Barney Smith not Smith Barney

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.

Support the troops!

Here’s 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 didn’t 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.  UDM’s 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 wheelchair-accessible, 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

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)

It’s 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.

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 he’s 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 copyright’s 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 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.

Universal Music recently was, at least for the moment, slapped down in a particularly absurd instance of copyright overclaiming. Universal sought to remove Stephanie Lenz’s 29 second video of her son dancing to Prince’s “Let’s 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 Lenz’s 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 Lenz’s case — here’s the “offending” video:

Thus, it should be no surprise that U.S. Federal District Court Judge Jeremy Fogel rejected Universal’s argument that, before sending a takedown notice to YouTube, it did not need to even consider whether the presence of Prince’s “Let’s Go Crazy” in the video was a fair use . Accordingly, the judge refused to grant Universal’s motion to dismiss Lenz’s 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. That’s 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 seller’s right to resell promotional CDs that he buys from secondhand stores.”

Gerry Spence on being a lawyer and a human being.

Gerry Spence is as good a lawyer and compelling an advocate as I have ever witnessed. He now has a blog. If you’re interested in being an effective lawyer, it’s a must read. If you’re interested in how life really works, it’s just as important. I am pleased too that his views on certain matters are similar to mine. Here’s what he writes:

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.

To catch a thief

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 FBI’s 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.

Crow’s 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 Bureau’s 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 Christie’s and Sotheby’s. 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 “Art’s 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.”

Novelty alone is not creativity, whether in the legal strategy for the war on terror or the invention of the Segway

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 Administration’s legal strategy for the war on terror might have been radical, even unprecedented, but can hardly be called creative:

[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 Mayer’s 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.

I’m not merely ranting about a war in Iraq I’ve opposed since its inception, or of the fraudulent legal analysis that produced this Administration’s conclusions regarding what constitutes torture. I’m 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 doesn’t take a cognitive psychologist to recognize the differences between mere novelty and genuine creativity, but it’s 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? (That’s 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 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?

Effective Storytelling, McDonald’s Coffee, and the Law

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 don’t believe creativity arises, divinely inspired, from individual geniuses.

But creative lawyers know the patterns of effective stories, as I was reminded again the other day when I read Alexander Star’s review of Charles Tilly’s 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 McDonald’s Coffee Case, the inspiration for the Stella Awards, which “were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of McDonald’s 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 McDonald’s Coffee Case exemplifies the supposed idiocy of the personal injury system. The physical therapists know I’m a law professor. How can I blame them? Tilly’s pattern explains their reactions perfectly: they must think the following: (1) How bad could the injury have been? We’ve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could McDonald’s have known? Again, we’ve all spilled coffee on ourselves, and who among us have suffered burns meriting $2.9 million in damages? (3) McDonald’s 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, there’s 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. Lubieck’s case in this posti, from the True Stella Awards site) , viewed through Tilly’s 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. McDonald’s refused an offer to settle with her for $20,000 in medical costs.”

(2) Did McDonald’s know the injury was likely to happen?

From 1982 to 1992, McDonald’s coffee burned more than 700 people, usually slightly but sometimes seriously, resulting in some number of other claims and lawsuits.

(3) Did McDonald’s intend to create the likelihood of injury?

McDonald’s 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 McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s 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.

I’m not arguing that Ms. Liebeck’s 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.

Lawyers need to be effective, not necessarily original

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.

It’s simple reality (and good business): lawyers and judges cut and paste from one another’s 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 else’s 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 let’s 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.

The 100 Most Creative Moments in U.S. Law?

From the Law Librarian Blog:

Robert F. Blomquist’s (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 Blomquist’s 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 Carson’s Silent Spring (1962) and Charles Reich’s The Greening of America (1972) ranks higher than Richard Posner’s 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 Gore’s Earth in the Balance (1992) and An Inconvenient Truth (2006) do appear in the Top 100.

. . . what makes Blomquist’s article interesting is the project itself, the attempt to articulate America’s most creative legal moments to “energize and clarify our synoptic thinking 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 law’s creative moments might be better way to perform this sort of intellectual archeology.

Creativity and Civilization Require Constraints

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 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 Philosophy’s 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”?

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 child’s 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.

Ruling Imagination: Law and Creativity

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 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”?

Ruling Imagination: Law and Creativity/Is creativity individual or collective?

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 single-author 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.

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.

[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 law’s protection as such. See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author‘”.

Ruling Imagination: Law and Creativity

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 72^nd Street was full of art, he appears to have stolen most of it. The New York County Public Administrator’s Office, which handles the estates of people who die without wills, put the art up for auction through Christie’s and another auction house. But it was only after the buyer of one of the pieces looked into it’s provenance that he discovered it had been stolen. Experts at Christie’s 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. Kohn’s 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, there’s 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, don’t you? He did 500 pictures and there are 2,0000 of them in the United States.”

I’m sure this isn’t one of the paintings that ended up in Kohn’s collection:

Ruling Imagination: Law and Creativity

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.

Ruling Imagination: Law and Creativity

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

Ruling Imagination: Law and Creativity

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, non-infringing 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 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 video's 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.

Ruling Imagination: Law and Creativity

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.  It’s as if they simply think: it’s 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 Google’s 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 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 Mitgang’s 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 Mitgang’s Lincoln books.  I wish I could get in a room and ask him: Why are you doing this?  Do you really want your life’s work to disappear entirely from the sight of future researchers?

My sister, a lifelong writer, for years bristled at my views of copyright.  She’s come around.  The fact that the entire corpus of one genre she’s worked in for decades, the retelling of folk tales for children, is available online has, she’s 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 one’s work behind a fence, on the other hand, will only make it invisible.

I wonder what Herb Mitgang thinks of that?

Ruling Imagination: Law and Creativity

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 wasn’t a day he wasn’t 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 Google’s behalf. And that’s 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.

If Walt Disney Co. (NYSE: DIS) didn't still own the copyright to Mickey Mouse, Walt Disney (the artist, not the company) would never have had the incentive to create him, right?

Ruling Imagination: Law and Creativity

The Age of Collage and the RIAA

“The principle of collage is the central principle of all art in the twentieth century.”– Donald Barthelme (1931-1989)

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 “generally speaking, the use of any part of a song requires a license.”(emphasis added)

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.

Introducing “Ruling Imagination: Law and Creativity”

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.