Rep. Istook (R-Okla.), joined by 34 other Representatives, has proposed the following bill, HR 4892:

(a) IN GENERAL- Marriage in the United States shall consist only of the union of a man and a woman.

(b) JURISDICTION-

(1) U.S. SUPREME COURT- The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section.

(2) OTHER COURTS- Except as provided in paragraph (1), no Federal or State court shall have jurisdiction to hear or determine a claim arising under this section.

But how can the Supreme Court be given "original jurisdiction" to hear these cases? Article III, section 2 provides that the Court shall have original jurisdiction only in "Cases affecting Ambassadors, other public Ministers and Consults, and those in which a State shall be Party." The last category covers only (here I'm merging article III, section 2 and the Eleventh Amendment) "Controversies between two or more States," and where a State sues citizens of another State or citizens of a foreign country. It's hard to imagine how a "claim arising under" the Istook bill would practically fit into any of these jurisdictional headings.

So the bill must be an attempt to add to the Court's original jurisdiction — but that's a direct violation of Marbury v. Madison itself. Marbury's broad holding is that courts have the power and duty to refuse to enforce unconstitutional laws — but its narrower holding is that a statute purporting to give the U.S. Supreme Court original jurisdiction over suits not explicitly mentioned in the Constitution's Original Jurisdiction Clause is unconstitutional. Hence the somewhat facetious title of this post; while Rep. Istook may not be trying to overrule Marbury's more famous holding, his bill seems to run squarely in the face of Marbury's other holding (though I suspect that this is an error on the drafters' part rather than an intentional attempt to undo that narrow holding, which most people don't know).

Of course, there's also the question of what the law is trying to do. If "claim arising" means "legal right or constraint arising," then the law won't have any effect on any normal federal or state litigation, since subsection (b) would take away what subsection (a) creates: Subsection (a) might be saying to courts "don't recognize same-sex marriages," but subsection (b) would be saying "but you don't have the jurisdiction to hear a claim arising under subsection (a)." So if such a law existed at the time of the Massachusetts Goodridge litigation, and Massachusetts officials said "Stop! Under subsection (a), we can't recognize same-sex marriage," the Massachusetts Supreme Judicial Court would presumably have just said "Well, but under subsection (b) we lack the jurisdiction to hear your subsection (a), so the Istook law will have no effect on our decision."

Alternatively, "claim arising" might mean "affirmative claim to relief arising," so that it covers only a lawsuit saying "Based on subsection (a), I the plaintiff want some same-sex marriage invalidated" rather than a defense saying "Based on subsection (a), we defendants need not recognize same-sex marriages." But then subsection (b) seems pointless: After all, the only practical applications of subsection (a) are as defenses, not as affirmative claims to relief (unless the whole point of the statute is simply to empower someone to sue, in the U.S. Supreme Court, to have someone else's same-sex marriage invalidated — and who would have standing to challenge someone else's marriage that way?).

Finally, if the bill is trying to keep state courts from recognizing same-sex marriages (though as I argue above that's not what the bill says), I don't see where Congress would get the enumerated power to do that. But that constitutional problem is so banal compared to the much more interesting constitutional and interpretive problems I raise that it's not even worth discussing . . . .

If this sounds confusing, I think that's just because the statute is so awfully drafted. Or am I missing something?

Thanks to reader Josh Rosenbluth for the pointer.

The First Circuit has just published a detailed and thoughtful opinion on the subject, which I think is probably right given the serious security risks involved, though I share the judges' caution about the matter, and suggestion that the result might have been quite different had the facts been somewhat different. (Note also that this has to do with content-neutral restrictions -- the decision doesn't justify content-based ones.)

Thanks to How Appealing for the pointer.

Reader Margaret Schoen writes:

An issue I don't think I've seen covered in your discussion of the JibJab debate. Could the JibJab song possibly be construed as a cover of the original song, as opposed to a parody of it? I believe copyright holders are required to issue compulsory or mechanical licenses for covers of songs, even though they may charge for them. . . .

Aha — a question on which I have a definite answer! The definite answer is "no." Though 17 U.S.C. sec. 115 does give people the right to cover others' songs without permission, it's subject to several limitations: Among others,

1. The right extends only to the making and distribution of phonorecords to the public, but specifically excluded (see sec. 101) the distribution of sounds that accompany an audiovisual work.
2. The new arrangement may not change the fundamental character of the original work (which JibJab's work definitely does, though the question is whether it does so in just the right way to make it a fair use).
3. The user must have given the owner timely notice of the intention to make the works, which I'm sure JibJab didn't do.

Which character in Cryptonomicon is likely a descendant of Eliza, the Quicksilver/The Confusion character?

UPDATE: Paul Stancil sends in the answer, and adds: "Having said [the answer] to myself approximately 4 nanoseconds after reading your post, I can only conclude that I'm in as much trouble as you. What's worse, I sent my youngest brother both Cryptonomicon and Quicksilver for his birthday. I'm not just a junkie -- I'm a pusher." I guess I am, too . . . .

I also much enjoyed Alexander Bystrisky's very witty "Doctor of Deep Thoughts" CD.My favorite song is the one serious one, "Na Nedel'u"; my second favorite is "Ballada o Pam'at'i" (for those who know Russian but not recent Russian history, note that Pam'at' is the name of a Russian anti-Semitic nationalist movement, as well as of course the Russian word for "memory," a dual definition that the song mercilessly exploits).

Just heard and read an Okudzhava poem (one of his war poems) that I hadn't known about before, and liked it very much; check it out both the lyrics and a recording here.

I'd always thought Judge Learned Hand's name was mighty cool -- and apt, given his high reputation -- but I've wondered what parents would have the chutzpah to give a boy a name like that.

It turns out that they didn't; he was born Billings Learned Hand -- which of course would also have been a really apt name, though more for a practicing lawyer . . . . Learned was apparently a name that ran in the family; his mother was named Lydia Coit Learned Hand.

Learned's cousin Augustus Hand, who was also a Second Circuit judge, was actually Augustus Noble Hand, but he decided to stick with the first name.

EFF's Deep Links reports:

Turns out Woody Guthrie lifted the melody of "This Land is Your Land" essentially note-for-note from "When the World's on Fire," a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song. Here's a short snippet (380k mp3) of the song (the song can be found on the box set, The Carter Family: 1927-34). You don't need to be a musicologist to hear what we're talking about.

Now we've got nothing against Woody's borrowing. In fact, it's a part of the "folk process" that Woody himself championed. I can't imagine that The Carter Family minded.

But in the letter threatening copyright litigation over JibJab's animated political parody, "This Land," Ludlow's lawyer goes out of his way to attack JibJab for copying "the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song."

Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of "This Land is Your Land" doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask.

It sure sounds similar to me, though I have a notoriously tin ear (and though I haven't personally confirmed the MP3 file's provenance). If that's so, then the copyright owners can't object to the taking of the melody (unless JibJab took some melody components that were in Guthrie's version but not the Carters').

On top of that, JibJab only took a few lines from the song -- "This land is your land" / " this land is my land" / "this land . . . me" (from "this land was made for you and me"). Copyright law doesn't protect short phrases, and these thirteen words are close to the short phrases boundary. I suspect that the words used in this combination and this order are indeed copyrightable -- thirteen is probably enough (a few cases suggest that even a few words might be enough, though that's not clear). But that the taking is only of thirteen words, albeit important words, and not the lyrics -- if indeed the theory about the tune coming from the Carters is correct -- would definitely strengthen JibJab's fair use defense.

I'm reading Cryptonomicon for the fourth time now -- yes, I know I should be reading something new instead, but I can't just help myself -- and enjoying it almost as much as the first time. (It's particularly nice to reread it after having read Quicksilver and The Confusion, since I can then notice some cute references that I had entirely missed before; but that's for the serious geeks cultists fans.) Here's one excerpt that made me laugh, and that I think well captures Stephenson's style, though I can't vouch for its effects on you:

After they've been out to sea for a day, the captain (Commander Eden -- the same poor son of a bitch who got the job of ramming his previous command into Norway) staggers out of his cabin, making use of every railing or other handhold that comes within flailing distance. He announces in a slurred voice that from here on out, according to orders from On High, anyone going abovedecks must wear black turtle necks, black gloves, and black ski masks underneath their other clothes. These articles are duly issued to the men. Shaftoe gets the skipper really pissed off by asking him three times whether he's sure he has the order worded correctly. One of the reasons Shaftoe is so highly regarded by the enlisted men is that he knows how to ask these kinds of questions without technically violating the rules of military etiquette. The skipper, to his credit, doesn't just pull rank and yell at him. He takes Shaftoe back to his cabin and shows him a khaki-covered Army manual, printed in black block letters:

TACTICAL NEGRO IMPERSONATION

VOLUME III: NEGROES OF THE CARIBBEAN

A friend of mine just wrote:

Vacation not quite over, but just finished Cryptonomicon (moments ago). You were exactly right: fantastic! I enjoyed it immensely. Thanks for the recommendation!

A few weeks ago, my wife mentioned that a friend of hers, to whom I had recommended Cryptonomicon, told her the same thing. Both he and his wife liked it so much that they now buy two hardbacks of any new Stephenson book, since they don't want to fight about it (though I have to acknowledge that Quicksilver and The Confusion, while good and very good, respectively, aren't as good as Cryptonomicon).

No, I get no kickbacks.

UPDATE: Lawprof Larry Ribstein is also part of the cult, and has some interesting thoughts about the book.

What would Woody do? Jesse Walker (Reason) suggests that Woody wasn't that big on private property. Creative Commons also reports the following, though I haven't checked the facts myself:

Joel Blain recently wrote in with an interesting observation:

"I've been reading a bio on Woody Guthrie. It's pretty interesting. The book reprints one of the "Copyright Warnings" he included on his recordings in the ealry 40's

"This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

Such a notation may have in fact explicitly licensed people to reproduce and perform the song or songs to which it's attached. (Academics sometimes add similar notations to their articles.) It would help if Guthrie actually owned the copyright in the song at the time he published the notation; but even if he didn't, his actions might bind the then-copyright-owner, if the notation was indeed published by the copyright owner on the recordings.

To the best of my knowledge, though -- and I'm not an expert on the old pre-1976-Act rules related to renewals -- any such license would have disappeared with the end of the original 28-year-term of protection. Under the 1909 Copyright Act, copyrights endured only for 28 years, but the author or his heirs could renew them after the end of the original term; the new term would also last for 28 years, though that has been extended several times by Congress to the point that pre-1976 copyrights last for 95 years from publication. And the new term would be a fresh, clean copyright, free of any licenses or transfers that the author originally did as to the original term. (The whole point of the renewal was to give the author of a work that had proven its long-term value a chance to recapture some of the value, even if he sold his rights for cheap when he first wrote it, before the value of the work was clear.)

This Land Is Your Land was written and, I infer, published in 1940; presumably the copyright was renewed in 1968 by Guthrie's heirs (Guthrie died in 1967); and this renewed copyright would, I think, not be governed by any licenses that Guthrie had originally granted (though perhaps if the heirs also republished Guthrie's notation, that might be seen as a new license).

Also, note that the original notation seems ambiguous on the scope of the rights granted -- it could be read as disclaiming any copyright rights ("We wrote it, that's all we wanted to do"), but it could be read as allowing only republication and performance in more or less the original form ("Publish it. Write it. Sing it. Swing to it. Yodel it.") rather than in a distorted or satirical form. Many creators (I don't know about Guthrie) are indeed quite happy for others to reproduce or perform their works in the original form, but get really annoyed at any serious modifications.

Thus, while this sort of notation can indeed grant a legally valid license, it's not clear what the scope of the license would have been. And I suspect that the license would in any event not have survived past 1968.

But of course all this is just the legal analysis; perhaps people's stressing Guthrie's views (to the extent that they do indeed show a "This Song Isn't My Song" preference) might persuade the copyright owners to take it easy here.

Say Kerry is elected, but on Jan. 20, the Inauguration gets bombed, and Kerry and Edwards are both killed. Even if the Speaker of the House or the President Pro Tem of the Senate step aside (perhaps because they're of the opposite party, and conclude they have no mandate to govern), the rest of the chain of succession consists entirely of Cabinet secretaries -- who are all still holdovers from the old Administration.

There's thus no way for the Presidency to quickly pass into the hands of anyone who has the late President-elect's, and thus indirectly the people's, imprimatur. The best that can be done, unless I'm mistaken, is for one of the Republicans in the line of succession to get sworn in, propose a Democrat as Vice-President -- preferably one who's approved by the Democratic leadership -- and then resign in the Vice-President's favor. But this could involve quite a bit of time and acrimony, at a time when the country can't afford the distraction.

Sen. John Cornyn (R-Tex.), the chair of the Senate Judiciary Subcommittee on the Constitution, proposed an interesting Senate resolution: A nonbinding agreement (it probably can't be made binding, given the President's and the Senate's broad constitutional powers in this area) that the outgoing President appoint, and the Senate confirm, some of the incoming President's Cabinet picks before Inauguration Day. This would of course work best with a revision of the Presidential Succession Act (at least to remove the Congressional officials from the line of succession), which Sen. Cornyn would also favor; and it would surely still leave lots of other problems in any event. Still, I'm glad some people are thinking about this, and that a Republican Senator is willing to suggest it even when the immediately forthcoming transition -- if there will be a transition -- would be from a Republican to a Democrat.

Say Kerry is elected, but on Jan. 20, the Inauguration gets bombed, and Kerry and Edwards are both killed. Even if the Speaker of the House or the President Pro Tem of the Senate step aside (perhaps because they're of the opposite party, and conclude they have no mandate to govern), the rest of the chain of succession consists entirely of Cabinet secretaries -- who are all still holdovers from the old Administration.

There's thus no way for the Presidency to quickly pass into the hands of anyone who has the late President-elect's, and thus indirectly the people's, imprimatur. The best that can be done, unless I'm mistaken, is for one of the Republicans in the line of succession to get sworn in, propose a Democrat as Vice-President -- preferably one who's approved by the Democratic leadership -- and then resign in the Vice-President's favor. But this could involve quite a bit of time and acrimony, at a time when the country can't afford the distraction.

Sen. John Cornyn (R-Tex.), the chair of the Senate Judiciary Subcommittee on the Constitution, proposed an interesting Senate resolution: A nonbinding agreement (it probably can't be made binding, given the President's and the Senate's broad constitutional powers in this area) that the outgoing President appoint, and the Senate confirm, some of the incoming President's Cabinet picks before Inauguration Day. This would of course work best with a revision of the Presidential Succession Act (at least to remove the Congressional officials from the line of succession), which Sen. Cornyn would also favor; and it would surely still leave lots of other problems in any event. Still, I'm glad some people are thinking about this, and that a Republican Senator is willing to suggest it even when the immediately forthcoming transition -- if there will be a transition -- would be from a Republican to a Democrat.

Beldar asks:

Am I correct in assuming that even if Jibjab violated the rights of the owners of the original song copyright, they still would have to prove damages -- presumably, lost sales, licensing revenues, etc. -- to prevail? Wouldn't that require a witness who could come in and say, "I was on the brink of paying $___ for licensing rights to this song, until I saw that jingle on the internet?" And isn't that rather unlikely?

Since I like to stay on the good side of people with ominous sounding names like Beldar (I'll bet he's got a whole fleet of Viking raiders behind him), here's a quick answer to the first question: "No."

OK, maybe that's too quick. The less quick answer: Copyright owners who have registered their copyright (which I suspect the This Land Is Your Land people have) can get at least four kinds of remedies:

1. Actual damages plus profits. If that's what the owners ask for, they'll probably get little on the damages, for the reasons Beldar mentions, though they would probably get at least the customary license fee for this sort of use (which may be hard to determine, but I'm sure lots of expert witnesses would be happy to estimate it), on the theory that this is what they would have gotten if the defendant had acted legally (though query whether this is available if the copyright owners' theory is that they would never have licensed such a use). But if JibJab made a profit on the work, the owners could get a fraction of the profit (the fraction to be determined by the judge or jury, based on how significant the original work is as a part of the new work).

2. Statutory damages. But because actual damages are often so speculative (and profits so small), the Copyright Act lets plaintiffs elect to instead get statutory damages -- $750 to $30,000 per work infringed, with the amount to be set by the judge or jury based on a grab bag of factors. If the defendants can show that they acted innocently (which probably means that they reasonably thought their actions were legal, even if the court concludes otherwise), the range gets lowered to $200 to $30,000. If the plaintiffs can show that the defendants acted willfully (which probably means that they knew their actions were illegal or at least likely illegal, as opposed to merely being negligent about that), the range gets raised to $750 to $150,000. What number within the range will be selected? No-one knows, though judges and juries are supposed to consider various factors, including their best guess about the harm to the plaintiff, and their sense of how willful or innocent (see below) defendant's conduct was. The customary license fee for this sort of use will likely play a role in this calculation.

3. Injunction. The plaintiffs can also get a preliminary injunction and ultimately a permanent injunction, which won't require them to show damages (though to defeat a fair use defense, it would help them to show that such a use, if it became widespread, would cause them and others like them harm). In some cases, the threat of an injunction is a huge bargaining chip, which can often yield a settlement far in excess of damages -- if a movie studio is enjoined from distributing a movie, it may well pay a lot to get the case settled. But there has been some talk by courts that injunctions should be issued less often when the new work really transforms the original; if a court adopts that view, it can find infringement, award damages, but decline to issue an injunction.

4. Court costs and attorney fees. A prevailing plaintiff or defendant may (in the judge's discretion) get his court costs and attorney fees reimbursed by the other side. But this is pretty much entirely up to the judge, just as the statutory damages amount is pretty much up to the judge or jury (depending on whether the parties elect a bench trial or a jury trial).

So the bottom line is that copyright plaintiffs can get some pretty substantial remedies even if they can't prove any damages -- though it does help to be able to make a good case about damages, either if they ask for actual damages or if they ask for statutory damages and want the judge or jury to award the damages at the high end.

How could JibJab's use of This Land Is Your Land be anything but fair?, some have asked. After all, probably the most important aspect of the fair use analysis is whether the new work harms the market for the old work (for instance, by competing with it). Surely there's no such effect here, when the two works (the JibJab cartoon with a song that's based on This Land Is Your Land, and the original song itself) are so different.

Well, not quite. It's true that the Court made clear that even "satire" rather than parody might still be fair use, if there's very little effect on the market:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives . . ., it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

As you can see, this mostly focused on works that do comment on the original, though only loosely; but it does say (as other Court decisions also suggest) that pure satire, with no commentary on the original, may be fair use.

But the effect on the market includes an effect on the market for licensed derivatives -- which means one possible "loss" for the plaintiff is the loss of the opportunity to make money by licensing the song to such uses:

The fourth fair use factor is "the effect of the use upon the potential market for or value of the copyrighted work." It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market" for the original. The enquiry "must take account not only of harm to the original, but also of harm to the market for derivative works."

(The copyright owner's public statements suggests that it would refuse to license such works, because of its own esthetic or business judgment, but my sense is that the analysis would look more to the effect on the market for works such as the plaintiff's, rather than on the idiosyncratic preferences of this particular plaintiff.)

Consider an analogy: I make a movie based on your book. The movie may not hurt the market for your book -- in fact, it might even increase sales of your book, since it will be free publicity for the book. But this doesn't mean that I can just make the movie without getting a license, on the theory that my use is fair (it's transformative, since it's not a literal copy, and it doesn't hurt your book sales).

Rather, my use is seen as affecting your market to sell movie rights (the "market for derivative works"). If I make a movie based on your book for free, you aren't getting payment for the movie rights. That's the "loss" to you (though loss measured relative to what you'd get if you sold movie rights, not out-of-pcoket loss).

Likewise, a song owner's property right includes the right not just to sell copies of the song, but to license the song in soundtracks, license the song in cartoons, and even license the song in humorous cartoons. It doesn't include the right to license the song in cartoons that poke fun at the song:

The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. . . . Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of "Oh, Pretty Woman," the court erred.

But given that, to my knowledge, there is a market for selling licenses for humorous recastings of a song (I'm told, for instance, that Weird Al Yankovic pays licenses for many of the songs that he uses), and that such a market for recastings that don't poke fun at the original is at least not unlikely, the Court likely would find an effect on the market: JibJab's s use, if it became widespread (and, again, if it's satire rather than parody), would strip copyright owners of their marketable derivate work rights. (It might also interfere with owners' rights to license nonhumorous derivative works, to the extent that the public would come to associate the song with the humorous version, so that producers of other derivative works would thus not want to use the song any more.)

Some people criticize such arguments as "circular" or "bootstrapping." But whatever one may call them, they are certainly well accepted by courts as to derivative uses such as movies based on books; and Campbell suggests that they would equally apply to humorous works based on serious ones, so long as the humorous work doesn't poke fun at the original. Like it or not, that's what the law seems to be (though there's enough uncertainty here that I have to keep stressing the "seems").

The germ of parody lies in the definition of the Greek parodeia . . . as "a song sung alongside another." Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule," or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous." For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. [footnote: Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule," or are "attacked through irony, derision, or wit."]

While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. . . .

It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that "this land" isn't really the land of Native American's anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.

An interesting article by Virginia journalist Becky Dale. Federal government works are public domain (17 U.S.C. sec. 105), but at least in theory state and local government works may be protected by copyright. I'm pretty sure that's not a good idea, at least in most situations, and perhaps courts will find very broad fair use as to such work. But it's still an open question.

Someone e-mailed me about the This Song Is My Song controversy, pointing to this as the latest example of unethical lawyers undermining American creativity (and, more broadly, economic development) through excessive litigation.

I don't think that's so. As I mentioned in my original post, the This Land Is My Land copyright owners have a decent case against the JibJab people -- in fact, I think they probably have the better legal argument, though it's hard to tell for sure. There's nothing unethical about a property owner asserting his property rights, or the property owner's lawyer advising the owner to do so. There are certainly some lawyers who do some genuinely unethical things; this just isn't it.

If you want someone to blame, blame the law, not the lawyer. The law may be too broad; or it may be so vague that it ends up effectively quite broad, since lots of speakers can be plausibly threatened with litigation. But it's not the copyright owner's fault, or the copyright owner's lawyers' fault.

Ah, some say, but the law is so broad because the lawyers made it that way. And, yes, it's true that the law is generally made by lawyers -- by judges, by legislators (who are disproportionately lawyers), by legislators' assistants (who are probably lawyers), and by lawyer-lobbyists. Yes, and what of it?

First, this is a tiny fraction of all lawyers, so don't blame the whole profession for what some of them do. Second, these people are also just doing the jobs they're assigned to do in our legal system, and often doing them quite honorably. Lobbyists may quite ethically urge their proposed legal rules to legislators. The legislators' assistants are probably following their bosses' instructions, and to the extent they have some flexibility, they're likely using it to implement what they think is sound public policy. Likewise, judges are either interpreting the statute, or creating what they think are good rules. (It is indeed often judges' job to create what they think are good rules, either as a matter of developing the common law, or of interpreting a vague statute -- the fair use doctrine was largely developed by judges, and the current statutory fair use provision, 17 U.S.C. sec. 107, specifically authorizes judges to develop fair use law further.)

Now I do think that this particular subset of lawyers often get things wrong. In particular, I think they often reject bright-line rules because those rules are overinclusive in some situations and underinclusive in others; but in their quest for theoretically perfect justice, they end up enacting or adopting vague rules that leave people with little practical guidance about what is or is not safe to do.

But at most what we have here is a few special lawyers-by-training -- many of whom are no longer even lawyers in private service, but are lawmakers of one sort or another -- making unsound decisions. We do not have some general ethical failing on the part of the legal profession as a whole.

And the remedy to the problem isn't to try to make lawyers more ethical -- it's to try to make the laws better (hard as that may be).

A heart drug being tested in black patients is on course to become the first medicine approved for use in a specific ethnic group, challenging those scientists who believe that race is a bad basis for prescriptions. . . .

[The drug] revives controversy about whether, and how, race should be used to prescribe medicines. In the clinic, for example, doctors will have to work out who is classed as African American in a racially mixed population. "It really becomes problematic," says Sandra Soo-Jin Lee, an anthropologist who studies race in science at Stanford University, California. . . .

Doctors have long known that different ethnic populations can have different susceptibility to diseases or react differently to drugs. Drug labels for the common heart drugs called ACE inhibitors note that they may be less effective in black people. . . .

I like the dueling quotes (though I have no idea how fair they are): (1) "I still think skin pigment is a lousy predictor of heart function." (2) "We hold the trump card: it works."

Thanks to GeekPress for the pointer, which also includes Paul Hsieh's commentary on the issue (Paul is a physician).

The pretty funny Bush/Kerry parody with the "This Land Is Your Land"-based lyrics (from JibJab.com) has drawn a complaint from the owners of the "This Land Is Your Land" copyright.

The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.

Several people e-mailed me to ask whether HR 3133, which was just passed by the House, is constitutional. The bill would provide that:

No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.

Legal scholars have spent decades and volumes discussing the question of when Congress may strip federal courts of jurisdiction over certain matters. I'm not an expert on the subject, so I was reluctant to weigh in; and a brief conversation with my colleague Gary Rowe, who does know the literature, reinforced my reluctance. So I can offer only a few observations:

1. As I noted here, such a bill may do more harm than good even from its proponents' viewpoint:

   Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

   What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution -- such as the Goodridge gay marriage decision in the Massachusetts -- will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)

   True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.

2. Such a jurisdiction-stripping statute would nonetheless probably be constitutional, because of article III, section 2, clause 2 of the Constitution (emphasis added):

   In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

   (The "state shall be party" original jurisdiction proviso won't help, because under another provision of article III, coupled with the Eleventh Amendment and certain longstanding court interpretations, lawsuits by individuals against states basically aren't covered under the Court's original jurisdiction.)

   People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars.

3. However, as I mentioned, some highly respected scholars argue otherwise; and Gary very kindly let me put on the Web his summary of the debate that he distributes to his students. It's aimed at law students, and refers to other readings that they were assigned, so it will likely be quite cryptic; but I pass it along in case some of you find it interesting.

Please note that Gary is doing me a favor by letting me distribute this; please don't bother him with any questions, counterarguments, or corrections. Please also note that, as I said, I myself am not an expert on the subject, and my view in item 2 above is based on a casual analysis, not any serious learning on the matter. I don't expect to blog much more on the subject, but I thought I'd pass along what I had.

This isn't really news, but I just ran across a seemingly pretty impartial article on this in an impartial magazine (Baseline, which appears to be a business magazine) about this. The subhead (available in the PDF version, which requires registration):

A national computerized firearm registry in Canada was supposed to cost taxpayers $2 million. Instead, it has held them up for more than $1 billion.

The article explains some of the things that went wrong; it doesn't take a stand on whether the registry has helped reduce crime. It does note that gun deaths and gun murders have fallen since 1989, but for many reasons that says little about the effectiveness of the firearms registry (one reason of the many is that the registry only got going in the late 1990s). But it should be a warning that, regardless of whether we think that this sort of project might in principle be valuable, there are huge potential costs with it — and the costs in the U.S., which has probably 25 times the guns that Canada has, would likely be even greater.

but so is Spam-blocking software that saves hassle for the recipient at the expense of burdening the sender -- especially when the recipient has asked the sender to do him a favor. I just tried to reply to a message that someone at a prominent foundation sent me, asking me for free advice related to one of their projects; the message got bounced as supposed Spam, and I had to call the person by phone (spending the California taxpayer's money, as well as my time) to get a hotmail address to which I could send it. I understand why people set up such software. I just think they should take into account the costs they're imposing on others, which is why I try to be polite but noticeably annoyed when I call the person about it (hoping that this will lead to an internal complaint by the person to the technical people who're in charge of this stuff).

And if you're going to send me a message asking for a reply, and my reply gets bounced by your spam-blocking software, please don't expect me to take steps to get it through (even relatively simple ones).

Michael Moore has won the Palme d'Or at the Cannes Film Festival, and may win an Oscar for the kind of work that got Stephen Glass, Jayson Blair, and Jack [Kelley] fired. . . .

Some journalists and critics have acted as if his wrenching of facts is no more serious than a movie continuity problem, like showing a 1963 Chevy in 1956 Santa Monica. . . .

In the New York Times, Paul Krugman wrote that, "Viewers may come away from Moore's movie believing some things that probably aren't true," and that he "uses association and innuendo to create false impressions." Try to imagine those phrases on a marquee. But that is his rave review! He lauds "Fahrenheit 9/11" for its "appeal to working-class Americans." Do we really want to believe that only innuendo, untruths, and conspiracy theories can reach working-class Americans? . . .

Read the whole thing. Thanks to Dan Gifford for the pointer.

UPDATE: Krugman's piece is available for free here.

I'm not sure whether his point is right, but it seems quite plausible, and worth passing along. The whole piece is here, but here's the opening paragraph:

If you want to know what's wrong with the CIA -- and these days who doesn't? -- start with the fact that it's almost 60 years old. How many 60-year-olds do you know who take insane risks, rethink cherished shibboleths and produce brilliant flashes of insight? That is what's required to win the war on Islamist terror.

But, like many other prosperous geezers, the CIA would prefer to hit the links and avoid uncouth places where nobody has heard of Metamucil.

Don't get me wrong. There are plenty of bright, energetic people at the CIA (I've met some of them), but, as the reports of the 9/11 commission and the Senate Intelligence Committee attest, they work in a sclerotic institution. . . .

Ramesh Ponnuru e-mails, referring to Slate's Kerryisms:

What will Slate's take on the speech Thursday night be? "I accept your nomination. Vote for me for president."

Sounds like par for the course for that column . . . . And, yes, that is what a politician should say if his only goal were to say the minimum possible, rather than do superfluous things like articulating his positions or winning votes.

Thanks to GeekPress for the pointer.

GeekPress reports:

Prosecutors in Alaska have filed the first-ever charge of second-degree murder because the suspect was allegedly watching a DVD while driving his vehicle instead of watching the road, which then led to his striking and killing the driver of another vehicle. The movie he is accused of watching is "Road Trip".

The post contains a link to the newspaper article. The most plausible theory for the prosecution is that watching a DVD while driving is "knowingly engag[ing] in conduct showing extreme indifference to human life."

There really should be nothing inherently odd or amusing about this (hey, business is business) -- and yet somehow there is:

"We see a great number of products which are named after Kalashnikov, my name," said Mikhail Kalashnikov, the weapon's original designer. "They are buying Kalashnikovs from other countries."

Thanks to Dan Gifford for the pointer.

Yes, such a thing is possible, even from a non-tax-lawyer's perspective -- see Calarco v. Commissioner, written by my friend and fellow Kozinski clerk (though he clerked in the mid-80s) Judge Mark Holmes. My favorite item was an excerpt from Gulliver's Travels, which I read many years ago but had long forgotten:

The highest tax was upon men who are the greatest favourites of the other sex, and the assessment according to the number and natures of the favours they have received; for which they are allowed to be their own vouchers. . . . The women were proposed to be taxed according to their beauty, and skill in dressing; wherein they had the same privilege with the men, to be determined by their

own judgment.

Todd Seavey writes:

Spider-Man 2 co-writer (and Pulitzer winner) Michael Chabon has certainly written about Jew/superhero parallels before, in The Amazing Adventures of Kavalier and Clay, while director/plotter for the films Sam Raimi was raised Orthodox Jewish . . . .

Jesse Lansner also adds (though naturally a superhero's being created by a Jew doesn't mean that the superhero is himself Jewish):

[M]any [comic book superheroes] were created by Jewish writers. Superman was created by Jerry Siegel and Joe Shuster; Batman by Bob Kane (nee Kahn). All three were Jewish. Almost every Marvel Comics hero was created by Stan Lee and Jack Kirby, who were born Stanley Lieber and Jacob Kurtzburg.

It's a conspiracy, I tell ya . . . .

Marty Lederman (SCOTUSBlog) summarizes yesterday's order.

Someone asked me -- is it a copyright infringement to forward off-list (say, to some friends, or to another discussion list) a message that has been posted to a large (say, 200-member) and open-for-subscription discussion list? Here's a quick analysis.

1. E-mail, like nearly all writing (including things written on a blackboard or a cocktail napkin, if they're more than just a few words), is automatically copyrighted. You don't need to put a copyright notice on it, and you don't need to register it anywhere. If someone asks you "What do I need to do copyright this?" (where "this" is something of even modest complexity, beyond just a few squiggles or several words), the answer is "Write it down."

2. But there are two ways in which forwarding or other copying of a messages may nonetheless not be infringement. First is if the writer conveys an implied license to make copies -- if the writer acts in a way that a reasonable reader would interpret as voluntarily permitting others to copy.

   A classic example from the real world is if someone sends a letter to the editor of a newspaper that starts with "Dear Editor:." Is the letter protected by copyright? Sure, it's written down. Would publishing it be copying? You bet. But a reasonable publisher would interpret the writer's conduct as authorizing (here, even requesting) that the letter be copied. Likewise, copying a sender's message when replying to the whole list is almost certainly implicitly licensed; the same is true of copying the message to a separate folder on your computer, or printing it out for your physical files.

   I suspect that forwarding off-list is generally not implicitly licensed, because there's not the same kind of well-established understanding that this is fine -- but it's impossible to tell for sure, since this doctrine is quite vague, and since to my knowledge there've been no published court opinions applying it in this context (nearly no-one sues over such things).

   Note that implied licenses can always be disclaimed by a prominent notation on the writer's part. A letter to an editor that says "Dear Editor: This is not for publication, but I wanted to tell you that . . ." does not implicitly license the editor to publish the letter, since a reasonable editor wouldn't think that the author agrees to have the letter be published. Likewise with an e-mail that starts with "NOT FOR FORWARDING." (Fair use claims, see below, can still be made despite such a notation, but not implied license claims).

3. Second, forwarding (to an off-list friend or to another list) a message posted on a discussion list may well be a fair use. This is especially so if the purpose of the copying is commentary or criticism of the message ("Look what a horrible argument I saw being made on a list I'm on : . . . Here's why it's horrible [point-by-point rebuttal follows]."), but it's probably even so if the purpose is simply to pass along something that's interesting.

   The forwarding is noncommercial; the item has probably been published, because it has been distributed to a large group of people; the item is probably mostly factual rather than creative writing (unless it's a list for posting one's short stories or some such); and, most importantly, there's virtually no effect on the value of or market for the work, since there's no market for the work in the first place. If one is forwarding the entire e-mail, that cuts against fair use; but on balance, I think there'd be a credible fair use claim in any event. Again, though, since there've been no reported cases on the subject, it's impossible to tell whether such off-list forwarding would be fair use.

4. Note, though, that if you change the facts slightly, both these analyses may end up being different. If the list is small, then the post might be seen as unpublished, and the fair use claim would be much weaker. If the item is reprinted or reposted in a commercial place (such as a newspaper), then the fair use claim would again be weaker. My analysis above is limited to a specific scenario: Noncommercial forwarding of a message posted to a fairly large and open list.

is constitutionally protected — signs containing dead fetuses are forbidden. Yup, that's the First Amendment rule that seems to apply in the Eighth Circuit (Missouri, Minnesota, and some neighboring states).

The first part of the rule (that nudity on drive-in movie screens is constitutionally protected) has been well-established since 1975, when the Supreme Court struck down a ban on such nude displays in Erznoznik v. City of Jacksonville. The Court concluded that

1. the offensiveness of the speech to some viewers generally can't justify restricting it,

2. the presence of children who can view the material can't justify restricting it either, unless it's "obscene as to minors" (which requires it to be not mere nudity, but rather sexually explicit), and

3. the risk of traffic accidents caused by drivers being distracted by the nudity can't justify a selective ban: "By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist."

So that's the law, set forth by the Supreme Court. Agree with it or not, there it is.

But just today, the Eighth Circuit held that police officers may require anti-abortion protesters to put down their three-by-five-foot signs containing color photographs of aborted fetuses. Why? Well, because they supposedly distract drivers, and perhaps also because they are "frightening" to "very young children." What about Erzoznik? The majority says nothing about it (except for one indirect citations that doesn't even begin to explain how this case is different from that one).

The one possible distinction between this case and Erznoznik is that here some drivers did specifically complain that they were distracted. One can imagine that the police might have therefore thought that this speech was unusually distracting, much more so than any other kind of sign or billboard that drivers might see.

But I'm extremely skeptical about rules that give the police the discretion to make such decisions (and the Court has been skeptical about such discretionary rules, too, where speech restrictions are concerned). There's no objective metric for deciding which images are more distracting than others. Nor is the frequency of driver complaints much of a neutral metric — we're all much more likely to complain about things that are distracting and ideologically offensive to us than we are about things that are distracting but appealing. Moreover, once people learn that "Officer, I find those signs distracting" is a good way to get the signs taken down, people will be much more likely to make that sort of claim.

And of course these sorts of distraction claims can be made against any speech that some people find offensive enough. I'm sure that some people are offended to the point of distraction by flagburning, by Confederate flags, by anti-veteran messages, or by a wide range of other speech. Under the Eighth Circuit's reasoning, whenever a few drivers make such an objection, and police officers decide to credit the objection — something that's almost entirely up to the officers' own judgment — the speech can be suppressed.

This is a really bad decision, one that I hope either the Eighth Circuit sitting en banc or the Supreme Court will quickly reverse. I've been somewhat skeptical of some Justices' claims that the Court has been treating anti-abortion speech worse than other speech. But here the Eighth Circuit is indeed allowing restrictions on anti-abortion speech that are flatly inconsistent with the rule for speech generally. (The same, I think, was true for the Nuremberg Files case from the Ninth Circuit a couple of years ago, which I'm sorry the Court refused to hear.)

Reader Steve Sturm writes, about the Blakely decision, which is leading many lower courts to strike down the Sentencing Guidelines on constitutional grounds:

Today's WaPo editorial calls for the Supreme Court to interupt their vacation and fix the Blakely mess (their characterization).

Can the Court issue rulings without a case on which to rule (I thought they didn't like to/couldn't issue advisory rulings)? Are there such things as a legal 'do-over'?

Well, the Court couldn't just decide on its own today, "whoops, we got it wrong in Roe v. Wade, we'll just issue an order adopting the contrary rule." But the losing party can file a petition for rehearing -- there's one due in Blakely August 18 -- and the Supreme Court could revise its decision in response to that petition. I think the Court can also just unilaterally correct the decision at any time before the so-called "mandate" issues; in this case, I suspect that the extension of time to file a petition for rehearing will be seen as suspending the issuance of the mandate.

Now the Supreme Court almost never does either of those things, but courts of appeals sometimes do, and I think it would be within the Supreme Court's power to do it. Also, the Court has before it the Second Circuit's certified questions about the impact of Blakely on the Guidelines. The case, U.S. v. Penaranda, is now docketed, and the Court can in theory accept the certificate and give an answer -- one that might clarify Blakely's scope, or even reverse that decision -- very soon.

But in practice, I think the Court (1) will likely agree to hear the case very soon, since there is already a circuit split on an important issue, (2) might possibly make the decision to hear it in the next few weeks, rather than waiting until the late September / early October conference, so that the parties could start briefing the issue quickly, but (3) would likely not make a definitive decision until it gets briefs and hears oral arguments. Though the Justices could decide the matter without full briefing, or even any briefing (for instance, if they recall the mandate and amend the decision on their own), I think they don't want to do that -- briefing on important and difficult questions such as this really is valuable.

The Canadian government that is, apparently under the same anti-hate-speech laws that some on the Left have urged as good examples for the U.S. Here's what the Washington Post reports:

Last week, the Canadian Radio-Television and Telecommunications Commission announced that it had approved al-Jazeera, but required cable and satellite distributors to monitor its programs 24 hours a day. The agency also took an unprecedented step in allowing cable companies to alter or delete "abusive comments" from al-Jazeera programs. Currently, it is illegal for distributors to delete programming, but in this case, the commission made an exception. . . .

[D]uring the application process, a number of groups raised concerns about the content of previous broadcasts. Canadian officials said they could not bar the station, which had never violated Canadian regulations because it had never been allowed to air legally in Canada. Instead, the agency decided to require that cable distributors be responsible for the channel's content. The agency mandated that the distributors keep tapes of the program but left it largely up to cable companies to decide how they would regulate the broadcasts. . . .

Elie Kawkabani, president of Reach Media, a Los Angeles-based media marketing and distribution company, which holds the rights to distribute al-Jazeera, said the channel has been marketed in the United States since 1998 with no such restrictions. . . . "They've given us approval but made it difficult for cable companies and satellite companies to carry it. They are not set up to monitor and decide what is appropriate or not appropriate. Their role is not censorship . . . . They should not be concerned or involved in the content they deliver. The CRTC has made it impossible for us to find distribution in Canada." . . .

But the Canadian Jewish Congress argued to the commission that al-Jazeera has disseminated anti-Semitic hate speech, providing a platform for "hatemongers" and broadcasting "stereotypical characterizations of Jews that resort to classic Judeophobic themes such as the image of the Jews an alien, evil, world-dominating conspiratorial force," according to commission records. "Moreover, the CJC argued that al-Jazeera has gone further by broadcasting threats to the physical security of Jews and engaging in Holocaust denial." . . .

I'm not positive, because I'm not an expert on Canadian law, but it seems from context that the Canadian government isn't just allowing cable companies to edit Al-Jazeera -- it's essentially requiring them to do this, by threatening to hold them "responsible for the channel's content," presumably meaning any anti-Semitic viewpoints that the channel expresses. I'm sure that I'd find much that's carried on Al-Jazeera to be offensive and repugnant. But that's not a sufficient reason to deny listeners -- both those who may agree with Al-Jazeera and those who just want to know what this internationally important broadcaster is saying, including especially what sort of anti-Semitic propaganda it might be spreading -- the ability to hear those viewpoints.

Incidentally, such a restriction would be quite clearly unconstitutional in the U.S. In FCC v. Pacifica Foundation, the Supreme Court did uphold -- in my view incorrectly -- restrictions on profanity in over-the-air broadcasts, but made clear that restrictions based on the broadcast's offensive viewpoint are not allowed.

When someone asks the author of Slate's Kerryisms "Do you have the time?," does he just say "Yes" and walk on? If someone else says "Yes, it's five thirty," does the author condemn the "it's five thirty" as a "caveat" or "embellishment"?

That's what it looks like if you read the most recent Kerryism. Larry King asked John Kerry, "Is abortion a great moral issue to you?" Do you think that this was a question that called for a literal yes-or-no answer? Or do you think that the way normal people speak, such a question is usually an invitation for the candidate to explain his moral views about abortion? John Kerry apparently chose the latter interpretation:

Sure it is. Absolutely. And I think it's far more complicated than public life allows the discussion for. I mean, being for choice does not mean you are for abortion. Neither Teresa nor I are for abortion. Abortion should be rare, but safe and legal, as President Clinton said so often, and I think appropriately.

I think that it's really a question of who should make this decision, and how do arrive at it. But there is morality. Of course there's morality involved. And we should be talking to people in America about responsibility, about adoption, about other choices. And I want to have a better conversation than I think we've had on it. But it doesn't change my position on who chooses. And I will protect that right of choice.

This may have been more verbose than necessary, but it was a sensible thing for a politician to say.

On the other hand, this is what Kerryisms gave as Kerry's answer without "caveats and embellishments":

Sure it is. Absolutely.

If Kerry had said that, he would have been seen either as a fool (someone who thought the question called for a yes-or-no answer) or as evasive (someone who knew the question called for an explanation of his moral stand, but who chose to duck it by pretending that the interviewer was looking for a yes-or-no answer). And if Bush had given such an answer, it would doubtless appear in Slate's Bushisms.

Now I'm not at all sure that the rest of Kerry's answer could correctly be called "caveats and embellishments." But even if it is, then this example just shows that there's nothing funny, worthy of derision, or even particularly noteworthy about "caveats and embellishments." In this case, they turn a nonresponsive answer into a responsive one; an answer that's worthless to the voters into one that's useful; an answer that's bad politics into one that may be good politics; an answer that would seem surreal into one that expresses a plausible moral position (whether or not one thinks it's the right one). Why then is Slate condemning them? If it wants to fault Kerry, that's great -- but fault him for something that deserves faulting. If it wants to make jokes, that's fine, too; but where's the joke here?

I've criticized Kerryisms many times in the past; maybe I've reached the point of diminishing returns. But it just galls me to see this sort of stuff -- not substantive, not funny, just empty snideness descending into self-parody -- in a magazine of Slate's prominence and quality.

So Peter Parker is explaining to MJ that he's just like everyone else after all — she doesn't yet know he's Spiderman, but he does — and the line he uses is . . . "Punch me, and I bleed."

Where have we heard that before? Are the writers trying to tell us something? Well, probably not, but in the long tradition of Jews claiming to find Jewish connections everywhere, I thought I'd bring this up. Plus, hey, we need a superhero, and Arthur, The Tick's sidekick just doesn't qualify.

UPDATE: Jacob Levy passes along this list of Jewish superheroes, and The Spoons Experience e-mails me a couple -- but if you check the list, you see that it proves my point. We need a serious superhero, not just Colossal Boy. (Please, no need to e-mail me about Colossal Boy's or the others' relative merits, or about the supposed inaccuracy of the list I link to.)

But Spoons points out something more important:

I think you should be able to claim Spiderman. After all, it sounds like a Jewish name, doesn't it? Can you hear it? Federman, Goldman, Grossman, Leiberman, Friedman...