There may after all be useful methods to develop effective analogies to help guide your legal research!

I did at least acknowledge in Friday’s post about the difficulties of research that my words originated at an hour when I felt at “rock bottom.” The essence of my “advice” was not terribly helpful as an educational matter except perhaps in emphasizing to students the enormity of the task and the difficulty of the work they are taking on when they do legal research. I wrote:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are there any methods that are helpful in developing the analogies that are so central to legal argument?

So I did what I should have done in the first place if I were going to speak with any authority on research — I did some research, and, in fact, I found that there may be methods that can help students develop meaningful and useful analogies they can subsequently use to guide their research with increased effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.

One can, of course, make a lists of items and ask students which ones belongs and which one doesn’t. You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing so, the students could recognize that the group of 4 could be classified according to a number of different criteria, and each criterion would exclude a person the other criteria would not. There are 3 women. There are 3 politicians. There are 3 people whose first names begin with the letter O.

This type of exercise does help students recognize that analogies are based on the similarities between different situations, and that of course is a necessary first step in teaching argument based on analogy.

The problem with this type of exercise, however, is that experiments show that it leads subjects to focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies people use to solve real world problems “tend to be based on deep structural features rather than superficial features.” Id. at 4.

Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition.  In one experiment, for example, subjects were presented with the question of whether Canada should run a public deficit or instead balance its national budget. One group was asked to generate analogies that would be helpful to a group arguing for a balanced budget, while the other was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.

The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure analogies from domains not typically associated with the target problem. Thus, instead of focusing on matters typically associated with debates over national budgets — economics, politics, and personal finance (if I can balance my checkbook, why can’t the government?!) — the analogies were  drawn “from domains as varied as natural resources, eating, illness, and domestic tasks.” Id. at 9. Further studies have shown similar results and have suggested that individuals generating analogies alone are more effective than groups at finding deep structural similarities in situations that are not superficially similar. Id. at 13.

So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:

Sit down alone, without resort to any sources other than your own imagination, and try to think of as many situations that are similar to the problem or issue you are addressing in ways that support the position you are taking on the issue. Don’t feel constrained by case law you may have happened to have read or what you feel lawyers are supposed to do. Use your imagination, and draw on whatever  you can. You’ll end up with a number of analogies. Then you can go to secondary sources, identify cases that involve those types of situations, and perhaps in those cases you’ll find arguments and analogies useful in the case you are trying to solve. You might even find very good ones no one has considered before. Lawyers do that all the time.

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

RIP Ian Macneil: a lawyer, law professor, landlord, and mensch.

From the Times of London, the obituary of Ian Macneil, a lawyer, law professor, and landlord who embodied the ideal that ownership may be more about proprietorship than about sucking every last dollar (or pound) out of your property:

Ian Macneil, 46th chief of the Clan Macneil and 26th Macneil of Barra, was a much-respected American-born contract lawyer who gave his tenants and neighbours on the Outer Hebridean island of Barra security of tenure on the most favourable contract terms imaginable.

As one of the world’s leading scholars in the field of contract law Macneil was particularly associated with the invention, development and exposition of “relational contract theory”, which posits that all contracts belong in the context of complex webs of exchange relations.

As laird of Barra, though, he was so popular a landlord that when he first offered the islanders part of his island estate for a nominal sum in 1981 they declined, saying they were quite happy and saw no need for change.

In 2003 he did transfer his 9,000 acres in the southern half of Barra into public ownership on condition that the islanders could choose, at any time, to take over the land themselves without cost. Macneil, who was at that time 74, said he was giving up the property because running a crofting estate was a time-consuming business and he was “beginning to slow down”.

He expressed confidence that the Scottish Executive’s Rural Affairs Department would run the property in the crofters’ best interests, but ensured that if the islanders, many of them Gaelic-speaking, ever chose to take over the islands they would be given both Barra and its neighbour, Vatersay, without charge. The islands were, in effect, put in trust for their inhabitants. . . .

One other incident stands out from his professional career: in 1988, while on a visiting professorship at Harvard, Macneil taught the young Barack Obama, and was so impressed that he told his wife he thought he might have America’s first black President in his class. Macneil was invited to President Obama’s inauguration in Washingtonlast year but was unable to attend because of failing health.

From his father’s death in 1970 Macneil was much involved in Barra, running the estate, arguing for the interests of the island’s fishermen and crofters, and protecting the island’s air service from proposed cuts. His father had restored the ruined family seat, Kisimul Castle in Barra, but in 2000 Macneil, who had a home in Edinburgh and occupied a croft on Barra, donated the castle, which is now run by Historic Scotland, to the nation for a peppercorn rent of a bottle of malt whisky and £1 a year. It was a typically practical gesture by a notably kind and learned man

Law can actually solve real problems.

1. Adult children may remain as dependents on their parents’ policy until their 27th birthday.

2. Children under age 19 may not be excluded for pre-existing conditions.

3. No more lifetime or annual caps on coverage.

4. Free preventative care for all.

5. Adults with pre-existing conditions may buy into a national high-risk pool until the exchanges come online. While these will not be cheap, they’re still better than total exclusion and get some benefit from a wider pool of insureds.

6. Small businesses will be entitled to a tax credit for 2009 and 2010, which could be as much as 50% of what they pay for employees’ health insurance.

7. The “donut hole” closes for Medicare patients, making prescription medications more affordable for seniors.

8. Requirement that all insurers must post their balance sheets on the Internet and fully disclose administrative costs, executive compensation packages, and benefit payments.

9. Authorizes early funding of community health centers in all 50 states (Bernie Sanders’ amendment). Community health centers provide primary, dental and vision services to people in the community, based on a sliding scale for payment according to ability to pay.

10. No more rescissions. Effective immediately, you can’t lose your insurance because you get sick.

What if corporate decision makers lost money when they made bad decisions?

Back in January, criticizing the Supreme Court decision equating the free speech rights of corporations with those of individuals, I pointed out the insanity of considering corporate and other business entities as rational actors of the sort many economists consider people to be. The problem is that corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the corporations (and their shareholders). As I wrote:

Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

I wasn’t just engaging in paranoia. I spent too many years with investment bankers to entirely forget their reality. And I have data to back me up:

In a study late last year, three Harvard Law School researchers examined public documents to assess whether one “standard narrative” of the crash was true — that “the meltdown of Bear Stearns and Lehman Brothers largely wiped out the wealth of their top executives.” It turned out to be a fairy tale. “In contrast to what has been thus far largely assumed, the executives were richly rewarded for, not financially devastated by, their leadership of their banks during this decade,” the Harvard Law team wrote. The top five executives at both Lehman and Bear collectively took home $2.4 billion in bonuses and equity sales — that’s nearly a quarter-billion dollars each — between 2000 and their 2008 demise.

Last week, William D. Cohan made much the same point in connection with the entire Wall Street ethic:

What if the biggest rewards on Wall Street went to those who thwarted dangerous and excessive risk-taking instead of to those who enabled, approved or simply ignored it?

What if every senior Wall Street executive had to worry that he could lose his entire net worth at any moment — including his mansions in Greenwich, Conn., and Palm Beach to say nothing of his job — if the revenue he was generating turned out to be unprofitable or excessively risky?

Wouldn’t that combination of potential rewards and fear of calamitous personal loss instill in every Wall Streeter a zealous desire to insist that the products his firm was peddling were safe for others to buy?

If such simple incentives had been in place on Wall Street, wouldn’t the latest crisis — as well as the multitude of others that have been perpetrated on us in the past 25 years — been largely avoided? . . .

The obvious answer to these questions is that human beings always do what they are rewarded to do and always have, especially on Wall Street. Rewarding prudent risk-taking on Wall Street while punishing recklessness would result in a new ethic on Wall Street, one not solely driven by generating as much revenue as possible in a given fiscal year with no regard to the long term.

To that end, shareholders must demand that corporate boards of directors revamp the entire compensation structure on Wall Street away from one based on revenue generation to one that rewards long-term profits. For goodness sake, what other business on the face of the earth, aside from Wall Street, pays out between 50 percent and 60 percent of each dollar of revenue generated to employees in the form of compensation!

And yet the Wall Street Journal’s stance on financial reform is the same as its stance on health care reform: “Once ObamaCare becomes law, the next big legislative rush is going to be for financial reform, but as we look at Senate Banking Chairman Chris Dodd’s latest draft we can’t help but wonder: Why the hurry?”

Indeed, why? There’s money still to be made . . .

Phil Ochs – There but for Fortune

Phil Ochs — Power and the Glory

We build culture from culture, and let’s stop acting as if any one of us owns it.

David Shields, from Reality Hunger:

This book contains hundreds of quotations that go unacknowledged in the body of the text. I’m trying to regain a freedomthat writers from Montaigne to Burroughs took for granted and that we have lost. Your uncertainty about whose words you’ve just read is not a bug but a feature.

A major focus of Reality Hunger is appropriation and plagiarism and what these terms mean. I can hardly treat the topic deeply without engaging in it. That would be like writing a book about lying and not being permitted to lie in it. Or writing a book about destroying capitalism, but being told it can’t be published because it might harm the publishing industry.

Mr. Shields, of course, is not original. Just check out Jonathan Lethem’ s essay “The Ecstasy of Influence: A Plagiarism.”

Or my piece, wholly indebted to Lethem,  entitled “Appropriation.”

Or David Markson, in Vanishing Point (at page 12): “Nonlinear. Discontinuous. Collage-like. An assemblage. As is already more than self-evident.”

Why has Girl Talk not been sued? You won’t find the answer at SXSW.

You might think that the expert-filled session at the SXSW Festival on “Why the Recording Industry Hasn’t Sued Girl Talk?” and the Texas Observer’s reporting on the session might come up with more profound (and unfounded) statements than the Observer’s unqualified declaration that ‘[T]he totally fascinating upshot of all this is that it turns out that what Girl Talk is doing is definitely NOT legal.”

But why should a bunch of critics and experts who feel they’re at the center of the music universe down in Austin Texas put more thought into the issue than that? Any regular reader of this blog (and many less-than-regular readers) know that I have written extensively on why I believe Girl Talk has not been sued. And it’s not because what Girl Talk is doing “is definitely NOT legal.” One might wonder too why the legal and music experts at SXSW think the legal regime that requires a license for any recorded sample, no matter now brief, is as well-founded in the actual law as they seem to assume.

The internet and mixing and matching texts is not destroying authorship, and to believe so is to misunderstand authorship. Kakutani this time.

“The Principle of collage is the central principal of all art in the Twentieth Century.” – Donald Barthelme

In a rambling and incoherent diatribe in yesterday’s New York Times, Michiko Kakutani mixes and matches wildly disparate issues and controversies in what purports to be an effort to address “the contentious issues of copyright, intellectual property and plagiarism that have become prominent in a world in which the Internet makes copying and recycling as simple as pressing a couple of buttons.”

While Ms. Kakutani’s piece defies any effort to identify, much less analyze and criticize, any single thesis (or even a manageable number of theses), I cannot leave unchallenged her following contention:

As John Updike pointed out, . . .   ‘the end of authorship’ — hobbling writers’ ability to earn a living from their published works, while at the same time removing a sense of both recognition and accountability from their creations — would result from the hypothetical possibility that “books would cease to be individual works but would be scanned and digitized into one great, big continuous text that could be ‘unraveled into single pages’ or ‘reduced further, into snippets of a page,’ which readers  . . . could then appropriate and remix, like bits of music, into new works of their own.”

As Martha Woodmansee, Peter Jaszi, and others have pointed out, Ms. Kakutani and Mr. Updike’s conceptions of “authorship” are narrow-minded  historical artifacts resulting from the efforts in the 18th Century of book publishers, not authors, to protect their economic interests  and of the conceptions of copyright law that those publishers managed to enact into law and that persist to this day.

The Case Western Reserve English Department’s Authorship Collective, building largely on the work of Professor Woodmansee, summarizes this history as follows:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. [See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”; rpt. in Woodmansee, The Author, Art, and the Market, 35-55.

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions — the recovery of marginalized creators and underappreciated forms of creative production — has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center — indeed, the linchpin — of Anglo-American copyright as well as of European “authors’ rights” is a thoroughly Romantic conception of authorship.  Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the “transformative” moment in the creative process.

We suggested above that cultural production necessarily draws upon previous creative accomplishments. For the better part of human history this derivative aspect of a new work was thought to contribute to, if not virtually to constitute, its value. Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics — the collective wisdom of their craft. In the event that they chanced to go beyond the state of the art, their innovation was ascribed to God, or later to Providence. Similarly, in the sphere of science, invention and discovery were viewed as essentially incremental — the inevitable outcome of a (collective) effort on the part of many individuals applying inherited methods and principles to the solution of shared problems.

It was not until the eighteenth century, and then chiefly in Western Europe, that an alternative vision of creative activity focusing on the endowments and accomplishments of the individual “genius” began to take shape. In a sharp departure from the self-understanding of writers of previous generations, authors in the new Romantic mode viewed their task as one of transforming the materials of personal sense experience through the operation of their unique, individual genius. This change of emphasis mystified the writing process, obscuring the reliance of these writers on the work of others. The notion that a technological or scientific breakthrough owes its existence to the “genius” — the unique creative abilities — of an individual inventor seems to be even more recent. It appears to date only to the third quarter of the nineteenth century.  Borrowed from literary discourse, this notion similarly obscures the collective or collaborative element in scientific invention and discovery. Both misrepresentations of creative activity appear to have fostered and been fostered by modern intellectual property law. Like copyright, modern patent emphasizes individual achievement — chiefly by rewarding the identification of a single genuinely transformative moment in what in most places through most of human history has been viewed as a collaborative because incremental and continuous process.

Free culture and produce art!

From Appropriation Art:

Today many artists and creators use, reproduce, appropriate and incorporate materials found within popular culture and society. These raw materials reflect and embrace the world around us: snippets of film and TV, radio spots, advertisements, news headlines, bits of text, characters, fragments of song…and so on. Artists use this source material just as artists have used raw material for thousands of years. Artists use this source material because it is meaningful and relevant and evocative. Artists must have the freedom to transform this raw material into new works with new interpretations and new meanings in order for culture to advance. These new works push boundaries, question the status quo, advance technologies. These new works encourage experimentation and invention. And while appropriation practice may not be the foundation for every artist, it is inconceivable that . . . we would actually advocate restricting or even banning these forms of expression.

The practice of Appropriation is a fundamental part of many creative cultural activities. Works of visual art that use Appropriation have a long, distinguished and well documented place in the History of Art. This work is collected and exhibited in major cultural institutions . . . around the world. We cannot open a book on modern and contemporary art without being presented with some form of appropriation. Appropriation integrates existing cultural product (movies, top 40 songs, television, radio, advertising, characters etc.), but in such a way that these cultural products are transformed and a new and original work of art is created. Yet in spite of the history, vitality and importance of Art using appropriation, this process is being threatened, as are the rights of artists who practice it. And vulnerable new forms of creativity using appropriation are at threat of being extinguished.

Law isn’t about what’s legal and illegal; it’s about serving clients.

Law students, too many lawyers, and most non-lawyers think that lawyers tell clients what they can do and what they can’t — what’s “legal” and what’s not. This caricature is so far from the truth it’s laughable. Lawyers serve clients, and there is so, so much more that drives client decision making than what the law states (except, perhaps, in those exceedingly rare instances when the law mandates a certain decision).

So it’s refreshing that Settlement Perspectives reviews the kinds of questions clients want to hear from their lawyers but don’t hear often enough. Perhaps the most important one is this:

What is an acceptable outcome in this matter?

The article goes on to list a number of other questions of particular import to clients, including this one, perhaps most immediately comprehensible to my first year students:

In the case of a litigated matter, on the continuum between winning and losing, what is considered acceptable? Is there a possibility for success short of complete victory? Prevailing without success? Not prevailing but not losing?

(Hat tip to What about Clients?)

Collage is art, not theft

From Negativland:

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heardwhen it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone’s music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce.These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material’s avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner intheir usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

All Creative Work is Derivative

Pat Paulsen, a man over 40 years ahead of his time. Or a measure of how radically the culture has changed.

Father Coughlin’s Tea Party, 1939

Lynn Cheney and William Kristol are anti-American.

Walter Dellinger, a partner with O’Melveney & Myers, and former head of the Office of Legal Counsel, writes today (in relation to my passionate rejection of Lynn Cheney’s attack on lawyers who represented Guantanamo Detainees):

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

. . .

That [the lawyers] in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Requiring licenses for artistic appropriation has nothing to with providing incentives to create.

I’ve been pretty passionate in this blog in expressing my belief that art that appropriates copyrighted work does not infringe the copyrighted work provided the new work stands sufficiently on its own as a creative work. To stand on its own in that way, the new work is one that isn’t attracting an audience merely because of its appropriation of the earlier work. The fact it uses the the copyrighted work to convey meaning through the use of symbols and allusions is no different than the way new, original art has always used the meaning culture attributes to earlier work. Art builds on art.

The counter-argument to my position is that artists need to make money to be able to create art, and if an appropriator can pay for a license, why shouldn’t he? First, merely asking for a license is not the same as obtaining one. Second, the most meaningful pieces of art in our culture are the most successful, and licenses for the use of those works are not likely to be within the financial means of most artists. Third, why should you have to ask for a license to make something new from something someone already has made money from (or as much as their work earned in the market)?

But now Malcolm Gladwell goes right to the heart of the most compelling argument copyright holders have against un-licensed appropriation — that the financial remuneration is an incentive necessary to the creation of art in the first place. Gladwell writes:

Dan Pink is best known for a number of really insightful business books, including “A Whole New Mind.” In “Drive,” he tackles the question of what motivates people to do innovative work, and his jumping-off point is the academic work done over the past few decades that consistently shows that financial rewards hinder creativity. These studies have been around for a while. But Pink follows through on their implications in a way that is provocative and fascinating. The way we structure organizations and innovation, after all, almost always assumes that the prospect of financial reward is the prime human motivator. We think that the more we pay people, the better results we’ll get. But what if that isn’t true? What the research shows, instead, is that the great wellspring of creativity is intrinsic motivation—that is, I do my best work for personal rewards (out of love or intellectual fulfillment) and not external motivation (money).

Maybe you don’t think much of this blog, but I’ve written it now for 18 months and haven’t seen a penny in return. The best writers I know scramble to make their livings through their writing, teaching, parlaying their writing into other creative projects, and whatever else can come their way. I’ve known artists my entire life. I’ve known a few who’ve had vast success, but they are a tiny, tiny minority. The artists I know won’t stop creating if they’re not paid for transformative appropriations of their works.

Article 1, Section 8 of the U.S. Constitution sets for the basis of Congressional power to create laws to protect copyright. It states:

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; . . . (emphasis added).

It does not state:

The Congress shall have the Power . . . To further the capacity of authors and inventors to extract any and all value that exists in their creations, by securing for a time in excess of the lifetimes of these Authors and Inventors the exclusive right to their respective writings and discoveries; . . .

Thank god for our founding fathers — John Adams, honorable lawyer.

Whose values do the lawyers for Guantanamo detainees share? John Adams’, for one:

John Adams, in his old age, called his defense of British soldiers in 1770 “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” That’s quite a statement, coming as it does from perhaps the most underappreciated great man in American history.

The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. “With tears streaming from his eyes” (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.

So when Lynn Cheney’s group, keepamericasafe.com, suggests that there’s something un-American about the fact that lawyers in the Justice Department have defended Guantanamo detainees, the real question is this: why is keepamericasafe.com spouting the un-American propaganda that those accused of wrongdoing are not entitled to a defense and to requiring proof of their wrongdoing? In fact, as Adam Serwer reports,

Lt. Col. David Frakt, who has represented detainees both in military and civilian courts, said that the lawyers who secured due process rights for detainees were ultimately vindicated. “There is an assumption there that has proven to be a fallacy, which is that everyone at Guantanamo was a terrorist,” Frakt says, pointing to the fact that the government has lost three-quarters of the habeas petitions filed by detainees at Guantanamo. “What we have seen over and over and over is that the vast majority of detainees at Guantanamo are innocent.”

This is, in short, ugly, anti-American propaganda:

New solutions for new problems: who knows your passwords after you die?

Here’s a new problem: how do your heirs get access to your financial accounts and other online information after you die? You can, of course, be sure to maintain a file of your user names and passwords, but you run the risk of forgetting to change the list as you change passwords, and who among us has compiled such a list?

Into the vacuum created by such needs come solutions. As Rafe Needleman writes, “Legacy Locker simply backs up the passwords and access codes to your online accounts. When you die, it gives that information to the people you designate.” And the system (scheduled to become operative in April) comes with all sorts of backup systems built in:

The system periodically tries to log on to your accounts for you. If it can’t–if you’ve changed passwords–it alerts you to update your records. Also, Legacy Locker only unlocks if two people whom you’ve designated confirm your death, and even then only if one of them supplies a death certificate to the company. Legacy Locker staff handles this; the unlock procedure is not wholly automated. Toeman claims that the system’s files are all encrypted and cannot be unlocked without authorization.

Of course, it comes with a price — $29.99 a year or $299.99 for a lifetime subscription. And Life Locker plans to market itself primarily to estate planners, who will pass on the cost to their customers.

And, of course, I hope it’s not just a very effective phishing scheme.