Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

When someone tells you they have an “objective” method of judging value, run!

One of the reasons I find disputes concerning the authenticity and provenance of works of art so fascinating is that the art market often magnifies the subjectivity and volatility that all markets are subject to. In practice 20 years ago I often deposed investment bankers at great length on their methods and judgments in valuing companies. I was always amazed at the subjectivity that went into numbers that got translated into hard dollar amounts that investors treated like objective, indisputable measures of value. Now, in a fascinating piece in the New Yorker, David Garan writes about

Canadian forensic art expert named Peter Paul Biro, who, during the past several years, has pioneered a radical new approach to authenticating pictures. He does not merely try to detect the artist’s invisible hand; he scours a painting for the artist’s fingerprints, impressed in the paint or on the canvas. Treating each painting as a crime scene, in which an artist has left behind traces of evidence, Biro has tried to render objective what has historically been subjective. In the process, he has shaken the priesthood of connoisseurship, raising questions about the nature of art, about the commodification of aesthetic beauty, and about the very legitimacy of the art world. Biro’s research seems to confirm what many people have long suspected: that the system of authenticating art works can be arbitrary and, at times, even a fraud.

Of course, as Garan writes, the desire to replace subjective judgment regarding the authenticity of artworks with some “objective” scientific method is longstanding:

The desire to transform the authentication process through science—to supplant a subjective eye with objective tools—was not new. During the late nineteenth century, the Italian art critic Giovanni Morelli, dismissing many traditional connoisseurs as “charlatans,” proposed a new “scientific” method based on “indisputable and practical facts.” Rather than search a painting for its creator’s intangible essence, he argued, connoisseurs should focus on minor details such as fingernails, toes, and earlobes, which an artist tended to render almost unconsciously. “Just as most men, both speakers and writers, make use of habitual modes of expression, favorite words or sayings, that they employ involuntarily, even inappropriately, so too every painter has his own peculiarities that escape him without his being aware,” Morelli wrote. He believed that not only did an Old Master expose his identity with these “material trifles”; forgers and imitators were also less likely to pay sufficient attention to them, and thus betray themselves. Morelli became known as the Sherlock Holmes of the art world.

To many connoisseurs, however, the nature of art was antithetical to cold science. Worse, Morelli made his own share of false attributions, prompting one art historian to dismiss him as a “quack doctor.”

But Garan’s article reveals that Biro may not be all he’s cracked up to be. Neither are objective methods of valuing business.

Professors, replace your textbooks!

If the book industry is changing, it can only be for the good as far as law school texts are concerned. The books are huge, large parts of them are left unassigned in many courses, and they are ridiculously expensive. And to the surprise of most non-lawyers, they are largely useless outside of law school; one does not refer to one’s casebooks when doing legal research as a lawyer.

As David W. Lewis writes, what is true for law school texts is true for all textbooks:

It is clear to anyone who looks at the state of textbooks today that the system is broken. It does not work well for anyone, but it is especially hard on students, who typically pay $1,000 a year or more for textbooks.

And so, “[e]veryone with a financial stake in the textbook business is looking for a new model. That is especially true for publishers, but also for bookstores and authors.”  Among Lewis’s suggestions  are the following:

• Encourage and embrace rental programs.

• Establish metrics for textbook costs and goals for their reduction.

• Set up an investment fund that would allow faculty members, programs, and departments to acquire or create alternative content.

I have made some progress (not much, but far more than most) in creating alternative content.

Khan Academy: an invaluable new resource in your effort to learn everything

As I’ve written before,  good lawyers need to know everything. In other words, your professional life is  a constant and endless process of learning. One of the foremost skills you bring to your clients is an ability to become fluent in their affairs and to be able to communicate your understanding of those affairs clearly, concisely, and persuasively to audiences who may never have encountered those things.

Libraries, of course, are therefore invaluable. And the internet is a miracle. But still, finding the right resources to learn a particular topic is difficult. I came out of college and law school knowing Latin and Ancient Greek and a lot of history and literature, but I needed to learn an awful lot very quickly about things like finance, insurance, economics, and business, and the effort to educate myself was an adventure. The internet has, of course, only multiplied the tedious, obscure, and downright erroneous “authorities.” So I am always thrilled to find a source that speaks to me and genuinely teaches me. And I am thrilled to have found Khan Academy. As the home page explains:

The Khan Academy is a not-for-profit organization with the mission of providing a high quality education to anyone, anywhere.

We have 1400+ videos on YouTube covering everything from basic arithmetic and algebra to differential equations, physics, chemistry, biology and finance which have been recorded by Salman Khan. . . .

The Khan Academy and Salman Khan have received a 2009 Tech Award in Education. The Tech Awards is an international awards program that honors innovators from around the world who are applying technology to benefit humanity.

Here is Mr. Khan’s introductory video:

EMI goes Zombie: its business is now owning and exploiting its copyrights.

I’ve written before that the publishing industry is a “walking corpse” because the virtual monopoly the industry once had over the production and distribution of texts is gone:

The ways we produce, copy, and disseminate information have entirely changed. Anyone sitting in a coffee shop can produce a document that looks as if it’s been typeset. (And I’m sure my students have no clue what typesetting is.) That document can be copied at virtually no cost, and disseminated world-wide at virtually no cost.

The same, of course, goes for the music industry. And now EMI is proving that it is no more than a zombie preying off of the vitality of living art rather than producing life. As The Economist reports, EMI is abandoning the business of producing music and instead converting to a business that exploits intellectual property rights:

In recent days EMI’s owner, Terra Firma, a private-equity firm, has had to pump in fresh capital because it had breached its banking covenants. On June 18th it announced drastic management changes and an important strategic shift. Two of its bosses, Charles Allen and John Birt, will leave, and the head of EMI’s music-publishing division, Roger Faxon, will become chief executive of the whole company. EMI also announced that it would “reposition itself as a comprehensive rights-management company serving artists and songwriters worldwide”. Rough translation: owning and exploiting the copyright to songs, rather than selling recordings of songs, is where the money’s going to be from now on.

Slow reading: one piece in a good reader’s arsenal.

I sometimes read very slowly, and sometimes very quickly. It may be that attention spans are shrinking. I often have a difficult time getting my students to simply stop and think about what they’ve read. And so I’m all on board with the “slow reading” movement:

“The idea is not to read everything as slowly as possible, however. As with the slow food movement, the goal is a closer connection between readers and their information, said John Miedema, whose 2009 book Slow Reading explores the movement.

“‘It’s not just about students reading as slowly as possible,’ he said. ‘To me, slow reading is about bringing more of the person to bear on the book.’”

Even my 17 year old son makes fun of how slowly I read the many novels and history books I’m always trudging through, but, as I tell him, I tend to remember almost everything I read in those books. And as I research, I come across articles and books I move very slowly through, trying to make sense of every last word. It drives me particularly crazy when I ask my students what a new legal word means and none of them know. How can they read law — something they’re trying to learn — without a dictionary and without the effort to understand what it is they’re reading?

But sometimes I have to read quickly too. If you research a difficult legal question, you’ll often have to read, literally, hundreds of cases. You don’t engage in “slow reading” to find your way through hundreds of cases to the handful that merit serious study and will genuinely help answer the question you’re researching.

So, slow reading is good. So is fast reading, skimming. What makes a truly good reader is doing both and deploying them effectively.

Does Westlaw infringe a lawyer’s copyright in his legal document? This lawsuit won’t tell us.

The Lawyer’s Weekly reports that lawyer Lorne Waldman has filed a class action in Canada alleging that Westlaw infringes the copyrights held in the documents lawyers file in court and that Westlaw publishes through its online, for pay research service:

The Toronto lawyer contends that the defendants’ Westlaw Litigator service is infringing his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in PDF, Microsoft Word and other downloadable formats), and making available on-line for a fee,  more than 50,000 pleadings, court motions and facta the defendants recently copied from civil court files across Canada.

The case raises interesting copyright questions, but I don’t think the court will ever decide those questions.

A class action is a lawsuit brought on behalf of a group of people who have identical legal claims against a defendant arising out of identical facts. Rules of court procedure allow cases to be aggregated promotes efficiency by, in the words of Wikipedia, “aggregat[ing] a large number of individualized claims into one representational lawsuit.” There is a strong incentive too for plaintiffs’ lawyers to  bring class actions — the lawyers for the plaintiff who represents the class by running the lawsuit (typically, though not necessarily, the plaintiff who brings the lawsuit) earn fees based on a percentage of the award given to the entire class. Allowing this bonanza is a better idea than it sounds in many cases — without the promise of the large payday at the end of the case, no one would sue a large corporation like Westlaw individually because the cost would be so great for a minuscule recovery. Thus, the class action device protects against corporate activity that would cheat individual consumers out of small amounts.

Before a case that has been filed as a class action, like Mr. Waldman’s, can proceed, however, the court must determine whether it should proceed as a class action. If the court determines the case should not be a class action, it will deny “certification” of a class of plaintiffs and the case, should it proceed, will have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldman’s, and I’m not sure it’s worth his while to litigate against a behemoth like the owners of Westlaw for the relatively small recovery he’d win even should he prevail.

Why do i think the court likely will not find Waldman’s case suitable for class action treatment? Because determining whether a given document is even entitled to copyright protection in the first place requires close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the less likely it will be deemed worthy of copyright protection.

In short, determining whether Westlaw infringes the copyright on a specific legal document requires inquiry into the nature of that specific document. Examination of every document created by lawyers and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified as a class action.

Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if he’s willing to go it alone and establish both that his documents are entitled to copyright protection and that Westlaw’s activities are an infringement of those copyrights.

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.”

I’m one of the Top 100 Twitterers in the Legal World!

Hey, I’m one of the Top 100 Twitterers in the Legal World! (I’m @pbfriedman.)

Will the film, music, and publishing industries oppose Kagan’s nomination?

It will be interesting to see whether the film, music, and publishing industries generate or fund any opposition to Elena Kagan’s nomination to the Supreme Court. As the Hollywood Reporter states, the entertainment industry’s “worry about Kagan might be her philosophy on intellectual property matters. As dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school’s Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on ‘fair use’ in copyright disputes.” Later, as Obama’s Solicitor General, she successfully argued against Supreme Court review of a 2d Circuit decision, opposed by the entertainment industry, that allowed Cablevision subscribers to store television programs they had recorded on the cable providers servers rather than on the subscribers’ own, in-home boxes. In the brief she filed in the Supreme Court opposing review, she emphasized the importance to the decision of fair use principles. The parties to the lawsuit had decided that fair use should not be considered in the case. Kagan therefore therefore argued that the case was not an appropriate vehicle for Supreme Court review of the issues raised by Cablevision’s actions:

When a subscriber engages in time shifting, recording the program and playing it back are two sides of the same coin. If fair-use principles would excuse a cable company from liability for unauthorized reproduction when an RS-DVR system copies and stores a program on a hard disk at a subscriber’s behest, the same principles might excuse the company from liability for unauthorized public performance when the system transmits the program to the subscriber for playback. Here too, the parties’ agreement to litigate the case without reference to fair-use principles has elevated to great importance a question that otherwise might have been insignificant. Brief for the U.S. in Cable News Network, Inc. v. C.S.C. Holdings at 14 (footnote omitted).

There is no shortcut to thoughtful decision making. It requires critical thinking and discussion, and PowerPoint not only doesn’t help, it hurts.

My points yesterday were about much more than PowerPoint and its inadequacy to convey information or analysis effectively. This isn’t the first time I’ve brought up Edward Tufte’s work, but many have pointed out to me what, in fact, had inspired yesterday’s post – The New York Times article 4 days ago discussing the diagram below, part of a PowerPoint presentation made last summer to Gen. Stanley A. McChrystal, the leader of American and NATO forces in Afghanistan, on U.S. strategy in Afghanistan. As the article explained, McChrystal’s said, when he saw the slide: “When we understand that slide, we’ll have won the war.” The room “erupted in laughter.” The article also quotes Gen. James N. Mattis of the Marine Corps, the Joint Forces commander, saying last month that “PowerPoint makes us stupid,” which, of course, is a paraphrase of the headline of the 2003 article on Tufte and the Columbia space shuttle I discussedyesterday. More to the subjects my post yesterday was about, the article states: “Commanders say that behind all the PowerPoint jokes are serious concerns that the program stifles discussion, critical thinking and thoughtful decision-making.” The most obvious conclusion to draw from an examination of the slide below is one I made yesterday, quoting Tufte — to convey any effective analysis that the slide’s creator intended to convey would have required an extensive written document.

John Stewart last night got into the topic last night too:

Challenging automated YouTube takedowns (and don’t forget to think through the ramifications)

Chris Walters at The Consumerist provides an excellent account of the whys and wherefores of takedowns of YouTube videos.  In addition to explaining why YouTube’s automated Content ID tracking system results in the kind of baseless deletions I referred to the other day, Walters also explains that “[Y]ou can dispute any Content ID claim. If you have a clip that’s been targeted, you’ll see a notice about it on your YouTube account page. From there you can access a dispute page where you can affirm that you believe your clip falls under fair use, and the clip will immediately become public again. The copyright holder will receive notice that you’ve disputed the clip, and must then decide to leave you alone, send a DMCA takedown notice, or sue.”

Importantly, too, he explains that you want to give some thought to the ramifications of disputing an automated takedown: “There are legal ramifications to this, which YouTube hints at and the EFF explains very clearly. If you decide to fight copyright abuse by a large company, you should make sure that you’re on the right side of the fight, that you have a sensible chance of winning a possible lawsuit, and that you’re willing to assume the financial risk. All three of those determinations probably require some serious meetings with a lawyer.”

On the other hand, any copyright owner sending a takedown notice ought to consider the legal ramifications of doing so, since a baseless one relying on the power to outspend an individual fair use claimant might have its own legal downside.

Should we allow people to sell their souls to the devil? Freedom of contract confronts the fact people don’t read the contracts they enter.

I don’t think Robert Johnson made any deal with Satan to obtain his remarkable talents; he listened to and made his own the sounds of his contemporaries. Apparently, however, the British game retailer GameStation is counting on its customers believing talent is more a matter of divine or satanic inspiration than the creative reworking of existing culture. GameStation’s current end user license agreement requires online purchasers of its products to agree to the following: “ By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.”

As further reported, “While all shoppers during the test were given a simple tick box option to opt out, very few did this, which would have also rewarded them with a £5 voucher, according to news:lite. Due to the number of people who ticked the box, GameStation claimsbelieves as many as 88 percent of people do not read the terms and conditions of a Web site before they make a purchase.” The fact that so few people read the contracts they sign is no news to me. The troublesome part is that these contracts are generally enforced, although GameStop “noted that it would not be enforcing the ownership rights, and planned to e-mail customers nullifying any claim on their soul.” They are enforced because contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter those transactions we wish. Moreover, many believe that any limitations on what individuals can be allowed to agree to (within certain well-accepted limits) are counter to economic wisdom. But when we face up to the fact so few people actually read these agreements, sooner or later we’re likely to have to face the fact we’ll have to limit what consumer retailers can require in these agreements.

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

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

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

According to the Oxford English Dictionary, research is the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

David Shields, from Reality Hunger:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trying Proposition 8 as teachable moment

Margaret Talbot notes that a trial can be a terrific method of educating the public on controversial issues. In particular, she focuses on Perry v. Schwarzenegger, the case in which the constitutionality of California’s Proposition 8, overturning the state’s gay marriage law, is being challenged. Talbot has been blogging about the trial throughout the 3 weeks it has been going on. Her latest post points out that trials, in subjecting witnesses to cross examination, permits scrutiny of controversial views that other forums don’t ever provide. As David Boies puts it “The crucible of cross examination forces the witness to confront the other side; they can’t fall back on bumper sticker slogans like ‘marriage is between a man and a woman.’ ”

Talbot compares the educational value of Perry to that of the trial in Kitzmiller v. Dover Area School District, the successful legal challenge against a public school district’s requirement that “intelligent design” be taught as an alternative to evolution as an explanation of the origin of life:

In many ways [the trial in Perry] reminded me of another culture-war trial that I covered, in 2005, one that presented a similar opportunity for intellectually engaging with the arguments and research that usually remain submerged beneath a politicized controversy. That trial was to decide whether intelligent design could be part of the curriculum in a Pennsylvania school district, and its expert testimony covered everything from the fossil record of obscure dinosaurs to Darwin’s own religious beliefs to the theoretical underpinnings of the separation of church and state.

It really is unfortunate the Supreme Court ruled that Perry could not be broadcast via the internet. I very much would like to have seen a witness explain exactly how it is that gay marriage undermines straight marriage. I’ve genuinely tried to understand the argument from some very intelligent people who think that gay marriage does indeed undermine straight marriage, but, I’ll confess, my mind has been unable to get itself around the argument.

The music industry, book publishing, and now Lexis and Westlaw?

Our technological revolution is taking down the music industry as its operated for the last 80 years or so, the book industry as its operated for the last 150 years or so, and now there are plenty of people who think that internet in general and Google Scholar in particular will take down the online legal research regime that has only existed since a couple of years before I started law school in 1981 — Stephen E. Arnold writes:

What is the financial outlook for the LexisNexis-type and Westlaw-type firms? Short term there won’t be much change. Over time, life gets tougher. I do quite a bit of work in online information, and I am not sure these outfits can adapt to the Google’s legal push.