worthy of copyright protection. See, e.g., Rogers v. Koons ( Elements
of originality in a photograph may include posing the subjects, lighting, angle, selection of
film and camera, evoking the desired expression, and almost any other variant involved. )
(citations omitted).
The digital image of the car that could be inserted and manipulated within a digital image was, in contrast, merely a reproduction of a car. It would only be when an art director placed it within an image
that choices regarding lighting, angle, and other elements would be chosen. In contrast, in Time, Inc.
v. Bernard Geis Associates, the court held that the famous Zapruder film was entitled to copyright
protection. Abraham Zapruder, a Dallas dress manufacturer, had been taking home movie pictures with
his camera, when, by sheer happenstance, he captured President Kennedy s assassination on film. The
court observed that if Zapruder had made his pictures at a point in time before the shooting, he would
clearly have been entitled to copyright. The fact that the moment he filmed happened to be historic did
not change that fact. And, if youre interested, heres another interesting photography case.
The fact that Congress has the power to pass laws protecting copyright is a result of the Constitutions Copyright Clause. There are at least 2 important reasons the constitutional dimension of this
power is important. First, the Copyright Clause expressly states that Congress has the power for the
purpose of promoting innovation. Thus, to the extent copyright law inhibits innovation rather than promotion it, that law very may well be unconstitutional. In addition, copyright limits the ways people can
express themselves and thus is a limitation on the freedom of expression protected by the First Amendment. Obviously, that freedom of expression is of supreme importance in our country. Thus, the conflict
between the two constitutional rights the right to protection of ones creative product and the right of
one to express oneself (even by means of anothers creative product) must be balanced. That balance is
what results in the doctrine of fair use.
The film, music, and publishing industries have always cried, Wolf ! (2011-11-10 11:29)
Ive written before about how the film industry decried and fought the VCR. In 1982, Jack Valenti, in
sworn testimony before Congress, stated that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone. Of course, the Supreme Court upheld
the legality of the VCR and the film industry not only prospered; it makes more money from home video
sales than from from the theatrical box office.
Mike Masnick at techdirt does a far more thorough job, setting forth the long, continual, and continually misbegotten history of existing industries decrying the doom foretold by emerging technologies.
He starts with John Philip Sousa, the conductor.
In 1906, he went to Congress to complain about the infernal technology industry and how
it was going to ruin music:
These talking machines are going to ruin the artistic development of music in this country.
When I was a boy...in front of every house in the summer evenings, you would find young
people together singing the songs of the day or old songs. Today you hear these infernal
machines going night and day. We will not have a vocal cord left. The vocal cord will be
eliminated by a process of evolution, as was the tail of man when he came from the ape.
Its a long and hilarious history. Did you know that in the 1980s home taping was killing the music
industry? That using your DVR is theft? That Thomas Edison argued that film projectors would kill
the film industry?
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The whole thing is worth reading and worth remembering next time you read a screed by Bono or
Scott Turow.
On Veterans Day, someone elses story about my dad. (2011-11-11 12:29)

Ive been told my best writing is the writing I do about my father. Well, Jerri Donahue does a pretty
good job of it too. The whole story is worth reading, but this is how it starts:
As he awaited capture, Sydney Skip Friedman saw Jewish GIs switch their dog tags for
those of dead comrades.
The 20-year old from Shaker Heights kept his tags stamped with H for Hebrew. If he
died, he wanted his body to be identified for his parents.
The only correction Id make is that my dad grew up in Cleveland, not in Shaker Heights, and it was a
world of difference back then.
Do you think something original can be made entirely from copyrighted pieces? Christian Marclay: The Clock (2011-11-16 13:27)
[EMBED]
Steinski: The Motorcade Sped On (for November 22) (2011-11-22 10:19)

[EMBED]
4.10
December
New Years Eve Remix: DJ Earworms United States of Pop 2011: World Go Boom
(2011-12-31 19:04)
[EMBED]
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Chapter 5
2012
5.1
January
Creativity? YOU CANT HANDLE CREATIVITY! (2012-01-05 19:07)

In a study out of Cornell University, The Bias Against Creativity: The Reason People Desire But Reject
Creative Ideas, the authors point out that creative responses to problems create uncertainty, and that
people reject those creative ideas because they cant handle the uncertainty:
Although the positive associations with creativity are typically the focus of attention both
among scholars and practitioners, the negative associations may also be activated when people
evaluate a creative idea. For example, research on associative thinking suggests that strong
uncertainty feelings may make the negative attributes of creativity, particularly those related
to uncertainty, more salient
The authors conclude:
Our results show that regardless of how open minded people are, when they feel motivated
to reduce uncertainty either because they have an immediate goal of reducing uncertainty, or
feel uncertain generally, this may bring negative associations with creativity to mind which
result in lower evaluations of a creative idea.
Ive always told students and colleagues that being genuinely creative requires courage and the ability to
persevere in the face of rejection. Theres good reason for that. As much as innovation is the catchword
of our age, very few people in decision-making positions are really brave enough to accept innovative
ideas (whether theyre teachers, school administrators, politicians, lawyers, or corporate executives).
hat tip to Farnam Street
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Saturday Night (2012-01-07 16:38)
SETHEIGHT:32px
John Oswald, pioneer of the aural collage: the futility of law in the face of technology
it cannot control. (2012-01-10 11:33)
Ive written at length in this blog about compositions consisting of digital remixes of pre-recorded samples and the contentious and utterly unresolved tensions between copyright, fair use, and the extra-legal
reality of practices that cannot be controlled by legal rules. Ive written about artists as varied as Negativland, Girl Talk, Steinski, and Kutiman, among others. Negativland and Steinski were pioneers in the
genre, composing their aural collages back in the ancient days before digital media made the stitching
together of digital information something one could do sitting in front of a laptop in bed.
But no one was there before John Oswald of Plunderphonics. A mere fraction of his careers chronology
demonstrates that he is perhaps the pioneer of the genre:
1973-75
With the sanction of William S. Burroughs, John Oswald cut up recordings of him
reading his texts advocating cutting up methods, & consequently discovered an acoustic
pallindrome, mediations between backwards & forwards, polysyllabic masking & phase
imploding.
1975
Oswald melds a radio evangelist with alleged satanists Led Zepplin in the early rap
track POWER. released in 1995 by Musicworks magazine.
1975-85
MYSTERY TAPES assembly & dissemination (by Mystery Tapes Etc.International),
include many early plunderphonistic experiments.
1980
Oswald guest produces a one hour radio show for CFRO in Vancouver called Sounds
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Wrong which includes the first public issues of Dolly Parton & Rite of Spring transformations.
1982
Collusion, a British magazine publishes an article by Oswald, entitled Revolutions &
Mr Dolly Parton - a vortex of of androgeny.
1985
An essay by John Oswald entitled Plunderphonics, or, Audio Piracy as a Compositional Prerogative was presented at the Wired Society conference in Toronto.
1988
The original Plunderphonics EP (never-for-sale, out-of-print) was for its time the most
extreme example of sampling ever produced. Four well-known music personalities representing four musical genres & four notable epochs of recording history were presented in
surprising ways, or, as the press release put it: warp drive.
1989
The Plunderphonic CD (never-for-sale, remaining stocks destroyed by Michael Jackson
& CBS) has become an underground cult classic. The realistic cover photo of a nude Michael
Jackson revealed as a white woman paralleled the musical transformations depicted on the
disc. Other electroquoted artists included Bing Crosby, The Beatles, Glenn Gould, Public
Enemy & (consequently) James Brown.
You can read a more complete biography of Oswald here.
Far more interesting is an extensive recorded interview with Oswald. One of the most fascinating parts
of the interview is Oswalds account of his experience with the overwhelming legal forces brought to bear
in the name of copyright enforcement against his new compositions. In a series of events not unlike those
experienced by Negativland in connection with their composition U2, every last CD Oswald retained of
his recording was destroyed. Of course, he had already distributed some of those CDs and was unable to
recover them. And we all know digital media metastasize beyond any capacity of corporate control. So,
of course, as with Negativlands U2, Oswalds recording not only continues to exist; it is available (for
free) for digital downloading.
For your listening pleasure, I include here one track from the album: Glenn Gould-Aria(mp3).
Why would any musician give away his music for free? (2012-01-13 15:17)
Have you ever known a Dead Head? Do you know any other band with such a devoted following? Did
you know that it has been said that the Dead may be the most profitable rock band in history. Do you
think thats possible for a band that never had a #1 song or a #1 album and had only 2 songs ever that
cracked the Top 40?
Maybe the money involved will make you believe:
Despite the death of its leader Jerry Garcia in 1995, Grateful Dead Productions continues
to generate about $60 million a year in sales and licensing fees. Pretty good for a group that
no longer exists.
615
Surely making that kind of money requires a fierce protection of ones intellectual property rights, right?
Bono, after all, took to the pages of the New York Times to warn that without fierce protection of their
copyrights the movie and television industries might suffer the fate of the music industry:
Caution! The only thing protecting the movie and TV industries from the fate that has
befallen music and indeed the newspaper business is the size of the files. The immutable laws
of bandwidth tell us we re just a few years away from being able to download an entire season
of 24 in 24 seconds. Many will expect to get it free.
A decade s worth of music file-sharing and swiping has made clear that the people it hurts
are the creators
in this case, the young, fledgling songwriters who can t live off ticket and
T-shirt sales like the least sympathetic among us and the people this reverse Robin Hooding
benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of
the music business.
We re the post office, they tell us; who knows what s in the brown-paper packages? But we
know from America s noble effort to stop child pornography, not to mention China s ignoble
effort to suppress online dissent, that it s perfectly possible to track content. Perhaps movie
moguls will succeed where musicians and their moguls have failed so far, and rally America
to defend the most creative economy in the world, where music, film, TV and video games
help to account for nearly 4 percent of gross domestic product. Note to self: Don t get overrewarded rock stars on this bully pulpit, or famous actors; find the next Cole Porter, if he/she
hasn t already left to write jingles.
Of course one might ask Bono what exactly is the fate that has befallen the music industry. Some
believe [t]he music business didn t die. And it isn t dying.
Be that as it may, the Grateful Dead is an example that cannot be ignored:
Rather than prevent their audience from taping their concerts, as every other band did, the
Dead set it free and encouraged tapers, hence sparking a revolution. Youd think giving their
music away would have dampened their success; instead, the freebies propagated it. Even
though people could get the Grateful Dead product for free, the band found itself playing
in larger and larger stadiums as the fan base swelled and album sales accelerated: 19 gold
albums, six platinum, and four multiplatinum.
And so on the official Grateful Dead web site you can listen to any of the weekly Grateful Dead Radio
Hour, which, [s]ince 1985, the show has featured exclusive interviews, music from the roots and branches
of the bands musical family tree, and of course a generous helping of unreleased live and studio recordings. At the Internet Archive, you can listen to a seemingly endless number of those bootleg recordings
the Grateful Dead encouraged, and you can download for free those that audience members made. And
if thats just too much to begin to comprehend, dont worry! The Grateful Dead Listening Guide is a
series of podcasts you can download to hear an experts introduction into the Work.
Perhaps it is not such a surprise, therefore, that we have articles like the one entitled Management
Secrets of the Grateful Dead.
And you can even listen right here below to a recording of the Grateful Dead concert I attended
33 years ago this week, on January 18, 1979, at the Providence Civic Center
[EMBED]
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Ray Johnson, dead 17 years ago today: I have simply had to accept the fact that
out of a life necessity I have written a lot of letters, and given away a lot of material
and information, and it has been a compulsion. (2012-01-13 23:46)
Guy Bleus:
Mail-Art is an international network of hundreds of artists who apply communicationmedia
as artmedia. It concerns networkers or mail-artists who distribute their work primarily via
mail, and less or not via galeries and museums. Through the years thousands (sometimes
50.000 is mentioned) of artists and non-artists have participated to this artistic movement.
Ray Johnson once got the historical titel of Father of Mail-Art and that will always remain.
Ina Blom:
Ray Johnson [was the] initiator of the international mail art movement, . . . one of the
most complex and idiosyncratic art projects of the 20th Century. A painter associated with
the New York School of painting, Johnson had started it all the mid-1950 s, slowly building
up a network of correspondents who would exchange objects and messages through the postal
system. Initially it was Johnson himself sending out small collage-like works to a mailing
list, urging people to keep them, to add to them, to change them, to send them to others, to
return to sender. In time others joined in this activity, and in the course of the 1960 s and
1970 s the network grew way beyond the immediate reach and touch of Johnson s own mailing
activities. The initial network was named The New York Correspondance School (sic) a spin
or pun on the idea of artistic schools and the concomitant idea of art history as a succession
of such schools. But then the quip about the history of Mail Art was itself a pun, of the most
serious kind. Like so many other avant-garde artists (who left painting and behind) Johnson
waseager to cut through the historicist temporality that informed modern art history and art
production, with its logic of continual succession and supersession of artistic tradition. Cutting
through this logic meant placing the production and thinking of art within the immanence
of an eternal present, an uncontrollable present of events, not unlike the eternally present
liveness of television [or the Internet? PF] a technology and a communication medium
which was just at that moment appropriated for artistic purposes.
On January 13, 1995, Johnson was seen diving off a bridge

in Sag Harbor, Long Island, and backstroking out to sea. His body washed up on the beach the following
617
day.Many aspects of his death involved the number 13: the date; his age, 67 (6+7=13); the room number of a motel he d checked into earlier that day, 247 (2+4+7=13), etc. Some continue to speculate about
a last performance aspect of Johnson s drowning. Hundreds of collages were found carefully arranged
in his home. He left no will and his estate is now administered by Richard L. Feigen & Co.
Chuck Welch, otherwise known in the mail art network as the Crackerjack Kid, has been an active
participant in the international mail art network since 1978. In March 1995 over 2 months after Johnsons drowning Welch received in the mail Johnsons last self-portrait.
Clive Phillpot, in The Mailed Art of Ray Johnson, writes:
Examining the elements of Ray Johnsons work, or disentangling the threads of his activity, would not be so worthwhile if he were not a superb graphic artist who pursues the
embodiment of his thoughts with consummate economy and skill - and wit. The movements
of his hand are responsive to the fluidity of his verbal and visual ideas. He animates the
most unpromising shapes: he makes life flicker in the simplest forms. He is highly sensitive
to words, both the way they look and the way they sound. He detects words within words,
puns, and other oddities as easily as a heat-seeking missile rips through skeins of camouflage.
He shapes letters and words deliberately and effortlessly, giving them, too, an organic life.
He also knows how to animate the page, how to make the white spaces buzz. He combines
pictures and texts in new, hybrid forms that seem genetically determined.
Mailings from Ray Johnson are a concatenation of ideas, sometimes distinct or decipherable, sometimes slippeng or sliding into one another Thus , Johnsonian physiognomical and
biographical images mingle with recycled images of earlier work, with facets of a current art,
and with other uncategorizable motifs and insertions, almost paralleling he flux of thought
itself. Any of these elements may also overprinted with other images or texts, so that a mailing may be literally multilayered.
Reading such mail is simpler than reading a collage, for the layered elements can generally
be isolated and examined. But Ray Johnsons mind is so fertile, information-rich, and crossconnected, so full of potential visual and verbal associations, metaphors, puns, and rhymes,
that while the flavor of his work may be enjoyed, some of the ingredients may remain mysterious. An unanticipated incident, image, or remark sets the Johnsonian circuits humming, and
images and ideas print out that relate overtly or obscurely to the stimulus. Ray Johnsons
thinking is marvelously fluid and full of Leonardesque eddies. His ideas move and change,
swerve and submerge, but continue on like a river.
Ray Johnson, however, describes the production of these concatenations of ideas as the result of his
compulsion to give away material and information:
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[T]he New York Correspondence School has no history, only a present, which was a pun, of course,
on present as now, and present as a gift, a pun on my way of giving information and objects or whatever
in letterform. . . .
Id like to do my own history as to what I think happened. Every time I get any publicity or press
everybody has a different version as to when anything happened or as to what anything was and I myself
dont even know when anything happened, or what happened . . . .
I have simply had to accept the fact that out of a life necessity I have written a lot of letters, and
given away a lot of material and information, and it has been a compulsion. And as Ive done this, it
has become historical. Its my resum, its my biography, its my history, its my life. And now, people
always come up and say, oh, youre the father, youre the father of mail art, and everybody got the idea
of it from you, or was influenced by you . . .
The Evolution Control Committee will sue you if you listen to their new album, but
at least they can host a Saturday night horror flick theyve mashed together the
soundtrack for. (2012-01-14 09:27)
From the Evolution Control Committee, which :began in 1986 and continues to risk millions in copyright
violation fines for what The ECC calls music:
Were very pleased to announce that our new album is now finally and officially released!
All Rights Reserved is now available as a double CD, on vinyl, or download.
Its just a shame you cant listen to it.
The lawyers had concerns, ECCs TradeMark Gunderson explains. Although we felt tracks
like our What Would You Think If I Sang AutoTune were clearly parody as well as Fair
Use, the legal types thought they were lawsuit-bait. To give the label and the band an extra
line of legal defense, the album includes a Listener License Agreement, a set of terms and
conditions like those required in order to install computer software. Fair Use or not, a track
likeStairway To Britney could easily offend a litigious party, says Seeland Industries lawyer
Sandy Kryle. We thought the best solution would be a legal agreement that forbids anyone
everyone from listening. Period.
619
Even with the Listener License Agreement, the product was too hot for some to handle.
Both the pressing plant as well as the distributor initially refused to handle the album, saying
that All Rights Reserved was too risky a surprising reaction in an era when even Girl Talk
cant muster a single major label complaint.
Were not crazy about the idea of suing our fans, says ECC band member Christy Brand.
But it seems to work for the RIAA.
You may not want to risk being sued, but for those of us in Cleveland who miss Ghoulardis Shock
Theater, we can at least spend our Saturday night watching ECCs version of the silent movie classic
Nosferatu, djd live using only soundtracks from other movies:
[EMBED]
Nosferatu with live Reels Of Steel soundtrack DJd by The ECC from Evolution Control Committee
on Vimeo.
Off Book:
The Evolution of Music Online (a/k/a progress SOPA would end)
(2012-01-18 13:03)
[EMBED]
Off Book: The Evolution of Music Online from PBS Arts on Vimeo.
Saturday Night at the Mashup Movies:
Negativland, No Other Possibility
(2012-01-21 19:02)
IFRAME: http://blip.tv/play/AYKR 2EC.html?p=1

[EMBED]
Saturday Nights Music Mashup: Kota Ezawa - Beatles: California ber Alles
(2012-01-21 20:48)
[EMBED]
Clay Shirky on why SOPA & PIPA wont go away: the old media companies want to
make it too expensive for you (artist, consumer, teacher, etc.) to use copies even in
legitimate ways (2012-01-23 20:20)
[EMBED]
Building knowledge in the digital age; the transition continues science this time.
(2012-01-25 16:54)
I have made the point on this blog that the digitization of information and the internet have made the
old ways of doing business with information (be it entertainment, news, science, or art) obsolete and that
efforts to force the new media into legal forms that evolved with the ways businesses had organized the
old technologies are doomed to failure or to killing the innovation those laws are supposed to promote.
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But the struggles inherent in the transition from old and established ways of doing business are ongoing and will continue to be. Todays example comes from the world of science. As the New York Times
reports, For centuries, [scientific] research [was]cdone in private, then submitted to science and medical
journals to be reviewed by peers and published for the benefit of other researchers and the public at large.
. . . Peer review can take months, journal subscriptions can be prohibitively costly, and a handful of
gatekeepers limit the flow of information. It is an ideal system for sharing knowledge, said the quantum
physicist Michael Nielsen, only if you re stuck with 17th-century technology.
But Dr. Nielsen and others argue that science can happen much more quickly and accurately using
the new technologies, and reality is catching up to their ideals (even as established institutional players
such as universities and grant-makers still depend on the traditional published paper as their exclusive
criterion of judgment):
Open-access archives and journals like arXiv and the Public Library of Science (PLoS)
have sprung up in recent years. GalaxyZoo, a citizen-science site, has classified millions of
objects in space, discovering characteristics that have led to a raft of scientific papers.
On the collaborative blog MathOverflow, mathematicians earn reputation points for contributing to solutions; in another math experiment dubbed the Polymath Project, mathematicians
commenting on the Fields medalist Timothy Gower s blog in 2009 found a new proof for a
particularly complicated theorem in just six weeks.
And a social networking site called ResearchGate
other s questions, share papers and find collaborators
where scientists can answer one anis rapidly gaining popularity.
Editors of traditional journals say open science sounds good, in theory. In practice, the
scientific community itself is quite conservative, said Maxine Clarke, executive editor of the
commercial journal Nature, who added that the traditional published paper is still viewed as
a unit to award grants or assess jobs and tenure.
The motion picture and music industries wont give up trying to protect their moneymaking models even if they are obsolete. (2012-01-25 18:34)
Bill McGeveran in the Guardian makes clear that the film and music industries arent going to go away,
but that there are ways to to address legitimate copyright concerns without PIPA and SOPAs utter
inadequacies:
At the end of a Hollywood blockbuster, when the vanquished villain declares that he should
have won and that we havent seen the last of him, we all know what it means: the sequel is
coming.
So, Hollywoods top lobbyist, former Senator Chris Dodd, followed a familiar script last
week after sweeping online protests derailed the Stop Online Piracy Act (Sopa) and Protect
IP Act (Pipa), a pair of legislative proposals backed by movie and music distributors. Dodd
snarled that his opponents had misled the public and vowed to continue pressing for new laws
to combat unauthorized copying of intellectual property. Coming soon to a congressional
hearing room near you, its Sopa II: Revenge of the Content Industries.
. . . . Even Dodds enemies acknowledge that these sites pose a problem, though many
question industry estimates about its scope.
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Those of us who opposed the excesses of Sopa and Pipa need to prepare for the next round.
. . . At a minimum, Congress must address three other problems as well.
First and foremost, Sopa II needs to take due process seriously. . . .
Second, the standards for judging infringement must be clear and must be consistent with
existing intellectual property law. . . .
Finally, these bills cannot shift IP owners duty to safeguard their own rights onto innocent bystanders like Google, eBay or Facebook. Open online forums enable millions of daily
communications from ordinary people. Intermediaries cannot examine every post searching
for links to pirates. Thats why federal law exempts them from liability for nearly everything
their users post independently even fraud or defamation. IP already gets special treatment,
because intermediaries must remove infringing material if rightsholders complain.
Part home, part musical instrument NOLAs Music Box (2012-01-25 22:07)
From NPR.org, In The Music Box, New Orleans Residents Hear Hope:
When Hurricane Katrina hit New Orleans in 2005, it left behind a city full of destroyed
homes. Despite ongoing rebuilding efforts, thousands of blighted properties remain. Now, a
group of artists is creating a structure that is part home, part musical instrument and part
inspiration of what can be made of these damaged properties.
The Music Box is a small village of ramshackle sculptures huddled together on Piety Street
in the Bywater section of the once-flooded 9th Ward. The sculptures are outfitted as musical
instruments and are made almost entirely of the remains of the 18th-century Creole cottage
that used to sit on this lot.
The Heartbeat House is one of these musical sculptures: Its an A-frame shack with a rotating organ speaker perched on top. The speaker is attached to a stethoscope
which
broadcasts the heartbeats of those who stop to engage with the art.
Unlike a church bell [that] calls people to congregation or an alarm, what we want to have is
a Experience the Sounds of the Musical Instruments that make up the Music Box heartbeat,
explains curator Delaney Martin. This primal beat that calls to the people of New Orleans
and says: Come out and dance, come out and sing, come out and have fun.
The instruments housed in the Music Box are described here. One, the Voxmuron, is comprised of a
microphone that feeds a series of audio loop devices that can be recorded on to and played by mahogany
paddles. Complicated metal linkages that power the paddles and a complex organization of wires are
masked behind a decorative, finished wall-panel. This wall of sound is intended to evoke the sound of
neighbors talking or playing music on the other side of a thin wall. The sound of this instrument is never
the same. It is dependent on who or what is recorded into it. A very versatile producer of sound.
You can listen to one performance on Voxmuron by Matana Roberts and Taylor Shepard right here:
IFRAME: http://w.soundcloud.com/player/?url=http %3A %2F %2Fapi.soundcloud.com %2Fplaylists

%2F1307795 &show artwork=true
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What did Jackson Pollock intend when he painted Lavender Mist? Cariou v. Prince,
and the importance of scripting the artists words. (2012-01-26 11:36)
Patrick Carious lawyers have filed their brief (embedded below) in opposition to Richard Princes appeal of the decision holding that Princes appropriations of Carious photographs constituted copyright
infringement. Writing in artnet, Rachel Corbett explains, among other things, that Carious legal team
is banking largely on the claim that Prince s work failed to comment on or satirize Cariou s
photographs a common objection against applying the fair use exception to copyright law.
While Prince s lawyers, Boies, Schiller and Flexner, convincingly argue that Canal Zone
is transformative of the original works, Carious lawyers say that s not enough. That argument fails because, absent a justification for the appropriation, taking copyrighted work in
order to create something new has no practicable boundary and would effectively eviscerate
the rights of copyright owners.
After all, they point out, Prince plainly, arrogantly, and perhaps fatally, said in district court
that he had no real interest in the meaning behind Cariou s work, and that he used it strictly
as raw material. It s taking for the sake of taking, Cariou s lawyers argue.
As I wrote nearly a year ago, I believe it would be absurd to conclude whether Princes use of Carious
work was transformative based on Princes words. Artists are not particularly gifted at putting into
words what their works mean. Why, after all, would we need their work if their words would suffice?
As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well
accepted they are almost trite,
not even the artist s own. He or she can tell us the intent of the work, but the actual meaning
and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to
hear the grandiose discussions of artists work by the least talented of our contemporaries.) We
should listen to the appreciations of others, but then we should put them aside and advance
toward a work of art in the loneliness of our own truth. Each of us encounters the work alone,
and how much we receive from it is wholly the effect of our will to accept this responsibility.
What was Jackson Pollock s purpose in painting Lavender Mist? Van Gogh s in painting The Irises?
Haven t we accepted by now the limitations focus on artistic intention would impose on our appreciation
of art? Nevertheless, in the decision enjoining the publication of a sequel to The Catcher in the Rye,
the judge was significantly influenced by the fact the author and his representatives had described the
work in words that didn t fit the legal standard they wanted to meet:
Until the present lawsuit was filed, Defendants made no indication that 60 Years[the new
works, rather than explaining that60 Years was a parody or critique of Catcher, Colting s
freestanding novel that has nothing to do with the original Catcher in the Rye. Opinion and
Order at 16, n. 3.
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Colting and his agent, obviously, should have called his work a parody and critique, not a sequel or a
freestanding novel. Plainly, they had not been sufficiently counseled by lawyers who could have put
the proper words in their mouths. It s odd to think that being sufficiently versed in the mere words that
would be consistent with the legal outcome you seek should make a difference, though. No matter what
an artist said, his work would be the same.
In the same way, it seems odd that Prince s refusal to articulate an artistic intent should be a determinant of the legitimacy of his artwork. The Amicus Brief filed in support of Princes appeal by the
Andy Warhol Foundation for the Visual Arts (also embedded below) makes precisely these points (at
31-34; hyperlinks added):
The district court found Prince s work was not transformative based entirely on Prince s
apparent inability to verbalize the meaning of it to the court s satisfaction, and the court s
own conclusions about Prince s subjective intent. See SPA-17-20. But transformative meaning must be assessed first and foremost by observation of the work itself, and whether new
meaning and expression may be reasonably perceived from it. See Campbell, 510 U.S. at
582-83. In Campbell, the Court did not demand testimony from 2 Live Crew, or speculate
about their subjective intentions. It concluded that elements of parody could reasonably be
perceived from the work itself, and that was enough to establish its new meaning and expression. See id.
Ultimately, the meaning of art is defined by the viewer, not a judge, or even the artist himself.
A viewer s reaction to a work of art is shaped by the viewer s personality, emotions, values,
experience and knowledge. So while it is plainly dangerous for those trained in the law to
judge the worth or meaning of art, see Campbell, 510 U.S. at 582-83, it is equally dangerous
to pretend the meaning of art can be defined solely by the intention of the artist herself,
much less her ability to articulate that intention to the satisfaction of judges and lawyers. See
Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (recognizing it frequently is not
possible to identify a single message that is conveyed by a government monument, and the
sentiments it expresses may be quite different from those of . . . its creator ); Hurley v.
Irish-Am. Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) ( a narrow,
succinctly articulable message is not a condition of constitutional protection for expressive
speech).
That is not to say the testimony of the artist is irrelevant. If, as in Blanch [v. Koons],
the artist can explain the intended meaning of his work and how it differs from the work he
borrowed, that testimony may be quite informative. But the failure to provide an explanation
as polished as the one Jeff Koons provided in Blanch cannot be fatal. If it were, then every
artist who works within this tradition will be forced to concoct a narrative that appeals to
legal sensibilities, and the law will succeed in protecting only those artists who are scripted
by counsel.
Other rules that protect First Amendment interests do not ask the speaker to demonstrate the
value of her speech, or require her to persuade a judge of its worth. Neither does copyright.
See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (Holmes, J.) ( It may
be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet
would have been sure of protection when seen for the first time. ).
The long tradition of appropriating existing images in the context of collage and other expressive practices described in Section I clearly demonstrates the important new meaning and
expression these uses deliver. The Court should recognize that the use of existing images in
visual art may convey a wide array of transformative meaning that goes far beyond direct
commentary on the original and is not limited by the expressed intentions of the artist.
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Cariou v Prince Appeal, Brief for Plaintiff-Appellee

key=key-d0qenyio7k48k7du0za
Cariou v Prince Warhol Foundation Amicus Brief
key=key-18pnrm6hk6ggzj5epvsx
Joy Garnett Lectures on Painting, Mass Media, and the Art of Fair Use
(2012-01-26 16:55)
[EMBED]
Richard Prince doesnt have to describe one of his paintings as a Rhino in Hot Pants
Shouting, Repent, Repent! for it to be so. (2012-01-27 11:54)
Tom Waits on the meanings of his songs:
If you break open a song, you ll find the eggs of other songs. Misunderstandings are really
kind of an epidemic and acceptable. I think it s about one thing, but someone else will say,
That song is kind of a rhino in hot pants on a burnt rocking horse with a lariat shouting,
Repent, repent! I think that s great.
Why do I bring up Waits rejoicing in the fact someone might hear one of his songs as a kind of rhino in
hot pants on a burnt rocking horse with a lariat shouting, repent, repent! Because the lawyer for Patrick
Cariou believes that a work of art appropriating another work can only be interpreted to be sufficiently
transformative of that earlier work if the appropriator expresses in words a transformative purpose.
Richard Prince, in appropriating Patrick Carious photographs for his own artistic purposes, said he had
no real interest in the meaning behind Cariou s work, and that he used it strictly as raw material, that
it was taking for the sake of taking.
Carious lawyer thinks that Princes inability to state an artistic purpose is fatal to his case. In his
eyes, the law requires a 2-step process: First the defendant has to say he was engaged in a transformative use of the work he was appropriating. Only then does the court go on to say, Well let s see if this
is reasonably perceivable.
As I made clear yesterday, and as I think Tom Waits makes clear far more vividly, it seems absurd
to limit the meaning of a work of art to whatever the artist might state it is. Nor is this particular
controversial. The phrase intentional fallacy was coined in the title of an influential scholarly article
(Wimsatt and Beardsley 1946) claiming that artists intentions are neither available nor desirable as a
standard for assessing art. As has been pointed out, Intentionalists disagreed, arguing that any sense of
the artists intention, however obscure, can be a useful resource in interpreting a work of art.
But the point is, even Intentionalists acknowledge that judging, interpreting, and assessing art calls
on attention to the art and all it evokes in the eyes of the viewer. Those judgments, interpretations, and
assessments are never limited to what the artist wanted the viewer to see and think.
625
So Carious lawyer is advancing nonsense when he suggests the court should be limited in that way.
Nor is the precedent for court reliance in making fair use decisions on the expressed intent of the appropriating artist particularly compelling support for that nonsense. It is true that in Blanch v. Koons the
U.S. Court of Appeals for the 2d Circuit relied on what Jeff Koons stated his purposes were in appropriating a photograph for use in one of his paintings. But there were no competing interpretations submitted
to the court. As the court pointed out: Koons asserts
and Blanch does not deny
that his purposes
in using Blanch s image are sharply different from Blanch s goals in creating it. Quite simply, the court
was persuaded by Koons explanations. That the court was so persuaded does not mean, however, that
the artists explanations are the only means by which the court could be persuaded.already stated their
intent to parody. Nor, as Carious lawyer contends, did a lower court find that 2 Live Crews re-working
of Roy Orbisons Oh, Pretty Woman depended on 2 Live Crews assertion their song was a parody.
In fact, the Court found that 2 Live Crews words parodied Orbisons and remanded the case so a lower
court might determine (a) whether there had been any negative economic impact on sales of Orbisons
song in the potential derivative market of rap cover versions, and (b) whether the quantity of musical
elements taken from Orbisons song were more than necessary to 2 Live Crews purposes. Campbell, 510
U.S. at 590-91. After remand, the case settled, and there were no further court hearings.
There are 2 other important points to be made here. First, the Supreme Court made clear that the extent
to which 2 Live Crew had parodied Orbisons song was hardly overwhelming and, to the extent it was,
that parody was apparent in the perception of a listener, not in Luther Campbells stated purpose:
While we might not assign a high rank to the parodic element here, we think it fair to
say that 2 Live Crews song reasonably could be perceived as commenting on the original or
criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose
fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from
paternal responsibility. The later words can be taken as a comment on the naivete of the
original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life
and the debasement that it signifies. 510 U.S. at 583 (emphasis added).
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Even more important, perhaps given the widely held misconception that transformative uses are only
those that comment directly upon the appropriated works is the Courts statement that if an appropriating work has no impact on the commercial market for the appropriated work the need to find that
it comments upon or otherwise parodies the original correspondingly diminishes:
A parody that more loosely targets an original than the parody presented here may still
be sufficiently aimed at an original work to come within our analysis of parody. If a parody
whose wide dissemination in the market runs the risk of serving as a substitute for the original
or licensed derivatives . . . it is more incumbent on one claiming fair use to establish the
extent of transformation and the parodys critical relationship to the original. By contrast,
when there is little or no risk of market substitution, . . . taking parodic aim at an original is
a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as
may satire with lesser justification for the borrowing than would otherwise be required. 510
U.S., n. 14.
You can be the judge. First, I am including the lyrics of Orbisons song and 2 Live Crews (courtesy
of the Copyright Website). The Supreme Court held that the latter were sufficiently transformative of
the former to constitute fair use. Second, I am including a recording of 2 Live Crews song itself. Is the
second a parody of the first? Or does it use the first as raw material to make express its own view of a
woman?
Lyrics
Oh, Pretty Woman" - by Roy Orbison and William Dees

Pretty Woman, walking down the street, Pretty Woman, the kind I
like to meet, Pretty Woman, I dont believe you, youre not the
truth, No one could look as good as you Mercy Pretty Woman, wont
you pardon me, Pretty Woman, I couldnt help but see, Pretty Woman,
that you look as lovely as can be , Are you lonely just like me?
Pretty Woman, stop a while, Pretty Woman, talk a while, Pretty
Woman, give your smile to me, Pretty Woman, yeah, yeah, yeah Pretty
Woman, look my way, Pretty Woman, say youll stay with me Cause I
need you, Ill treat you right, Come to me baby, Be mine tonight
Pretty Woman, dont walk on by, Pretty Woman, dont make me cry,
Pretty Woman, dont walk away, Hey, O.K. If thats the way it must
be, O.K., I guess Ill go home now its late Therell be tomorrow
night, but wait! What do I see Is she walking back to me? Yeah,
shes walking back to me! Oh, Pretty Woman.
"Pretty Woman" - as Recorded by 2 Live Crew

Pretty Woman, walking down the street, Pretty Woman, girl you look
so sweet, Pretty Woman, you bring me down to that knee, Pretty
Woman, you make me wanna beg please, Oh, Pretty Woman Big hairy
woman, you need to shave that stuff, Big hairy woman, you know I
bet its tough Big hairy woman, all that hair aint legit, Cause
you look like Cousin It Big hairy woman Bald headed woman, girl
627
your hair wont grow, Bald headed woman, you got a teeny weeny afro
Bald headed woman, you know your hair could look nice, Bald headed
woman, first you got to roll it with rice Bald headed woman here,
let me get this hunk of biz for ya, Ya know what Im saying, you
look better than Rice a Roni Oh, Bald headed woman Big hairy woman,
come on in, And dont forget your bald headed friend Hey Pretty
Woman, let the boys Jump in Two timin woman, girl you know it
aint right, Two timin woman, yous out with my boy last night Two
timin woman, that takes a load off my mind, Two timin woman, now
I know the baby aint mine Oh, Two timin woman Oh, Pretty Woman.
[EMBED]
ADDENDUM: I am also embedding below the amicus brief filed by Google in Cariou v. Prince. It does
a far better and more extensive job than I at explaining that a transformative appropriation need not
at all be one that comments or criticizes the original:
Google Amicus Brief in Cariou v Prince

key=key-zrxamoosumv9z9xglii
Another thought on stating artistic intentions (2012-01-27 15:04)
Everything that can be thought at all can be thought clearly. Everything that can be said
at all can be said clearly. But not everything that can be thought can be said.
Ludwig Wittengstein
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In loving memory of an American classic (2012-01-27 15:15)
Kota Ezawa, Slide 2006
Friday Night Mashup: Kota Ezawa and Yves Klein: Into the Void (2012-01-27 15:42)
629
Saturday Night Mashup: The Timelords/KLF Doctorin the Tardis (2012-01-28 15:54)
[EMBED]
Saturday Night Mashup: Beatles Revolution Number Nine (2012-01-29 00:44)

IFRAME: http://w.soundcloud.com/player/?url=http %3A %2F %2Fapi.soundcloud.com %2Ftracks
%2F21604439 &show artwork=true
Michalis Pichler: Statements on Appropriation (2009) (2012-01-29 02:28)
Michalis Pichler: Statements on Appropriation (2009)
1. if a book paraphrases one explicit historical or contemporary predecessor in title, style

and/or content, this technique is what I would call a greatest hit
2. Maybe the belief that an appropriation is always a conscious strategic decision made
by an author is just as naive as believing in an original author in the first place.
3. It appears to me, that the signature of the author, be it an artist, cineast or poet,
630
seems to be the beginning of the system of lies, that all poets, all artists try to establish, to
defend themselves, I do not know exactly against what.
4. Custom having once given the name of the ancients to our pre-Christian ancestors, we will not throw it up against them that, in comparison with us experienced people,
they ought properly to be called children, but will rather continue to honor them as our good
old fathers.
5. It is nothing but literature!
6. there is as much unpredictable originality in quoting, imitating, transposing, and
echoing, as there is in inventing.
7. For the messieurs art-critics i will add, that of course it requires a far bigger mastery to cut out an artwork out of the artistically unshaped nature, than to construct one out
of arbitrary material after ones own artistic law.
8. The authenticity of a thing is the essence of all that is transmissible from its beginning, ranging from its substantive duration to its testimony to the history which it has
experienced.
9. Intellectual Property is the oil of the 21st century
10. Certain images, objects, sounds, texts or thoughts would lie within the area of
what is appropriation, if they are somewhat more explicit, sometimes strategic, sometimes
indulging in borrowing, stealing, appropriating, inheriting, assimilating... being influenced,
inspired, dependent, indebted, haunted, possessed, quoting, rewriting, reworking, refashioning& a re-vision, re-evaluation, variation, version, interpretation, imitation, proximation,
supplement, increment, improvisation, prequel... pastiche, paraphrase, parody, forgery,
homage, mimicry, travesty, shan-zhai, echo, allusion, intertextuality and karaoke.
11. Plagiarism is necessary, progress implies it.
12. Ultimately, any sign or word is susceptible to being converted into something else,
even into its opposite.
13. Like Bouvard and Pecuchet, those eternal copyists, both sublime and comical and
whose profound absurdity precisely designates the truth of writing, the writer can only
imitate a gesture forever anterior, never original
14. The world is full of texts, more or less interesting; I do not wish to add any
more.
15.
16. The question is: what is seen now, but will never be seen again?
17. Dtournement reradicalizes previous critical conclusions that have been petrified
into respectable truths and thus transformed into lies.
18. No poet, no artist, of any art has his complete meaning alone.
631
On December 11 2009 six one sentence statements originated by the artist /author for
the purpose of this piece were mixed, in a container, with eighteen one sentence quotes
taken from various other sources; each sentence was printed onto a separate piece of paper.
Eighteen statements were drawn by blind selection and, in the exact order of their selection,
join altogether to form the statements on appropriation, for the presentation at Stichting
Perdu, Amsterdam.
In the following bibliography the sources (...) may be found although no specific statement
is keyed to its actual author.
Roland Barthes,The Death of the Author, (1967)
Walter Benjamin, Unpacking My Library (1931), repr. In Illuminations, (ed.) Hannah
Arendt (1968)
Walter Benjamin (1936), Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit, Frankfurt/Main 1963, p.15 (transl.http://www.marxists.org/reference/subject/philosophy/works /ge/benjamin.htm)
Marcel Broodthaers (interviewed by Freddy de Vree, 1971) repr.
Koeln (1994), p. 93
Ulises Carrin , The New Art of Making Books, Kontexts no.
in Guy Schraenen: We have won! Havent we?, Amsterdam, (1992)
Giorgio de Chirico, repr.
Ljubljana (2003)
in Broodthaers,
6-7, 1975 and repr.
in The New Five-Foot Shelf of Books, Allen Ruppersberg,
Guy Debord, The Society of the Spectacle Paris, (1967), Paragraph 206, (transl.
Ken Knabb http://www.bopsecrets.org/SI/debor d/8.htm )
Guy Debord, Gil J Wolman, Mode demploi du dtournement in Les Lvres Nues
#8 (trans. by Ken Knabb A Users Guide to Dtournement (2006))
Eliot, T.S. Tradition and the Individual Talent (1919), repr.
(ed.) Selected Prose of T.S. Eliot, (1984) London:Faber, p.37
in Frank Kermode
Mark Getty, chairman of Getty Images in an interview with The Economist, London
(2000)
Kenneth Goldsmith , Being Boring,
p.2,http://www.thenewpaper.co.uk
in
The
Newpaper
#2,
London
(2008),
herakleitos, Ephesos (around 500 BC), quoted by Plato in Cratylus (fragment 41)
Julia Kristeva Word, Dialogue and Novel (1969), repr.
Kristeva Reader
in Toril Moi, (ed.)
The
Comte de Lautramont (Isidore Ducasse), Posies, London (1978), p.68

Daniel McClean and Karsten Schubert (ed), Dear Images:
ture, (2002)
632
Art, Copyright, and Cul-
Allen Ruppersberg, Fifty helpful hints on the Art of the Everyday in The Secret of
Life and Death, LA (1985), p.113
Kurt Schwitters, i (ein Manifest) repr. in Kurt Schwitters - Das Literarische Werk (ed.)
Friedhelm Lach Band 5, p. 120, Koeln (1973/1981)
Leo Steinberg, (1978) repr.
New York (1996)
in Schwartz, Hillel, Culture of the Copy, Zone Books,
Max Stirner, Der Einzige und Sein Eigentum (1844), Stuttgart (1972), S.16
see also: Douglas Huebler, Variable piece #20, Bradford, Massachusetts 1970
Dickie Goodman & Bill Buchanan: The Flying Saucer the first hit mashup and its
legacy (2012-01-29 07:08)
Buchanan & Goodman - The Flying Saucer (Parts 1 & 2) (mp3)
Chuck Miller on the first controversial hit recording using samples of other songs:
[I]n June 1956, [Dickie] Goodman came up with an idea. Bill Buchanan and I were
writing some songs at the time, said Goodman in a print interview, trying to break into the
business. We were sitting around and suddenly we got an idea. How would it be if we had a
disc jockey show being interrupted by reports of a flying saucer - THE FLYING SAUCERS
ARE REAL! - and suddenly the Platters line (from The Great Pretender) came to me Too real when I feel what my heart cant conceal and we said Hey! and we didnt know
any better so we put the thing together.
Within a few days, Goodman and Buchanan spliced together a four-minute reworking
of Orson Welles War of the Worlds radio broadcast. Goodman played John Cameron
Cameron, an unflappable reporter interviewing people, officials and even the Martians
themselves. Buchanan was heard as a title-mangling disc jockey (allegedly based on Alan
Freed), who interrupted a Nappy Brown dance number with news of an invasion from Mars.
Buchanan: We interrupt this record to bring you a special bulletin. The reports of a
flying saucer hovering over the city have been confirmed. The flying saucers are real!
Radio:Too real, when I feel, what my heart cant conceal...
Great Pretender)
(from the Platters The
Buchanan: That was the Clatters recording, Too Real!

And that set the pattern. Goodman would interview eyewitnesses about the spaceship, whose responses were the lyrics of popular songs.
Goodman: This is John Cameron Cameron downtown. Pardon me madam, would
you tell our audience what would you do if the saucer were to land?
Witness: Duck back in the alley (from Little Richards Long Tall Sally) . . .
633
The record continued. While the flying saucer landed on Earth, Buchanan and Goodman greeted its arrival with more splices, in-jokes and primitive technical wizardry.
Goodman: This is John Cameron Cameron on the spot. And now I believe were
about to hear the words of the first spaceman ever to land on earth.
Martian: A WOP BOP A LOO MOP A LOP BAM BOOM (from Little Richards
Tutti-Frutti) . . .
The duo shopped their pastiche to every record label in New York. Nobody was interested; many record execs dismissed the recording as a cheap sampler. Undaunted, they
took the tape to radio station WINS, where disc jockey Jack Lacy agreed to play it. He gave
the song a couple of airings, then let the next DJ - Alan Freed - play the track during his
show.
Meanwhile, Buchanan and Goodman visited George Goldner, a producer at Roulette
Records. In a print interview with Art Fein, Goodman remembers that meeting. We were
in Georges office, but before we got a chance to play our record, one of his salesmen burst
in and asked if anybody knew about a record that was played on WINS the night before something about Elvis Presley and spacemen. Everybody in town wanted it. George took it
on immediately.
**
Although the record was an immediate hit in New York, it took a couple of weeks for
the rest of the country to catch on. The NBC and ABC radio networks initially banned the
song, because they didnt want any listeners misunderstanding the gag record as an actual
announcement of an invasion. Other parts of the country couldnt get their hands on the
record fast enough. In Cleveland, for example, the record was so scarce that stores were
charging customers as much as $1.75 for each copy.
Meanwhile, the Music Publishers Protective Association, through the offices of its trustee, the
Harry Fox Agency, claimed The Flying Saucer was guilty of at least 19 different instances
of copyright infringement and unauthorized usages. If we cant stop this, said one record
insider to Billboard, nothing is safe in our business.
No industry exec believes [Buchanan and Goodman] have a leg to stand on in their
use of copyrighted material and other disk artists without permission, said an unnamed
source to Variety.
But although the record companies publicly moaned and wrung their hands over the
issue, they initially let the publishing houses go after Buchanan and Goodman for copyright
infringement, rather than litigate the matter themselves. Part of the reason may have been
because The Flying Saucer actually increased sales of records included in its collage. For
example, because a snippet of Earth Angel was part of The Flying Saucer, requests for
the Penguins song forced DooTone Records to reissue their hit. As an unidentified publishing
representative told Time magazine, Its the greatest sampler of all. If youre not on Saucer,
youre nowhere!
Some record company executives questioned whether Buchanan and Goodman actually
infringed on any rights at all. The fragments were all part of ASCAPs and BMIs libraries,
and Buchanan and Goodmans lawyers argued that the question was really whether The
634
Flying Saucer contained any material that wasnt part of those two libraries. One record
exec told Variety that he was ready to forget the whole business and just let the record run
its course. Another industry lawyer said that because of all the publicity this case received,
he didnt think anybody would dare make another snippet record for at least another
decade.
After much negotiation among all parties, an agreement was finally reached.
The
publishing houses would split 17 cents in royalties from every 89 cent copy of The Flying
Saucer - approximately 1 cent for each publisher per disc sold. Buchanan and Goodman
could still sell their single, and the song was finally cleared for jukeboxes and radio airplay.
By August 15, 1956, The Flying Saucer had sold 500,000 copies in three weeks, and
was a regional #1 hit in Pittsburgh, Louisville and Cleveland. By the end of August, The
Flying Saucer had doubled those sales figures, and climbed as high as #3 in Billboards
and Varietys national sales charts, just behind Elvis Presleys two-sided hit Dont Be
Cruel/Hound Dog and the Platters My Prayer. In some cities, The Flying Saucer
actually beat Elvis for a few weeks in sales and local airplay. Jukebox owners purchased three
or four copies of The Flying Saucer for their businesses - and a couple extra for themselves.
Disc jockeys loved the song, and began working on break-in collages of their own.
Some of those break-in records actually made it to disc - many of them while The
Flying Saucer was flying up the charts. . . .
The publishing houses were furious. Instead of break-in records stopping, now they
were multiplying like weeds in a garden. In an attempt to limit the production of new
break-in records, the publishing houses demanded an increase from the standard two-cent
royalty for each song used, to eight cents per song from each of the new break-in discs!
Many of the smaller companies simply gave up. . . . Plus Records . . . pressed
53,955 copies of an Elvis-themed break-in record, Dear Elvis, With Love From Audrey
. . . , but could sell only 30,000 copies before the increased royalty rate was assessed. As
part of a settlement agreement, Plus Records turned over the master of Dear Elvis to the
publishing houses, who promptly destroyed the master.
In November 1956, Buchanan and Goodman began work on their second single, Buchanan
and Goodman on Trial (Luniverse 102), a break-in record satirizing their experience in
the courtroom. With Little Richard as their defense attorney and a jury full of Martians
acquitting the break-in duo of all charges, Buchanan and Goodman on Trial became both
a moderate hit and a not-so-veiled jab at the legal system.
This time the record companies fought back. Four record labels - Imperial, Aristocrat, Modern and Chess - along with two performers, Fats Domino and Overton Lemon
(Smiley Lewis), filed suit in New York District Court for an injunction against all Buchanan
and Goodman recordings, as well as $130,000 in compensatory and punitive damages. They
also wanted 6 cents per single for use of such songs as Aint That A Shame, Maybelline,
I Hear You Knocking and Hard to Tell on the two Luniverse singles. Two publishing
companies, Commodore Music and Arc Music, joined in the suit, both refusing Luniverses
original penny-per-sample out-of-court settlement from the first trial.
During the trial, Saul Goodman, Dickie Goodmans father and co- counsel for the defendants, brought a copy of The Flying Saucer into the courtroom as Exhibit A. My
grandfather took it up to the judge, said Jon Goodman, and he asked the judge to take it
home and listen to it. At first the judge didnt want to do it, but he went ahead and did it.
635
The next day, judge Henry Clay Greenberg denied the injunction, writing in his decision: The defendants [Buchanan and Goodman] artfully and cleverly have devised
interesting novelty records which make use of portions of records of successful performers
under exclusive contract with the plaintiffs and others ... In this highly competitive industry,
the fruits of labor may be gathered in or lost quickly ... Undoubtedly some considerable
value attaches to the portions of the plaintiffs records which have been adopted by the
defendants ... the court is not able to determine whether or not the defendants have exceeded
the bounds of permissible fair competition ... A temporary injunction ought not to issue in a
case unless the offense is clear.
The judge later said that the Flying Saucer was a satire, a parody, a new work - a
burlesque, in effect - and there was no reason to charge Luniverse with violation of anybodys
copyright, said Jon Goodman. There were out of court settlements - they arranged
clearances for the publishing houses and whatever. My father made the Harry Fox Agency,
which was in charge of collecting mechanicals and royalties, a more interesting organization
to work with.
**
In fact, Goodmans snippet records may have been the rock equivalent of the compositions of John Cage, David Tudor and George Rochberg - using tape recorders and
phonograph records as instruments, slicing up reel-to-reel tapes and resplicing them at
random; creating new recordings from the fragments of old ones. It was the music of
indeterminacy, as Luciano Berio composed Sinfonia by quoting from a Mahler symphony
and fragments of a theatrical production. It was new uses for old technology, as Ferrante
and Teicher plucked the wires of a prepared piano for a harp-like sound. Music barriers
were being torn down, as Edgard Vareses aural symphonies influenced the work of Frank
Zappa; and as Karl-Heinz Stockhausens electronic compositions left an indelible imprint on
the Beatles Revolution No. 9.
And Dickie Goodman may have been the first to turn this music of indeterminacy
into pop recordings. Other unsuccessful attempts at break-in records could be found as
early as the 1920s, according to syndicated radio host and music expert Dr. Demento.
In 1928, The Happiness Boys (Billy Jones and Ernest Hare) recorded a comedy sketch for
Victor called Twisting the Dials, about listening to the radio. It used a few snatches of
other phonograph records to simulate the music that was encountered while twisting the
dials. The record was not a big seller. Spike Jones and Stan Freberg often used quotes from
existing songs for humorous effect, but not bits of actual hit records. I would say that for all
intents and purposes, The Flying Saucer was the first successful release in that genre.
**
Goodmans legacy is still alive today. . . .
And most of all, he wants anybody who ever sampled a track, anybody who ever
transposed a lyric into an entirely new song, anybody who had to contact the Harry Fox
Agency to determine proper mechanical rights - to remember Dickie Goodman. This is
what I was meant to do. What Im trying to do is stop something that can last forever from
fading away. Im trying to save my fathers work.
636
The Beach Boys: Villains, just see what youve done. (2012-01-31 00:20)
One of the oddest points

to get across to non-lawyers, lawyers-to-be, and even many lawyers is that what the law prescribes and
what actually happens are 2 entirely different things and that it is as crucial to being a good lawyer to
understand what actually happens and why as it is to know the laws.
It starts out pretty simply with beginning law students. The first time someone says, But you cant do
that because its against the law, I ask him whether hes ever driven faster than the speed limit. And
then I look at him and say, But you cant! Its against the law.
The law does, of course, affect a lot of what happens. Youll speed based on some unconscious calculation regarding the benefits of getting where youre going faster against the risk of being ticketed and
the cost if you are. You might also take into account other costs such as dangers posed by children in
the neighborhood, the driving conditions, and the reactions of any passengers to your speed.
It might seem like a simplistic example, but thats what you have to become conscious of when youre a
lawyer: the risks and costs associated with your behavior, including the risks and costs imposed by law.
And if you only consider the risks and costs imposed by law, youre probably not doing your clients a lot
of good.
I am convinced, however, that the central problem with the contemporary U.S. legal system is the
cost of actually using the law to get what the law prescribes. Its insane how much it costs to sue or be
sued, and the insanity of those costs skews so much in our society in favor of those with a lot of money
regardless of the legal ramifications of that skewing. In copyright, a lot of people complain that digitized
information and the internet have made it too expensive to stop people from stealing their property. But
far more of an impact is felt by what is called copyright overclaiming, the assertion by wealthy (and
typically corporate) copyright holders that their rights have been infringed by people who cannot afford
to vindicate their legitimate rights to use the copyright material in a lawsuit.
As Richard Posner has written:
637
Here is a very worrisome problem concerning fair use. It has to do with a dichotomy
long noted by legal thinkers between the law on the books and the law in action. They often
diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use
often benefits rather than harms the copyright holder. However, it doesnt always; moreover,
even if a copyright holder is not going to lose, and is even going to gain, sales from a degree
of unlicensed copying, if he thinks he can extract a license fee, hell want to claim that the
copying is not fair use; and finally, because the doctrine has vague contours, copyright owners
are inclined to interpret it very narrowly, lest it expand by increments.
The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyrights breadth. Look at the copyright page in virtually any book, or the copyright notice at
the beginning of a DVD or VHS film recording. The notice will almost always state that no
part of the work can be reproduced without the publishers (or movie studios) permission.
This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright
notice risks receiving a threatening letter from the copyright owner. He doesnt know whether
he will be sued, and because the fair use doctrine is vague, he may not be altogether confident
about the outcome of the suit.
The would-be fair user is likely to be an author, movie director, etc. and he will find that his
publisher or studio is a strict copyright policeman. That is, since a publisher worries about
expansive fair uses of the books he publishes, he doesnt want to encourage such uses by
permitting his own authors to copy from other publishers works. So you have a whole law
in action law invented by publishers, including ridiculous rules such as that any quotation of
more than two lines of a poem requires a copyright license.
Whether its the writers own publisher or the copyright holder, the instances of copyright overclaiming
are endless and seem downright silly until you realize the person being sued by the copyright holder really
has no choice. Money rules.
Now, from artnet, comes the latest example of a rich has-been using his a flimsy claim of copyright
infringement to squeeze a few more dollars out of an up-and-coming artist:
Perhaps no one was more excited by the long-awaited release of the Beach Boys unfinished
1966 album Smile than Erik den Breejen. After Smile came out last year, the young painter
(and lifelong Beach Boys fan) set to work on a series of paintings that transformed the lyrics
into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.
When the exhibition opened at Freight and Volume gallery in December (and was reviewed
in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist
Van Dyke Parks. Den Breejen had tracked down Parks manager, thinking that she might
share his artworks with his idol. A few days later, Den Breejen was met with a less than
enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks attorneys.
***
Instead of fighting back with lawyers, den Breejen and the gallery have approached Parks
himself to try to negotiate some kind of out-of-court agreement. Parks was already credited
in the exhibition s press release and in a booklet den Breejen distributed at the gallery, but
soon he could be considered a collaborator entitling him to a percentage of the proceeds.
(Van Dyke s manager did not respond to a request for comment.)
Until the two sides settle their differences, the gallery has put on hold at least two sales
inquiries for paintings containing the Smile lyrics.
638
Then again, this is nothing new from the Beach Boys. It somehow seems fitting therefore that the only
cut from Smile one can actually hear easily for free online is Heroes and Villiains, whose chorus goes
like this:
Heroes and villains/Just see what youve done./Heroes and villains/Just see what youve
done
[EMBED]
Mount Washington Railroad, New Hampshire (c. 1870) (2012-01-31 16:27)
GIF made with the NYPL Labs Stereogranimator
5.2
February
Theyre trying to make it illegal for you to respond to the imagery your bombarded
with every day. (2012-02-01 23:11)
From NEWSgrist comes the sad news of Mike Kelleys death, along with a very interesting interview of
Kelley conducted by Glenn OBrien. An excerpt:
GO:?Ive remembered an event and thought Id said something when actually it was somebody else who said it or vice versa. I think, especially in writing, so much of plagiarism is
completely unconscious.
MK:?I have experienced that often. Ive stolen ideas, and people have stolen from me. Im
all for it. Thats the way things get created. Thats how culture grows. When theres an
amazing idea, you take it and run with it. I mean, youre going to take it someplace else than
the source anyway. There are a lot of artists whove worked at that specifically. One of my
favorite writers is the Comte de Lautramont, and much of his writing is constructed from
plagiarized texts. Who would claim that his work is no different than what he plagiarized?
GO:?One thing that the Internet seems to be doing is eroding the idea of copyright and
639
originality. People are just taking bits of things and using them in a very free way.
MK:?Thats great. And the corporate entertainment industry is trying to stop it from happening. Think about it: Andy Warhol could not have a career now. He would be sued every
two seconds.
GO:?Its given a lot of work to the lawyers.
MK:?Copyright laws are terrible for culture. Its illegal to respond to the imagery that surrounds you; youre bombarded every minute of the day with mass-media sludge. It should be
the opposite: Everybody should have to respond to it. This is what should be taught in the
public school system.
William S. Burroughs should be a major role model: All students should be given tape
recorders and cameras to constantly record the gray veil that surrounds them, so that they
can recognize that its even there-and manipulate it. Most people are not aware of the white
noise they exist in. Tape recording and photography allowed people to become aware of what
was invisible to them for the first time. Were surrounded by invisibility. Thats what I think
art can do-make things visible.
Girl Talk: If they passed out paints on the street for free, Im sure thered be a lot
more painters. (2012-02-02 11:00)
[EMBED]
640
Roy Lichtenstein, Image Duplicator (1963) (2012-02-04 14:35)
Distasteful, insensitive, insulting, and totally unacceptable?

TECTED EXPRESSION! (2012-02-08 23:17)
Sure, but its PRO-
Is it vitally important to protect the freedom of expression, which enjoys by far its widest scope under
U.S. law? Well, heres a little story about what can happen when people (not governments) decide they
dont like whats being expressed:
In 2006, the Danish tabloid Ekstra Bladet investigated the links between the Icelandic
bank Kaupthing and tax havens. Kaupthings managers did not like what they read, but
failed to persuade the Danish press council that the paper had done anything wrong. The
bank sued for libel in London instead. The newspaper pulled the articles and apologised because English lawyers ran up costs that were beyond its editors worst nightmares - 1 million,
and that was before a case had gone to court.
Kaupthing went for the paper in England not just because it wanted to kill the original
story, but because it also wanted to deter others from spreading the idea that Iceland was
not a safe place for investors. The English legal profession obliged. Newspapers lawyers
thought once, twice, one hundred times before authorising critical stories. A few months
later Kaupthing collapsed - along with the other entrepreneurial, go-ahead Icelandic banks and British depositors lost 3.5 billion. By allowing libel tourists to fly to London and use
our repressive laws, the English legal profession had also stopped the British investors from
learning of the danger in investing in the countrys banks.
641
You no more hear writers and broadcasters admit that they are frightened of investigating investment banks than you hear them admit that they are frightened of challenging the
founding myths of Islam. We cannot puncture our own myth that we are fearless seekers
after truth, even though, if we honestly owned up to our limitations, we might force society
to confront the fact that modern censorship does not conform to old models. It is a mistake
to think of repression as repression by the state alone. In much of the world it still is, but in
Britain, America and most of continental Europe the age of globalisation has done its work,
and it is privatised rather than state forces that threaten freedom of speech.
This passion for freedom of expression is part of what drives my passion on behalf of appropriation artists
and against Patrick Cariou in his copyright infringement case against Richard Prince. One of Carious
purported motivations in bringing the lawsuit was to vindicate the offense taken by the Rastafari (the
subjects of Carious photographs that were appropriated by Prince) at Princes images. As the Caribbean
Rastafari Organization put it in its Statement of Protest and Demand for Cancellation of Princes exhibit:
[Princes exhibit] is egregiously disrespectful of Rastafari culture and peoples, and reflects
racial stereotyping that is morally offensive and that has no place in the 21st century. So-called
artistic license cannot permit the trivialization and abuse of a people still marginalized by race
and gender to evoke images of subordination and exploitation of Africans and women. This is a
legacy of the European colonial enterprise that continues to have a negative impact on African
peoples in the Americas and it is a legacy that the Rastafari have resisted and condemned for
nearly 80 years. Rastafari at the vanguard of Pan-African Liberation ceaselessly demanding
justice based on truth and right, find the Canal Zone exhibit distasteful, insensitive, insulting
and totally unacceptable.
I am willing to accept entirely the characterization of Princes work as distasteful, insensitive, insulting,
and totally unacceptable and still believe that under U.S. law those qualities supply no basis on which
to suppress his work, either directly on behalf of the Rastafari or because such work is less deserving than
any other sort of expression of First Amendment protection (and therefore deference even in the face of
a copyright claim). For god sake, the First Amendment protects the rights of Nazis to march through a
community full of Holocaust survivors. In comparison to the offense even the most sensitive of Rastafari
must take at Richard Princes Canal Zone series of photographs, it surely pales at the injury suffered
by a Holocaust survivor required to tolerate the march and rally of a group of Nazis outside his home in
the middle of Illinois. See also the ACLU on the Nazis rightto march in Skokie, Illinois.
642
Nor is it stretching a point to compare the use of British libel laws to shut down truthful reporting about
dishonest financial dealings to the use of copyright infringement lawsuits to censor speech wed be better
off hearing. Ive written more than once about private interests shutting down critical speech they dont
like.
I cannot emphasize this point enough. Cariou himself is not the only artist who believes appropriation
art is illegitimate. Artists who believe that are undercutting their own souls. As Judge Alex Kozinski
once wrote in dissenting from the 9th Circuit s refusal to rehear en banc a case in which Vanna White
successfully sued Samsung for violating her right of publicity by appropriating her identity, :
[I]t may seem unfair that much of the fruit of a creator s labor may be used by others
without compensation. But this is not some unforeseen byproduct of our intellectual property
system; it is the system s very essence. Intellectual property law assures authors the right to
their original expression, but encourages others to build freely on the ideas that underlie it.
This result is neither unfair nor unfortunate: It is the means by which intellectual property
law advances the progress of science and art. We give authors certain exclusive rights, but in
exchange we get a richer public domain. The majority ignores this wise teaching, and all of
us are the poorer for it.
White v. Samsung Electronics America, Inc., 989 F.2d 1512, 20 (1993).
643
BlogBook v0.4,
LATEX 2 & GNU/Linux.
http://www.blogbooker.com
Edited: February 23, 2012

Ruling Imagination: Law, Art &amp; Creativity, by Peter Friedman

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From Blog to Book.

Introducing Ruling Imagination: Law and Creativity (2008-08-04 13:21) . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-05 08:59) . . . . . . . . . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-06 00:12) . . . . . . . . . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-07 09:10) . . . . . . . . . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-07 23:43) . . . . . . . . . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-11 12:20) . . . . . . . . . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-11 23:38) . . . . . . . . . . . . . . . .

Ruling Imagination: Law and Creativity (2008-08-13 07:17) . . . . . . . . . . . . . . . .

Law and Creativity/Is creativity individual or collective?

Ruling Imagination: Law and Creativity (2008-08-15 08:05) . . . . . . . . . . . . . . . .

Creativity and Civilization Require Constraints (2008-08-18 00:10) . . . . . . . . . . . .

The 100 Most Creative Moments in U.S. Law? (2008-08-19 10:25) . . . . . . . . . . . .

Lawyers need to be effective, not necessarily original (2008-08-20 10:59) . . . . . . . . .

Effective Storytelling, McDonalds Coffee, and the Law (2008-08-21 05:06) . . . . . . . .

To catch a thief (2008-08-25 08:58) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Gerry Spence on being a lawyer and a human being. (2008-08-26 00:18) . . . . . . . . .

Support the troops! (2008-08-28 07:12)

Barney Smith not Smith Barney (2008-08-29 00:24) . . . . . . . . . . . . . . . . . . . .

Segways. (2008-09-02 17:23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

With whom would you prefer a lager? (2008-09-02 21:31) . . . . . . . . . . . . . . . . .

Propaganda (2008-09-05 13:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sarah Barracuda? Not if Heart can help it. (2008-09-06 13:11) . . . . . . . . . . . . . .

Buying art and then refusing to pay (2008-09-08 04:49) . . . . . . . . . . . . . . . . . .

Negativelands positivity (2008-09-09 06:07) . . . . . . . . . . . . . . . . . . . . . . . . .

What is creativity in law? (2008-09-11 07:38) . . . . . . . . . . . . . . . . . . . . . . . .

September 11, 1973 (2008-09-11 21:15) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Looking at Guantanamo (2008-09-15 02:23) . . . . . . . . . . . . . . . . . . . . . . . . .

We are all cultural magpies. (2008-09-16 11:18) . . . . . . . . . . . . . . . . . . . . . . .

An appeal in the Harry Potter Lexicon case? (2008-09-17 08:57) . . . . . . . . . . . . .

Foreign law and legal argument (2008-09-18 09:15) . . . . . . . . . . . . . . . . . . . . .

Whats so wrong about looking to foreign law? (2008-09-19 09:08) . . . . . . . . . . . .

Look for new combinations of old things (2008-09-23 11:50) . . . . . . . . . . . . . . . .

A new breed of lawyers (2008-09-26 07:21) . . . . . . . . . . . . . . . . . . . . . . . . . .

Anatomy of a Murder, or How to Coach a Witness (2008-09-29 12:15) . . . . . . . . . .

If a corporation is a person, why is an animal no more than a chair? (2008-09-30 00:34)

1984 Redux? (2008-10-06 12:28) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

What is obscene? (2008-10-07 10:09) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The life of the law is a life of art (2008-10-08 11:00) . . . . . . . . . . . . . . . . . . . .

How do we explain human beings? (2008-10-10 08:23) . . . . . . . . . . . . . . . . . . .

Lessig on Copyright Law: 5 ways to improve it. (2008-10-13 11:44) . . . . . . . . . . . .

The rhetoric of naming. (2008-10-14 14:45) . . . . . . . . . . . . . . . . . . . . . . . . .

The Chief Justice wishes he were Dashiell Hammet. (2008-10-16 09:27) . . . . . . . . .

Creative law enforcement in difficult times (2008-10-20 23:11) . . . . . . . . . . . . . .

The KLF knew bankers were pushers (2008-10-21 12:47) . . . . . . . . . . . . . . . . . .

ACORN ACORN ACORN ACORN ACORN ACORN ACORN (2008-10-21 23:35) . . .

If you scam a villain, maybe youre a hero. (2008-10-22 12:46)

Litigants gone wild (2008-10-24 00:34) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A Legal Guide for Bloggers (2008-10-24 18:58) . . . . . . . . . . . . . . . . . . . . . . .

Lawyers who want to be writers. (2008-10-28 07:14) . . . . . . . . . . . . . . . . . . . .

The most innovative lawyers in the U.K. (2008-10-28 09:11) . . . . . . . . . . . . . . . .

20 Civil Liberties Laws Every American Should Know (2008-10-29 06:45) . . . . . . . .

One word can make all the difference. (2008-10-30 10:08) . . . . . . . . . . . . . . . . .

Fred Baron, R.I.P. (2008-10-31 05:37) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Friday Nights Music Break: Graham Nashs Chicago (2008-10-31 16:23) . . . . . . . .

Is Google no longer the Copy-Lefts white knight? (2008-11-01 00:00) . . . . . . . . . .

Proceedings of the Old Bailey, 1674-1913 (2008-11-03 07:07) . . . . . . . . . . . . . . . .

This Land is Your Land (2008-11-04 00:13) . . . . . . . . . . . . . . . . . . . . . . . . .

Do we really want to treat artists like shoplifters? (2008-11-07 08:49) . . . . . . . . . . .

Its Veterans Day (2008-11-11 11:55) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dont be fooled again. (2008-11-12 11:23) . . . . . . . . . . . . . . . . . . . . . . . . . .

I confess: Im complicit in a corrupt and dishonest system. (2008-11-13 00:17) . . . . .

Speaking of Alaskas Governor . . . (2008-11-13 00:17) . . . . . . . . . . . . . . . . . . .

What, indeed, is fair use? (2008-11-13 08:36) . . . . . . . . . . . . . . . . . . . . . . . .

Ruling Imagination: Law, Art & Creativity, by Peter Friedman

Ruling Imagination: Law, Art & Creativity, by Peter Friedman