Off to Holland I go . . .

I’m off to Amsterdam Thursday to teach U.S. Contract Law to 22 brilliant Dutch students at the University of Amsterdam. It’s the third consecutive year I have had the pleasure to do so. Who knew that Ruth Bader Ginsburg taught at UvA too?

The G.L.U., Superpower of the 21st Century

With all the talk out of Texas about secession, I’ve been thinking. The Great Lakes contain 20% of the world’s fresh water. In the undeveloped world, fresh clean water is perhaps the greatest need, but there’s no doubt that even in the fastest growing areas of the U.S. water is not only in short supply; there seems no answer to the problem.

So here’s my idea: the states and provinces bordering the Great Lakes should secede from the U.S. and Canada, form their own country (the Great Lakes Union), and exert exclusive control over the water in the Great Lakes. In other words, we’d “go OPEC” with respect to water. The rest of the country is ready to let our economies go to hell. When is the last time you heard a politician outside the Midwest talk about the importance of saving the economies of Ohio and Michigan? Well, we’ve got the most valuable resource of all. Let’s see what they say as the deserts spread.

What in God’s name is wrong with same sex marriage?

What in God’s name is wrong with same sex marriage? I truly cannot comprehend it, and the failure to recognize it in most of the country has led to genuine pain and hardship to families who should not have to experience that discrimination in the U.S.A.

The case for allowing same sex marriage was made quite well by the Supreme Court of  California last year, in the decision California citizens felt so threatened by they just had to pass Proposition 8. I quote below from it at some length. Page numbers reference the pages in the pdf copy of the opinion:

At 7: [T]he substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own – and, if the couple chooses, to raise children within that family – constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

At 11: [T]the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes – the interest in retaining the traditional and well-established definition of marriage - cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

At 11-12:  First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in  Some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

47, n. 27: If a comprehensive domestic partnership law had not been enacted in California, and if plaintiffs had brought a constitutional challenge to the California marriage statutes and our court had concluded that those statutes were unconstitutional because they did not afford same-sex couples rights and benefits equal to those available to opposite-sex couples under the marriage statutes, we might well have further concluded – as other state courts have determined in similar situations – that the appropriate disposition would be to direct the Legislature to provide equal treatment to same-sex couples, leaving to the Legislature, in the first instance, the decision whether to provide such treatment by a revision of the marriage statutes or by the enactment of a comprehensive domestic partnership or civil union law. (See Baker v. State, supra, 744 A.2d 864, 886-889; Lewis v. Harris, supra, 908 A.2d 196, 221-223.)

Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits. Thus, in this proceeding, we are faced only with the narrower question that logically ensues: whether, in light of the enactment of California’s domestic partnership legislation, the current California statutory scheme is constitutional.

57: As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual. (footnote omitted)

 At 66: In light of the fundamental nature of the substantive rights embodied in the right to marry – and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society – the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. (footnote omitted).

At 69-70: In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one’s choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution – in declaring that ”[a]ll people . . . have [the] inalienable right[] [of] privacy” (art. I, § 1) and that no person may be deprived of “liberty” without due process of law (art. I, § 7) – do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.

At 79: Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage. (footnote omitted)

 At 103: [W]we conclude that in the present context, affording same-sex couples access oly to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.

At 105: [W]e conclude that the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

At 106: In the present case, the question before us is whether the state has a constitutionally compelling interest in reserving the designation of marriage only for opposite-sex couples and excluding same-sex couples from access to that designation, and whether this statutory restriction is necessary to serve a compelling state interest. In their briefing before this court, various defendants have advanced different contentions in support of the current statutes, and we discuss each of these arguments.

109: We disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-ofpowers doctrine precludes a court from determining that constitutional question.

On the contrary, under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

At 111: By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review.

At 113: Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute – having been adopted through the initiative process – represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints thatthe people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

At 116-119: After carefully evaluating the pertinent considerations in the present case, we conclude that the state interest in limiting the designation of marriage exclusively to opposite-sex couples, and in excluding same-sex couples from access to that designation, cannot properly be considered a compelling state interest for equal protection purposes. To begin with, the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples. Extending access to the designation of marriage to same sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children. As Chief Judge Kaye of the New York Court of Appeals succinctly observed in her dissenting opinion in Hernandez v. Robles, supra, 855 N.E.2d 1, 30 (dis. opn. of Kaye, C.J.): “There are enough marriage licenses to go around for everyone.” Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.) (f00tnote omitted)

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional. sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples – while providing only a novel, alternative institution for same-sex couples – likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.

Forge ahead, and you’ll find a way, if not the one you were looking for.

My sister, Amy Friedman, is the author of author of 2 memoirs, 100s of essays and stories, and a forthcoming book on her marriage to a man in prison, an aspect of which was featured not long ago in the New York Times About Love column. In an interview with Write on! Online, she covers a lot of ground, but one of my favorite lines, and the one I can relate to most after the nearly 10 months I’ve been writing this blog daily (or as near thereto as I could’ve dreamed possible), is this:

But I love writing . . .; I love the fact that I don’t know where I’m going, that the story sometimes feels so elusive, that what I’m trying to say usually slips away and I discover I’m saying something altogether different from what I thought when I began. 

The argument against Proposition 8 — result due in a few hours.

Today, the California Supreme Court announces its decision on Proposition 8, the voter initiative passed in November that outlawed same-sex marriage. In May 2008, the court, held that prohibiting same-sex marriages violated the Equal Protection Clause in California’s Constitution.

The briefs filed in the case are all available here.

The essence of the argument advanced against proposition 8, as I understand it, is as follows: the state constitution’s requirement of equal protection requires that same-sex couples be permitted to marry. The state Supreme Court is the final arbiter of the meaning of the state consitution. Thus, a voter initiative that by a mere majority declares that same-sex couples are not permitted to marry usurps the constitutional role of the state supreme court in interpreting the state’s equal protection clause. It’s an interesting argument — if the voters want someone other than the Supreme Court to interpret the state constitution, they must revise the constitution to alter the role of the Supreme Court. Leaving interpretation of constitutions, however, has been firmly embedded in U.S. jurisprudence since Marbury v. Madison, in which, of course, Chief Justice John Marshall stated:

It is emphatically the province and duty of the judicial department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each.

Thus, the argument in California goes, the electorate usurped the role of the state Supreme Court in voting by a majority that the equal protection clause does not allow same sex marriage. Here, in summary, is the way the argument was articulated by the Petitioners in their Petition for Writ of Mandate (pdf):

13. Proposition 8 alters Article 1 of the California Constitution by adding “SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.” By its terms, Proposition 8 purports to strip a constitutionally protected minority group of the fundamental right to marry even though that right was previously conferred by the equal protection clause of the California Constitution.

14. Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause. A transfer of the final authority to enforce the equal protection clause from the judiciary to a political majority can only occur by revision. The Constitution, however, has never been revised to remove final autohority to enforce the equal protection clause from the judiciary.

Memorial Day

Normandy, France

Let’s hear it for the KLF!

The KLF became heroes of mine last year when I used one of their songs as the basis of a fictional lawsuit that itself became the inspiration for my blog What is Fair Use?  The song was “K Cera Cera,” a medley, performed by the Red Army Choir, of “Que Sera Sera and Happy Xmas (the War is Over). The blog contains not only all the relevant documents to the law school assignment (briefs pertaining to the fictional lawsuit), but also several months worth of posts regarding issues pertaining to copyright, fair use, and the particular artists involved in the case. I became a big fan of Jimmy Cauty and William Drummond; their insights into the intersecting worlds of art and commerce are as sharp as any I’ve seen. I’ve often, in fact, referred back to them in this blog, but you can begin to get a taste of their sensibilities here. Their insights into the banking industry, published back in 1988, are as on the money a critique of the financial mess we’ve found ourselves in as any I’d read prior t0 2008.

But they started their careers as pop music sensations in the U.K., and I don’t know mamy people my age or younger who don’t remember Doctorin’ the Tardis:

“Doctorin’ the Tardis” is predominantly a mash-up of the Doctor Who theme music and Gary Glitter’s “Rock and Roll (Part Two)”, with sparse vocals inspired by The Daleks and Harry Enfield’s “Loadsamoney” character. Also credited on the record was “Ford Timelord”, Cauty’s 1968 Ford Galaxie American police car (claimed to have been used in the film Superman IV filmed in the UK). Drummond and Cauty declared that the car had spoken to them, giving its name as Ford Timelord, and advising the duo to become “The Timelords”.

Shepard Fairey, dishonest Fascist? I don’t think so.

Another artist is upset with Shepard Fairey. 20 years ago Ed Nachtrieb took the photo on the left of an armed Chinese soldier at the onset of martial law in Beijing in 1989.  Fairey’s reworking of the image, conveying its own message, is on the right.

Nachtrieb criticizes Fairey for stripping the image of its context, which was the first appearance on the Beijing streets of lethal weapons and, thus, a the first sign of what would happen in Tiananmen Square. Nachtrieb explains that “[i]mages stripped of their context but retaining  strong emotional elements are  hallmarks of fascist and Soviet propaganda styles,” “drains them of meaning,” and is “dishonest.” And, of course,  he thinks “that Mr Fairey [should] credit those whos materials he uses to ‘inspire’ him.”

Nachtrieb has a point: Fairey’s image plainly does strip Nachtrieb’s original image of its meanings. But it is precisely the fact Fairey’s image does transform the meaning of Nachtrieb’s that makes it fair use of Nachtrieb’s photograph (credit or no credit). But is Fairey’s image “dishonest” or, even worse, “fascist”?

Fairey’s image actually does seem a pretty interesting combination of Soviet Socialist Realism and symbols evoking Yippie demonstrations from the ’60s, hardly the type of thing Socialist Realist painters would have depicted. In short, it’s neither dishonest nor fascistic. It’s just not what Nachtrieb wants done with his image, but, as I’ve made clear again and again, artists don’t have the right to control the uses of their images if those uses are non-infringing. Nachtrieb doesn’t even accuse Fairey of copyright infringment, and rightfully so — it’s pretty damn clear Fairey’s use of Nachtrieb’s photo is fair use.

ADDENDUM: In the comments, Banksy (or someone impersonating him) writes: “You’re an idiot.” I’m not sure precisely which aspect of my idiocy he is referring to, particularly with respect to my post. I doubt he considers Fairey’s piece an infringing one. Perhaps my superficial art criticism and the association between Socialist Realism and Yippie symbolism offended him. I do know that one of his pieces, “War and Peace,” does not seem entirely out of place in this post:

Is Nesson crazy? Statuory damages need not relate to actual damages.

As I explained the other day, the merits of Professor Charles Nesson’s argument that peer-to-peer file music file sharing constitutes fair use entirely escapes me (and, apparently, others). But Nesson seems to be making another argument as well — that if the plaintiff cannot show actual damages it is not entitled to the alternative remedy under the copyright statute, up to $150,000 in statutory damages per infringement:

He will argue that statutory damages only apply to commercial infringers.  The law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent. If the two remedies are equivalent, and if “individual noncommercial copying results in no provable actual harm to the copyright harm holder,” then actual damages would be zero-and so would statutory damages.  

As he also has been quoted:

It would be a bizarre statute indeed that offered two completely unrelated remedies,” he writes, “one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month. 

It doesn’t strike me as so bizarre. Statutory damages often serve the purpose of providing a remedy for a proven violation of law where the lawmakers have concluded it would be too burdensome to also require proof of damages, particularly in cases in which damages might be difficult to prove. It does not seem bizarre to believe that Congress in enacting the Copyright Act concluded that situations precisely like the one Nesson is defending — blatant individual infringements that cumulatively could have an impact on an industry but the individual effects of which are difficult to ascertain — should be subject to some liability. In addition, even if the statutory remedy bears no relationship to actual damage it can still serve a legitimate function: deterrence. And, indeed, my very brief research on the question has demonstrated the courts are quite aware of these arguments. In Pret-a-Printee, Ltd. v. Allton Knitting Mills, 218 U.S.P.Q. 150 (S.D.N.Y. 1982), the court stated:

An award of statutory damages is appropriate where the measure of actual damages is difficult to ascertain. See Peter Pan Fabrics v. Jobela Fabrics, Inc., 329 F.2d 194, 196 (2d Cir. 1964). Moreover, “[t]he broad discretionary power given the courts to make such an award serves the dual purposes of the Copyright Act: to compensate copyright owners and to provide a deterrent to would-be infringers.” Lauratex Textiles Corp. v. Allton Knitting Mills, 519 F. Supp. 730, 733 (S.D.N.Y. 1981), citing Lottie Joplin Thomas Trust v. Crown Publishers, 592 F.2d 651 (2d Cir. 1978).

So where is Nesson coming from. I confess: I can’t tell. Perhaps he believe damages divorced from damage somehow violate the Copyright Clause of the Constitution because they discourage rather than encourage innovation. Such arguments, however, have failed in far more compelling circumstances.

ADDENDMUM: “In effect, subject to the limits the statute places on maximum and minimum awards, this gives to the court or the jury the power to simply pick a sum of money to be awarded as damages instead of any other monetary remedies without any proof of monetary loss by the copyright owner.” Howard B. Abrams, 2 The Law of Copyright § 17:11 (2008) (emphasis added).

ADDENDUM 2: The question may be more complicated than I originally believed, and a statutory damage award entirely divorced from any relationship to damages might raise due process concerns. So the court stated in Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574, 587-588 (6th Cir.), cert. denied, 128 S. Ct. 2429, 171 L. Ed. 2d 229 (2007). Nonetheless, the court in Zemba affirmed an award of statutory damages that were 44 times greater than actual damages and emphasized the extreme deference appellate courts must give in reviewing trial courts’ awards:

This review, however, is extraordinarily deferential — even more so than in cases applying abuse-of-discretion review. Douglas v. Cunningham, 294 U.S. 207, 210, 55 S. Ct. 365, 79 L. Ed. 862 (1935) (Congress’s purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages “take[] the matter out of the ordinary rule with respect to abuse of discretion”); Broad. Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487 (7th Cir. 1995)   (interpreting the modern Copyright Act and noting “that the standard for reviewing an award of statutory damages within the allowed range is even more deferential than abuse of discretion”).

In Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278, 282 (D. Conn. 2008)(citations omitted), the court, without addressing the question, observed that “[th]e defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive . . . .”

How online video creators can make remixes, mashups, and other common online video genres.

American University Professors Pat Aufderheide and Peter Jaszi, have produced the video below in their capacity as principals in American University’s Center for Social Media and AU’s Program on Information Justice and Intellectual Property. The video was produced in collaboration with Stanford Law School’s Fair Use Project, and explains how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within copyright law.  (Professor Jaszi happens to be a favorite scholar of mine.)

Nightmare clients – get rid of them before the nightmares become real.

I wouldn’t want to represent Courtney Love if there is truth in one-tenth of the allegations of what Ms. Love has said and written about the plaintiff-fashion designer who apparently had the temerity to charge Ms. Love for the dresses designed for her. The First Amended Complaint filed by the Plaintiff is available from J.D. Supra. I would quote from it, but there is so much, and much of it is so over the top that it just makes me feel sad. 

The thought of representing Courtney Love (and risking what happened to the clothing designer she had pursued and then turned on) reminds me of another posting by J.D. Supra: “10 Actions Every Lawyer Should Take in 2009,” and, in particular, number 4:

Eliminate your worst clients. You know which ones I mean – the ones that don’t listen to you, don’t respect you and/or don’t pay you. You’re not obligated to work for free, and clients that don’t take your advice, don’t cooperate, aren’t honest with you or don’t pay you create conflicts and take you away from your best clients. Change your retainer agreement if you have to, make a motion to the court to be relieved if you must, but get out of client relationships that suck you dry. 

The advice reminds me of the maxim of a law professor I once knew: a lawyer is not a bus; you need not take on everyone who gets on board. Choose, and retain, your clients wisely.

Profits in online radio?

I’m always arguing with my father over the fall of the old media — he doesn’t understand how its necessary functions (like reporting on governmental and corporate corruption) will be replaced, especially how they will be paid for. Honestly, I don’t have the answer. I’m left with my old “new technology requires new business models” mantra. So I’m happy to see that Wired News is reporting that Pandora, one of my very favorite things produced by the new media, is expecting to turn a profit next year. Unsurprisingly, perhaps, Pandora started including audio ads in addition to banners recently. It is also encouraging to note that is optimistic it will work out a deal to resolve those royalty payments that once threatened to drive Pandora out of business.

Jesse Ventura on torture.

Captain Kirk reads the Constitution.

Is peer-to-peer music downloading fair use? I doubt it.

In defending an individual against liability for downloading music via peer-to-peer networks, Harvard Law Professor Charles Nesson apparently is going to argue that his client’s activities constitute fair use of the copyrighted music. His arguments don’t seem terribly persuasive to his peers, and I confess that it is not clear to me at all what his argument is. Ars Technica even asks, “Is Harvard Law professor Charlie Nesson crazy?”

Nesson seems likely to argue that there is no remedy for non-commercial music downloading in the absence of proof of actual economic harm. If that is the basis of his argument for fair use, at least it makes some sense (even if it seems unlikely to prevail). 

More effective, perhaps, will be Nesson’s efforts to convince the court that a jury should decide his client’s fate. As he explains:

 Fair use is recognized as a common law, perhaps a constitutional concept, not defined by but merely recognized and continued by the statute (Sony, Harper); that the statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and the question is a jury issue. 

But I’m not sure he’s entirely right about that. Both an influential treatise (4-13 Nimmer on Copyright Section 13.05, n. 17) and the courts suggest that whether certain acts constitute fair use is a “mixed question of law and fact.” A question of law is one a judge determines; a question of fact is one a jury determines. A mixed question of law and fact is one in which a jury determines what happened, and the judge determines the legal effect of those facts. See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986)  I’m not sure how Nesson is going to persuade jurors who might be sympathetic to his client to find the historical facts he needs to convince the court his client’s music downloading was fair use.

The Law is always evolving. What is Kosher, and who decides?

The “chief” rabbi of the Torah and Land Institute in Israel has reversed the ruling he made last week and now has determined that strawberries are kosher despite the presence of tiny insects and insect parts on them:

During a class he gave last Thursday at the hesder yeshiva in Karnei Shomron, Rabbi Amar explained that “the Torah prohibits the consumption of insects that can be seen with the naked eye, and does not ban eating bugs that can only be spotted through a microscope.” 

The term “Chief Rabbi,” incidentally, has no significance beyond the particular group of Jews who choose to give it significance. The Torah and Land Institute has its followers, but plainly it is not the final word on what is and what is not kosher. No one is.

The decisions of the Israeli High Court of Justice, on the other hand, are binding on all Israelis. And last week that court ruled that the state cannot discriminate against Reform Jewish institutions in connection with conversions.

The Case of the Twittering Witness

From Law.com: “Miami-Dade Circuit Judge Scott Silverman declared a mistrial in a civil fraud case Wednesday after being informed a witness on the stand in his courtroom had engaged in text-messaging while the judge spoke with attorneys during a sidebar conference.” Techdirt is right in suggesting that the intersection of the “new media” with our old institutions is going to raise more and more problems like this one:

It seems as though very few people have really thought through the implications of the many channels of communication that every individual now has with them, and how that changes common assumptions about how people can and will communicate, even in “constrained” areas. 

Woody Allen settles for $5 million for commercial use of his image.

New York State is unusual in giving people a right to deny the use of their image (or voice or name) for commercial purposes). Under Section 51 of New York’s Civil Rights Law, anyone “whose name, portrait, picture or voice is used within this state for advertising purposes or for the purpose of trade without the written consent first obtained” may sue to enjoin the use and for damages.

Thus, the only real legal issue in Woody Allen’s lawsuit against a clothing company that used an image of him from “Annie Hall” without on billboards without permission was the amount of damages Allen would be able to provehe had suffered. Thus, though Allen’s complaint sought $10 million, he settled today for $5 million. There were, however, other issues that would have come up. As the New York Times reports,  ”a trial that could have dredged up potentially salacious details about him and his wife, Soon-Yi Previn.” Nonethless, the parties continued their dispute in the court of public opinion after the settlement:

“Threats and press leaks by American Apparel designed to smear me did not work, and a scheme to call a long list of witnesses who had absolutely nothing to do with the case was also disallowed by the court,” Mr. Allen said outside the federal courthouse, reading from a statement.

“I suspect this dose of legal reality led to their 11th-hour settlement,” he added.

Mr. Charney [founder and CEO of the defendant], who spoke to reporters afterward, said he did not regret using the image of Mr. Allen dressed as a Hasidic Jew, and that his insurance company had forced him to settle.

“I’m not sorry for expressing myself,” he said. “I wish him the best with his career, and I am looking forward to his next film.”

Mr. Charney seemed to argue that his First Amendment rights to free speech justified his conduct, and he’s right that if he has a constitutional right to do what he did the state statute could not prevent him from doing so. But it seems likely to me the state has a legitimate interest in protecting its citizens against the commercial exploitation of their own identities, and therefore the free speech rights in connection with commercial use of one’s identity are likely  similar to the fair use rights of copyrighted works. Since the image is unmistakeably Mr. Allen’s, since the use is as commercial as they come, and since Allen likely could have proven some financial harm, it seems to me unlikely any First Amendment argument could have helped the defendant in this case.

To catch a thief . . . crowdsourcing?

BostonHerald.com’s Blog is using “crowdsourcing” in an effort to solve the 1990 theft of 13 paintings and other artworks from the Isabella Stewart Gardner Museum. Now, the blog reports, a “twitter.com user named GardnerTheft has been posting links to our articles and others.  Check out the info-tweets at twitter.com’s web site (search: GardnerTheft).  With just a click you’ll see frequently updated news, insights, ideas and blog posts.”

As the Boston Herald Blog explains, its effort to capture the collective effort of interested internet users was inspired by the success of an earlier online effort in connection with the case.

When medical illustrator Nicole C. Wolf produced her digital paintings to update the renderings of the two Gardner thieves, the public got the best images of the robbers ever produced.  Wolf’s work, done in anonymous collaboration with one of the Gardner guards on duty during the theft, has led to dozens of new leads for the museum’s investigator, Anthony M. Amore.

With those tips in mind, it’s time to provide more information about the two thieves’ physical descriptions. Each detail is aimed at jarring the memories of people who know the behavior patterns of many in the criminal underworld.

In 2005, the Boston Globe ran its own detailed review of what was known about the Gardner art heist, summing up the events as follows:

Museum officials say they take heart in the fact that some masterworks stolen from other museums have surfaced after many years. But like the investigators, the museum’s leaders are baffled by how little progress has been made since thieves entered the museum in the early morning hours of March 18, 1990, as St. Patrick’s Day festivities in the city wound down.

They are baffled especially because the thieves, though bold and clever, were hardly meticulous professionals. They took no great pains to avoid being seen, nor were they careful to avoid damaging the masterpieces they were stealing.

They posed as Boston police officers, and even though they flashed badges and wore insignias, their long coats were not part of any official uniform. The Globe located several passersby who remember seeing them sitting quietly in a red hatchback near the museum’s side entrance, perhaps waiting for a St. Patrick’s Day party in a nearby apartment building to break up before making their move. And their disguises left their faces uncovered, giving the guards a good look at them. 

Once inside, the thieves ripped a Vermeer, three Rembrandts — including his only seascape — five Degas drawings, and a Manet from their wall placements, smashing them out of their frames and leaving shards of glass and remnants of canvas behind. The thieves took some of the museum’s greatest treasures but left behind some even more valuable objects.

When they were done for the night, they made two trips to their car with the loot. Then they vanished.

Where the paintings were, empty frames now fill the museum’s walls.

Creative Math from Craig Damrauer

New Math collects Craig Damrauer’s creative equations, many relating quite directly to the issues regarding creativity I address here.

Hat tip to Matt Homan.