People have always remixed their cultural artifacts; the internet has made them publishers.

Rene Kita has a terrific post on copyright law and “remix culture.” His point is that we’ve always engaged in remixing existing copyrighted works circulating in our culture, but the internet has transformed these perfectly typical activities into “published” works:

There’s the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitt’s face? Lawyers at your door. Insert ‘poops’ into that Britney Spears song? Lawyers again. Lose your house paying your defence lawyer.

You see, lawyers have this fictional creature known as The Consumer. That’s all of us, but stripped of any urge or ability to get creative. And then there is that other mythical monster called The Artist, who creates works from scratch – or gets hauled into courts for theft. Neither of these phantasms has anything to do with how human culture actually works.

Kita concludes that it is this misfit between the law and normal human activity that underlies the anger people feel at the tyrannical assertion of copyright:

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry – unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

Perhaps I do accept that there should be a way for creative artists to make a living with their craft, but if it comes at the cost of turning the rest of humanity into passive consumers, I say it is not worth it. We need a completely different way of showing our appreciation to artists.

Does online writing produce better writers? IMHO, it can, but hasn’t yet to any great degree.

In the Chronicle of Higher Education, Josh Keller asks: does the explosion of online writing via social networking sites mean that we’re developing a better generation of writers?

The long and the short of it is that no one knows. Students are writing a lot more, and to audiences about whom they care. On the other hand, Facebook, Twitter, and blogs do not exactly seem to promote the kind of disciplined analysis that most good writing constitutes:

Some scholars say that this new writing is more engaged and more connected to an audience, and that colleges should encourage students to bring lessons from that writing into the classroom. Others argue that tweets and blog posts enforce bad writing habits and have little relevance to the kind of sustained, focused argument that academic work demands.

The debate seems to boil down to whether more writing produces better writing. One researcher states, “People write more now than ever. In order to interact on the Web, you have to write.” But writing, on the one hand, for Facebook and, on the other,  to produce an analytic essay or a legal brief, is writing for entirely different purposes. Sometimes I wonder if the differences are like driving to a Friday night party and driving in the Indy 500 — skill at one does not necessarily translate into skill in the other. As one writing professor quoted in the Chronicle of Higher Education article points out,

[H]e spends more of his time correcting, not integrating, the writing habits that students pick up outside of class. The students in his English courses often turn in papers that are “stylistically impoverished,” and the Internet is partly to blame, he says. Writing for one’s peers online, he says, encourages the kind of quick, unfocused thought that results in a scarcity of coherent sentences and a limited vocabulary.

My own views on the effects of online writing on professional writing are mixed — it hasn’t been the benefit idealists hope for, but it’s an outstanding tool that, properly used, could be a tremendous benefit to producing a new generation of excellent writers.

On the one hand, I have encountered again and again in the past couple of years student efforts at professional writing that are so stylistically inappropriate as to make me cringe. I recently read, for example, an analysis of the jury system that read entirely like a People Magazine article, full of superficial quips and an endless series of references to examples obvious to everyone – the principal point of reference was the O.J. Simpson trial (which, incidentally, I consider an example of atrocious lawyering on the part of the prosecutors, not a failure of the jury system).

On the other hand, the internet is here, and we better get used to it, even if we are training lawyers or political analysts. Students write  a lot on social networking sites. As the article points out, “Students in [one] study ‘almost always’ had more enthusiasm for the writing they were doing outside of class than for their academic work . . . .” Moreover, online writing is “self-directed,” is “often used to connect with peers” and usually is aimed at a “broader audience” than is professional writing. One of the most interesting points to me as a legal writer is that online writing is “also often associated with accomplishing an immediate, concrete goal, such as organizing a group of people or accomplishing a political end . . . .”

These are all characteristics that quite plainly can be used to produce better professional writers even if they have not yet been used effectively to this end. I have struggled to exploit student enthusiasm for online writing. Two years ago, I created a class wiki directed at creating a brief writing check list. I did not consider the effort terribly successful. One year ago, however, I created (as the Chronicle of Higher Education noticed) a class blog to explore issues regarding copyright and fair use in connection with a legal brief the students were assigned to write. While the blog became almost entirely the product of my own work rather than that of my students, it was a huge success in producing better work product. The students were engaged in and argued about the blog, and that engagement and passion produced work that was far more thoughtful and disciplined than anything I could have imagined without the blog.

So does Web 2.0 produce better writers? If you think it does so merely because it makes people write more, no. But it is a tool that, properly employed, sure can help.

Don’t “friend” judges!

I write again and again about how changing technologies clash with law based on old technologies, but this is a particularly appalling example. In North Carolina, Judge B. Carleton Terry, Jr., who was presiding over a custody dispute, became a Facebook friend with Charles A. Schieck, an attorney for the father of the child whose custody was the subject of the dispute. As the Public Reprimand issued by the North Carolina Judicial Standards (pdf) recounts, before the matter was resolved, the Judge checked Schieck’s Facebook account and noted that Schieck had posted a question about what he would have to prove to prevail in the custody dispute. Then,

Judge Terry posted on his “Facebook” account [that] he had “two good parents to choose from” and [that he] feels that he will be back in court,” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”.

Our adversary system is founded on there being an adversary. Communications between one party and the judge without the presence of the other party (“ex parte” communications in the jargon of the law) are, therefore, forbidden (except under exceptional circumstances). I remember in law school standing with my clinical supervisor in the doorway of a courthouse in Flint, Michigan, where we’d just attended a hearing for a client I was representing. It was pouring rain, we didn’t have an umbrella, and we’d decided to wait out the storm in the shelter of the doorway. A minute later the judge we’d just appeared in front of walked out, and stood next to us, smiling and saying hello. My supervisor grabbed my arm, pulled me out into the rain, and walked with me to her car. I asked what was going on, and she explained: “We can’t talk to the judge!” I got it. Getting soaked to the skin in the only suit I owned was better than risking an ex parte communication with the judge.

Judge Terry also did research online on the mom in the custody dispute without telling the parties.

Don’t befriend judges on Facebook!

Prohibition doesn’t work!

Back from Amsterdam (in Chicago, waiting for a flight to Cleveland), and wondering along with Bob Herbert when we’re going to give up our “war on drugs.” It never did seem to make a lot of sense to me to deal with what it seems isprimarily a medical problem as one to be solved through the criminal justice system. I thought we’d learned better from our experience with Prohibition. As Herbert writes, “The stakes are huge, the uncertainties great, and there’s a genuine risk that liberalizing drug laws might lead to an increase in use and in addiction. But the evidence suggests that such a risk is small.” And, after all, what we’ve been doing through most of my life has been a colossal failure:

This year marks the 40th anniversary of President Richard Nixon’s start of the war on drugs, and it now appears that drugs have won.

“We’ve spent a trillion dollars prosecuting the war on drugs,” Norm Stamper, a former police chief of Seattle, told me. “What do we have to show for it? Drugs are more readily available, at lower prices and higher levels of potency. It’s a dismal failure.”

I don’t think J.D. Salinger should own Holden Caulfield. But I think Mickey Mouse belongs to all of the world too, so what do I know?

One must ask: should J.D. Salinger have the exlusive right to profit commercially from stories that include Holden Caulfield? He certainly has the right to block publication of his own letters. The author of a letter owns the copyright in the letter’s contents. But he doesn’t own the letter. So when Joyce Maynard, who was 18 when the 52 year old Salinger started a relationship with her, put up for auction the letters Salinger had sold her from that time. there was quite a hulabaloo. And since the auction was being conducted through Sotheby’s, as Joyce Carole Oates recounted, there was “not only a public auction but also a public exhibit of the private letter preceding the auction.” As Oates wrote, the situation might be troubling, and it’s certainly one fertile for lawyers:

One might argue reasonably that such a public exhibit constitutes ”publication,” for doesn’t it violate the writer’s rights over his or her material, assuming that these rights have been protected by the law? The complications are endless, a battlefield rife with spoils for ambitious lawyers.

But he wrote the letters to Salinger, and what about that exactly gives him sole say over whatever happens to them, as Oates asked:

Though Joyce Maynard has been the object of much incensed, self-righteous criticism, primarily from admirers of the reclusive Salinger, her decision to sell his letters is her own business, like her decision to write about her own life. Why is one ”life” more sacrosanct than another? In fact, we might be sympathetic to J. D. Salinger’s increasingly futile efforts to safeguard his precious privacy, as we might be sympathetic to anyone’s efforts, but that he happens to be a writer with a reputation is irrelevant.

And I can’t say I’m very sympathetic to Salinger’s efforts to maintain control over Holden Caulfield. He’s an iconic character. It’s difficult to live through adolescence in the U.S. without feeling his influence. He has as much life to an American of my age as did JFK, maybe more. Why should Salinger alone control his future. I know the difference between a book about Holden Caulfied by Salinger and one by someone else. But that’s not to say someone else writing about Holden Caulfield wouldn’t have a lot to say J.D. Salinger might never be able to say.

Listening (not) to Pandora in Amsterdam

Dear Pandora Visitor,

We are deeply, deeply sorry to say that due to licensing constraints, we can no longer allow access to Pandora for listeners located outside of the U.S. We will continue to work diligently to realize the vision of a truly global Pandora, but for the time being we are required to restrict its use. We are very sad to have to do this, but there is no other alternative.

We believe that you are in Netherlands (your IP address appears to be 213.46.155.181). If you believe we have made a mistake, we apologize and ask that you please contact us at pandora-support@pandora.com

If you are a paid subscriber, please contact us at pandora-support@pandora.com and we will issue a pro-rated refund to the credit card you used to sign up. If you have been using Pandora, we will keep a record of your existing stations and bookmarked artists and songs, so that when we are able to launch in your country, they will be waiting for you.

We will be notifying listeners as licensing agreements are established in individual countries. If you would like to be notified by email when Pandora is available in your country, please enter your email address below. The pace of global licensing is hard to predict, but we have the ultimate goal of being able to offer our service everywhere.

We share your disappointment and greatly appreciate your understanding.

J.D. Salinger may be a phony.

Don’t forget you read it here first: J.D. Salinger’s effort to stop the publication of a sequel to Catcher in the Rye on the grounds it infringes his copyright in the original novel is no sure thing either way. On the one hand, Holden Caulfield is very much his creation, and it seems the market Salinger has created by means of that creation might be considered his exclusive domain under copyright. But, then again, as copyright lawyer Marc Reiner said , the sequel “may qualify as a parody in the court’s eyes, as the ‘sequel’ puts the main character as an old man and may show a ‘transformative’ quality to the original-to what extent the book in question transforms the original work can affect whether it is seen as infringement.”

As I explained, this argument is founded principally upon the case in which the copyright owners of Gone with the Wind sued the writer of The Wind Done Gone. The court determined that The Wind Done Gone made fair use of the copyrighted characters and stories Gone with the Wind because “TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War.”

Now I don’t think you have to rebut, destroy, and explode the original to constitute commentary constituting fair use upon the original. Nor is it easy for me to imagine a sequel that does not comment upon the original. And isn’t Holden Caulfield now such a cultural icon that he belongs to all of us, not just to J.D. Salinger?

But that’s going too far. I don’t think I could produce “Holden Caulfield” playing cards or action figures without J.D. Salinger’s consent. But if you can use Scarlett O’Hara in a sequel to Gone with the Wind that uses Gone with the Wind to make its own points, why can’t you use a Holden Caulfield nearing 80 to comment on Catcher in the Rye?

What real biking culture looks like.

As I wrote yesterday, the fact bicycling is the best and most popular way for Amsterdamers to get around their own city is one of the greatest pleasures I take in living here, even for the brief times I’ve been able to each of the last 3 years. It shouldn’t be surprising, therefore, that Amsterdam is leading the world in pursuing green urban planning. But for green Americans, the reality may not be exactly what they would conceive. Not only, as I wrote yesterday, do you ride a cheap, single-speed, fat tired, rusty and old bike and buy and use locks heavier than your backpack and more expensive than the bike itself, but you don’t wear a helmet, you carry people — often in the plural, and often of very tender ages — on whatever protrusion they fit on. And they, of course, don’t wear helmets either. You ride at any hour of the day or night, and you don’t hesitate to speak on your cell phone while you’re riding.

It’s the honest truth from one who is here. And if you don’t believe me, you can check out “82 pictures of bicycles taken during 73 minutes on 9/12/06 in Amsterdam, Netherlands.”

Bicycling is, by the way, the most energy efficient means of transportation, more efficient even than walking.

The Greening of Amsterdam

One of the joys of living in Amsterdam is the opportunity to bike everywhere and at any time. The city is built for and entirely operates around the predominance of bicycles as a means of transportation. It’s not U.S. bicycling, with expensive bikes and helmets. You ride one-speed junker bikes that no one wants to steal, but the city is small and flat, so you don’t care much.  But Amsterdam wants only to become greener and more energy efficient:

The City of Amsterdam has selected Accenture to help implement its ‘Amsterdam Smart City’ program and create the European Union’s first ‘intelligent city.’ The purpose of the Amsterdam Smart City program is to take a comprehensive and coordinated approach to developing and implementing sustainable and economically viable projects that help the city reduce its carbon footprint and meet the European Union’s 2020 emissions and energy reduction targets.

And Amsterdam, apparently, is on the cutting edge of energy efficiency in urban planning. According to Business Week, “unlike cities that could take decades to upgrade their infrastructure, Amsterdam aims to complete its first-round investments by 2012. That makes it one of the first and most ambitious adopters of the smart city concept, attracting attention from policymakers worldwide hoping to glean lessons from the green experiment.” Just last week, on Utrechtsraat, a major shopping avenue in the center of the Dutch capital not far from where I am living, electric trucks have begun to pick up the trash, and the electronic displays on the local bus and tram stops are powered by small solar panels. “Elsewhere, 500 households will pilot an energy-saving system from IBM and Cisco aimed at cutting electricity costs. An additional 728 homes will have access to financing from Dutch banks ING and to buy everything from energy-saving light bulbs to ultra-efficient roof insulation.”

Liberally construing potato chips.

Britain’s Supreme Court of Judicature has concluded that Proctor & Gamble owes $160 million in taxes becase Pringles are either “potato chips” or “similar products made from the potato, or from potato flour.” The court reached its conclusion because its “overall impression” of Pringles was that they are sufficiently similar to potato chips to be considered a “similar product.”  As the New York Times explains.

Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” – or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”

What constitutes “good output” for a law school, and how do you measure it?

The ABA Journal reports that the part of the ABA that accredits law schools is due to adopt sweeping changes that will radically change the ways it evaluates the quality of the education individual law schools deliver. Most significantly, the ABA will “move away from evaluating law schools on the basis of criteria that measure ‘input’-such things as faculty size, budget and physical plant. Instead, the Legal Education Section would evaluate law schools more heavily on the basis of ‘outcome’ measures. The essential difference is that outcome measures would focus on what students actually take away from their educational experience at a particular law school rather than what the school teaches, and how . . . .”

There is one HUGE question, however, still to be resolved: “Speaking on Friday’s panel, [committee vice chair Margaret Martin] Barry and her fellow committee members said the greatest challenge is to determine the best ways to measure outcome.” 

I’ve got a suggestion on where they should look: Back in March, as I wrote,  the New York Times reported that professors at the University of California, Berkeley, have studied what makes lawyers (not law students or law professors) effective and “have come up with a test that they say is better at predicting success in” practicing law than is the LSAT.  The study concluded, as I’ve long been convinced, that “LSAT scores . . . ‘were not particularly useful’ in predicting lawyer effectiveness’. . .”  What does the new test consider factors that contribute to lawyerly effectiveness?

“[T]he ability to write, manage stress, listen, research the law and solve problems.”

When the ABA starts testing law school graduates on those abilities I’ll be convinced the ABA genuinely is measuring “outcomes.” Somehow, though, I suspect that they’ll focus on instead on salaries, clerkships, and professorships, outcomes determined to a significant degree by people with vested interests in the status quo.

Is Holden Caulfield still only J.D. Salinger’s character?

J.D. Salinger recently filed a lawsuit (complaint (pdf)) seeking to block the publication of 60 Years Later: Coming through the Rye, an unathorized sequel to Catcher in the Rye, on the grounds it infringes Salinger’s copyright in the novel and in Holden Caulfield, the “narrator and essence of that novel.”

It’s an interesting case.  In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001), the owners of the copyright to Gone With the Wind sued the publisher that owned the rights toThe Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  The court’s conclusion was that TWDG was a protected parody of GWTW because one of its principal purposes was to critique the worldview advanced  by GWTW:

TWDG is more than an abstract, pure f ictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW. Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. In the world of GWTW, the white characters comprise a noble aristocracy whose idyllic existence is upset only by the intrusion of Yankee soldiers, and, eventually, by the liberation of the black slaves. Through her characters as well as through direct narration, Mitchell describes how both blacks and whites were purportedly better off in the days of slavery: “The more I see of emancipation the more criminal I think it is. It’s just ruined the darkies,” says Scarlett O’Hara.GWTW at 639. Free blacks are described as “creatures of small intelligence . . . [l]ike monkeys or small children turned loose among treasured objects whose value is beyond their comprehension, they ran wild – either from perverse pleasure in destruction or simply because of their ignorance.” Id. at 654. Blacks elected to the legislature are described as spending “most of their time eating goobers and easing their unaccustomed feet into and out of new shoes.” Id. at 904.

It seems that any sequel is bound to comment on the original in one way or another. Does that mean any sequel is a non-infringing fair use of the original work? I doubt it, but where would the line go between a sequel sufficiently critical of the original and a sequel that merely exploits the value the author created in the original?

Faking it in Amsterdam

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

To explore these questions, Morris writes about Han van Meegeren, “arguably the most successful art forger of all time.” Van Meegeren, “a painter and art dealer living in Amsterdam was arrested for collaboration with the Third Reich. He was accused among other things of having sold a Vermeer to Reichsmarshal Hermann Göring – essentially of having plundered the patrimony of his homeland for his own benefit and the benefit of the Nazis.” Van Meegeren, however, claimed he had forged the Vermeer, as well as several others. As Morris concludes:

Han van Meegeren forged 11 Vermeers, a Frans Hals, a couple of de Hoochs and a Terborch. But . . . Van Meegeren’s greatest forgery was not any of his paintings. It was his biography. It was his success in convincing Joseph Piller, the Jewish agent of the Dutch Resistance who arrested him, and eventually the rest of the world that he was a folk-hero – a gifted artist who conned Göring – not a Nazi-sympathizer or collaborator. As such, forgery is similar to sleight of hand. You misdirect attention, emphasize certain details and suppress others. 

Tulips and Weed

So now I’m in Amsterdam, getting ready for my first class tomorrow, and still recovering from jet lag. The weather helps considerably. Clear blue skies and not a bit of humidity, hot in the sun and cool in the shade. They say exposure to sunlight helps reset one’s circadian rhythms. I’m hoping so.

Invariably when Amsterdam and law come up together in conversations in the States, it’s in a conversation about drugs and/or prostitution. I suppose those are subject worth delving into, but they’re not terribly important ones when it comes to comparing two cultures through their law and legal systems. Or, rather, they’re symptomatic, not central. There is a social libertarianism in Amsterdam openly dismissive of religious moralism to a degree that would be politically suicidal in conventional U.S. political conversation. But I think that social angle is just one of many. Social libertarianism is one thing. Economic libertarianism is something else entirely, and I think I can explore the ways the Dutch seem to both be adept at Western capitalist enterprise (they did, after all, virtually create international banking) and at the same time to maintain successful socialized systems of education and health care financed by a high tax rate. There are ways, I think, the Dutch both respect and fear the power of capitalist markets because of a longer history of and memory for their successes and their failures. Who could forget the Dutch Tulip Craze?