More on Money

Take less risk and earn less; you’ll be richer in the end.

“Risk is a part of God’s 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 can’t be forced to, even if he loses a lawsuit and is under court order to pay.  You can’t squeeze water from a stone.  There is thus always a risk you will not be able to collect what you’re 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 today’s 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 can’t get by merely spouting jargon like “credit-default swaps” and cliches like the one that’s been going around that even the Wall Street gurus couldn’t 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 don’t understand what they’re being told or that they’re 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 AIG’s 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 Madoff’s 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 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 world’s 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 government’s 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 didn’t think there was any risk — AIG’s 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 you’re invested in something secure (like Treasury Bonds backed by the U.S.), you know it is almost certain you’ll be paid the principal and interest the bond promises.  If, on the other hand, you’re 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.

I’m one of those who’s expected an economic disaster (though not of these proportions) for several 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 didn’t 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.

What’s the lesson? If someone’s offering you a much higher return on an investment than you’re 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 they’re making out like gangbusters in those higher paying investments. Don’t buy snake oil.  It didn’t go out of circulation with the death of the Wild West.

Friday Night Music Club: Luna: Bonnie & Clyde

Wiki contract drafting – wow, I wish I’d thought of that.

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. We’re 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 we’ll consider—or the reason we won’t 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. We’ve 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, you’ll also have the ability to vote for or against proposed changes.

Shepard Fairey did not infringe AP’s copyright because AP could not have had a copyright in anything Shepard Fairey used in his Obama Hope poster.

I have discovered another reason Shepard Fairey did not commit copyright infringement when he stenciled AP’s 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 Toyota’s advertising. (My friend and former student Brian Wassom was lead 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 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).

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 Fairey’s original source (and it was neither AP nor the photographer who made that identification). In short, Fairey’s 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.

Fairey’s poster was not a copy of the photograph.  It used one element, the angle of Obama’s 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 painted a copy of the photograph, I’d agree that it was an infringement.  But he didn’t.  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 Kennedy’s assassination on film. In a challenge to the pictures’ copyrightability, the court rejected the defendant’s 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, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d 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 they’re 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 don’t have the resources to license an image.

The Wallflowers: Lawyers, Guns, and Money

U.S. Journalism is nothing but he says, she says

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 they’re 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 Fairey’s Obama Hope poster, while a lawyer thinks AP will prevail.

I’ve said before: I don’t even think it’s a close case.  Fairey will win. You can call me on it if it turns out I’m wrong.

Authors’ audio rights and the accelerating changes in technology

Roy Blount complains in today’s 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.

I’ve said it again and again.  With changes in technology, we’re going to have to change both our laws and our business models.  I don’t blame Blount for feeling ripped off by the Kindle’s 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.

Law Firms and Layoffs

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.

“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.”

Mark Twain: we are sewing machines re-weaving old threads.

Mark Twain on “originality”:

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 land’s 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..  

Do we really want to treat teenagers singing “Winter Wonderland” like shoplifters?

The Electronic Frontier Foundation suggests you contact them if something like this happens to you. I agree, but I really do think you shouldn’t be afraid in the first instance to file a counter-notification with YouTube asserting your right to have your video posted.  There’s 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, they’ll take down the video at issue.  If the person who’s video is taken down shows she has enough belief in her right to post the video, they’ll take a closer look and, if the video is fair use, repost it.  If the person who first posted the video doesn’t respond to the takedown notice, however, the lawyers figure that there’s been nothing lost in taking the video down  and that there’s no risk of any infringement action either.  What’s the downside for them?  Nothing.  So this is the way they behave.  Lawyers like to minimize risk.  That’s not going to change.

The Associated Press seems bent on waging an unwinnable war.

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 AP’s 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 AP’s online content (just ask the New York Times).

As Techdirt points out, all of these moves seem to be the result of the AP’s 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, they’re only going to keep making things worse.

The law firm of the future?

The Toronto Globe and Mail reports on Richard Susskind’s 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 laptop’s 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.

It’s 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 “Web-based service called Blue Flag that allowed clients to research regulation and compliance standards around 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.

Bob Marley: I Shot the Sheriff

Justice? (the remix)

Remix America, I salute you!

I am thrilled to have found Remix America¦America’s Digital Public Square. I’m no technical wiz. I’m always looking for easy ways to do technically difficult things. One thing I’ve 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. I’ve 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 I’m 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 community’s 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 I’ll be able to create a mashup that deserves to be posted, but, thanks to Remix America, that day is in sight. And I’m flattered beyond words that Erika Johansson, Producer and Program Coordinator for the site, paid me the compliment of writing to me that “we’ve 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 it’s 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  society’s 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 we’ve experienced a profound change in the material conditions that govern the way we produce, reproduce, and disseminate information. So the law governing the production, reproduction, and dissemination of information has to change — otherwise we’re stuck with the inevitable injustice that arises when you apply rules developed for one set of facts to an entirely different set of facts. There’s a revolution going on, but a lot of people don’t even recognize the revolution. And you can’t 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.

Are we not men of laws?

No.  We are, apparently, Devo.

I’m with Glenn Greenwald on this one. In today’s 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 can’t 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 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, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders. Didn’t 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. It’s just so basic.

Justice Roberts: I am the best qualified to do what I do.

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.

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 Roberts’s 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.”

I’m not sure I could disagree more strongly. As I’ve 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 don’t 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. I’ve 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?

Happy . . . er, Washington’s Birthday?

Under Federal Law, today is officially “Washington’s Birthday,” even though George Washington’s birthday is February 22. Today’s holiday popularly became known as “Presidents Day” when the celebration of Washington’s birthday was moved to the third Monday of February and began to commemorate both Washington and Lincoln’s birthdays. Approximately a dozen states declare the third Monday of February a state holiday named “Presidents Day” or “Washington and Lincoln’s Birthday,” while some states celebrate an entirely different day as “Presidents Day.”

Collage is art, not theft.

From Negativeland, whom I’ve 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 one’s 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 else’s 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 someone’s 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 material’s 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.