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 Beach Boys: Villains, just see what you’ve done.

One of the oddest points to get across to non-lawyers, lawyers-to-be, and even many lawyers is that what the law prescribes and what actually happens are 2 entirely different things and that it is as crucial to being a good lawyer to understand what actually happens and why  as it is to know the laws.

It starts out pretty simply with beginning law students. The first time someone says, “But you can’t do that because it’s against the law,” I ask him whether he’s ever driven faster than the speed limit. And then I look at him and say, “But you can’t! It’s against the law.”

The law does, of course, affect a lot of what happens. You’ll speed based on some unconscious calculation regarding the benefits of getting where you’re going faster against the risk of being ticketed and the cost if you are. You might also take into account other costs such as dangers posed by children in the neighborhood, the driving conditions, and the reactions of any passengers to your speed.

It might seem like a simplistic example, but that’s what you have to become conscious of when you’re a lawyer: the risks and costs associated with your behavior, including the risks and costs imposed by law. And if you only consider the risks and costs imposed by law, you’re probably not doing your clients a lot of good.

I am convinced, however, that the central problem with the contemporary U.S. legal system is the cost of actually using the law to get what the law prescribes. It’s insane how much it costs to sue or be sued, and the insanity of those costs skews so much in our society in favor of those with a lot of money regardless of the legal ramifications of that skewing. In copyright, a lot of people complain that digitized information and the internet have made it too expensive to stop people from stealing their property. But far more of an impact is felt by what is called “copyright overclaiming,” the assertion by wealthy (and typically corporate) copyright holders that their rights have been infringed by people who cannot afford to vindicate their legitimate rights to use the copyright material in a lawsuit.

As Richard Posner has written:

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Whether it’s the writer’s own publisher or the copyright holder, the instances of copyright overclaiming are endless and seem downright silly until you realize the person being sued by the copyright holder really has no choice. Money rules.

Now, from artnet, comes the latest example of a rich has-been using his a flimsy claim of copyright infringement to squeeze a few more dollars out of an up-and-coming artist:

Perhaps no one was more excited by the long-awaited release of the Beach Boys’ unfinished 1966 album Smile than Erik den Breejen. After Smile came out last year, the young painter (and lifelong Beach Boys fan) set to work on a series of paintings that transformed the lyrics into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.

When the exhibition opened at Freight and Volume gallery in December (and was reviewed in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist Van Dyke Parks. Den Breejen had tracked down Parks’ manager, thinking that she might share his artworks with his idol. A few days later, Den Breejen was met with a less than enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks’ attorneys.

* * *

Joy Garnett Lectures on Painting, Mass Media, and the Art of Fair Use

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.

Clay Shirky on why SOPA & PIPA won’t go away: the old media companies want to make it too expensive for you (artist, consumer, teacher, etc.) to use copies even in legitimate ways

Off Book: The Evolution of Music Online (a/k/a progress SOPA would end)

Off Book: The Evolution of Music Online from PBS Arts on Vimeo.

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).

The film, music, and publishing industries have always cried, “Wolf!”

I’ve written before about how the film industry decried and fought the VCR. In 1982, Jack Valenti, in sworn testimony before Congress, stated that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” Of course, the Supreme Court upheld the legality of the VCR and the film industry not only prospered; it makes more money from home video sales than from from the theatrical box office.

Mike Masnick at techdirt does a far more thorough job, setting forth the long, continual, and continually misbegotten history of existing industries decrying the doom foretold by emerging technologies. He starts with John Philip Sousa, the conductor.

In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

It’s a long and hilarious history. Did you know that in the 1980s home taping was “killing” the music industry? That using your DVR is theft? That Thomas Edison argued that film projectors would kill the film industry?

The whole thing is worth reading and worth remembering next time you read a screed by Bono or Scott Turow.

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.

PBF on the interrelationships between law, technology, and the arts on 9/15

On September 15 at 6pm I’ll be speaking at SPACES on the interrelationships of art, law, and technology. SPACES is a gallery, a resource, and a public forum for artists who explore and experiment. To find it, go here.  There will some minor similarities, I suppose, to the talk I gave at the Cleveland Institute of Art two years ago, but this one promises to be significantly different and better.

The Barnes Foundation and Ownership: Outsmarting Albert Barnes

James Panero sets forth the historical detail on Albert Barnes and his foundation, much discussed on this blog, in his article Outstmarting Albert Barnes:

All in all, the same brilliance that created a legacy for Albert Barnes would ultimately undo his legacy. Since the time of Barnes’ death in an automobile accident in 1951, the Barnes Foundation has been a case study in how an institution, created by a brilliant mind with clear intentions, can become irrevocably damaged through overly restrictive operating guidelines, unanticipated leadership problems, and the competing missions of other organizations and institutions. Much attention has been paid to the forces at work against the foundation, but in fact the seeds of destruction were sown by the hands of Barnes himself. As history has proven, decisions he made in life imperiled the perpetuity of his collection after death.

Barnes made every effort to preserve the vision of his creation after his death. For the past 60 years, what we have seen at the Barnes is what Barnes put there himself. At this moment, however, Barnes’ art collection is being removed forever from the walls he built for it. Barnes knew he was creating something unique in the annals of American art. He was also right that outside forces would emerge to alter his project after his death. What he never anticipated was that the very defenses he put in place to preserve his collection would eventually contribute to its undoing.

I can’t help but feel that part of the problem in the Barnes Foundation dispute was the way we glorify ownership. As Panero reports, Julian Bond, the son of Barnes compatriot and Lincoln president Horace Mann Bond, expresses the view of those who opposed the move of the Barnes Foundation collection to urban Philadelphia by stating: “The art belonged to him. He had the right to do with it as he chose, and these people, these vandals, stepped in and took it away from him.”

But do we really want someone controlling the fate of $30 billion of art (much of it bought from desperate sellers during the Depression) 60 years after his death pursuant to instructions that make no sense at all if one is concerned about the art as culture?

This American Life tells the story of a “patent troll.”

NPR reporter Laura Sydell and This American Life producer/Planet Money co-host Alex Blumberg tell the story of Intellectual Ventures, which is accused of being the largest of the “patent trolls,” a derogatory term in Silicon Valley for companies that amass huge troves of patents and make money by threatening lawsuits:

Justice is too expensive: photography and public art this time.

As a lawyer, I am of course very invested in my belief in our justice system, but one thing is abundantly clear: it is too expensive. The prohibitive expense of vindicating one’s rights tilts the entire system in favor of those with wealth. Copyright is a field rife with illustrations of this principle, but it is a problem that permeates the entire system. And now we have another example. As I wrote in February 2010, photographer Mike Hipple was sued by sculptor Jack Mackie over the photo Hipple took about 10 years ago of a woman standing near the “Dance Steps on Broadway” sculpture in Seattle’s Capitol Hill. (Hipple’s photo is below and to the right.)

Now comes word from Hipple that he has decided to settle the case. Why? Because, though he continues to believe in the legitimacy of his position, it is not worth it financially to go to trial:

I am writing to let you know that I have settled Jack Mackie’s copyright claim against me. I believe I have good defenses but have come to understand that he has good claims. I also believe now that the financial stakes are such that it is not worth continuing to fight.

I understand Jack Mackie’s ardent desire to protect his copyright in Dance Steps on Broadway. I, too, want to protect my own photography copyrights. Mr. Mackie’s Dance Steps is a Seattle icon and a well known work. I understand why he is so protective. I did not intend to attack his copyright when I took my photo, and I did not realize then that selling a photograph which includes part of a copyrighted public artwork can violate that copyright.

I did not intend, in defending myself in the lawsuit, to attack Mr. Mackie personally. I intend to let this matter go and urge my supporters to do the same.

I can, of course, let this matter go. It would be difficult to push hard against a client’s decision to settle such a case given the costs and risks of pursuing it through trial and, possibly, appeal. But the larger issue is one that I can’t let go.

First, I do not see what benefit there is to anyone in allowing Mackie to stop Hipple from making and selling his photographs. And, of course, I also agree with Hipple that the photo constitutes fair use of the sculptures image. Why? Because the photo stands on its own as a creative work. Hipple has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions. I don’t know how often I can say it: art builds on art. Culture builds on culture. And the sooner we ease up on our madness to monetize everything the sooner we’ll be sane.

DIY, from This American Life: you get justice in the next world, in this world you have the law?

It’s easy sometimes to lose sight of the fact our legal system is called a justice system and that law doesn’t exist for it’s own sake. I suppose, however, that William Gaddis had that confusion in mind when he opened one of his novels with this line:

You get justice in the next world, in this world you have the law

Today I made a brief car ride with my son last an hour so I could hear all of the latest episode of This American Life. Entitled “DIY,” the summary set forth below, from the This American Life web sitem fails to do justice to a story that brought me to tears, that reminds me again what this whole life of the law ultimately boils down to. Fortunately, you can hear the whole episode yourself from the player pasted in below the summary:

PROLOGUE.

Carl King, a self-taught investigator, talks about the murder case he’s working on now—one the police think they’ve already solved. Carl got started in this business after freeing his close friend from prison. He now runs an organization, called Success to Freedom, devoted to helping wrongfully convicted inmates. (2 minutes)

ACT ONE.

Reporter Anya Bourg tells the story of Carl King’s first case, where he’s able to accomplish what experienced detectives and lawyers were not. He proves that his friend was innocent. In this first half of the show, we hear the story of the crime. In 1980, Mario Hamilton was gunned down in the street in Brooklyn. A teenager claimed to have seen it happen. With police prompting, he fingered a guy named Collin Warner as the shooter. No matter that everyone in the neighborhood said someone else murdered Hamilton and that Warner had nothing to do with it. And no matter that the teenager hadn’t witnessed the murder at all. A jury convicted Warner, and he was sentenced to 15 years to life for killing a man he’d never even heard of. Carl, his childhood friend couldn’t let it rest, and started to fight the conviction. He tells everyone he can about the case. He tracks down witnesses. He teaches himself to read court documents. Eventually, he gets a real estate lawyer hooked on the case. (29 minutes)

ACT TWO.

The story of Collin Warner continues. His friend Carl manages to convince the real shooter and the victim’s brother (who watched him die on the sidewalk) to testify on Collin’s behalf. After 21 years in prison, Collin goes free. (24 minutes)

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

Free markets and the end of education as we know it

I’ve mentioned it before — I have watched through the course of my professional career as free market ideology has come to dominate legal thought. But it isn’t merely that many legal thinkers and politicians believe that so-called “economic efficiency” is the overriding purpose of law. Capitalist absolutism infects my teaching too because I am now teaching students who have grown up during a time in which they have learned never even to question the belief that markets are better than government at providing anything and everything.

As a result, fewer and fewer students arrive at law school with the kind of education I think is the best preparation. They come as business majors, poli sci majors, accounting majors, finance majors . . . Some come as engineers, and they tend to be the best educated, albeit a bit narrowly, but invariably they believe backgrounds in engineering put them behind the others.

Why this change, this narrowing in outlook? It’s the attitude Stanley Fish writes about today — the unquestioned acceptance that maximizing “student choice” provides the best means of improving education. It’s the same market thinking in another place — students are consumers, and if we leave to them the choice of what to pursue, those educational institutions that are chosen by the most students will be the most rewarded. And, of course, what students choose must be the most valued and therefore the best. Fish explains this thinking while cogently explaining its most fundamental defect — students don’t have the judgment to make good choices. Education is precisely about teaching them such judgment:

Judgment is what education is supposed to produce; if students possessed it at the get-go, there would be nothing for courses and programs to do.” But that objection would be entirely beside the point in the context of the assumption . . . that what students want to get from participating in higher education is money.

But now, under Britain’s new approach to higher education, “government support of higher education in the form of block grants to universities (which are free to allocate funds as they see fit) would be replaced by monies given directly to matriculating students, who would then vote with their pocketbooks by choosing which courses to ‘invest’ in.”

The problem, of course, is that the only measure of value such a mindset accepts is money:

A course’s “key selling point” will be “that it provides improved employability” and students will be asked to pay “higher charges” for a course only “if there is a proven path to higher earnings.”

Not only is this attitude remarkably narrow about what constitutes value. It also assumes that the only people interested in the results of our educational system are people who go through it. There’s no social interest in education apart from the sum total of the financial interests of those student-consumers:

The logic is the logic of privatization. Higher education is no longer conceived of as a public good — as a good the effects of which permeate society — but is rather a private benefit, and as such it should be supported by those who enjoy the benefit. “It is reasonable to ask those who gain private benefits from higher education to help fund it rather than rely . . . on public funds collected through taxation from people who have not participated in higher education themselves.” No one who has not been to a university has any stake in the health or survival of the system.

I couldn’t agree with Fish more on the pathetic narrow-mindedness of this “logic of privatization”:

There is no recognition . . . at all of the value of learning; quality is a measure nowhere referenced; civilization, as far as one can see, will have to take care of itself.

But at second thought this paean of self-praise is merited once we remember that that the report’s relentless monetization of everything in sight has redefined its every word: value now means return on the dollar; quality of life now means the number of cars or houses you can buy; a civilized society is a society where the material goods a society offers can be enjoyed by more people.

I was a double major in Latin and Ancient Greek. Classics departments are disappearing, and the “privatization” of education will only accelerate their disappearance. I did not pursue a Ph.D. merely because my job prospects after the 6 or so years I would have loved getting that degree were virtually non-existent. But I wouldn’t trade my education for anything. It made me the successful lawyer I am. I find myself returning again and again to what I learned and to further study in my current professional life about matters that I first discovered in my undergraduate years. And I genuinely think that my education taught me that value is something money can barely begin to measure in any meaningful way.

John Lanchester’s I.O.U. is a book I would encourage all my students to read. One more piece of conventional wisdom too many of them accept without question is that what happened and continues to happen in the financial markets (matters I learned of first-hand in the course of my near 12 years in practice) are too difficult for even the brightest people to understand. That is a piece of mystification that people who profited from the financial markets (at the profound expense of the rest of us) would prefer my students not look behind. Lanchester does a terrific job of explicating the causes of the 2008 financial crisis and the persistence of those causes today.

But what’s disturbing about what Lanchester writes in the context of this post is his realization that the financial crisis resulted from precisely what I am writing of — a generation during which we have come to really believe that communism fell and capitalism triumphed because of the unalloyed power of free markets. It’s not at all that Lanchester (or I) are advocates of communism. He is explicit in arguing that the liberal democracies of the 20th Century’s 2d half were the best societies that ever existed. But the pressure communism put on those societies to balance market forces with programs that promoted social justice were an indispensable part of those societies’ enormous success. With the fall of communism and the removal of that pressure, free markets have found an ideological open field in which those programs promoting social justice are being dismantled. As Dwight Garner explains in his review of I.O.U.:

It’s a story that begins, as these stories are wont to do, with the fall of the Berlin Wall. The capitalist West won its “ideological beauty contest” with the communist East, Mr. Lanchester writes, which was good news except for this: Suddenly “there was no global antagonist to point at and jeer at the rise in the number and size of the fat cats; there was no embarrassment about allowing the rich to get so much richer so very quickly.”

Once upon a time in America and Britain, he observes, “the jet engine of capitalism was harnessed to the ox cart of social justice, to much bleating from the advocates of pure capitalism, but with the effect that the Western liberal democracies became the most admired societies that the world had ever seen.”

Then the Wall crumbled, and “the jet engine was unhooked from the ox cart and allowed to roar off at its own speed. The result was an unprecedented boom, which had two big things wrong with it: It wasn’t fair, and it wasn’t sustainable.”

And it leads to poorly educated students and unhappy people.

Retired Justice John Paul Stevens: the death penalty does us no good.

In the New York Review of Books, in the course of reviewing David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition, retired Supreme Court Justice John Paul Stevens provides a critique of the continuing utility and wisdom of the death penalty.

Any human institution is better understood if one understands its history. I’ve often made this point in connection with our understanding of what it means to be an author, a creator, or an artist. But the point is a general one and quite plainly also applicable to an understanding of the death penalty, which, as Justice Stevens points out, “has roots in gruesome and public spectacles: unspeakable torture and postmortem desecrations of offenders’ remains designed, respectively, to maximize suffering and exalt the omnipotence of the sovereign.”

The increasing availability of deportation and imprisonment as a means of coping with people deemed undesirable by the sovereign, however, led to a reduction in executions, a new found concern with making executions more humane, and, eventually, the “lengthy and elaborate legal process [that] has become a central feature of American capital punishment.” As a result, several people have been executed over 20 years after their crimes, and some prisoners have now been on death row for over 30 years. Garland concludes that “[s]uch delays do not just undermine the death penalty’s deterrent effect; they also spoil its capacity for satisfying retribution.” He also believes that efforts t o make executions more humane similarly minimize the deterrent and retributive qualities of the death penalty:

What once was a frightening public spectacle now resembles painless administration of preoperative anesthesia in the presence of few witnesses. American officials do not enjoy executions; “they seem, in short, embarrassed, as if caught in a transgression.”

Nevertheless, in the U.S., the political strength of localities relative to the federal government has led to the retention of the death penalty, which has disappeared from Western Europe. There is a long history of community-level executions in America dating to colonial times. Thus, in reaction to Furman v. Georgia, 408 U.S. 238 (1972), the 1972 Supreme Court case resulting in a moratorium on executions in the forty-two jurisdictions that authorized them, 34 states enacted new death penalty laws by 1980. Much of the political rhetoric behind the new capital punishment laws was grounded in “states’ rights,” the all purpose justification for resistance to nationwide standards going back to slavery and, as Justice Stevens points out, “like the related vigorous and continuing criticism of liberal Warren Court decisions protecting the rights of criminal defendants and minority voters, an important part of the Republican Party’s ‘Southern strategy.’” Because of this unintended consequence of Furman, Garland argues that since the 70s

[T]he Supreme Court [has] focused on transforming capital punishment, requiring new procedural protections, reducing the cruelty of executions, and devolving power to “the people” at the local level. The concern with local policymaking that Garland emphasizes, however, has not prevented Supreme Court decisions from eliminating categories of defendants (juveniles and the mentally retarded) and offenses (rape and unintentional killings) from exposure to capital punishment nationwide.

The persistence of the death penalty in the U.S., however, begs for explanation. Garland’s explanation is largely cultural. The persistence of the death penalty satisfies a cultural need to address issues pertaining to death:

Garland concludes that capital punishment today is “reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.” Instead, the death penalty promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” In particular, he contends, capital punishment derives “its emotional power, its popular interest, and its perennial appeal” from five types of “death penalty discourse.” They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. He concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

The cultural importance of death in American political and cultural life is illustrated by political avowals for support for capital punishment to express support for “law and order.” Thus, “California Senator Barbara Boxer bragged that she voted 100 times for the death penalty. And George W. Bush first ran for president in a year when, as governor of Texas, he had presided over the largest number of state executions ever carried out in a single twelve-month period—a total of forty in the year 2000.” Where judges are elected and have the power to overrule jury verdicts, as in Alabama, they override and impose the death penalty 10 times more often than they override to impose a punishment other than death. In contrast, where judges with the power to overrule jury verdicts are not subject to election, judge-imposed verdicts favor defendants. In short, if you want to get elected to office in the U.S., it is a good idea to support the death penalty.

Justice Stevens does not believe, however, that the political and cultural interests advanced by the death penalty can justify its continued vitality. Nor does he see any justification for it in the 5 groups of people affected by it – victims, survivors, participants in the judicial process, the general public, and the defendants themselves:

To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses.

First, of course, are victims. By definition murder victims are no longer alive and so have no continuing interest.

Second are survivors—family and close friends of victims who often suffer enormous grief and tangible losses. The harm to this class is immeasurable; but punishment of the defendant cannot reverse or adequately compensate any survivor’s loss. An execution may provide revenge and therapeutic benefits. But important as that may be, it cannot alone justify death sentences. We do not, after all, execute drunken drivers who cause fatal accidents.

Third are participants in judicial processes that end in executions—detectives, prosecutors, witnesses, judges, jurors, defense counsel, investigators, clemency board members, and the medically trained personnel who carry out the execution process and whom Garland describes as being somewhat embarrassed by doing so. While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs (which Garland estimates are at least double those of noncapital murder cases) are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant’s guilt.

The fourth category consists of the general public. If Garland’s comprehensive analysis is accurate—that the primary public benefits of the death penalty are “political exchange and cultural consumption”—and as long as the remedy of life imprisonment without the possibility of parole is available, those partisan and cultural considerations provide woefully inadequate justifications for putting anyone to death.

Fifth, of course, is the class of thousands of condemned inmates on death row who spend years in solitary confinement awaiting their executions. Many of them have repented and made positive contributions to society. The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death.

Friedman to judges and lawyers: don’t “friend” or “tweet” one another!

Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”

My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.

The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.

The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.

After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”

It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.

And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.

Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:

• To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
• To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
• To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
• To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
• To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
• To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
• To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op_10-007, 12-3-10

What does overclaiming look like? Just watch Facebook.

We have a remarkable legal system, but its greatest defect by far is the influence sheer economic weight can have on the outcomes it produces.

Back in October, I praised the lawyer for the site formerly known as Placebook for not easily being bullied, for stating straight out that Facebook’s cease-and-desist letter insisting that Placebook’s name would cause customer confusion with Facebook’s trademark very was “very predatory and not reasonable.’’ Of course, she also said that every company Facebook had asserted such a trademark infringement claim against “has rolled over and died, because no one has $6.9 billion to fight them.”

Sure enough, the client decided that the expense of fighting Facebook, even on a meritorious claim, wasn’t worth it. As Melissa Bell of the Washington Post reports, Placebook cried uncle and is now calling itself TripTrace. And now Facebook has taken “Teachbook, a teacher’s network, to court, for ‘rid[ing] on the coattails of the fame and enormous goodwill of the Facebook trademark.’”

The parody site Lamebook, however, has taken the fight straight to Facebook:

the parody site, Lamebook, however, a more direct course of action seemed the right tack. “The Austin-based Web site filed a complaint in Texas against Facebook, asserting its right to the name ‘Lamebook.’”

Why hasn’t Girl Talk been sued? My answer, sampled and remixed in a new article

Why hasn’t Greg Gillis, who performs and records as Girl Talk, been sued despite (1) the fact his music consists entirely of recorded samples of other recordings, (2) his high profile and success, and (3) the music industry’s insistence — based on very shaky legal grounds — that no recorded sample can be appropriated without permission?

Well, I’ve been saying it for a long time, and I believe I was the first — Gillis is just too good:

I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

And now comes Joe Mullin, of paidContent.org explaining Why The Music Industry Isn’t Suing Mashup Star ‘Girl Talk“:

So why hasn’t Gillis been hauled in front of a judge by the music industry? Probably because he’s the most unappealing defendant imaginable. Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.

At the Electronic Frontier Foundation, probably the most well-funded public interest group working in the copyright space, lawyers have made it clear for years that they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.

And I’ve said it before myself. I’d love to represent Gillis in that case should it ever come about.