Judges: you never really understand a person until you consider things from his point of view.

Dahlia Lithwick writes of her legal hero, Atticus Finch, and the noxious myth that empathy has nothing to do with being an effective judge:

Atticus’s life instruction to his daughter, Scout. As he explains, “If you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.” In summer 2009, and again this July, the United States was roiled by debate about Barack Obama’s promise to appoint a supreme court justice who embodies this quality of “empathy”. Scores of critics asserted that judicial empathy is the same as judicial bias; that judges are at their best when they coldly and mechanically apply the law. There is no place for climbing inside anyone else’s skin as a judge. There is only truth and cold fact.

How strange it is, that we have come to a place in the national debate about justice when Atticus Finch’s mild admonition to his daughter to try to walk a mile in someone else’s shoes has become the definition of dangerous judicial activism. While Atticus still has much to teach lawyers about race and violence and prejudice and the rule of law, I have also come to think of him as the patron saint of patient, quiet listening; a quality to which all of us ought to aspire.

Art for Justice: Harvey Finkle

Art genuinely does have the power to advance justice. A body of work that does just that is on display right now at Painted Bride Art Center in Philadelphia, which is exhibiting the work of Harvey Finkle, ” a documentary still photographer who has produced a substantialbody of work concerned with social, political, and cultural issues.” As explained on Finkle’s web site:

His recent work includes a documentation of the Kensington Welfare Rights Union (KWRU), a poor people’s movement emanating from the poorest neighborhood in Pennsylvania; and “The Jews of South Philadelphia,” interviews and photographs of the remnants of what once was among the largest Jewish communities in the nation.

His ongoing work includes documenting the activities of many progressive organizations including a death penalty abolitionist group, ACT-UP, ADAPT (disabled activists), KWRU, and other groups concerned with housing and homelessness. Also, his work includes an extensive inventory of images depicting all aspects of life in Deaf culture, plus a substantial collection of photos dealing with education.

Works in progress are about the new wave of immigrant and refugee families who have settled in urban areas and the evolving Transgender community.

(hat tip to the art blog)

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.

Vengeance breeds vengeance; we are a country of laws, not torture.

There’s creativity in legal thought, and then there’s “interpretation” utterly unhinged from any logic or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid mistake in any argument in favor of torturing in order to obtain information to aid the so-called “war on terror” — it discourages people from coming forward with information. People applaud “the underpants bomber’s father, Alhaji Umaru Mutallab, who had the strength of character to report his son’s activities to U.S. authorities despite the possible legal repercussions for his son.” But if a father knows his son will be tortured, he’s far, far less likely to turn him in. And, of course, if we’re trying to win the hearts and minds of, among others, Afghanis, aren’t we undercutting our purposes by betraying our morality and our laws? Martin writes:

Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be as quick to intercede if they think their loved one will be brutalized, psychologically scarred beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized as enemies, not converted to allies.

Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime – a morally reprehensible practice in its own right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable intelligence regardless. Not only do they want to keep employing these self-defeating policies that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and the GOP leadership – as well as their media enablers – use Obama’s refusal to torture and profile as political cudgels when, in reality, the blows will they attempt will fall most heavily on the American people in the end.

At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:

Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody hatred, the destruction?

The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates of torture can legitimately claim we are getting from torture, and we’ve understood for thousands of years that vengeance does nothing but breed vengeance.

Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law, I was “betraying” my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in hand with a culture that has decided that money is the only valid measuring stick of value and that “free” markets are the best means of making all our choices, even our choices about war.

And the market is governing our choices about education, making liberal arts undergraduate majors so unpopular they’re beginning to disappear. Thus, according to an annual survey by the University of California, Los Angeles, of more than 400,000 incoming freshmen:

In 1971, 37 percent responded that it was essential or very important to be “very well-off financially,” while 73 percent said the same about “developing a meaningful philosophy of life.” In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while 48 percent were after a meaningful philosophy.

People don’t read the Oresteia anymore. I would bet only a handful of my students even know what it is. So I’m afraid the only thing I don’t agree with when Glenn Greenwald writes the following is any particular sense of being astounded:

It’s truly astounding to watch us — for a full decade — send fighter jets and drones and bombs and invading forces and teams of torturers and kidnappers to that part of the world, or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators, occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth, and then act surprised and confused when some of them want to attack us. In general, the U.S. only attacks countries with no capabilities to attack us back in the “homeland” — at least not with conventional forces. As a result, we have come to believe that any forms of violence we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are instantly breached in the most egregious ways whenever they bring violence back to the U.S., aimed at Americans. It’s just impossible to listen to discussions grounded in this warped mentality without being astounded at how irrational it is. What do Americans think is going to happen if we continue to engage in this conduct, in this always-widening “war”?

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:

Copyright and Good Judgment: Damien Hirst, Idiot.

In England, a 17 year old artist named Cartrain created a collage that included an image of Damien Hirst’s diamond encrusted skull, a work entitled “For the Love of God.” As the Independent reports: “The collages were put up for sale on a website, 100artists.com. Hirst reported him to the Design and Artists Copyright Society and a string of legal letters were sent to Cartrain’s art dealer, Tom Cuthbert, at 100artworks.com, about the teenager’s pieces, also called For the Love of God. The online gallerysurrendered them to Hirst with a verbal apology.” So, in July, Cartrain walked into a museum showing some of Hirst’s works and walked off with a box of pencils from one of the installations. As Cartrain explained, “That same day I made up a fake police appeal poster advertising that the pencils had been removed from the Tate and that if anyone had any information they should contact the police on the phone number advertised.” “A few weeks later I went out and I returned home to find out the art and antiques squad from New Scotland Yard had called round with a warrant for my arrest.” According to the Independent, Cartrain “was told by custody officers that the pencils were valued at £500,000 and that he had damaged ‘the concept of a public artwork titled Pharmacy … valued at £10,000,000.’ Cartrain is on bail and, if convicted, his actions will feature among the highest value modern art thefts in Britain. Does Damien Hirst have the right to foreclose the use of images in which he owns the copyright from collages? Plainly, I don’ t think so. But it’s also one of those situations in which I’d tell a client to just back off. Reportedly, Hirst sold the skull for $100 million. The image is ubiquitous. I know I’ve sent it to friends as part of an app on Facebook. Do you, I’d ask, really need to be so heavy-handed in connection with a kid trying to get his start as an artist? (hat tip to Techdirt)

Captain Kirk reads the Constitution.

Creative Math from Craig Damrauer

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

Hat tip to Matt Homan.

I love good lawyers because you can disagree with them and they won’t take your disagreement as a personal attack.

In the New York Times, Maira Kalman’s “And May it Please the Court” is a wonderful graphic narrative of her musings on, among other things, law, a visit to the Supreme Court, and Ruth Bader Ginsburg.  One panel of the piece does not begin to do it justice, but the one below makes a wonderful point that I try all the time to get across to my students — when you and your adversary treat each other as professionals, practicing law is a joy. There is no point in doing it any other way.  You can’t take your adversary’s disagreement personally — she is paid to disagree with you, and it’s her professional duty to do so.  But when your adversary doesn’t treat you professionally, you have to fight back too.  Not by descending to her level, but by being tough, better prepared, and smarter.  At any rate, I am glad Ms. Kalman saw the legal practice at its best on that day she visited the Court. And I wish more people I know, especially those who have law degrees and consider themselves legal experts, would realize disagreement is not hostility. I guess I shouldn’t be surprised that Ms. Kalman wonders how people handle the idea that their adversaries are not their enemies.

The Lonesome Death of Hattie Caroll and the recent death of her killer.

William Zantzinger, a Maryland man who became the subject of 1964 Bob Dylan song “The Lonesome Death of Hattie Carroll, died earlier this month at the age of 69.

Someone must have traduced Maher A. . . .

Scott Finet, in one of the most frequently cited law review articles ever published — Franz Kafka’s The Trial as Symbol in Judicial Opinions — wrote in 1988 of literature in law. Specifically, he discussed the ways judges use references to The Trial, concluding that in writing opinions they used the novel’s depiction of Joseph K.’s encounter with an utterly arbitrary and incomprehensible legal system to illustrate their own system’s rationality and fairness:

This article will show how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process. This is not to say that the decision making process is or is not always predictable and based on rational choice, but that judicial decision makers, in an effort to legitimize themselves and the process, attempt to convince those affected by their decisions that the process is predictable and based on the shared value of rational choice.

Thus, Finet described one way judges frequently use The Trial – to discuss someone who is faced with the need to find the reason for his predicament. For example, a criminal defendant might be seeking the reasons for his prosecution, something Joseph K. was never able to discover:

In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared value of rational choice and that they will provide a resolution to the supplicant’s search.

Finet article is now over 20 years old.  I wonder what he’d make of the predicament faced by Guantanamo detainees, some of whom, we’re told, are too dangerous to release but can never be prosecuted because no U.S. court will allow the admission of evidence obtained by torture.   Even more to the point, perhaps, is the case of Canadian Maher Arar, arrested by U.S. officials on a stopover in New York, sent (via “rendition”) to Syria, and tortured there for a year before it was realized he was an innocent Canadian. And last year a U.S. court established that Mr. Arar could not sue in U.S. courts to establish that U.S. officials “acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.” The Trial is not so much a contrast here; Mr. Arar found himself in New York’s Kennedy airport in a situation much like Joseph K. did at the very beginning of Kafka’s novel:

Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning.

Law in Art/Law as Art

I’ve taught in law schools for 13 years. Before that I practiced in New York City for over 11. What I’ve largely found is that lawyers have little use for law professors, and law professors have little use for lawyers.  Where I am this year, the University of Detroit Mercy Law School, is an exception to this rule, and a rare one.  The far more common, if strange, disconnect between the academic world and the world of practice is illustrated by the academic field known as “Law and LIterature.”  Wikipedia accurately describes Law and Literature as both the study of law in literature and of the literary characteristics of legal writing.:

The law and literature movement focuses on the interdisciplinary connection between law and literature. Believed to have originally begun as a subcategory of jurisprudence, the movement encompasses the complementary ideas of law in literature and law as literature.

The problem, as Daniel J. Kornstein, a writer and a lawyer, is that the law and literature movement has had no impact on the practice of law:

The greatest shortcoming in Law and LIterature to date has been its failure to reach and engage the practicing lawyer. For the most part, Law and Literature has remained firmly entrenched in legal academia, its realm of origin. The shirtsleeve lawyer is essentially untouched.

I have from the start intended for this blog in large part to remedy this lack of connection between literature, and other arts, and the practice of law. Just as the Law and Literature movement examines both law in literature and law as literature, I try to focus on law in creative endeavors and law as a creative endeavor. I suppose part of what drives me to do so is that I have taught primarily first year law students, and they, like most people, have given very little thought to the art they have encountered and only begin under my watch to understand that, perhaps primarily, I am training them to be artists, not technocrats.

Art exposing law: Pirates of the Amazon

Here’s some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech reported that a Firefox plug-in named “Pirates of the Amazon had been developed that allowed its users to immediately identify free alternative online sources for any product they found on the Amazon.com website. Within a day, Amazon’s lawyers had filed a takedown notice. Subsequently, someone put up a website stating that the plug-in had been created as an art project meant to illuminate issues raised by today’s “media culture”:

“Pirates of the Amazon” was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface design, information access and currently debated issues in media culture. We were surprised by the attentions and the strong reactions this project received. Ultimately, the value of the project lies in these reactions. It is a ready-made and social sculpture of contemporary internet user culture.

One day after publishing we received a take down request by the legal department of Amazon.com.

This work was made as a trimester assignment in our study course, under the supervision of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now the documentation of our study work as required by the course.

To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was “simply a post-release attempt by the plugin’s author to cover his legal posterior.” I would suspect, though, that the project really was an art school endeavor. Denis “Jaromil” Rojo “is an artist and a FOSS hacker. . . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a programmer, he is author of several free software that present new possibilities for online radios. Jaromil is identified as a “tutor” for the 2008-09 academic year on the Piet Zwart Institute’s web site, and Florian Cramer is identified on the same site as the “course director of the Media Design M.A. programme.”

ADDENDUM: Florian Cramer writes in the comments to thank me for the “balanced” coverage and to add that the indication the site was an art project was made clear on Pirates of the Amazon from the beginning.