The Volokh Conspiracy

Over the summer, I wrote a piece about the Supreme Court’s decision in the “violent videogames” case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I’ll be speaking there on the first panel about the Court’s evolving First Amendment jurisprudence.

VC’ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas’ thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict “originalist” position in constitutional law better than any other text:

Justice Thomas’ dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. . . . In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. . . . The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• “The government has just decreed that children can’t attend religious services. Can it do that?”
• “The government has just decreed that all schoolbooks must include endorsements of John Adams’s candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?”
• “The government has just decreed that adults may not sing to children who are not their own. Can it do that?”

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that “eighteenth century society” would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what “the answer” to any of those questions would have been—in 1791, 1891, or 1991—because there is no “answer” that “society” can give to those questions. They’re contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas’ position!), you’re of course invited to do so.

[UPDATE: Chris Lund points out that Thomas' originalism is not always so crude as he expresses it here. In Citizens United, he joined Scalia's concurrence, which contained this paragraph:

A good deal more sensible than the position Thomas takes in Brown]

So here’s a steamy little trademark dispute: The Texas Dep’t of Transportation is suing Hachette Books to enjoin publication of Christie Craig’s “Don’t Mess with Texas,” on the ground that it dilutes TxDOT’s trademark. Though I confess that I probably wouldn’t be wasting my time or yours on this if the book didn’t contain phrases like “She glanced down at his sex, still standing completely erect,” and “Pleasure exploded inside her and her entire body shook with sweet spasms of release,” (and a host of similarly cringe-inducing prose, quoted in more detail in the article linked to above; I must say, if this is what passes for pornography these days, I’m in the wrong business), the case actually illustrates a couple of interesting things about trademark law.

To begin with, notice that the action is for “dilution” of the trademark, not “infringement.” TxDOT apparently has a trademark in this phrase by virtue of its use as part of TxDOT’s anti-littering campaign (Get it? Don’t Mess with Texas). Fair enough – but a trademark infringement action would require the DOT to show that consumers are confused about the source or goods or services as a consequence of the infringing use – that is, that consumers think that the book “Don’t Mess with Texas” is somehow connected to the DOT — a fairly preposterous claim (even in Texas).

Trademark dilution, though, is different – a trademark can be diluted even if consumers are not “confused” by the offending use, as long as the use causes the mark to become less distinctive. The example usually given is something like “Imagine that dozens of services or products (hair care, automotive supplies, legal services, dry cleaning services, electronic pagers, . . .) were all called “Nike,” or “Buick.” Consumers wouldn’t be confused into thinking the trademark owners had branched out into these unrelated businesses — but the value of the mark would decline over time, as its distinctiveness wore off as a result of such common usage. Dilution also lies where the mark has become “tarnished” — a mark associated with cleanliness and propriety and good behavior (like this one — anti-littering, remember?) which is now being associated with, in DOT’s words, “graphic references to sexual acts and states of sexual arousal.” [Start distributing, say, Mickey Mouse condoms, or Star Wars vaginal lubricants, and the cease-and-desist letter you'll get, probably the following day, from the trademark owners will tell you all you need to know about tarnishment . . .]

The cause of action for dilution, though, is only available for “famous” marks. You can understand why it is restricted in this way; because it involves suppressing uses of trademarks even in situations where there’s no consumer confusion, dilution is potentially very troublesome from a free speech perspective, and widespread use of the dilution remedy would give all trademark owners potentially vast control over the use of the English language without providing any real benefit to the public.

This is where, in my opinion, TxDOT’s claim is going to founder. “Don’t Mess with Texas,” to be sure, is a very famous phrase — but it is not a famous trademark. I don’t know about you, but I never heard of the anti-littering campaign labelled with that mark, and I suspect most people haven’t heard of it either. This is just what dilution law is supposed to avoid: giving the first person who happens to use the phrase “Don’t Mess with Texas” in connection with some goods or services complete control over use of the phrase, even for entirely unrelated goods and services, forevermore. So for better or for worse, I think the book stays on the shelves.

[Thanks to Q. Boyer for the pointer]

As many of you know, I spend my summers (and as much time as possible in other seasons) up at our place in southern Vermont (Marlboro, to be precise). And as everyone knows by now, we got creamed by the storm on Sunday. It was an astonishing and awe-inspiring experience to go through — I’ve posted a video that I took during the height of the storm showing the condition of the (one) road that leads from our house, and one of the “little stream” that runs just behind our house, that will give you some idea of what it was like.

[ Update -- for some reason the video links above didn't work for everyone. Here are the YouTube links for the video of Butterfield Road, and the video of the stream out behind our house]

As a friend of mine put it, it makes you think a lot about physics. It’s just water, earth, and gravity … a combination of an astonishing amount of rain, steeply sloped hillsides, and ground that was more-or-less completely saturated even before the storm hit. To give you an idea of how much water we’re talking about, take another look at that video of the stream behind our house. This little brook – much too small to even have a name — would, ordinarily, in late August, have a trickle of water in it, at most. The watershed that feeds it covers an area of around 5 square miles — one of thousands of such little watersheds feeding into little streams in southern Vermont (all of which feed larger streams, which feed larger streams, etc.). Five square miles is about 22 billion square inches. Eight inches of rain (which is about what we got) falling on that one little watershed makes for around 175 billion cubic inches (around 100 million cubic feet) of water.

All of that water has to make its way behind our house. If the banks of our little stream are, say, 10 feet apart, and if all of the rain that fell on that watershed had to make it through that space at once – say, in a single column of water, 10 feet in diameter — the column would be around 60 miles high.

It didn’t have to make it through all at once, of course, so it wasn’t 60 miles high … but that gives you the idea. Watching it flow by, tearing up everything in its path, is a sight to see.

Here’s something from yesterday’s NY Times:

“Stocks Rise as Investors Await Signals”
By Julia Werdigier and Bettina Wassener

Stocks rose Tuesday, many for a second straight day, even after a report showed new-home sales in the United States fell in July more than expected. On Wall Street, the Standard & Poor’s 500-stock index gained 11.07 points, or 1 percent, to 1,134.89 points, and the Dow Jones industrial average added 105.81 points, or 1 percent, to 10,958.35. . . . Stock markets in Europe and the Asia-Pacific region also mainly rose as investors awaited the Federal Reserve’s annual symposium later this week in Jackson Hole, Wyo. . . .

The number of Americans who bought new homes fell for the fourth straight month in July, according to the Commerce Department report, putting sales on track to finish the year as one of the worst on record.
The price of oil rose 15 cents, to $84.57 a barrel, as some investors bet on a rebound in demand from consumers and that a recovery of output in war-torn Libya could take longer than expected as fighting in the capital continued. . . .

Nothing particularly unusual or noteworthy. Here’s the same story from the Washington Post

“U.S. Stocks Rise as ‘Problem’ Bank List Shrinks; Dollar Declines”
Stephen Kirkland and Rita Nazareth

U.S. stocks rallied, reversing earlier losses, as the government’s list of “problem” banks declined for the first time since 2006 and investors speculated the Federal Reserve will act to spur the economy. Treasuries and the dollar declined. . . .

Every day, in every newspaper in the country and on every financial blog, there’s a sentence or two like these. The market fell because “investors were jittery about the possibility of a Greek default,” or because of “poorer-than-expected numbers from the Labor Department,” or some such; or it rose because of “better-than-expected unemployment numbers,” or a “surge in housing starts,” etc.

It is complete and utter nonsense, without any shred of a relationship to reality. The market rises or falls as a consequence of millions of individual decisions; there were over 5 million trades, with over 1.5 billion shares changing hands, on the NY Stock Exchange alone on the day in question (Aug 22), as on all days. The notion that a couple of reporters could somehow have determined what motivated a significant fraction of those trades — significant enough to move the market — is hilarious, and preposterous. That they did so an hour or so after the market closed is even more hilarious and more preposterous. Investors “speculated that the Federal Reserve will act to spur the economy.” Really!!? And how in heaven’s name do you know that?! Investors think that “recovery of output in war-torn Libya could take longer than expected.” Is that so?! They think that, and they based their trading yesterday on that belief? You determined that how, exactly?

We all know, of course, basically how this works. The reporters call up a bunch of their contacts in the investment industry, and they ask something like: “So, what’s going on in the market today?” Or “Do you think the Fed’s meeting is on investors’ minds?” Or something like that. And they report on whatever they hear that sounds plausible.

But 10 times zero is zero. How do these contacts know what moved the market yesterday? And if they don’t (and can’t possibly) know, adding them all together just piles up the bullshit, it doesn’t turn it into usable compost. Repeating nonsense from others doesn’t make it less nonsensical.

It’s a classic example of post hoc ergo propter hoc reasoning — “after this, therefore because of this” — and we’ve known for only the last 2,500 years or so that it produces bullshit. Let’s see: the market went up yesterday (Fact). Find 2 or 3 things that happened yesterday that seem like they should be important. Make up a story connecting one or the other to the movement in the market. And report it as fact that investors cared enough about whatever you identified to move the market.

OK, OK – maybe you’re right, and it’s often nonsense, just a made-up story . . . but surely sometimes it’s just obvious, no? Like recently – I mean, the markets have tumbled because investors are concerned about the downgrade of US securities by S&P and the fears of instability in Europe, right?

Actually, not right. A plausible story, surely – but there’s a rather substantial ontological gap between plausible and correct. How do we all know that investors are concerned about the downgrade? Because lots of people say they are – it’s all over the news, after all. But see above – 10,000 times zero is also zero. It’s just not evidence relevant to the state of the underlying reality. I don’t know that investors are concerned about the downgrade – how would I know that? Because the market went down?!

I’m not even entirely sure that the information needed here (to determine what caused the market movement) is even knowable at all — complex systems (like markets) being notoriously subject to unpredictable movements caused by insignificant triggering events (the butterfly in Beijing that causes the thunderstorm in Brazil). But even leaving that nice little theoretical problem aside, this desperate need that we all seem to have to explain why things happen the way they do in the world around us is poignant, but should not excuse elementary errors in logic.

Hmm, I see your point. But really, what’s the big deal? So there’s a little piece of nonsense, purporting to be fact, in the newspaper every day. So what? They publish Horoscopes, too, and nobody gets all worked up about that. Give it a rest – newspapers have enough problems these days.

Well, it is a big deal. It’s a big deal because markets (and many other things) are full of what I have called “Tinkerbells.” Tinkerbells are statements that become true solely as a consequence of peoples’ belief that they are true. “The bank is going to fail” is a classic Tinkerbell – if you think it’s true, you’ll take your money out. If everyone thinks it’s true, the bank will, in fact, fail. And even if you think it’s false, if you think that others believe it to be true, you’ll take your money out; and if everyone thinks that everyone else believes it to be true, again, the bank will in fact fail.

Tinkerbells are astonishing phenomena. They raise some pretty profound questions about the philosophy of mind – how can mere belief in the truth of something cause it to actually happen?? It sounds like magic, like a kind of “conjuring” – crossing the boundary between mind and matter, even. You can’t really bend a spoon by mental effort alone – can you? But how then can you “believe” a bank failure into existence?

The point here, though, is that this little piece of newspaper nonsense actually concerns something of real importance. What other investors believe about the market is of critical importance to every investor, because markets are Tinkerbells. If everyone believes that everyone else believes that the market is going to collapse because of Spain’s troubled economy, it will collapse.

So “what investors believe” is a really, really important datum – the last thing, you’d think, you’d want a newspaper to misrepresent and falsify.

So I call on them all to stop, effective immediately.

[UPDATE: Really interesting discussion down there in the Comments ... thanks to those who suggested readings about this, or similar, phenomena; some of them sound very interesting and very useful. One point I'd like to respond to: the relationship between what I call Tinkerbells and 'self-fulfilling prophecies.' There's clearly a close relationship, but I don't think they're identical phenomena. The former is a sub-category of the latter, distinguished from other 'self-fulfilling prophecies' by two things: the central role of 'belief' that makes Tinkerbells work, and the importance, for Tinkerbells, of group, aggregated, belief -- it's the belief about what others believe that makes tinkerbells (though not the ordinary SFP) work.
DavidP]

I know, I know, . . . I’m obsessing a bit – if you’ve had enough already about the Crusade to Keep the Initial Capital in “Internet,” read no further . . .

Referring to the global TCP/IP network as “the internet” is, I assert, a real barrier to intelligent discussion and analysis of phenomena about which we need to have intelligent discussion and analysis. Let’s talk for a moment about the growth of the global network, and you’ll see what I mean. Here’s an interesting question — to what extent did the US government help “build the internet”? Well, it’s certainly true that, for many years, the US government (though DARPA, the Defense Advanced Research Projects Agency] funded the development of an internet. But if you had asked people at the time, “So, what are you folks building over there?” they would not have said “We’re building the internet.” To say that would’ve been weird, because there were many projects underway, around the globe, to build internets — dozens of them, actually — and there was no internet that was particularly distinguished, enough to be called “the” internet. If you had walked into a networking conference in 1980 and said “So how’s that work on the internet going?” you couldn’t have gotten a straight answer, because nobody would have known which of the many internets you were talking about.

Now, of course, we all know that one of these internets — the DARPA-funded one — out-competed all those other internets; it grew and grew and grew, and it became . . . “the really big internet.” It would be good to have a label for that one, because we need to talk about it — not any of those other ones, because those other ones have no impact on our lives, and this one does. Calling it “the internet” implies that it is the only member of a category, when it isn’t; calling it “the internet” deflects attention from really important questions — about why this one is different from (or similar to) the others, about what gives this one its power, about why it grew and the others didn’t.

There are many canyons. Many of them are grand. So, there are many grand canyons. But there’s only one Grand Canyon. If we call it “the grand canyon,” what happened to all those other grand canyons?

I’m losing my battle to keep the initial capital “I” in “the Internet.” I’m starting see references to “the internet” everywhere; the latest to fall seems to be The Economist (see headline from July 30: “An internet with Chinese characteristics” – I’m quite certain that it was “the Internet” up until quite recently).

It actually matters. I had a footnote in the first chapter of my “Jefferson’s Moose” book about why I was keeping it as “the Internet,” and the more I think about it, the more I think it matters — for our understanding of the Internet and its role in the world, which is surely something we need to understand.

Suppose we live someplace that only has one bookstore. You write to me: “I’m going to the bookstore; let’s meet there.” I understand what you mean — after all, there’s only one bookstore.

Now, suppose we live in a place with lots of bookstores. Now if you write “I’m going to the bookstore; let’s meet there,” I have no idea what you mean.

Finally, suppose we live in a place with lots of bookstores, but — it being a college town — it has one that is often referred to as “the Bookstore.” You know, the Bookstore. If you write “I’m going to the Bookstore,” I know where to meet you — it’s a way of designating one bookstore out of many.

There are a hundred million internets — or 82 million, or 461 million, or who knows how many. Ranging from little teeny-tiny ones (like the one that connects my home network to my service provider’s network) to big ones (the LAN in my law school building to the University network), to one really, really gigantic one. It would be nice to have a proper noun for that one, because we need to talk about it separately from all the others; it has many, many characteristics that distinguish it from all the others. The Bookstore.

[Update: A bunch of commenters suggest that because the smaller networks (e.g. home network, Univ. network, etc.) are known as "intranets," the problem I'm describing goes away.

So I'll repeat what I said. We have hundreds of millions of internets. There's one that's of particular interest. What we call it is a proper noun, whether that's "the Internet" or "Ellen" or what have you.]

Or suppose, with all the millions and millions of trees in the world, there was one that was 411 miles tall. Wow! Referring to that one as “the tree” doesn’t work — it won’t help us talk about how the Tree got to be so damned tall, and why the Tree is different from the other trees, and whether some virus might be attacking the Tree, and whether one of the other trees might supplant the Tree in height, and . . .

I’m just finishing an extraordinary novel, “Independent People” by Halldor Laxness. Laxness (1902 – 1998), whom you’ve surely never heard of (I certainly hadn’t till I began this book), was Icelandic, and won the Nobel Prize in 1955. [That's not, mind you, why I picked the book up; a lot of second-rate and even third-rate authors have picked up the Nobel Prize (Sully Prudhomme, Pearl Buck, John Galsworthy, Dario Fo), and an equally astonishing number of the greatest writers of the 20th century somehow missed the prize (Vladimir Nabokov, Joyce, Kafka, Proust . . . ) that the designation doesn't mean a great deal. But I did notice, on the book jacket, that it had a long and laudatory blurb by Brad Leithauser, who's one of my personal favorites, so I thought I should give it a try]

The book is set in Iceland in the early part of the 20th century, and revolves around Bjartur Jonsson, owner of a small sheep farm out on the icelandic moors, and his family. Even if the characters were not drawn with astonishing vividness, the pictures he draws of what life was like in such a place — the stink and the smell of it — are quite unforgettable. And the characters and the relationships among them – Bjartur, his children and wives, the neighboring farmers, and especially his daughter, Asta Sollilja — are deeply profound and very, very moving. Highly recommended.

[and PS -- the wikipedia entry for this book gets it all wrong -- it reads a lot like a 12-grader's term paper -- so don't let that dissuade you]

[In connection with something I'm writing about the Supreme Court's decision in the videogame case (Brown v. EMA), I stumbled upon this while doing some Lexis research]

Q: What is the holding of the Court in Alabama v. North Carolina, 130 S. Ct. 2295 (U.S. 2010)? Please note the lineup of the Justices:

Scalia , J., delivered the opinion of the Court, in which Stevens , Ginsburg , and Alito , JJ., joined, in which Roberts , C. J., joined in all but Parts II-D and III-B, in which Kennedy and Sotomayor , JJ., joined in all but Part II-E, in which Thomas , J., joined in all but Part III-B, and in which Breyer , J., joined in all but Parts II-C, II-D, and II-E. Kennedy , J., filed an opinion concurring in part and concurring in the judgment, in which Sotomayor , J., joined. Roberts , C. J., filed an opinion concurring in part and dissenting in part, in which Thomas , J., joined. Breyer , J., filed an opinion concurring in part and dissenting in part, in which Roberts , C. J., joined.

It’s not the worst I’ve ever seen, but it’s damned close.

Yesterday I posted a story from Techdirt about a series of photographs of macaque monkeys taken, supposedly, by the monkeys themselves, and I asked, with tongue at least partially in cheek, whether the apparent copyright claim to these photos (Caters News Agency) held any water, given that the photos were taken by monkeys.

Well, now Caters News Agency has sent Techdirt a takedown notice! Really! Not, apparently, on behalf of the monkeys, but surely that’s coming . . .

Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:

Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service. Raising the odd but interesting question: who assigned the copyright to the News Service? Slater? Perhaps, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions concerning the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). (My friend and colleague Annemarie Bridy recently sent me a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).

But what I love about this little story is that it plumbing its metaphysical depths clearly calls for analysis by someone with deep expertise in (a) primate behavior and (b) copyright law — and guess who that might be?! Yes, it’s true – having spent two years in the Kenyan bush back in the 1970s studying the feeding and ranging behavior of the yellow baboon, and a decade or so writing and teaching in the field of primatology and evolutionary biology, and then the last 15 years working on questions of copyright law and other IP matters, I finally have found the one question that I’m uniquely positioned to answer. I suppose my next step is to send the monkey a short note introducing myself and offering to represent him in his copyright battles with Slater and the Caters News Agency, demanding that his authorship rights be respected and recognized. I’d advise him/her to take a bushel of bananas (33% of which go to me, thank you very much) in return for a covenant not to sue and an irrevocable assignment of all copyright rights in the photos.

[Thanks to Fred Wilf and Diana Lin for the pointer]

So I know that faithful readers have been patiently waiting for my take on the current goings-on in the world of international soccer … Though this is the off-season, of course, for most of the world’s leagues (other than our own MLS), there’s a fair bit of action out there, in particular (a) the Women’s World Cup, in Germany, and (b) the main South/Central American tournament, the Copa America, in Argentina.

Re the first: I’m not, generally speaking, much of a fan of the women’s game. Like women’s basketball, though the games can be exciting, there’s not enough skill and athleticism, usually, to hold my interest. But I have to say that the WWC games I’ve watched so far have been pretty damned good — the level of play is much higher than it’s been in the past, and some of the games — Germany-France (4-2), Sweden – US (2-1), Australia-Equatorial Guinea (3-2), and France-Canada (4-0), were fine matches, full of attacking play, near misses, great goals, and all the rest. The Germans look formidable, and will probably win it all – though my money is on Brazil (which plays the US tomorrow at noon, a match that, given the shaky back lines and strong attacks of both teams, could well be a 5-4 thriller …).

As to the Copa America, the big news there so far has all been pretty negative. The two giants of South American soccer — Brazil and Argentina — have looked uninspired (to put it mildly); Brazil was held to a boring 0-0 by Venezuela, pegged as one of the weaker teams in the tournament (Venezuela being one of the very few countries in the hemisphere where baseball, and not soccer, is the sport engaging the most passion); And the less said about Argentina’s performance the better; salvaging a 1-1 draw against Bolivia with a late goal, and then a truly awful performance in a 0-0 draw with Colombia. Their offense is sputtering miserably (and the home fans, needless to say, are deeply unhappy); Colombia easily had the best chances in the last match and should have come away with the victory. It’s proof (if proof were needed!) of the importance of mid-field playmakers; the Argentines have terrific strikers – at one point in the Colombia game they had four world-class strikers (Higuain, Messi, Tevez, and Aguero) playing at the same time, but still created virtually no offense to speak of. Messi – the consensus best player on the planet – looks lost; without the fabulous midfield play of Barcelona’s fabulous two providers (Xavi and Iniesta), he doesn’t seem to be able to get into the rhythm of the offense. It’s been painful to watch, actually — I’m a big fan of the Argentines, and I do hope they can get their act together in time to make at least some noise in the tournament.

The dark horse in the Copa America, to my eyes, is Chile; though one should never count out teams like Argentina and Brazil, with the unbelievable talent and skill on both teams, the Chileans have played the best and most exciting soccer in the tournament so far, and it wouldn’t surprise me if they went far, and possibly all the way.

After many, many years of debate and discussion, ICANN — the rather peculiar hybrid policy/technology private/public institution that manages the Internet’s naming system — has finally approved a process to open up the Internet’s list of “top-level domains” (TLDs) [Stories here and here and here give some of the details] ICANN will begin accepting applications from entities who want to operate their own TLDs — so we could well see an avalanche (.xxx, .highschoolreunions, .store, .hobbies, .dirtymovies, etc. etc. – not to mention the many hundreds of others that will now be permissible using other languages and other alphabets (Chinese, Russian, Greek, . . .) of new TLDs in the years to come.

[Note: For those of you unfamiliar with ICANN and its role in Domain Name System (DNS) management, I put together (rather well, if I do say so myself) the whole (rather astonishing) story as a chapter in my book; I've posted the chapter here, if you're interested]

I’ve been around the Internet long enough so that I’ve seen some things that were given the “Historically Important” or “Next Big Thing” label that petered out to nothing (and vice versa), but this is, I think, an important development in the history of the Net. A lot of people (myself included) have been urging this on ICANN since its inception back in the late 90s; there’s no technical impediment to the proliferation of new TLDs, and it always struck me (and others) that ICANN was merely maintaining artificial scarcity in sticking close to the original list of seven TLDs (the familiar .com, .org, .edu, etc.).

The implications of this for Net architecture and searching and linking and many other Net functions may be quite profound over time – the Net might look very different in 10 or 20 years as these TLDs proliferate. So it could be important, and worthy of note by the historians of the future, for that reason alone.

And it might also be important as signalling something of a shift in the relationship between governments and Net-based non-governmental institutions (like ICANN). Elliot Noss, owner and operator of the Canadian-based domain name registrar Tucows, has some interesting thoughts on this. For a number of reasons, many governments were opposed to this move — primarily in the EU, where there were concerns about the effect of opening up TLD-space on trademark owners, who will now have to police a much larger territory to find “cyber-squatters” who are using their trademarks in their domain names — and they voiced their concerns through the GAC, ICANN’s rather shadowy “Government Advisory Committee.” There was sufficient opposition so that if ICANN were a state-based institution — an organ of the U.N., say, like the International Telecommunications Union — this action would never have gone through. That ICANN has (finally) acted may signal a shift — and possibly an important one, as Noss suggests — in the ever-delicate relationship between the Internet and the world’s governments.

. . . Happy Fourth to you all! Along with 90 (and still counting) other Internet law and IP law professors, I have signed a letter (drafted by Dave Levine, Mark Lemley, and me) in opposition to Sen. Leahy’s “PROTECT IP Act.” [The letter is posted below - the text of the bill, if you're into that sort of thing, is posted here.]
PROTECT-IP Letter, Final

The bill, which will allow the government to obtain injunctions against domain names hosting allegedly copyright-infringing or trademark-infringing material, and to have those domain names deleted from the Internet’s databases, represents a serious assault on the fundamental principles that have built the Net — the design principles at the heart of its technical infrastructure, and the free speech principles it has done so much to foster and cultivate around the globe, all at the behest of your friends in the recording and motion picture industries. [If you want to see why it's a dreadful piece of legislation purely from the technical side, take a look at this white paper prepared by some of the most respected members of the Internet technical community]. We’ve seen this before — in last term’s COICA legislation, which thankfully died in Committee (thanks to Oregon Senator Ron Wyden, who has continued his opposition to the Protect IP Act, and whom we should all thank for his efforts). It’s always hard to gauge how likely a bill is to become law, but I’m told there’s some momentum around the Protect IP Act, and hopefully those who actually care about the Net and its potential will rally in opposition.

And speaking of our old friend Thomas Jefferson … Larry Lessig, a friend and colleague, has contributed a very interesting short Foreword to what will become (soon?) the paperback edition of my book — you might find it of interest as you contemplate Jefferson’s contributions on this day …

Lessig’s Foreword to “In Search of Jefferson’s Moose”

Precisely mirroring a hypothetical I have often used in my Intro to IP class, along comes the “Mike Tyson tattoo” case. Tattoo artist Victor Whitmill apparently designed a distinctive tattoo for Mike Tyson’s face (see photo here), and the tattoo adorning actor Ed Helms’ face in the upcoming Warner Brothers’ film “Hangover 2″ looks an awful lot like the Tyson tattoo. Whitmill sues for copyright infringement. What result?

To answer that, we need to figure out if tattoos can be protected by copyright at all — a question no court (until now), to my knowledge, has ever confronted. The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”

The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration”; though the latter phrase could, I suppose, be so narrowed as to not include the “transitory duration” of, say, Mike Tyson’s life, that would be at odds with about a million copyright precedents. [The "transitory duration" language has been construed to eliminate things like a "buffer copy" of a file inside a computer, which is deleted after 0.01 seconds or so - or the evanescent images on a television screen, which vanish once they are projected onto the screen).

Indeed, I think Whitmill here, from the look of it, has a very strong infringement claim. He sought a preliminary injunction, enjoining any performance of the film until his claim was resolved - a very common tactic in copyright litigation. The court - wisely - denied it. Courts have allowed copyright plaintiffs to use this injunction tactic (which gives the plaintiffs, of course, an enormous bargaining club of a value far in excess of the value of the copyright claim itself) much too frequently in the past (a point made many years ago, if memory serves, in a very influential law review article by our own Eugene Volokh); at the same time, the court noted that Whitmill "had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Bros. were “just silly.” So Whitmill is likely to prevail - but he'll get a couple of hundred thousand in damages (and not the $30 million (!!) he apparently sought in settlement discussions with Warner, when he still had hopes of obtaining an injunction against the film's release).

One interesting little side note: Esteemed copyright scholar David Nimmer submitted an odd affidavit on Warner's behalf, arguing (contrary to several statements published in his copyright treatise (Nimmer On Copyright)) that while the tattoo may be "fixed" on Tyson's face, the human face cannot be a "medium of expression" for purposes of the Copyright Act (citing, among other things, the 13th Amendment). [Perhaps this was one of the "silly" arguments the court was referring to].

So help me out here. I was leafing through Malcolm Gladwell’s “The Tipping Point” recently, and at the very beginning, in the introductory chapter, he writes this, as a way to illustrate the “geometric progression”:

“Consider, for example, the following puzzle. I give you a large piece of paper, and I ask you to fold it over once, and then take that folded paper and fold it over again, and then again, and again, until you have refolded the original paper 50 times. How tall do you think the final stack is going to be? In answer to that question, most people will fold the sheet in their mind’s eye, and guess that the pile would be as thick as a phone book or, if they’re really courageous, they’ll say that it would be as tall as a refrigerator. But the real answer is that the height of the stack would approximate the distance to the sun. This is an example of what in mathematics is called a geometric progression.”

Hmm. That seemed like a very odd example, when I first read it. I get the point he’s trying to make, about the often astonishing nature of geometric progressions — indeed, half of the book I just wrote is about Jefferson’s (many) insights into the nature of geometric scaling and geometric growth. I get it: each time you fold the paper, the stack doubles in size, and that after 50 folds it will be 2^50 — two raised to the fiftieth power — sheets tall, and 2^50 is a really really big number. If you start with a piece of paper .01 inches thick, after 50 folds it will be (.01)*(2^50) inches tall — 11,200,000,000,000 inches, or around 177,000,000 miles.

But still, something seems off to me. Folding can’t increase the amount of matter in the paper, and it just seems wrong to think you can somehow, magically, stretch a single piece of paper to the sun by folding it enough times. With each fold, the stack gets taller, but it also gets smaller (in area) — and also by a factor of 2 with each fold. So the initial area is reduced by a factor of 2^50. At some point – the size of an individual molecule?? – you can’t (even in theory) fold it any more. If your initial piece of paper is, say, 24 inches square (576 square inches), you would end up with a stack with an area of 576/(2^50) inches square, .000000000000511 square inches, or 5.1 * 10^-13.

That’s awfully small . . . Maybe some of you out there know more about all this than I do and can help out — is a single molecule of paper (and is there even such a thing as a “single molecule of paper”??) smaller than that? And am I wrong that, with all the terrific examples out there of the power of geometric increase (read my book!), this is a really lousy one?

Fellow Blogger Orin Kerr, in several comments on my posting yesterday, has asked some questions deserving a response:

David,

If DHS is just making a request and has no legal authority to enforce its request, then of course Mozilla is free to ignore the request. At the same time, I wonder: If you were in charge of enforcing the criminal copyright laws, what would you do about the many sites that exist to facilitate copyright infringement? What steps do you think are fair and appropriate ones — if any?

A couple of thoughts about this. First, about being “free to ignore the request.” If, say, a representative of the Department of Health and Human Services wrote to the Dean of a Law School and said: “We hereby request that you not hire any African-Americans or Jews for your faculty — oh, and not to worry, you’re free to ignore our request,” we’d all be (appropriately) outraged. Heads would surely roll. A request from the government is not like a request from your neighbor or colleague; it carries additional weight. Especially, I think, when it comes from the Dep’t of Homeland Security. It should carry additional weight; as a citizen, I care a great deal about the security of my homeland, and if the government asks for my help in that task, I’m inclined to give it, or at least to consider it. I happen to regard that as a simple consequence of citizenship – not that I’ll do whatever the government asks me to do, but that I will consider it. The more frequently they ask for things they have no right to ask for, the less inclined I am to take their requests seriously.

The DHS has no more legal authority to request that Mozilla disable MafiaaFire than does the DHHS to ask my Dean not to hire blacks or Jews. None.

If I were in charge of enforcing the criminal copyright laws, what would I do? I would not violate the due process rights of website operators by asserting a right to “seize” anyone’s domain name whenever some copyright holder persuaded a DHS functionary that the site was infringing copyright. I would design a process to actually “adjudicate” these claims — maybe not (almost definitely not) full-blown federal litigation, but a procedure whereby the purported infringer has an opportunity to be heard before a true neutral, and where little things like “burden of proof” and the like are respected. ICANN’s UDRP proceedings at least serve as some sort of model — by no means the right one for this task, but a starting point for discussion.

Finally, if I were in charge of enforcing criminal copyright law, I would recognize that enforcing copyright law, while important, is less important, as it were, than the Internet. If we’re going to have situations in which government agents are permitted to screw up the basic and fundamental principles of Internet addressing, they should be restricted to situations in which the stakes are really, really high. Enforcing the private rights of music and entertainment companies is not one of those situations.

The Dep’t of Homeland Security is indeed at it again. I’ve blogged about their campaign on behalf of US copyright holders to “seize” the domain names of websites (irrespective of the actual location of the site, provided that it is registered in one of the databases of a US domain name registrar or registry). It’s a really troubling new phenomenon — even putting aside how downright stupid, and outrageous, it is that DHS, which even in light of last week’s developments obviously has other important work that it should be attending to, is getting into the copyright-enforcement game.

But it appears to be getting worse. Now, they’re going after software providers. As reported by Nate Anderson at arstechnica, DHS recently approached the folks at Mozilla and “requested” that they remove/disable a popular Mozilla add-on, “MafiaaFire.” MafiaaFire is a (pretty simple) domain name redirector; if the website operating at wereallydon’tlikeIPlawyers.com moves to wewerejustkidding.org, a user with the MafiaaFire add-on who types “http://wereallydontlikeIPlawyers.com” into his/her browser window is automatically redirected to wewerejustkidding.org.

You can see what they’re unhappy about, I suppose; sites that have had their domain names “seized” have managed to get up and running in a matter of hours after the “seizure” by switching over to new domain names, and things like MafiaaFire make it easier for users to find the new site.

But screwdrivers, pencils, automobiles, bunsen burners, Frisbees, and many, many things are used by Bad Guys to do their Evil Deeds; that does not give the government the right to restrict the availability of those items (absent some specific statutory basis for doing so). It’s conventionally referred to as “the Rule of Law.” DHS has absolutely no legal authority (of which I aware, at any rate) to order Mozilla to take this action with respect to a lawfully-made and lawfully-distributed product that has, obviously, any number of perfectly legitimate uses, and their “request” is an outrageous end run around their legal authority. It pisses the hell out of me that they can get away with stuff like this (and that I’m paying them to do it, as a taxpayer).

Mozilla, thankfully, has not complied (this according to Harvey Anderson, a Mozilla lawyer); Mozilla sent DHS a set of pretty reasonable questions about what they were doing (to which DHS has not responded), viz.:

We’ll see if DHS responds. My bet is they won’t. They should really be ashamed of themselves.

[Thanks to Andrew Metcalf for the pointer]

A somewhat dispirited series of highly-anticipated matches between FC Barcelona and Real Madrid was elevated to high art through the remarkable play of the remarkable Lionel Messi. If you didn’t see his goals in Wednesday’s game — the second one in particular is a thing of sublime beauty — check them out

here (the UEFA official website, with a pretty niggardly 45 second clip)

or here (from a broadcast clip of the 2d goal)

The matches have been dispiriting because Jose Mourinho (Madrid’s coach) made the tactical decision to play the most conservative brand of static football imaginable, in the hopes of suffocating Barcelona’s attack. He’s got no faith, as my son Sam put it, that his players can compete with Barcelona if both teams are attacking. Aside from the fact that the strategy is failing, it has deprived us of what could have been some magnificent games – Madrid showed last weekend, in demolishing a very good Valencia side (on the road, no less) 6 -3, that they have the potential to be a terrific attacking side, and a game in which the two teams were at their attacking best could been truly wonderful side to watch.

But at least — thank goodness — there’s Messi. I know I’ve said it before, but it does bear repeating – we’re lucky to be around to watch him. Those Madrid defenders he’s running by are not clumsy oafs, or statues – they are world-class soccer players, made to look like clumsy oafs and statues. And they’re not the ones with a ball bouncing around unpredictably at their feet!! Jordan, Gretzky, Ruth – sometimes someone not only is better than everyone else in the world at what they do, but better by a prodigious margin, and it’s really something to see.

And while I’m on the subject of spectacular feats on the athletic field: where did the often-repeated trope that “Hitting a baseball from a major league pitcher is the hardest thing to do in sports” come from?? It is demonstrably false. Think about the pitchers, when they’re at the plate. They’re pretty lousy hitters, as a rule – a batting average of .150 or even lower is the norm. But that means once or twice, in every ten at-bats, they not only manage to hit the ball, they hit it well enough to get a base hit! I know they’re terrific athletes, and that most of them spent a lot of time practicing their hitting as teenagers. But the hardest thing in all of sports!?? If that was the hardest thing to do in all of sports, surely we’d expect that people who hardly ever practice it wouldn’t be able to succeed at it, wouldn’t we?

Michael Eisen, over on “It is NOT Junk,” has uncovered a pretty remarkable phenomenon on Amazon. Looking for an out-of-print book on developmental biology, he saw that Amazon had 17 copies for sale: 15 used from $35.54, and 2 new from $1,730,045.91 (+$3.99 shipping). Hmm. The next day, the price had gone UP — $2.8 million a copy (+$3.99 shipping).

One bizarrely-overpriced copy might be explicable as just an error – but two of them? From different sellers? What’s going on?

What appears to be going on is that the two sellers are using a form of algorithmic pricing – using automated systems to set book pricing based on others’ pricing. These two sellers happen to use each other’s price as the guide. Seller 1′s pricing rule for this particular book is: Set the price at 99.8% of Seller 2′s price. Seller 2′s pricing rule, though, is: Set the price at 127.059% of Seller 1′s price.

Seller 1′s strategy is easy to understand – but why would Seller 2 want its price to always be around 30% higher than Seller 1′s price? Eisen’s got a theory, and I think he’s right: Seller 2 doesn’t actually own the book – if you order it from them, they’re just going to buy it from Seller 1! So they need a cushion (27.059%) to compensate and to make sure that there’s still profit from the sale.

I’ve noticed before that Amazon itself appears to use some weird forms of algorithmic pricing – for instance, when I’d check the Amazon page for my book, I would notice odd fluctuations day-to-day, anywhere from $16.25 to $24.95; as best I could make out (not being as systematic about these things as Eisen is), the changes appear to be inversely related to the number of sales – as sales went up, the price would go down, while if nobody buys the book for a few days, the price drifts up. Seems counter-intuitive, though I suspect the Amazon folks know what they’re doing . . .

My wife and I went last night to see the Synetic Theater production of “King Lear” at the Lansburgh Theater in downtown DC. If you are within striking distance of DC over the next couple of weeks (it closes April 24), and have even the slightest interest in theater, I can’t say enough about how spectacular a production this is. Synetic Theater is a small (but growing) company originally from Georgia — the Georgia in the Caucasus, not the Georgia down South — and they have, over the years, put on a series of “wordless Shakespeare” productions, of which this is the latest. It’s very hard to describe them, because they’re not really like anything else (that I’ve ever seen, anyway) — a mix of dance and mime and vaudeville and commedia dell arte and circus and opera and who knows what else — that in lesser hands could probably be awful, but which is elevated to real art here. They perform Lear as a kind of farce, and it’s terribly moving (as any good Lear should be).

The theater was only about 2/3 full last night, and I thought that was a real shame – to see great art being made before your eyes is a real privilege, and with all the junk out there these days, you don’t get to experience it all that frequently, and I’m always hopeful that there’s an audience for it.

As I’ve noted before on a number of occasions, a possible landmark copyright case is now before the 2d Circuit, Viacom et al. v. YouTube. On behalf of 44 co-signatory law professors, Annemarie Bridy and I wrote an amicus brief urging the court to affirm the lower court’s decision that YouTube is immune from copyright claims unless it has item-specific and location-specific information about infringing postings. The brief – which I think turned out quite well, and is, at the very least, a good example of decent legal prose — is available here. Briefs submitted by other amici (and there are lots of them) are available here.

I’ve reprinted below some of my comments from earlier postings about the case. I could be falling prey to a common syndrome: when you work as an advocate for one side in a case for a while, you begin to believe that you have truth and justice firmly on your side, that the opposing position is outrageous and contrary to all common sense and moral principle . . . . But I really do think this one matters, for the future of the Net.

It was a bit more of an adventure submitting this brief than it should have been — the 2d Circuit does not treat its “amici” in a very friendly fashion. Not only must you be admitted to the 2d Circuit bar to submit an amicus brief — no temporary admissions pro haec vice are permitted — but you also have to be sure to be hooked up to the latest version of the court’s electronic filing system; not huge problem, i suppose if you’re a lawyer or law firm practicing frequently in front of the 2d Circuit, but not something that a law professor, even if admitted to the court’s bar, is likely to be current with. And even if the parties themselves require electronic filing, the court does not – so in addition to getting all the aforementioned ducks in a row, you have to comply with the court’s rather arcane printing rules and deliver 6 hard copies to them. Seems all a bit overly formalized, and a means to discourage, rather than encourage, participation — I mean, they don’t have to even read the briefs that are submitted, so why make it so hard for people to submit them?

And one little humorous side note. As noted here, YouTube has changed its “repeat infringer” policy. The Copyright Act requires, as a pre-condition to asserting the immunity from infringement claims provided in section 512, that a service provider

“has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

YouTube has had such a policy for a while — more or less a “3 strikes and you’re out” kind of thing. [Indeed, one of the truly outrageous things I learned while working on this brief is that Viacom itself was actually thrown off of YouTube as a "repeat infringer" because its marketing department had posted thousands of files for promotional purposes, and its legal department issued hundreds of "takedown notices" with respect to many of them]. But now they’ll let you come back onto the system if you go to “copyright school” – watch a video and take a copyright exam [The video is pretty good -- good enough that I couldn't tell whether it was YouTube's copyright school or a parody of same . . .]

[thanks to Ben Mishkin and Steven Kim for pointers]
***********
from earlier postings

YouTube successfully defended itself against infringement claims brought by a host of content providers by asserting the “safe harbor” provisions of sec. 512(c) of the Copyright Act, and the case concerns the interpretation of that provision. The section 512 safe harbors have been of prodigious importance — by giving providers of online applications and services a defense to infringement claims arising out of their users’ activities (e.g., user postings of infringing files on YouTube), it has enabled the (astonishing) growth of “user-generated content” or “Web 2.0″ sites over the past decade — YouTube, Facebook, Craigslist, Tumblr, Twitter, Myspace, Blogger, and on and on and on. At the absurdly high volume at which these sites operate — 250,000 words a minute posted on Blogger, 40 hours of video a minute on YouTube, etc. — the liability risk without a safe harbor of some kind is truly astronomical, running into the billions of dollars a day. So you don’t get a YouTube, or a Facebook, or a Blogger, etc. without something like sec. 512; it’s no accident, as I’ve pointed out before, that all of the largest Web 2.0 sites on the global net are based here in the US. And, among other things, if you don’t have a YouTube, or a Facebook, or a Twitter, Hosni Mubarak is still the President of Egypt.

So there’s a lot at stake in how the 2d Circuit — widely regarded, along with the 9th Circuit, as the source of the most important copyright doctrine — interprets the statute. Precedent up to now (mostly in the 9th Circuit) has (correctly) given service providers very broad protection under the statutory immunity; to make a very long story short, the service providers (like YouTube) have no duty to find infringing material that may be present on their site, or to do anything about infringing material on their site, unless and until the existence of the infringement(s) is brought to their attention by the copyright holder. Once they receive such a notification from the copyright holder (through a detailed set of procedures laid out in the statute), they have to act — removing or disabling access to the offending material (and informing the user that they’ve done so). But without receiving the notice of infringement, they’re under no duty to act, and they’re within the safe harbor if the copyright holder subsequently asserts a claim against them.

The content providers don’t like it, needless to say. They’d like YouTube to, say, take down everything uploaded to the site that is labelled “The Daily Show,” for instance, or “Lionel Messi’s Fabulous Goal vs Arsenal,” on the grounds that they should know of the infringing nature of the postings, without having to be specifically informed of that by the copyright holder. If you want to know why that’s both wrong (as a matter of statutory construction) and absurd (as a matter of public policy), read the brief. [It’s pretty short — 18 pages or so of text — and the prose, of course, is crystalline).

If the 2d Circuit endorses the 9th Circuit position — and I fervently hope that it does — that battle, at least, is probably over; there’s not much copyright doctrine out there where the 2d and 9th Circuits are in agreement but some other circuit (or the Supreme Court, for that matter) takes an opposing view.

. . . is.** [see note below] But on a day when our sports pages are filled up with loads of nonsense — about whether Barry Bonds knew what every 12 year-old in America knew (that Bonds was taking steroids), and about whether Kobe Bryant’s utterance of an “anti-gay epithet” that is apparently so nasty that the NY Times can’t even bring itself to tell us what it is deserves a whopping $100,000 fine — real money, even to Kobe Bryant! — it’s nice to bring the discussion around to a sporting event where what is about to happen between the lines, on the field of play, could really turn out to be something most extraordinary.

If you have friends who have a passion for the world’s game (or are Spaniards), you might want to cut them a little slack over the next few weeks. Soccer fans around the world are now in a state of high heat about an unprecedented series of encounters about to take place between two of the real giants of international soccer, FC Barcelona and Real Madrid. The two teams, who ordinarily meet twice per year, are going to play 4 times over the next 3 weeks — their regular meeting (this Saturday afternoon 4 PM EDT) in the Spanish League (in Madrid), the Final of the Spanish Cup tournament (the Copa del Rey) in midweek, and then twice (home and home) in the semifinals of the big all-Europe soccer competition, the Champions League (April 27 and May 3).

It’s enough to make a soccer fan go mad – Spain will almost certainly grind to a complete halt (not great news for its bondholders, given its current economic woes), and much of the rest of world will at least slow down noticeably. It does indeed seem too good to be true. For any number of reasons, this could well be a truly epic matchup. To begin with, Barcelona and Madrid may well be, at the moment, the two best teams in the world; only Manchester United is really in that conversation right now. Madrid got spanked when they last met — a stunning and humiliating 5-0 defeat in Barcelona; but that was back in the mid-Fall, and virtually all observers agree that Madrid has gotten its act together and started to play a very different brand of soccer over the last few months.

Watching the two best teams in the world play four times in three weeks would be a treat in any circumstances – it’s just a million times more delicious that it’s Madrid and Barca. In a world full of great sports rivalries — a very partial and incomplete list would probably have to include (and I’ll surely offend many of you here) Yankees-Red Sox, the great US college football rivalries (Texas – Oklahoma, Michigan – Ohio State), maybe Celtics-Lakers, Bears-Packers . . . and many terrific soccer rivalries overseas as well (Inter Milan – AC Milan, Man U – Liverpool, Boca Juniors – River Plate in Buenos Aires, Galatasaray – Fehnerbache in Istanbul . . .) — Barcelona-Madrid has a very strong claim to being the greatest of all. The history alone assures that. Madrid, of course, was Franco’s team – his favorite, and he showered it with affection, and prestige, and financial emoluments. And Franco was no friend to the Catalonians, to put it mildly; at a time when all expressions of Catalonian culture were brutally suppressed by Franco’s administration (in Madrid), you could still root for FC Barcelona, and rooting for Barca thereby became a kind of reference point for Catalonian (and, not coincidentally, anti-Franco and anti-Fascist) identity. And all this, remember, is not some old tale out of the history books; it’s within living memory for millions of people (Franco’s reign of terror having ended only in the 1970s).

So there’s that. And there’s plenty of other stuff to give the games even more spice. Madrid’s coach, Jose Mourinho, was hired this year because he, supposedly, has the secret to beating Barcelona; last year, when he coached for Inter Milan, he beat the Catalonians in the Champions League semifinals (and went on to hoist the trophy in the Final) — though that 5-0 drubbing in the Fall put a dent in his reputation on that score. And then there’s the contrast between Madrid’s collection of international superstars plucked from other teams for outrageous amounts of money — Christiano Ronaldo from Manchester United, Kaka from AC Milan, Benzema from Marseille, Xabi Alonso from Liverpool, . . . — and Barcelona’s remarkable group of entirely homegrown stars — Xavi Hernandez, Iniesta, Pique, Puyol, and, of course, the transcendent Lionel Messi.

It all seems to good to be true. We shall see. Tune in, if you’re looking for some fantastic soccer.
***************
** I’ve been having a debate with a colleague about whether the correct form of the expression is:

“If it seems too good to be true, it probably is” [i.e., it is too good to actually be true] or

“If it seems too good to be true, it probably isn’t.” [i.e., it probably isn't true]

It’s rather odd that both forms work and express the same idea … but I vote for the former as the clearer and cleaner of the two]

Over at the New Yorker, Tim Parks has an eloquent — and quite sad — piece (“Booted: What really ails Italy?”) about the current state of Italy and the Italians. I just returned from having spent several days in Torino, a lovely city in the far North of Italy, and much of what Parks writes about confirms what I saw during my brief visit.

In particular, as he points out, a very good measure of the current ill-feeling in Italy is that the 150th anniversary of Italian unification passed in March with virtually no fanfare whatsoever. (As it happens, Torino was, possibly, the most significant exception to that generalization. As Parks discusses in some detail, Italian unification involved bringing seven different countries, ruled by seven different monarchs, under the authority of one: the King of Savoy, Victor Emmanuele. Torino was the royal seat for the ruling family of Savoy. It would ordinarily be expected to have become the capital of unified Italy – except that even the Savoyards realized that a united italy had to be ruled from Rome; but there’s still very much the sense that the Torinese feel themselves to be the first and the true modern “Italians.” They did have a full-fledged civic celebration of the anniversary, complete with decking out the whole city with banners declaring: “L’Italia Comincia Qui.” “Italy begins here.” I noted the use of the present instead of the past tense. There are prodigious stresses now on the very notion of a single, united Italy — again, Parks’ piece describes many of them quite well — and the political divide between North and South is deepening; if Italy begins in the Torino of 2011, that Italy probably would not look like the one that began there in 1861.

It’s all rather depressing. If you love Italy — and, really, if you love Western Civilization and believe that it has brought forth much that is glorious and beautiful, how can you not love Italy? — to watch it going through this is painful. Having a prime minister who is simultaneously a laughing-stock and a criminal and a true authoritarian (and who controls, by virtue of both his public office and his private holdings, virtually all Italian communications media, and he exercises that control in precisely the manner a true authoritarian would be expected to exercise it) certainly does not help matters – though as one of my Italian friends put it, Berlusconi is a symptom, not a cause; the real problem, as he put it, is that there’s not a lot of hope for anything any better than Berlusconi, even were he to leave the scene. “You Americans, even when you complain bitterly about the state of politics in the US, treat it like an illness from which you will, in time, recover. In Italy, we just foresee things getting worse and worse, sicker and sicker.”

[thanks to David Castronuovo for the pointer]

We will no longer be accepting nominations for Snarkiest NY Times Op-Ed piece for 2011; we have our winner. Caroline Alexander, in yesterday’s Times, for “Out of Context.”

Alexander sharply criticizes the choice of a line from Virgil’s Aeneid as the memorial inscription at the planned 9/11 memorial in New York. “No day shall erase you from the memory of time,” an “eloquent translation,” she admits, of Virgil’s “Nulla dies umquam memori vos eximet sevo.” She describes the context of the quotation – the death of two Trojan warriors, Nisus and Euralthus. In context, she says, the verse expresses the “central sentiment that the young men were fortunate to die together” — a sentiment that is “grotesque” and “disastrous” when applied to “civilians killed indiscriminately in an act of terrorism.” She finishes up this way:

Finding words that do justice to a momentous event is always difficult — especially so, perhaps, in the age of Internet trawling, when a wary eye needs to be kept for the bothersome baggage that may be attached to the perfect-sounding expression. There is an easy mechanism, also time-hallowed, for winnowing out what may be right from what is clearly wrong: it’s called reading.

Oh, please! My objection is not to her illuminating the context from which the quote is drawn. That’s an interesting little point; I adore Virgil, and the Aeneid — Robert Fagles’ magnificent recent translation of the latter is one of the four or five best books I’ve read in the last decade or two — and I’m always interested in learning more about the work. But the arrogance of it: “You Philistines who haven’t read the Aeneid (in the original Latin, of course) couldn’t possibly understand the true meaning of these words you’re inscribing at the memorial. That, I’m afraid, is reserved to those of who can “winnow out what may be right from what is clearly wrong.”

Sorry, but Caroline Alexander does not get to decide for the rest of us what those words on the inscription “mean.” Neither, actually, does Virgil (though he’s got a helluva better claim on it than she does). The words mean what we decide they mean. This notion that they’re somehow frozen forever in time, attached to Virgil’s tale, is ridiculous and the worst form of elitism. “No day shall erase you from the memory of time” strikes me as a perfectly appropriate sentiment for this memorial. That Virgil used these words for a different purpose is interesting and entirely irrelevant to whether they are appropriate.

[And by the way: don't construe my sentiments above as an argument against originalism in Constitutional interpretation. The argument that the meaning of the Constitutional words is frozen in time rests on an entirely different foundation: that a constitution retains its original meaning by virtue of having been enacted into law, at a specific moment, by a specific "People." Virgil's Aeneid, of course, comes with no such baggage.]

I’ve heard it said that lawyers are among the most avid watchers of law-related TV shows – from LA Law to Law and Order to The Good Wife” — but I must say I find that pretty hard to believe. Personally, I can’t watch them, and I’m a little surprised that other lawyers can; the picture they paint of the practice of law is just wa-a-ay too absurd for me, and it inevitably causes me to run from the room with my hands over my ears . . . The Good Wife, in particular, causes me to go temporarily insane. Their portrayal of life in a “big firm” is so preposterous — the client comes in on Monday with an antitrust case against, say, all of the drug companies; on Tuesday they find the critical case on the issue, which they use, that afternoon, to confront the other side during depositions; at trial — which seems to occur the following day — the judge rules on the critical motion, and the other side gives up in despair.

It’s just so idiotic. I understand that TV’s supposed to be idiotic — or, at least, it doesn’t really matter when it is idiotic, it’s just a little added silliness in our lives, and in any event, that’s why God put the “change channel” and “off” buttons on the remotes.

But actually, it does matter. I was thinking of this as I was reading reports about the Barry Bonds trial. I think if people understood better than they do what actually goes into preparing for a trial like this — the thousands of hours of lawyer drudgery, the poring over insanely boring and impossible to comprehend documents, the motions, the counter-motions, the discovery requests, the oppositions to the discovery requests, the requests for sanctions for having opposed the discovery requests, the witness prep, the mock depositions, the actual depositions, the motions to strike testimony or evidence, the jury selection . . . . — if people actually understood that better, they’d be a lot more pissed off than they seem to be that the government is squandering all of that to prove that Barry Bonds lied about whether or not he knowingly took steroids. This is a truly preposterous and indefensible waste of precious government resources — whoever made the decision to prosecute this case should be summarily dismissed. (And I gather that the equally preposterous Roger Clemens perjury trial is about to start as well). It’s not just that this is part of an extremely depressing and disturbing trend of high-profile prosecutions for perjury — Martha Stewart and Scooter Libby come to mind — where the government ends up with no good evidence that any law-breaking has actually occurred, so they end up going after the principals for lying to investigators about whether any law-breaking has occurred. Lying under oath can be a serious matter – I get that. But where the underlying criminal activity is, in the greater scope of things, relatively insignificant — if Bonds, or Clemens, actually obtained unlawfully-distributed drugs that they used to enhance their performance, I’m not sure the republic is seriously threatened — the notion that we’re throwing people in jail even when we aren’t sure that it occurred is more than a little troubling to me.

But even putting all that aside, the sheer magnitude of the waste of government money and time and energy is staggering. If life bore the slightest resemblance to The Good Wife, I wouldn’t care that much. But it’s not. There are, if I am not mistaken, serious problems that need prosecutorial attention. Lots of them. It would be nice if our prosecutors focused their attention on them.