Can we force a prisoner to be medicated in order to be competent enough to be executed?

Truly only Franz Kafka could do justice to some of the questions that arise in our justice system. In Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), the defendant argued that he could not be executed because he was not mentally competent and that he could not be forced to take medication to make him medically competent because to do so would make him eligible for execution and therefore could by no means be in his “best medical interest.” The 8th Circuit disagreed, requiring the question whether the medication to make the defendant competent  to be answered “without regard to whether there [was] a pending date of execution.” Id. at 1026. Both the death sentence and involuntary medication regime had been lawfully imposed. The defendant thus could no longer assert either a life interest nor a liberty interest.

Now, though, the North Carolina Criminal Law Blog suggests that more recent U.S. Supreme Court precedents “may collectively stand for the notion that the execution of an inmate who is competent only by virtue of forced medication might violate the Eighth Amendment’s evolving standards of decency.”

I find the suggestion encouraging, but I am skeptical. We seem loathe to find reasons not to execute people these days.

Thanksgiving for the American Dedication to the Common Good

I’m not quite sure why it is that so many of my students really believe that the signal trait of the U.S. is a radical individualism that doesn’t even blink at suggestions that something like, say, Social Security is “socialism,” but it certainly isn’t a firm grasp of history. The Pilgrims whom we celebrate tomorrow themselves promised in their Mayflower Compact that they were each dedicated to the good of the community and that their laws were to be those intended for the general good:

We whose names are underwritten . . . covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame such just and equal laws, ordinances, acts, constitutions and offices, from time to time as shall be thought most meet and convenient for the general good of the Colony: unto which we promise all due submission and obedience.

Happy Thanksgiving, to all, and to all for whom it isn’t, may we all strive to make next year’s better.

Trademark madness

From Legal Pad: “Sand Hill Advisors, the Palo Alto wealth management company, is suing Sand Hill Advisors, the commercial real estate company in Los Altos, for trademark infringement.” I am, apparently, one of the 3 people Legal Pad asserts did not know that “Sand Hill Road is the iconic stretch of pavement near which the sainted feet of venture capitalists tread daily to their places of work.” There was a time I would’ve known the signifiers that mattered to venture capitalists. I suspect I’m better off no longer knowing.

Apparently the wealth management company claims it’s been using the name since 1995 and that the real estate company is profiting off the value that the wealth management company has created in the name. There would be some merit in the claim if people really are using the real estate company because they think it’s somehow associated with the wealth management company, but that would seem to be a difficult set of facts to establish. Typically, a trademark cannot be enforced against someone using it in a different market because in doing so the alleged infringer typically is not capitalizing on value in the trademark created by the claimant.

In addition, the real estate company claims (it its motion to dismiss (pdf)), that the trademark claim is deficient because the wealth management company “doesn’t even have an enforceable service mark, since the government rejected a trademark application because the name was descriptive of a place.”

Legal Pad, though, is dead on in its prediction: “Sand Hill Advisors has it in the bag.”

But who will win the lawsuit filed by Mickey Mouse against Donald Duck?

The Amen Break: 40 years of remixing a drum break; but now ownership is being asserted over it (and not by the creators)

You can now use Google Scholar to find case law.

This is a terrific new innovation. Today, from Google:

Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity of “separate but equal” facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

Those naive little innocents may be a lot smarter than you, Mr. Prosecutor.

The range between online fluency and online ignorance is remarkable these days. It is largely, though certainly not entirely, generational. One example of this gap in fluency was the discovery by one of my more technically proficient students in a case we read in my Contracts course of ignorance regarding the technical implications of an online transaction. The ignorance, in my student’s opinion, undermined entirely the judge’s reasoning.

Ars Technica brings up another example, this one perhaps disclosing the naivety of a prosecutor:

Rodney Bradford, a 19-year-old Brooklyn resident, was arrested last month for allegedly robbing a man at gunpoint. This, in itself, was not a very newsworthy event—until his defense lawyer discovered that Bradford had made an update to his Facebook profile at the time of the robbery. Bradford had insisted that he was at his father’s Harlem apartment at the time, and that the update was made from there. When the district attorney verified the claims with Bradford’s father and stepmother and the IP information with Facebook, the charges against Bradford were dropped.

But, of course, “it’s obvious to everyone . . . that the Facebook posting could have been made by someone else, and there would be no way to truly verify who was sitting in front of the computer at the time.” As John Jay College of Criminal Justice law instructor Joseph Pollini points out, it might not be sufficient for the prosecutor to shrug off the possibility simply because the alibi is a teenager’s — teenagers likely know better than anyone how to construct such alibis (and that older people often fail to see through them):

Some of the brightest people on the Internet are teenagers. They know the Internet better than a lot of people. Why? Because they use it all the time.

Money or racism? Could the Dolans just do the right thing already? The courts won’t.

The Lanham Act, the federal law governing trademarks prohibits trademarks “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt. . . .” Nevertheless, the Supreme Court has declined to review a lower court decision (pdf download) in Pro Football, Inc. v. Harjo ruling that, even assuming the name of the Washington, D.C. football team, Redskins, is disparaging to Native Americans or brings them into contempt, the Redskins cannot be forced to give up their trademark rights. Why? Because, given the length of time that the Redskins have had the name without challenge and the delay in the plaintiffs bringing their claim, it would be unfair to deprive the football team of the profits to be made from selling goods bearing the Redskins name.

There are serious questions to be raised about the legal merits of the NFL’s position — among other points, the Lanham Act states that challenges to a trademark can come “at any time.” But my more serious question, to Daniel Snyder and to Larry Dolan, is this: why in the world would you want to make money off of a symbol so many people consider racist? Well, Larry Dolan’s answer is that he doesn’t see evidence that Chief Wahoo is racist.

It’s amazing how money can blind someone.

Fair Use, Fairy Tales, and Collage: more proof Girl Talk won’t be stopped

Professor Eric Faden of Bucknell University created this brilliant account of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms. The fact it has never been forced down is to me proof positive that legitimate, non-infringing fair use can consist entirely of copied and pasted copyrighted works. Which is proof positive to me that I am right in believing that Greg Gillis/Girl Talk  need not worry should he ever be sued for infringement of the copyright of any of the samples he uses.

I do think this video is deficient in one respect: it doesn’t sufficiently discuss the importance in the fair use analysis of the originality of the allegedly infringing work — it suggests parody, journalism, and criticism are legitimate, non-infringing uses of small parts of copyrighted works, but it doesn’t connect these individual examples of transformative work to the larger point: if the allegedly infringing work stands on its own — if it uses the copyrighted work to express something the copyrighted work doesn’t express to reach an audience for a different purpose than the copyrighted work’s audience comes to the copyrighted work for — then it is “transformative” and very, very likely not to be infringing. (If it is tranformative, it’s not going to have an impact on the market for the original or any of the original’s reasonably anticipated derivative uses.)

The funny thing is that the video doesn’t discuss the larger issues relating to the nature of the allegedly infringing work and how tranformative it is, but the video itself is entirely transformative:

Honor our veterans and don’t efface their experience with ideology: Freakonomics & the draft.

My understanding is that “Freakanomics” is the application of economic thinking that oversimplifies human behavior to the analysis of actions that economics typically doesn’t address. The thinking goes that if people are always left free to make choices for themselves about what to do for themselves, society as a whole will be best off.

When will this idiocy end? Isn’t there some recognition somewhere that individuals making decisions that are best for them might in the aggregate hurt everyone? And when is a person really free to make a decision one way or another about whether, say, he can go to law school or he should enlist in the armed forces?

It’s Veterans Day. It’s always been a special day in my family. My father was a soldier and POW in WWII. WWII was a difficult war with an outcome that was not certain until very near the end (and even then it took a new and horrific weapon to finally end it). The U.S. and the Soviet Union won it. My father didn’t get drafted, but he enlisted because he was about to be drafted. The U.S. military was a genuine citizen’s force. My father was changed forever by the experience — mostly for the better, but it was by no means an experience he wished me to undergo in the absence of a very good reason.

I cannot help but be humbled on Veterans Day.

But Steven Levitt is much too clever for all of that. He’d tell my dad that people like him who were forced into the military in WWII were the “wrong people”! Given Mr. Levitt’s brilliance, it’s a wonder we won WWII and haven’t won wars in Iraq and Afghanistan that we’ve now fought 2 and 4 years longer, respectively, than we fought WWII:

The idea that a draft presents a reasonable solution is completely backwards. First, it puts the “wrong” people in the military — people who are either uninterested in a military life, not well equipped for one, or who put a very high value on doing something else. From an economic perspective, those are all decent reasons for not wanting to be in the military. (I understand that there are other perspectives — for example, a sense of debt or duty to one’s country — but if a person feels that way, it will be factored into his or her interest in military life.)

One thing markets are good at is allocating people to tasks. They accomplish this through wages. As such, we should pay U.S. soldiers a fair wage to compensate them for the risks they take! A draft is essentially a large, very concentrated tax on those who are drafted. Economic theory tells us that is an extremely inefficient way to accomplish our goal.

When ideas replace the lessons of experience, we dishonor those who have undergone the experience.

Protecting an artist’s legacy: maximize the income from his works, or seek to embody his art? Moral rights and the successors to John Cage.

One of the more remarkable “copyright” fights has, literally, been over silence. The copyright issues are interesting, but I’m particularly interested in the insights provided by Lewis Hyde that I recently came across and the way they bear on a lawyer’s duty to pay as much or more attention to a client’s heart and soul as it is to pay attention to a client’s legal rights and remedies.

The new information comes from the Official Blog of the John Cage Trust, a wonderful new addition to the blogosphere brought by the “not-for-profit organization founded shortly after Cage’s death to support and nurture his legacy.” As American Masters explains, Cage was not merely one of the 20th Century’s most important composers; his work and thought extends to every creative field:

His sense that music was everywhere and could be made from anything brought a dynamic optimism to everything he did. While recognized as one of the most important composers of the century, John Cage’s true legacy extends far beyond the world of contemporary classical music. After him, no one could look at a painting, a book, or a person without wondering how they might sound if you listened closely.

Cage was particularly interested in investigating composition through chance procedures. Thus, it is not surprising that the homepage of JohnCage.org points right now to “Eddie Kohler’s beautiful application devoted to John Cage’s Indeterminacy: New Aspect of Form in Instrumental and Electronic Music.” According to Stereophile (quoted on Amazon.com), Cage composed Indeterminacy by reading “90 stories, his speed determined by the story’s length. In another room, beyond earshot of Cage, David Tudor, pianist and veteran Cage collaborator, performed miscellaneous selections from Cage’s Concert for Piano and Orchestra and played pre-recorded tape from Cage’s Fontana Mix. The resulting collaboration is an astounding piece of ‘music,’ and a fine introduction to the innovations of John Cage. ‘A wonderfully curious way to hear stories.’”

Perhaps Cage’s most well-known work is 4′33″. Solonmusic.net describes the piece’s first performance and the audience’s reaction (footnotes omitted):

The first performance of John Cage’s 4′33″ created a scandal. Written in 1952, it is Cage’s most notorious composition, his so-called “silent piece”. The piece consists of four minutes and thirty-three seconds in which the performer plays nothing. At the premiere some listeners were unaware that they had heard anything at all. It was first performed by the young pianist David Tudor at Woodstock, New York, on August 29, 1952, for an audience supporting the Benefit Artists Welfare Fund — an audience that supported contemporary art.

Tudor placed the hand-written score, which was in conventional notation with blank measures, on the piano and sat motionless as he used a stopwatch to measure the time of each movement. The score indicated three silent movements, each of a different length, but when added together totalled four minutes and thirty-three seconds. Tudor signaled its commencement by lowering the keyboard lid of the piano. The sound of the wind in the trees entered the first movement. After thirty seconds of no action, he raised the lid to signal the end of the first movement. It was then lowered for the second movement, during which raindrops pattered on the roof. The score was in several pages, so he turned the pages as time passed, yet playing nothing at all. The keyboard lid was raised and lowered again for the final movement, during which the audience whispered and muttered.

Cage said, “People began whispering to one another, and some people began to walk out. They didn’t laugh — they were just irritated when they realized nothing was going to happen, and they haven’t fogotten it 30 years later: they’re still angry.” Maverick Concert Hall, the site of the first performance, was ideal in allowing the sounds of the environment to enter, because the back of the hall was open to the surrounding forest. When Tudor finished, raising the keyboard lid and himself from the piano, the audience burst into an uproar — “infuriated and dismayed,” according to the reports. Even in the midst of an avant garde concert attended by modern artists, 4′33″ was considered “going too far.”

Laura Kuhn, the Cage Trust’s Executive Director, graciously points readers to a excerpts from a conversation between Nicholas Riddle, general manager of Peters Edition, which owns the copyrights in Cage’s works, and Hyde, the author of an eagerly awaited forthcoming book on the “cultural commons.”  The part of the exchange between Riddle and Hyde Ms. Kuhn has posted concerns the work that became the focus of one of the more notorious copyright lawsuits of all-time, brought by Peters Edition against Mike Batts, a British composer. In the course of producing the album Classical Graffiti for the The Planets, Batts inserted a one minute silence between two sections of the album that were in radically different styles. According to Riddle, Batts said, “”I thought for my own amusement it would be funny to call it something, so I called it A Minute’s Silence and credited it as track 13, and put my name as Batt/Cage, as a tongue-in-cheek dig at the John Cage piece.’”

Subsequently, Batts’ “record company forwarded the [album] to MCPS, which was handling the mechanical royalties for these CDs. They then identified Cage’s 4’33” as the work in question and started to pay out pro rata royalties to [Peters Edition] as Cage’s publisher.” After Batts’ “homage” became the subject of newspaper reports, Peters Edition “agreed to a run-off between the Batt piece (performed by The Planets) and the Cage piece, performed at the clarinet by our London firm’s Head of New Music, Marc Dooley.”

As Riddle notes, the press described the subsequent lawsuit brought against Batts by Peters Edition as a claim that “Batts stole his silence from Cage.” I can’t say that I didn’t have precisely that impression. Riddle explains the lawsuit to Hyde differently — since Batts attributed the 1 minute of silence to Cage, he was either earning royalties for Cage’s work or identifying something as Cage’s work that wasn’t. Either way, he’d owe Peters Edition money:

The claim was nothing to do with stealing silence from Cage. The issue was entirely that Batt identified this silence as having Cage authorship, leading to a presumption that he was quoting in some sense from 4’33”, and was so successful in doing so that the collecting society started to pay out mechanical royalties for it. There were really only two options here: either, the track really was intended as a quotation from 4’33” or some other unidentified Cage work, in which case mechanical royalties were due; or, he was misappropriating Cage’s name in the context of a musical work, and that also would not do. He, after all, was the one who claimed it was Cage in the first place. Was he passing off something else as being by Cage, or was the work actually Cage? Since performances of 4’33” could be said in some sense to be self-identified as such, it was really his call.

As Hyde recognizes in his response to Riddle, the claim that identification of the minute of silence as a work by Cage was a “misappropriation” of Cage’s name to give value to a work it would not have had without that attribution is founded in the concept of “moral rights,” which are (except in very narrow circumstances not applicable to the lawsuit against Batts) not recognized in U.S. copyright law. As Hyde very concisely describes an artist’s moral rights, “such rights include the right of attribution, the right to prevent false attribution, and the right of integrity.”

I can understand why if one were talking about a conventional musical composition Riddle is right — Batts would owe money either because he had earned royalties from the sale, without permission, of a work that Cage had composed or, under the doctrine of moral rights, he had made money from a work that presumably sold in part because it had been falsely attributed to Cage.  Nonetheless, I cannot get my head around the idea that 1 minute of silence is a quotation of 4 minutes and 33 seconds of silence or that the attribution wasn’t a perfectly legitimate parody of Cage’s work rather than an effort to extract money from listeners who would mistakenly think they were listening to Cage’s silence, not Batts’. Even in a realm of moral rights there must be room for parody.

Nonetheless, to the shock of many, Batts settled the lawsuit and paid an undisclosed sum of money to the John Cage Trust. Riddle admits he is not at liberty to discuss the details of the settlement and writes that he and Batts did not discuss the reasons Batts agreed to the financial settlement, but he suggest that his own belief is that Batts as an artist recognized a need to acknowledge the legitimacy of the publisher’s claims:

[M]y personal take on this is that it is important to remember that Mike Batt is also a composer and that a significant part of his income is from royalties earned on his existing works. The same applies to CDs of his music or the music of the bands he creates and promotes. He is heavily invested himself in the concept of intellectual property and its value. And rightly so, in my view.

Hyde doesn’t dispute the merits of Riddle’s explanation of the legal bases of the lawsuit, but he does raise (in a remarkably gentle and respectful way) another entirely different doubt he has about the wisdom of the lawsuit. Hyde points to Cage’s Buddhist beliefs and convictions that his art was not a projection of his personality. In fact, moral rights are grounded in the idea that an artist’s creations are in some way embodiments and extensions of the artist: one violates an artist’s moral rights if one violates a work’s “integrity” by, for example, defacing it, because defacement of the work is in some sense a defacement of the artist. To attribute to an artist a work that isn’t by the artist is, in turn, to violate the artist’s identity by identifying the artist with something that is not the artist; an artist’s genuine work, in contrast, is the artist.

But Cage did not believe his compositions embodied or otherwise constituted extensions into the world of his identity. As Hyde writes, Cage was not interested in chance as a means of revealing the personality. He even wrote, “Personality is a flimsy thing on which to build an art.” Instead,

Cage was after [Jacques] Monod’s ‘absolute newness’ of pure chance. He was not out to discover any hidden self, nor did he think chance operations would reveal any hidden, already-existing divine reality, as ancient diviners thought. ‘Composition is like writing a letter to a stranger,’ he once said. ‘I don’t hear things in my head, nor do I have inspiration ….’”

If Hyde is right, then pursuing a claim that Cage’s moral rights had been infringed by Batts would be to assert a claim Cage himself did not believe in. If Cage had understood that, would he have refused to assert the claim? I think there’s a good chance of that. Would you sue someone for doing something you thought was a perfectly legitimate thing to do even if someone told you that if you sued them you’d get money? It’s important to understand that a lawyer represents the client, not the client’s abstract legal rights. But when someone’s rights pass to another (whether by contract, by trust instrument, by will, or otherwise), the new owner of the rights may have his own idea of what is important to protect.

How much is that successor bound by the original right’s holder’s understanding and intentions? That is a very, very interesting and difficult question. Hyde is suggesting, I think, that Riddle and Peters Edition were really watching out for the concerns of Peters Edition and not for the concerns of John Cage as an artist, that Riddle might have done far more to preserve Cage’s legacy than he did by extracting some money from Batts for the John Cage Trust.

The source of innovation — as a lawyer, as a business person, or as a designer — is creative thinking.

One of the reasons I was willing and remain committed to writing about law and creativity here at Geniocity is the purpose of this site as Carolyn Jack, its founder, has made clear to me from the beginning: it’s intended to show how innovation works across professions and disciplines normally segregated from one another so that people in those disciplines and fields can learn from one another. Innovation requires a remarkably agile mind — a creative mind — and so anyone wanting to innovate should look to the thinking of creative people no matter where they find them. Businesses should look to artists. Artists should look to game designers. Game designers should look to lawyers. Lawyers should look to fiction writers . . .

Again: no matter what you do — law, business, education, etc. — you should pursue innovation by seeking ideas from people whose job it is to innovate. As Fast Company reports, that’s also precisely the advice Roger Martin gives to businesses:

[T]he dean of the Rotman School of Management at the University of Toronto is traveling the country, throwing down the gauntlet to companies who hope to analyze and strategize their way out of a recession by bringing in armies of management consultants. You’ll get what you pay for, he warns, and it won’t be innovation. “The business world is tired of having armies of analysts descend on their companies,” he says. “You can’t send a 28-year-old with a calculator to solve your problems.”

The problem, says Martin, author of a new book, The Design of Business: Why Design Thinking is the Next Competitive Advantage, is that corporations have pushed analytical thinking so far that it’s unproductive. “No idea in the world has been proved in advance with inductive or deductive reasoning,” he says.

The answer? Bring in the folks whose job it is to imagine the future, and who are experts in intuitive thinking.

As Martin points out, even scientific progress starts with hypotheses; it doesn’t merely apply the known. Which, interestingly, is precisely the point evolutionary biologist Olivia Judson made in the New York Times this week:

One of my favorite things to do is to take a set of facts and use them to imagine how the world might work. In writing about some of these ideas, my aim is not to be correct — how can I be, when the answer isn’t known? — but to be thought-provoking, to ask questions, to make people wonder.

[S]cience is usually presented as a body of knowledge — facts to be memorized, equations to be solved, concepts to be understood, discoveries to be applauded. But this approach can give students two misleading impressions.

One is that science is about what we know. One colleague told me that when he was studying science at school, the relentless focus on the known gave him the impression that almost everything had already been discovered. But in fact, science — as the physicist Richard Feynman once wrote — creates an “expanding frontier of ignorance,” where most discoveries lead to more questions. (This frontier — this peering into the unknown — is what I especially like to write about.) Moreover, insofar as science is a body of knowledge, that body is provisional: much of what we thought we knew in the past has turned out to be incomplete, or plain wrong.

The second misconception that comes from this “facts, facts, facts” method of teaching science is the impression that scientific discovery progresses as an orderly, logical “creep”; that each new discovery points more or less unambiguously to the next. But in reality, while some scientific work does involve the plodding, brick-by-brick accumulation of evidence, much of it requires leaps of imagination and daring speculation. (This raises the interesting question of when speculation is more likely to generate productive lines of enquiry than deductive creep. I don’t know the answer — I’d have to speculate.)

Being effective at anything requires innovation to address an ever changing world. It’s true in law. My students arrive in law school wanting to be told the answers law provides. I hope by the time they leave that what they’ve learned are not answers but, rather, ways to creatively reach answers to questions no one can anticipate they will face.

In other words, the qualities required by effective lawyers are the same qualities  – as Hartmut Esslinger, the founder of frog design, tells Guy Kawasaki — required by effective designers.  Both great designers and great lawyers lawyers have an enormous depth and breadth of knowledge, an ability to connect that knowledge to human lives and human hearts, desire, and persistence:

The artistic talent required is more of an enabler at the end of rational and emotional analysis as well as strategic conceptualization. Therefore, it is vital to learn and study as much as possible especially about business, technology and human nature. In the end, there are flavors in design which are more esthetic—see New York Times “Style Magazine”—but design is only relevant when it improves human lives by appealing both to the mind and the heart. Finally, a young person with the right talents needs to have infinite desire and never give up. I apply a simple test with young students: smash a teapot into pieces and then hand out the glue. Those who rebuild the teapot won’t make it, those who create phantasy animals and spaceships will.

So next time you are looking to innovate (and you always should be), look to creative people to help you do it.

Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

When is a copy an original?

Behind all the shouting about Shepard Fairey and the Obama Hope poster, there is, as I’ve emphasized again and again, a real failure to contend with our conceptions of creativity and originality. Hollywood, of course, is stuck in a rut of remakes so deep that I’m seeing remakes of films I’ve already seen as an adult. There isn’t much originality there. But then you look at something seemingly so simply as Douglas Gordon’s 24 Hour Psycho (1993), a super slowed-down version of Alfred Hitchcock’s 1960 film Psycho, and you have to wonder whether it isn’t a whole lot more original then the coming remake of A Nightmare on Elm Street. Gordon explains his film as follows:

“24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation… it wasn’t a straightforward case of abduction. The original work is a masterpiece in its own right, and I’ve always loved to watch it. … I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me…”