Distasteful, insensitive, insulting, and totally unacceptable? Sure, but it’s PROTECTED EXPRESSION!

Is it vitally important to protect the freedom of expression, which enjoys by far its widest scope under U.S. law? Well, here’s a little story about what can happen when people (not governments) decide they don’t like what’s being expressed:

In 2006, the Danish tabloid Ekstra Bladet investigated the links between the Icelandic bank Kaupthing and tax havens. Kaupthing’s managers did not like what they read, but failed to persuade the Danish press council that the paper had done anything wrong. The bank sued for libel in London instead. The newspaper pulled the articles and apologised because English lawyers ran up costs that were beyond its editor’s worst nightmares – £1 million, and that was before a case had gone to court.

Kaupthing went for the paper in England not just because it wanted to kill the original story, but because it also wanted to deter others from spreading the idea that Iceland was not a safe place for investors. The English legal profession obliged. Newspapers’ lawyers thought once, twice, one hundred times before authorising critical stories. A few months later Kaupthing collapsed – along with the other entrepreneurial, go-ahead Icelandic banks – and British depositors lost £3.5 billion. By allowing libel tourists to fly to London and use our repressive laws, the English legal profession had also stopped the British investors from learning of the danger in investing in the country’s banks.

You no more hear writers and broadcasters admit that they are frightened of investigating investment banks than you hear them admit that they are frightened of challenging the founding myths of Islam. We cannot puncture our own myth that we are fearless seekers after truth, even though, if we honestly owned up to our limitations, we might force society to confront the fact that modern censorship does not conform to old models. It is a mistake to think of repression as repression by the state alone. In much of the world it still is, but in Britain, America and most of continental Europe the age of globalisation has done its work, and it is privatised rather than state forces that threaten freedom of speech.

This passion for freedom of expression is part of what drives my passion on behalf of appropriation artists and against Patrick Cariou in his copyright infringement case against Richard Prince. One of Cariou’s purported motivations in bringing the lawsuit was to vindicate the offense taken by the Rastafari (the subjects of Cariou’s photographs that were appropriated by Prince) at Prince’s images. As the Caribbean Rastafari Organization put it in its “Statement of Protest and Demand for Cancellation” of Prince’s exhibit:

[Prince's exhibit] is egregiously disrespectful of Rastafari culture and peoples, and reflects racial stereotyping that is morally offensive and that has no place in the 21st century. So-called artistic license cannot permit the trivialization and abuse of a people still marginalized by race and gender to evoke images of subordination and exploitation of Africans and women. This is a legacy of the European colonial enterprise that continues to have a negative impact on African peoples in the Americas and it is a legacy that the Rastafari have resisted and condemned for nearly 80 years. Rastafari at the vanguard of Pan-African Liberation ceaselessly demanding justice based on truth and right, find the Canal Zone exhibit distasteful, insensitive, insulting and totally unacceptable.

The motion picture and music industries won’t give up trying to protect their money-making models even if they are obsolete.

Bill McGeveran in the Guardian makes clear that the film and music industries aren’t going to go away, but that there are ways to to address legitimate copyright concerns without PIPA and SOPA’s utter inadequacies:

At the end of a Hollywood blockbuster, when the vanquished villain declares that he should have won and that we haven’t seen the last of him, we all know what it means: the sequel is coming.

So, Hollywood’s top lobbyist, former Senator Chris Dodd, followed a familiar script last week after sweeping online protests derailed the Stop Online Piracy Act (Sopa) and Protect IP Act (Pipa), a pair of legislative proposals backed by movie and music distributors. Dodd snarled that his opponents had misled the public and vowed to continue pressing for new laws to combat unauthorized copying of intellectual property. Coming soon to a congressional hearing room near you, it’s Sopa II: Revenge of the Content Industries.

. . . . Even Dodd’s enemies acknowledge that these sites pose a problem, though many question industry estimates about its scope.

Those of us who opposed the excesses of Sopa and Pipa need to prepare for the next round. . . . At a minimum, Congress must address three other problems as well.

First and foremost, Sopa II needs to take due process seriously. . . .

Second, the standards for judging infringement must be clear and must be consistent with existing intellectual property law. . . .

Finally, these bills cannot shift IP owners’ duty to safeguard their own rights onto innocent bystanders like Google, eBay or Facebook. Open online forums enable millions of daily communications from ordinary people. Intermediaries cannot examine every post searching for links to pirates. That’s why federal law exempts them from liability for nearly everything their users post independently – even fraud or defamation. IP already gets special treatment, because intermediaries must remove infringing material if rightsholders complain.

John Oswald, pioneer of the aural collage: the futility of law in the face of technology it cannot control.

I’ve written at length in this blog about compositions consisting of digital remixes of pre-recorded samples and the contentious and utterly unresolved tensions between copyright, fair use, and the extra-legal reality of practices that cannot be controlled by legal rules. I’ve written about artists as varied as Negativland, Girl Talk, Steinski, and Kutiman, among others. Negativland and Steinski were pioneers in the genre, composing their aural collages back in the ancient days before digital media made the stitching together of digital information something one could do sitting in front of a laptop in bed.

But no one was there before John Oswald of Plunderphonics. A mere fraction of his career’s chronology demonstrates that he is perhaps the pioneer of the genre:

1973-75

With the sanction of William S. Burroughs, John Oswald cut up recordings of him reading his texts advocating cutting up methods, & consequently discovered an acoustic pallindrome, mediations between backwards & forwards, polysyllabic masking & phase imploding.

1975

Oswald melds a radio evangelist with alleged satanists Led Zepplin in the early rap track POWER. released in 1995 by Musicworks magazine.

1975-85

MYSTERY TAPES assembly & dissemination (by Mystery Tapes Etc.International), include many early plunderphonistic experiments.

1980

Oswald guest produces a one hour radio show for CFRO in Vancouver called Sounds Wrong which includes the first public issues of Dolly Parton & Rite of Spring transformations.

1982

Collusion, a British magazine publishes an article by Oswald, entitled “Revolutions & Mr Dolly Parton – a vortex of of androgeny”.

1985

An essay by John Oswald entitled “Plunderphonics, or, Audio Piracy as a Compositional Prerogative” was presented at the Wired Society conference in Toronto.

1988

The original Plunderphonics EP (never-for-sale, out-of-print) was for its time the most extreme example of sampling ever produced. Four well-known music personalities representing four musical genres & four notable epochs of recording history were presented in surprising ways, or, as the press release put it: warp drive.

1989

The Plunderphonic CD (never-for-sale, remaining stocks destroyed by Michael Jackson & CBS) has become an underground cult classic. The realistic cover photo of a nude Michael Jackson revealed as a white woman paralleled the musical transformations depicted on the disc. Other electroquoted artists included Bing Crosby, The Beatles, Glenn Gould, Public Enemy & (consequently) James Brown.

You can read a more complete biography of Oswald here.

Far more interesting is an extensive recorded interview with Oswald. One of the most fascinating parts of the interview is Oswald’s account of his experience with the overwhelming legal forces brought to bear in the name of copyright enforcement against his new compositions. In a series of events not unlike those experienced by Negativland in connection with their composition U2, every last CD Oswald retained of his recording was destroyed. Of course, he had already distributed some of those CDs and was unable to recover them. And we all know digital media metastasize beyond any capacity of corporate control. So, of course, as with Negativland’s U2, Oswald’s recording not only continues to exist; it is available (for free) for digital downloading.

For your listening pleasure, I include here one track from the album: Glenn Gould-Aria(mp3).

An Introduction to Copyright, Fair Use, and Appropriation Art, Part 1

In September, I spoke at SPACES on copyright and art, an opportunity that I used to go introduce copyright and fair use and the contentious issues that remain entirely unresolved in connection with appropriation art. I had an opportunity to give a similar talk last week at Wooster College.

You can see my presentation here. But the presentation, obviously, is only the starting point of a talk, so I thought I’d take this opportunity to “annotate” the presentation, providing some commentary and a lot of links to provide most of the content of the talk here and to supplement it for those who were there.

This post constitutes the first part of these annotations. I will continue this supplement to the presentation in the near future.

The first “slide” (I used Prezi, not PowerPoint, for the first time in this talk) is a video by Kutiman, a musician, composer, producer and animator from Israel. He is best known for creating an online video music project entitled ThruYOU consisting of individual videos mixed entirely from samples of YouTube videos.

The second slide is the title slide: What does an artist need to know about copyright law? Although I spoke a lot about appropriation art and copyright law, I emphasized my sincere belief that to negotiate the difficulties posed by copyright law in an era of novel and breathtaking technologies requires the gifts of an artist. I used Warhol’s Campbell’s Soup Can and Shepard Fairey’s Obama Hope poster as 2 examples of what I was talking about in part because they encountered such different responses from the corporation from whom the artist appropriated his image. Warhol received an amusing and appreciative letter from Campbell’s Soup. Fairey was sued by the Associated Press, a lawsuit that was eventually settled and thus left unresolved the underlying legal questions.

The next 2 slides ask, “What is an artist?” and give one answer, provided by performance artist Guillermo Gómez Peña:

[T]he artist doesn’t really give answers. That is the role of the theorist, the scientist, the political activist, and the religious leader. The role of the artist is to ask impertinent and complex questions, irritating questions, and also to make the audience aware of the process of inquiry, and that’s where the pedagogical dimension lies—when the performance becomes the search, and when the process of search becomes the performance; and people see you struggling with meaning, with your own philosophical despair, with your political demons, and your own aesthetics.

Not only does this confrontation with questions that confront all of us strike me as central to the role of the artist; it also strikes me as central to the role of the lawyer. Moreover, one of the most difficult stumbling blocks in teaching law students is getting them over the belief that they will learn answers to the questions they will confront in their careers rather than the skill to identify the right questions and to best move forward in light of those questions.

Thus, the next 2 slides ask, “What is a lawyer?” and provide a quote from from Edward Levi, a legal scholar studied by first year law students when I went to law school but now largely neglected, to the effect that legal “rules” are not the sort of rules people typically expect:

[T]he rules change from case to case and are remade with each case. Yet this change in the rules is the indispensable dynamic quality of law. It occurs because the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.

Lawyers then, like artists, must always be attentive to the similarities and differences that abound in the infinite complexity of human life. If you present me with a legal problem and an answer and then change one fact about the problem, the entire answer may change. Or may not. It depends. So if you’re looking for answers, you’ve come to the wrong place. Another situation is always different. But I can certainly let you in on what I deem important and why.

For the basic rules on copyright and fair use, the U.S. Copyright Office is a terrific starting point on all things copyright. If you are interested in knowing the basics about what you have to do to register a copyright and other nuts and bolts matters, go there.  Stanford’s Copyright and Fair Use Center is also a great resource on all of the questions addressed in my talk. I like the Copyright Website too.

In order to be protected by copyright, a work must be, among other things, “original.” The quintessential illustration of this requirement — which emphasizes that the mere “sweat of the brow” invested by the work’s creator is not sufficient to earn the work copyright protection — is Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), in which the U.S. Supreme Court ruled that the substantial work of compiling and organizing the information required to put together a rural telephone directory did not entitle the directory to copyright protection. The information itself, though the result of the plaintiff’s hard work, constituted “mere facts,” and there was nothing original about the alphabetical arrangement. Thus, the defendant could not be stopped from copying the plaintiff’s directory and selling it as his own.

A more recent example of this principle with some bearing on appropriation art is the case of Meshwerks v. Toyota Motor Sales, Inc. (10th Cir. 2008), in wich the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.

The digital model, while the product of skill, resulted merely in the reproduction of a car. The image itself is nothing more than an image of a fact. While the court noted the obvious difficulties of applying existing law to new technologies, it compared the digital images of cars created by Meshwerks to photographs. Since the invention of photography in the 19th Century — when it was believed by some that photography as a mere transmission of “reality” did not constitute art — courts have concluded that photographs are entitled to copyright protection but only to the extent the photograph consists of elements resulting from the photographer’s choices. Thus, a photograph “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.”

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).

The digital image of the car that could be inserted and manipulated within a digital image was, in contrast, merely a reproduction of a car. It would only be when an art director placed it within an image that choices regarding lighting, angle, and other elements would be chosen. In contrast, in Time, Inc. v. Bernard Geis Associates,  the court held that the famous “Zapruder film” was entitled to copyright protection. Abraham Zapruder, a Dallas dress manufacturer, had been taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. The court observed that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.” The fact that the moment he filmed happened to be historic did not change that fact. And, if you’re interested, here’s another interesting photography case.

The fact that Congress has the power to pass laws protecting copyright is a result of the Constitution’s Copyright Clause. There are at least 2 important reasons the constitutional dimension of this power is important. First, the Copyright Clause expressly states that Congress has the power for the purpose of promoting innovation. Thus, to the extent copyright law inhibits innovation rather than promotion it, that law very may well be unconstitutional. In addition, copyright limits the ways people can express themselves and thus is a limitation on the freedom of expression protected by the First Amendment. Obviously, that freedom of expression is of supreme importance in our country. Thus, the conflict between the two constitutional rights — the right to protection of one’s creative product and the right of one to express oneself (even by means of another’s creative product) must be balanced. That balance is what results in the doctrine of fair use.

Doesn’t anyone understand that just because you can make money off of it doesn’t mean it should be property?

Our culture’s obsession with ownership and control seems to know no bounds. Ray Madoff writes in the New York Times about ownership of a person’s identity after death:

According to Hebrew University of Jerusalem . . ., when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.

Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.

This phenomenon is fairly recent — and it’s getting out of control. For most of this country’s history, a person’s identity was not something that could be owned. . . .

Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.

Throughout much of the world, the right of publicity ends at death, after which a person’s identity becomes generally available for public use. In the United States, however, this issue is governed by state laws, which have taken a remarkably varied approach. In New York, the right of publicity terminates at death; other states provide that the right of publicity survives death for limited terms. But in Tennessee (whose laws govern the use of Elvis Presley’s image, since he died there), Washington (home of a company that purports to own Jimi Hendrix’s right of publicity) and Indiana (where CMG Worldwide, which manages the identities of hundreds of dead people, is based), control over the identities of the dead has been secured for terms ranging from 100 years to, potentially, eternity.

Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture’s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture. Madoff suggests congressional legislation limiting control over a person’s identity to a short term of, for example, ten years. To extend control at all past death seems to me to be problematic as a cultural and expressive matter (and Madoff raises all sorts of ways in which it is problematic as a matter of estate law). But to extend it any longer than ten years seems just plain obtuse — doing so would raise the threat that by the time an identity becomes available for use as part of the public domain it would have lost much if not all of its expressive value.

Is the NY Times new paywall a platypus?

Will the new New York Times paywall survive longer than its last one? The Times sent me an e-mail explaining the plan, but Felix Salmon explains it more succinctly and clearly:

[T]he website is free, so long as you read fewer than 20 items per month, and so are the apps, so long as you confine yourself to the “Top News” section. You can also read articles for free by going in through a side door. Following links from Twitter or Facebook or Reuters.com should never be a problem, unless and until you try to navigate away from the item that was linked to.

Beyond that, $15 per four-week period gives you access to the website and also its smartphone app, while $20 gives you access to the website also its iPad app. But if you want to read the NYT on both your smartphone and your iPad, you’ll need to buy both digital subscriptions separately, and pay an eye-popping $35 every four weeks. That’s $455 a year.

I can’t say I disagree with Salmon’s take: “The message being sent here is weird: that access to the website is worth nothing. Mathematically, if A+B=$15, A+C=$20, and A+B+C=$35, then A=$0.” And I suspect Mike Masnick’s is correct in his belief this plan was spawned by a committee that either lacked or utterly ignored any member who suggested the idea was stupid:

It feels like something that was completely developed by committee group-think. It’s one of those things where they’re sitting around and someone timidly suggests a dumb idea (“I know, for $5 more we take away their smartphone access”) and, because they have to come up with something, someone else says “sure” and then they think there’s validation of a good idea. But there’s no one brave enough in the room to say: “Guys, the newspaper is digital. Charging different amounts based on the hardware is like charging people different prices for listening to the same music on headphones vs. speakers.” But no one did that. And because they had a committee, who kept making bad suggestions like this, and 14-months to keep upping the stupid, they spent over $40 million on it.

The result for me will be that I’ll read the New York Times less than I do now. Whether the newspaper will in fact be hurt by losing page views by readers like me or will make more money than it does now with its content online for free remains to be seen, but something tells me this isn’t the best solution to the world we live in now, one in which newspapers no longer control the means of producing and distributing journalism.

Stay tuned. We’ll see what the New York Times is doing online in a year or two.

Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

The future of newspapers? Who knows? But there is one.

I don’t know where books are going. I don’t know what will happen to newspapers. But I am confident that both will survive and perhaps even prosper in the new environment we find ourselves in. John Lanchester’s article in the London Review of Books on the future of newspapers is well worth reading. Among other things, he reminds us that the future cannot be foreseen:

As for the new media, they are clearly a work in progress, and it would be premature to say what their impact will be on the fundamentals of public and political life. Their impact on private life is more apparent, and seems to focus on an increase in the number of ways for people to meet and connect, both online and off. In some ways, the story of text messaging is a parable for the way the net has evolved. SMS messaging was taken up by Nokia in Finland as a way of allowing engineers to communicate short, factual messages about where they were, what they were doing and how long it would take. Nokia then made the service available on their phones, since, well, there it was, so you might as well let the punters have a go. They were amazed to see the spike in data traffic which suddenly showed up. The reason: Finnish teenagers were using SMS to organise their social lives. From there, texting hasn’t looked back. Nobody decided what the purpose of SMS would be, it just evolved. It would be hard to deny that texting is a new thing; also hard to argue that it has fundamentally changed the world. I’d say that’s roughly where we are with the journalistic uses of the new media. Their democratising and decentralising effects have barely begun, and aren’t going to go away. In a sense, the WikiLeaks episode(s) shows both what the digital media can and can’t do. Its release of information is unprecedented: but it is not journalism. The data need to be interpreted, studied, made into a story. For that we need . . .  the press.

And the elimination of printing and distribution costs is profound. Lanchester explains that the New York Times could give its subscribers for free four Kindles with worldwide 3G per year coverage for the costs it currently expends in printing and distributing its newspaper:

If newspapers switched over to being all online, the cost base would be instantly and permanently transformed. The OECD report puts the cost of printing a typical paper at 28 per cent and the cost of sales and distribution at 24 per cent: so the physical being of the paper absorbs 52 per cent of all costs. (Administration costs another 8 per cent and advertising another 16.) That figure may well be conservative. A persuasive looking analysis in the Business Insider put the cost of printing and distributing the New York Times at $644 million, and then added this: ‘a source with knowledge of the real numbers tells us we’re so low in our estimate of the Times’s printing costs that we’re not even in the ballpark.’ Taking the lower figure, that means that New York Times, if it stopped printing a physical edition of the paper, could afford to give every subscriber a free Kindle. Not the bog-standard Kindle, but the one with free global data access. And not just one Kindle, but four Kindles. And not just once, but every year. And that’s using the low estimate for the costs of printing.

I might even subscribe if they did that. Though my e-reader is not a Kindle.

Pissed off by Parody

Citizens Against Government Waste is one of those private, corporate-fed entities freed by the Citizens United decision to pour as much money as they want into political campaigns. It has produced an ad ridiculing stimulus spending by the government that promises to be the source of many a parody, including the one embedded below (which appears to be the first).

CAGW, however, believes this parody is a copyright violation and has sent YouTube a takedown notice. Campus Progress, which produced the video, disagrees:

Citizens Against Government Waste must have spent all their money on the video, and didn’t have any left over for legal advice. Our video is a parody, not a copyright violation. And we aren’t raising money off it. We’re only raising awareness and highlighting the concern of young people that corporate interests are drowning out their voices this fall.

On the internet, they’ll find out you’re a dog if you bite.

I’ve made clear I consider anonymity on the internet a stance often abused and almost always one that detracts from the speaker’s credibility, but it also can be a legal problem when anonymous writers do real damage, without justification, to the targets of their words. As SignOn San Diego reports:

A business consultant who wants to know who’s been anonymously disparaging and fixating on her online has gotten a court to force Google to tell her.

As she joined a growing number of people who have persuaded courts to unmask troublesome cyber ciphers, Carla Franklin said Wednesday she hoped her case would help others combat similar problems.

As Bennet Kelley makes clear, you do have a right to speak anonymously, but that right doesn’t mean you have the right to use your words to harm someone without justification:

“There’s a tension there – there’s a First Amendment right to be able to speak anonymously, but there’s no First Amendment right to violate the law,” said Bennet G. Kelley, a Santa Monica, Calif., attorney who specializes in Internet law.

“People think: ‘It’s the Internet. I can do whatever I want,’” he said, but “the law applies, online and offline.”

The ADL forgets things that we should never forget.

I share wholeheartedly Paul Krugman’s “shock” at the Anti-Defamation League’s opposition to the construction of a mosque near Ground Zero. The temple I grew up as a member of and at which my older son and I each were bar mitzvahed has a long history, exemplified by Rabbi Arthur Lelyveld, in the fight for civil rights and interfaith relations. Even more to the point, however, the temple’s present building was completed in 1957, but only after a bitter lawsuit against the City of Beachwood that required the temple to go all the way to the U.S. Supreme Court. The litigation was over zoning matters, but you’re quite naive if you think the opposition was motivated by zoning concerns.

Anonymous online writing: bad writing that wouldn’t see the light of day if the writer knew readers could match the words to the person.

Wow. I apparently touched a nerve the other day when I blogged on this post and the thread of comments following it and expressed my preference for Dan Hull’s view that anonymous blogging is cowardly.

At the risk of offending one anonymous commenter who desperately wants me to condemn Dan’s insistence on insulting him and forget what I care about — writing words that one is willing to stand behind and justify — I will try to clarify and expand upon what I wrote:

I never said one cannot write anonymously. Quite plainly I don’t ban anonymous comments on my blog. Quite plainly I’ll never be Lord of the Internet with the power to ban anonymous writers. Nor, if I were Lord of the Internet, would I ban anonymous writing. I believe in the freedom of speech, even speech that expresses views I despise. Views I think are stupid are another tolerable phenomenon.

But I do care deeply about the quality of writing. I teach law students how to write as lawyers, and the vast majority of my professional life as a law professor and a lawyer depends on the effectiveness of what I write. One thing I am convinced of and try passionately to convince my students of is that that you cannot be an effective writer if you do not have the courage to own your words. By that I mean, among other things, that you must believe in your words, believe those are the  best words you could come up with under the circumstances to express your point of  view. If you don’t do so, you’re just parroting things you haven’t truly thought through. Your failure to think them through typically means you haven’t entirely grasped what it is you’re trying to say (and what the writer of what you’re parroting meant to say). It also means your words will not convince the intelligent reader who isn’t already convinced that you’re right.

One necessary implication of my belief in the necessity of owning your words is that anonymous online writing loses a lot of its credibility by the very fact that it is anonymous.

My view does not mean that anonymous writing entirely lacks credibility.The anonymous author’s character (and an anonymous author has a character, one that makes an alert reader wonder why he isn’t willing to claim his words as his own) detracts from the reader’s valuation of that anonymous author’s writing. But a myriad of factors go into influencing a given text’s persuasive force. The author’s character is only one, albeit an important one.

The point that really seems to have hit a nerve is that it seems plain to me that choosing to write anonymously is for all relevant purposes grounded in fear. Sometimes that fear justifies the anonymity because (a) the author’s fear is of sufficient immediate and substantial harm and (b) the message is so important that even if it is compromised by anonymity it is worth getting out. Where those so offended by my views and I differ is in the amount of courage we think is appropriate. They have fears of the consequences of identifying themselves online when they write and they’re deeply offended that I don’t believe those fears justify their ways of using anonymity.

Thinking he had caught me questioning the courage of one of my colleagues (whose views, not courage, I question) one anonymous commenter pointed out that Jonathan Adler blogged anonymously on the Volokh Conspiracy as “Juan non-Volokh” prior to being granted tenure. At the time, Jonathan had a legitimate fear that the mere act of blogging would jeopardize his shot at tenure. As a general matter at that time, blogging was not only considered beneath legal scholars, but also to be an actual drain on time better devoted to “real” scholarship. (While blogging is no longer a negative in the eyes of most professors, it still is considered by most entirely irrelevant to scholarly achievement). I have absolutely no reason to believe Jonathan chose anonymity to hide the substance of the views he expressed on the Volokh Conspiracy. Those views were quite well known among his colleagues (and to the public) and in substance were entirely of a piece with the public writing he did under his own name. Nonetheless, I do believe that Jonathan’s writing under his own name has more force than his writing did under his chosen pseudonym. Nor do I have any reason to believe he would disagree.

To take one of Dan Hull’s more obvious examples of non-cowardly fear justifying anonymity, an Iranian dissident has good reasons for writing under a pseudonym. But one question his anonymous identity might raise, among others is this: is he really a dissident or is he in fact a CIA or Saudi plant? All sorts of credibility problems arise when one chooses to separate one’s writing from one’s identity.

Ken, who chooses anonymity, has written that he prefers to remain anonymous because his favorite styles are, as he describes them, “satire, sarcasm, and ridicule.” Ken also believes that “these are potent weapons in the fight over ideas.” But, unfortunately, poor Ken is too subtle for most people and he therefore fears their reactions:

People don’t like being made fun of. Moreover, some people are functionally incapable of understanding irony, sarcasm, and satire. Other people are offended easily, and particularly by pop culture, sexual references, and the various forms of juvenile self-indulgence occasionally featured here to the extent it amuses us.

I would suggest to Ken words he so proudly identifies as satire, sarcasm, and ridicule are not really the “potent weapons” he believes they are. It is well known that online writing in particular is a very poor medium for the effective use sarcasm. Effective satire that actually persuades someone previously unconvinced of the writer’s point of view is a very rare thing. Far more often, satire is just the words of someone seeking affirmation from others who share the writer’s contempt for the object of the satire. And ridicule? Ridicule amuses your toadies. To everyone else, it’s just name-calling.

But Ken is no Jonathan Swift, and I think he knows it. In fact, Ken’s “satire, sarcasm, and ridicule” are, to my mind (and to the mind of those who are convinced by me, but plainly not to Ken and his anonymous colleagues), merely the lazy expression of hostility and disagreement.

But, regardless of how we characterize the writing that Ken believes to be a “potent weapon in the war of ideas,” what he fears is the risk those “functionally incapable” of understanding his meaning would pose to him. Who are these people? Well, he once worked for big firms that would so dislike what he wrote he feared his employment would be threatened. He has clients he fears he’d lose if they knew the truth of his views on social issues. He fears needing to justify his writing to opposing lawyers or judges who might use those words against him. He fears he or his family will be stalked or threatened like other bloggers have been. And he bravely wrote critically once about a white supremacist who lived just one town over from him.

Are these fears the legitimate fears of a brilliant writer wielding potent tools in the war of ideas? You can judge for yourself. The fear of the law firms, the clients, and opposing counsel and judges seems to me more likely fears of being busted for using stupid words by people to whom one has the responsibility to express oneself intelligently. The fear of being stalked seems to me the fear of something so unlikely (even though it does happen, of course) that it’s really nothing but an empty rationalization. The fear of the white supremacist? I might grant Ken that one, but then why does all of his writing need to be anonymous?

To address the question more generally: are your political views so inconsistent with your employment that your job would be threatened if you really expressed them? Are you so desperate for a job you need to keep that one despite the fact it is inconsistent with true expression of what you believe? Are you writing online about your employer despite an employment policy that forbids you to do so? Is that a legitimate exercise of anonymity? If you’re Karen Silkwood or Daniel Ellsberg, it would be, but I have grave doubts that the people complaining to me are in that league.

And if it’s your clients’ reactions you fear, why would they not like what you write? Would they like it if they knew you were hiding your real thoughts from them? Why do you represent them if legitimate expression of what you really believe would offend them? Are you really capable of representing them zealously if you harbor secret thoughts that, if known, would cause them to retain different lawyers? Is a blog really an appropriate place for telling stories about how dumb your clients are? You enjoy doing it. You want to do it. But does being able to do that justify anonymous blogging?

I AM NOT suggesting that  fears are always illegitimate. What I am suggesting is that a free-floating fear of being stalked as a result of online writing is pretty far off the wall. And I’ve worked for big law firms and clients of all sorts. It’s not the everyday law firm or client who would fire you for thoughtful writing online. There would have to be something really atrocious about the employer. And clients care far more about courage, skill, and passion than they do about disagreements on social issues that are irrelevant to their representation, especially if those views are expressed cogently and the lawyer is willing to stand behind those views. The last thing clients want is a lawyer who’s afraid to let the world know that he believes in and will stand behind his words.

And are these fears so real that they justify anonymity on everything a blogger writes? Selective, tactical anonymity is an option, guys. And choosing to remain silent on matters that you can’t write about in ways that won’t endanger you with people who matter to you is an option too. That of course, is a whole other topic: a good lawyer takes a lot of really interesting stuff to his grave with him.

And, honestly, I don’t see substance on Popehat (the site I originally linked to and from which the hostile commenters came) that would usually be the sort of thing that would threaten the livelihood of its authors or commenters. They’re a bunch of guys who might like to romanticize the subversiveness of what they write, but, really, they’re not exactly a threat to anyone or anything.

Nor am I.

Then again, while the content at Popehat is pretty run of the mill, the words themselves do not really do that substance a lot of justice. And that indeed is a major part of the problem. As Charles wrote, anonymity allows you to write that a cop was a “fascist” without people who know you and would be offended by those words know that you wrote them. But merely writing that a cop is a “fascist” is just nasty name-calling, not credible writing. And Patrick, in the very first comment responding to my blog post – writing anonymously, of course — explained that he’s never heard about me but that if he really cared he could “write a blogpost mocking [me], that would stick to the front page of a Google search for [my] name forever.”

A put down and a threat as an opening move? That’s a perfect example of why I called anonymous writing online cowardly. If one is going to insult and threaten, one ought to have the courage to let one’s employers, clients, loved ones, and targets know that being a bully is what one is in the business of doing.

Or one could claim to use insults rhetorically, to highlight a point, but that’s a dangerous game, and it takes a special person to get away with it, and Dan Hull happens to be a special person.

But the most important thing about Dan Hull for purposes of this discussion (though quite plainly Patrick and his Popehat People want to make anyone who happens upon this post or the last one on this point think otherwise) is that Dan Hull wrote those insults under his own name! He’s willing to own and justify those insults. And doing so has benefited him immensely. Clients love lawyers who make the work their own. And it sure doesn’t seem that the Popehat guys are big believers in political correctness, so I can’t believe they were genuinely hurt by his words except to the extent the substance behind his insults hit home.

My point is that if you don’t own your writing you cannot truly be persuasive. That’s why I emphasized that my students, as lawyers in training, must learn to own their words, to be ready to justify the choices they made in writing the words they wrote.

And Charles happens to be right about one thing — outside the law (and too much within it, truth be told) the courage to own one’s words is sorely lacking. I think that’s a real shame and a major loss for the quality of any discourse, be it about politics, literature, science, religion, etc. Charles, I guess, expects less of people than I do. I also think that people would be surprised how much they’d benefit from saying what they mean in ways they’d be proud to claim as their own to anyone.

Finally, I am making no demands. I am stating my point of view. Yes, I am an Associate Professor of Legal Writing, but that’s just a title. And I hardly use it to put on airs. Anyone who knows anything of the status wars within academia or has read much into my archives knows I write quite openly, under my own name, about (1) the fact my title is reflective of a remarkably low status and an absence of job security and (2) my opinion that (contra Patrick) law professors are NOT an elevated class.

Am I a nobody? Well, Mike (whoever he might be) certainly things so. One thing I do know — anyone with access to an internet connection has about as good an opportunity to determine that for themselves as they would for anyone who writes openly under his own name.

And they can take that information and factor it into their judgment whether and the extent to which they agree with me.

Here’s my suggestion to everyone, including the Popehat guys: try writing under your own names. You might find your words and views become far more compelling not only to your readers but also, far more importantly, to yourselves. But be careful: being thoughtful and precise — writing things that you’re willing to justify to those who challenge them — might make you rethink some of the stuff you hold to so passionately.

Or you can ignore me entirely. That’s entirely your prerogative. You can even, if you wish, go on thinking of me as a narcissistic nobody who doesn’t matter, and I’ll go on thinking of of most anonymous bloggers as a bunch of cowards who write to please themselves and don’t persuade anyone who hasn’t already bought into their point of view.

And when it gets down to it, tthe vast majority of anonymous online writing is simply bad writing that wouldn’t see the light of day if the writer knew everyone he knows could match the words to the person.

Own your words. Anonymity is cowardice, and cowards aren’t known for their wisdom.

An important lesson for my legal writing students: you must own your words to be genuinely persuasive.

By that, of course, I do not mean that their words are their property. There’s a lot of confusion about that issue, but that’s not today’s lesson.

What I mean is that it’s not enough to parrot words you believe are authoritative to make your case. You must use words you know in your heart state what you mean. Parroting the words of others, even if they are authoritative, won’t do that. Which is why one of my favorite quotes is Ralph Waldo Emerson’s: “I hate quotations. Tell me what you know.” (I love paradox too.)

But in order to own your words you have to have the courage to stand behind them too. It’s one reason I bemoan the influence of anonymous student evaluations. It’s why too I’m all in with Dan Hull in this insane exchange about his insistence that anonymity is the death of productive discussion on the internet.

What possible conviction can you hold in your words if you’re not even willing to put your name to them? As Dan makes clear, there are of course exceptions to this rule — there are times anonymity is necessary to preserve one’s safety. But legitimate fear for one’s safety for stating disagreement is a rare thing that we don’t encounter terribly often in 2010 on the internet in the United States. It’s almost hilarious to find people disputing Dan under the pseudonyms “Publius” and “Marcus Agrippa.” Almost hilarious. Really, it’s pathetic.

If you can’t own your words, put yourself forward as the authority behind your words and rely on the force of those words and your own integrity for their persuasive effects, you cannot be a lawyer. I’ve said it recently: a good thing about being a lawyer is there is always someone telling you your wrong. You have to be willing to put your ideas and words to the test, and you have to be willing to adapt and adjust when your words have been successfully challenged. To hide behind a pseudonym is nothing but cowardice, and cowards aren’t known for their wisdom.

Law struggling with changes in material reality: corporate confidentiality this time

I have emphasized again and again the difficulties law faces when there are profound changes in the material reality of our lives, including, for example, demand for new sources of energy. Law is not a set of rules good for all time in all places and all things. It is, rather, an evolving system that tries to do justice in the particular situations it addresses.

The new technologies for copying and disseminating information have of course thrown our legal system into confusion over copyright. Those technologies also are having a profound impact over notions of confidentiality and privacy. Wikileaks is of course in the news in connection with its disclosures of U.S. military secrets, including its release of an Apache helicopter attack in Iraq.

The efforts of a British court to deal with Wikileaks illustrate the difficulties courts often have in applying legal rules that grow out of an era already long past to the new world. Wikileaks’ released of documents from Barclays Bank detailing Barclays’ efforts to use offshore affiliates to evade taxes in Great Britain. A judge ordered the Guardian newspaper, which had published the documents, to take the material down because, he reasoned, the bank had a right to confidentiality.” He also ordered the Guardian not to publish links or other directions for finding the documents on the internet even though they were widely available on sites not based in Great Britain.

As Alan Rusbridger, the editor of the Guardian, explains, the disconnect between the court’s view of confidentiality and the realities of the internet expose a certain degree of absurdity:

The Internet is throwing sharp relief to the illogical nature of our system. Technology is way ahead of the law, and the law is limping along trying to make sense of it.

Professor James Edelman of Oxford believes the court order in connection with the Barclays documents might be the last example of this particular type of confusion, particularly because Barclays may realize that its legal efforts, even if “successful” in getting an order barring publication in the U.K., only serve to publicize the existence of the documents the bank is trying to keep hidden:

“What is significant about the ruling,” he said, “is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.” The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.

Mr. Rusbridger said that the newspaper still had not decided whether to do that. The cost for being wrong, he said, could be as much $300,000 in legal fees.

Seeming to prove Professor Edelman’s larger point, however, when Wikileaks became overloaded by the traffic about a week ago, another site, techcrunch.org, published the seven memos under the heading “How Barclays Ensured That Everyone Would See Their Confidential Tax Documents.”

A lesson for Rand Paul in the differences between the Constitution and statutory law

In the interview below with Rachel Maddow, Rand Paul is taking the position that got Robert Bork’s nomination to the Supreme Court rejected — that the federal government in the Civil Rights Act of 1964 should not have outlawed private businesses open to the public from discriminating based on race.

Moreover, he is just plain wrong to suggest that the impact of the Civil Rights Act on private businesses is the same as the impact gun rights advocates argue the 2d Amendment to the Constitution should have — Paul says those gun rights activists are arguing that private businesses, including restaurants, do not have the right to ban them from carrying guns inside those businesses.

He’s just plain wrong because the Constitution only bans discrimination based on race by government, and it only protects the right to bear arms against restrictions imposed by the government. It is a statute passed by Congress – the Civil Rights Act of 1964 — that bans private businesses open to the public from discriminating based on race. There is no such statute requiring private businesses to restrict one’s right to bear arms.

Visit msnbc.com for breaking news, world news, and news about the economy

Elena Kagan is no blank slate, and to say otherwise is to spout lies.

Enough already with this myth that Elena Kagan is a blank slate, typified by Michael Gerson: “The most prominent thing about Kagan is her extraordinary ability, while holding high-profile jobs in the legal profession, to say nothing on the major issues of the day.”

As I explained yesterday at some length, there’s good reason to believe Kagan will be forthcoming in her confirmation hearings about precisely what Gerson states it would “be helpful to know”: “her political, legal, and constitutional views.”

But even more importantly, this view that Kagan has been silent on political, legal, and constitutional issues is pure fiction. SCOTUS Blog, in almost 10,000 words, summarizes her career, and includes links to her legal scholarship. Eugene Volokh, no liberal, writes the following:

Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).

Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.

Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.

Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review’s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).

And while some articles might be heavily cited because they fit with academic ideological fashions, I don’t think these would qualify.

Blank slate, my ass.

My favorite part of her writing is her may be her reminiscence of Justice Thurgood Marshall, for whom she clerked. It might be less in the scholarly mode, but it is perhaps as revealing as anything about what she would be like as a judge:

Justice Marshall thought all lawyers (and certainly all judges) should be reminded . . .  that behind law there are stories-stories of people’s lives as shaped by law, stories of people’s lives as might be changed by law. Justice Marshall had little use for law as abstraction, divorced from social reality (he muttered under his breath for days about Judge Bork’s remark that he wished to serve on the Court because the experience would be “an intellectual feast”); his stories kept us focused on law as a source of human well-being.

That this focus made the Justice no less a “lawyer’s lawyer” should be obvious; indeed, I think, quite the opposite. I knew, of course, before I became his clerk that Justice Marshall had been the most important-and probably the greatest-lawyer of the twentieth century. I knew that he had shaped the strategy that led to Brown v. Board of Education and other landmark civil rights cases; that he had achieved great renown (indeed, legendary status) as a trial lawyer; that he had won twenty-nine of the thirty-two cases he argued before the Supreme Court. But in my year of clerking, I think I saw what had made him great. Even at the age of eighty, his mind was active and acute, and he was an almost instant study.

Above all, though, he had the great lawyer’s talent (a talent many judges do not possess) for pinpointing a case’s critical fact or core issue. That trait, I think, resulted from his understanding of the pragmatic-of the way in which law worked in practice as well as on the books, of the way in which law acted on people’s lives. If a clerk wished for a year of spinning ever more refined (and ever less plausible) law-school hypotheticals, she might wish for a clerkship other than Justice Marshall’s. If she thought it more important for a Justice to understand what was truly going on in a case and to respond to those realities, she belonged in Justice Marshall’s chambers.

None of this meant that notions of equity governed Justice Marshall’s vote in every case; indeed, he could become quite the formalist at times. During the Term I clerked, the Court heard argument in Torres v. Oakland Scavenger Co. There, a number of Hispanic employees had brought suit alleging employment discrimination. The district court dismissed the suit, and the employees’ lawyer filed a notice of appeal. The lawyer’s secretary, however, inadvertently omitted the name of one plaintiff from the notice. The question for the Court was whether the appellate court had jurisdiction over the party whose name had been omitted; on this question rode the continued existence of the employee’s discrimination claim. My co-clerks and I pleaded with Justice Marshall to vote (as Justice Brennan eventually did) that the appellate court could exercise jurisdiction. Justice Marshall refused. As always when he disagreed with us, he pointed to the framed judicial commission hanging on his office wall and asked whose name was on it. (Whenever we told Justice Marshall that he “had to” dosomething-join an opinion, say-the Justice would look at us coldly and announce: “There are only two things I have to do-stay black and die.”

A smarter group of clerks might have learned to avoid this unfortunate grammatical construction.) The Justice referred in our conversation to his own years of trying civil rights claims. All you could hope for, he remarked, was that a court didn’t rule against you for illegitimate reasons; you couldn’t hope, and you had no right to expect, that a court would bend the rules in your favor. Indeed, the Justice continued, it was the very existence of rules-along with the judiciary’s felt obligation to adhere to them-that best protected unpopular parties. Contrary to some conservative critiques, Justice Marshall believed devoutly-believed in a near mystical sense-in the rule of law. He had no trouble writing the Torres opinion.

Elena Kagan, For Justice Marshall, 71 Texas L. Rev. 1125, 1127-28 (1993).

Confirmation Hearings for Supreme Court Nominees, Elena Kagan, and the mythical Borking of Robert Bork

During his confirmation hearings, prospective Chief Justice Roberts was questioned intensely about his respect for precedent, particularly in connection with Roe v. Wade. In keeping with the image he plainly intended to project as a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for precedent. As I have previously written, Roberts’ purported respect for precedent didn’t prevent him recently from voting for and writing a concurring opinion in support of the Citizens United decision by the Supreme Court, a decision that overturned 100 years of precedent supporting congressional restrictions on corporate campaign contributions.

I bring this up because of how refreshing I find Elena Kagan’s views on the confirmation process. Ever since the rejection of Robert Bork’s nomination by Ronald Reagan, right wingers have defined the verb “to bork” to refer “to the way Democrats savaged Ronald Reagan’s nominee, the Appeals Court judge Robert H. Bork.” As a result, nominees since Bork have been careful to the point of absurdity to avoid revealing their views on their judicial philosophy or on particular judicial precedent.

But can anyone seriously believe that John Roberts would vote to uphold Roe v. Wade despite insisting, in connection with questions about it, on his respect for precedent? In advance of the Court’s decision in Citizen’s United, Jeffery Rosen wrote in the New York Times that Roberts could “support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down.” Rosen expected the former because “when . . . Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall.”

We now know Roberts was lying.

It is worth keeping in mind, therefore, that  when he was nominated to the Supreme Court, Robert Bork

[P]romised to keep an open mind on the issue of abortion and the right to privacy. Liberal and moderate Democratic and Republican senators did not believe him, and they were right not to. Bork, after he resigned from the federal bench, admitted that he believed Roe v. Wade was wrongly decided and all but explicitly said that had he been on the Supreme Court he would have provided the fifth vote to overturn Roe v. Wade.

Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle for the Federal Courts, 39 U. Rich. L. Rev. 871 (2004-2005), citing Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges at 71 (2003).

It’s worth noting Bork’s precise language in Coercing Virtue regarding Roe v. Wade and a later decision upholding it, Planned Parenthood v. Casey:

It is mind-boggling that citizens were admonished that accept Roe because they”must respect the “rule of law.” Both Roe and Casey are, in fact, crass violations of the rule of law; they are not rooted in any conceivable interpretation of the Constitution, and have nothing to do with “constitutional terms.”

This from the guy who said, in sworn testimony during his confirmation hearings, that he had an “open mind” about the constitutional basis for a right to privacy.

Why was Robert Bork rejected as a nominee to the Supreme Court? It was because his judicial philosophy was so out of tune with what the country expected of a Supreme Court judge in 1987 that the Senate deemed him unacceptable. We could not accept as a Supreme Court judge someone who at the time it mattered — when Congress was considering the legislation — opposed the Civil Rights Acts. We could not accept someone who once wrote passionately that the First Amendment protection of free speech did not extend to art and literature. As reported in 1987:

In 1963 and 1964, as a 36-year-old law professor, Mr. Bork wrote impassioned attacks on legislation to desegregate lunch counters and other public accommodations. He argued that the bill, by invading the liberty of proprietors to turn away blacks, was based on ”a principle of unsurpassed ugliness.” Not until 1973, when seeking Senate confirmation as Solicitor General, did he publicly renounce this view, stated with such unsurpassed surliness.

Even in his latest appearance he declined to revise his pinched view of civil rights. He has criticized some of the Supreme Court’s landmark civil rights decisions for reasons that vary from case to case. The bottom line, however, is almost always the same – unfavorable to minorities.

Free Speech. Repeatedly over the years, Judge Bork has taken a narrow view of the rights of expression. He declared that only the ”core” value of political speech was immune from government restraint. Not until 1984 did he allow as how art and literature might be protected, and then only because they sometimes relate to politics. His conversion, late, is also limited.

Even this limited liberty, in his view, remains utterly at the mercy of the majority when speech becomes advocacy of illegal action. The Court and the mainstream of public opinion have long tolerated strident dissent, reserving punishment for incitement to imminent lawless action. Judge Bork rejects this tradition. Senator Arlen Specter of Pennsylvania extracted from him a ”commitment” to apply settled law rather than his own view. But even such assurances failed to persuade the Judiciary Committee’s ablest questioner, who has decided to oppose the nomination.

So let’s get over this nonsense that Robert Bork was somehow wronged — Robert Bork was denied appointment to the Supreme Court because his judicial views were too far out of step with what the U.S. had come to expect from its Constitution in connection with protection against racial prejudice and restrictions on expression.

What does this have to do with Elena Kagan? Kagan believes that the Senate should explore a nominee’s views, that the confirmation hearings should not continue to be what they have been since the days of Robert Bork — silly, ritual dances that permit the likes of John Roberts to evade completely straight answers to questions that are of central importance to the operation of the Court. As Kagan has written:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy–muted, polite, and restrained–but all that good order comes at great cost. And what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate–that their insistent questioning of Judge Bork was justified, if at all, by his overt “radicalism” and that a similar insistence with respect to other nominees, not so obviously “outside the mainstream,” would be improper. This belief is not so often or so clearly stated; but it underlies all that the Judiciary Committee now does with respect to Supreme Court nominations. It is one reason that senators accede to the evasive answers they now have received from five consecutive nominees. It is one reason that senators emphasize, even in posing questions, that they are asking the nominee only about philosophy and not at all about cases–in effect, inviting the nominee to spout legal theory, but to spurn any demonstration of what that theory might mean in practice. It is one reason that senators often act as if their inquiry were a presumption-as if they, mere politicians, have no right to ask a real lawyer (let alone a real judge) about what the law should look like and how it should work. What has happened is that the Senate . . . has let slip the fundamental lesson of the Bork hearings: the essential rightness–the legitimacy and the desirability–of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 619, 941-942 (footnotes omitted), reviewing Stephen L. Carter, The Confirmation Mess (1994).

So Kagan doesn’t have much of a paper trail. David Brooks therefore writes that she “is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess.” Consequently, he finds her “kind of disturbing.” It’s almost funny. Brooks wrote when John Roberts was nominated that

I love thee with the depth and breadth and height my soul can reach. I love thee freely, as men strive for right. I love thee because this is the way government is supposed to work. President Bush consulted widely, moved beyond the tokenism of identity politics and selected a nominee based on substance, brains, careful judgment and good character.

What inspired this poetic passion from Brooks? According to Brooks, Roberts “is principled and shares the conservative preference for judicial restraint.” And “[a]nybody who is brilliant during Supreme Court grillings, as Roberts is, will be impressive at confirmation hearings.” Finally, Roberts “has shown that character and substance matter most.”

So Kagan — who has put on the record her belief that Supreme Court nominees should address the issues that will come before the Court — is “disturbing,” but Roberts, who lied about being a conservative consensus builder with a deep respect for precedent has “substance, brains, careful judgment and good character.”

Yeah, right. Here’s my suggestion to all those who think Kagan’s a “blank slate” — why don’t you withhold judgment until the confirmation hearings. Let her answer questions, questions she’s on record stating she thinks are legitimate and should be answered. It’s more than we got from John Roberts.

40 years ago (4 dead in Ohio) and today.

40 years ago today (May 4) I was 10 years old, sitting at home, when I heard about something I thought unthinkable that had just happened about 40 miles away from my home. National guard troops had fired on unarmed students at Kent State protesting the Vietnam War, killing 4 and wounding another 9. Nine days later at Jackson State, police killed students and wounded another 12 who were protesting the war and the killings at Kent State.

It was inconceivable to me that unarmed students exercising their First Amendment rights had been shot to death in the United States,  but my childhood was filled with nightmares of that sort. In 1967 I remember driving through parts of Cleveland that were under military occupation as a result of just one U.S. city among hundreds that had had exploded that year and the previous one. And, of course, in 1968, Martin Luther King and Robert Kennedy were assassinated in little more than 2 months, disappearing the 2 most prominent voices calling for the U.S. to pull its troops out of Vietnam.

And, of course, we were all at the time convinced of the inevitability of nuclear holocaust.

So I laugh when I hear earnest students of mine who insist that terrorism is the greatest threat this country has ever faced. And when conservatives express the fear that President Obama threatens us with fascism. We should not be fighting wars we can’t win in support of corrupt regimes. And we have huge problems at home:

In 2005, 21.2 percent of U.S. national income accrued to just 1 percent of earners. Contrast 1968, when the CEO of General Motors took home, in pay and benefits, about sixty-six times the amount paid to a typical GM worker. Today the CEO of Wal-Mart earns nine hundred times the wages of his average employee. Indeed, the wealth of the Wal-Mart founder’s family in 2005 was estimated at about the same ($90 billion) as that of the bottom 40 percent of the U.S. population: 120 million people.

But I remember vividly how sad I was on May 4, 1970.

Why the music industry won’t sue certain samplers such as Girl Talk and the producers of Copyright Criminals.

I’ve discussed extensively in the past (most prominently, perhaps, here) my view regarding the music industry’s view that considers any unlicensed sample of a copyrighted recording, no matter how small and how transformed, a copyright infringement. In short, I think it likely the case law on which that view is based would be overturned if it is challenged in any case in which the sampling is used in a way sufficiently transformative that the sampling work stands on its own as a creative work. In short, that’s why I don’ t think Girl Talk has been sued.

Transformative uses of copyrighted work are permitted under the fair use doctrine, and so are critical uses. That’s why I don’t think Kembrew McLeod needs to worry about a lawsuit in connection with the documentary film he co-produced “titled Copyright Criminals, which examines the messy three-way collision between digital technology, musical collage, and intellectual property law.” So why does McLeod worry? Because he’s right in explaining the following:

The music industry believed that the law didn’t distinguish between copying one second or half a minute of a sound recording. Therefore, record companies now insist that every fragment of sound needs to be cleared, something that fundamentally altered the aural evolution of hip-hop music. The more complex you make your sound collage, the more impossible it is to share with the world. And in the course of documenting the legal and cultural history of this art form, Ben [McLeod's co-producer] and I are risking being sued.

But if McLeod is willing to fight a lawsuit — and I think he is — the recording industry won’t sue him. The existing precedents requiring licensing of every single recorded sample would be overturned, and the record industry would lost the appearance created by these precedents, an appearance that makes the vast, vast majority of samplers pay license fees for their samples. It’s better business for the industry to let the occasional brave and creative soul feel as if he’s getting away with something than to have the industry’s precious — and ill-founded — legal precedents put at genuine risk.

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.