Saturday, July 31, 2004

FDR's Folly: Jim Powell's FDR's Folly is a good but flawed book. He does a very good job at showing the economic irrationality of a wide range New Deal policies, and of bringing the latest economic research to bear on the effects of those policies. On the other hand, the book is written in a polemical, over-the-top style that virtually ensures that historians won't take it seriously. This is really too bad, because most historians (of the New Deal and otherwise) are economically ignorant, and their work would be improved by exposure to economically sound explorations of past American economic policy. A couple of examples of the problems with the book, on issues on which I have particular knowledge/expertise: (1) Powell cites my book for proposition that 500,000 blacks put out of work by NIRA. This was one New Dealer's estimate, and I point out that many historians think is exaggerated. Why state a disputed figure as a fact? Why not just say, "as many as" or "some estimate that"? (2)Powell states that Supreme Court Justice James McReynolds, an arch-foe of the New Deal, "didn't like" Jewish Justices Brandeis and Cardozo. Actually, McReynolds was a raving anti-Semite, and a racist, too. Powell didn't have to raise the issue at all. Or, he could have simply stated the truth, which I think effects not at all whether McReynolds was right to think the New Deal largely unconstitutional. Instead, an objective reader might conclude that Powell intentionally downplaying McReynolds' anti-Semitism to buttress the anti-New Deal case. In short, the book makes a lot of good points, but does so in a way that is unlikely to persuade many readers who were not already inclined to be anti-New Deal.

Friday, July 30, 2004

Is Rep. Istook trying to overrule Marbury v. Madison?

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.


(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.

Restrictions on demonstrations outside the Democratic Convention:

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.

JibJab and covers:

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.
Cult of Cryptonomicon Riddle:

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 . . . .

More for Russophones:

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).

For Russophone readers:

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.

Democrats and Sharpton:

Am I really supposed to take seriously a party that not only gives dangerous loathsome ex(?)-anti-Semitic demagogue (and Tawana Brawley hoaxer) Al Sharpton a prominent forum at its convention, but then rewards him with a standing ovation at the end of his speech? If there was anyone at the Democratic convention whose moral compass led them to protest this circus, I applaud you.

Update:More on Sharpton here:"In giving this charlatan a national platform and then cheering him wildly, Democrats advertised an atrocious lack of moral clarity."

Learned Hand:

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.

Kleiman's Question/Quiggin's Comments: Earlier, I linked to and quoted Mark ("Fair and Balanced") Kleiman's challenge to Libertarians to reconcile their concern for individual rights with warfare. Mark's question (found here and here) presupposes that there is a unique Libertarian "doctrine" on these sorts of issues, when the very point of MY initial blog challenge was to provoke a debate AMONG Libertarians on the issue of warfare and foreign policy.

Here in Gummersbach, I showed Mark's post to my colleague in the seminar, English historian Stephen Davies. Steve offered the following thoughts, which I asked him to write up for the benefit of Volokh readers. [Notice that Steve does not capitalize "libertarian" and "libertarianism," a practice to which I may return.]

Thanks for the interesting comments you passed on to me regarding the question of the implications of libertarian thinking for the question of whether war can ever be legitimate. (I think making a distinction between modern and pre-modern war is irrelevant and otiose here btw). I was struck most by this passage, the core of the response to you:

There are two possible conclusions here: either (1) war is always wrong, or (2) Libertarianism as a moral philosophy (as opposed to the libertarian tendency in politics) is not merely false but transparently silly, since no actual group of people could live under Libertarian principles unless some other group of people did the dirty work of collective self-defense for them.
I'd make the following points.

1. Because things are done by the state that doesn't make the activity itself illegitimate (e.g. health care, education) the activity in this case being self-defense (I think all libertarians are opposed to wars of conquest.)

2. However that doesn't address the question of what to do if the activity in question necessarily involves large scale and systematic rights violations for third parties such as non-combatants, particularly those such as children who cannot even be counted as "indirectly combatant" by virtue of being involved in the productive process in the combatant nation. (I should make it clear that I think that this particular justification for total war is bogus.)

3. There are indeed libertarians who, adopting a position of strict individualism, argue that libertarianism does preclude war (other than perhaps a very strictly defensive one fought on one's own real estate). Wendy McElroy and Neill Smith would be examples of this. This doesn't mean pacifism since this position does not entail rejection of the use of defensive force per se, just the organised use of force that must inevitably impact on innocent third parties.

4. This does raise the question of whether there is some alternative to the large scale organised use of force (i.e. war) to defend against aggression, whether direct or indirect, and to assist others in resisting oppression or aggression. There are a number of possibilities that have classically been floated or even used such as a Swiss style militia, the use of organised passive resistance, assasination of targeted rights violators, sabotage and subversion by various means. This all draws on notions such as Gene Sharp's idea of "social power" derived from voluntaristic action.

5. Alternatively many libertarians believe that because of public goods problems there has to be provision of the good of collective defense by a limited state and that this will inevitably involve some kind of rights violation in the process of collective self defense due to externality problems. This then comes under the heading of regrettable necessity. The justification would be consequentialist or involve the argument that such violations are needed to prevent even greater violations in the long run. This would mean however applying a very strict set of "just war" arguments, meaning that for libertarians who took this position a war to be justified would have to pass very high barriers and could only be fought in a certain way. It would IMHO certainly preclude such tactics as blockade and aerial bombing. I strongly reject the idea that such tactics are an inevitable feature of modern warfare, I think they're a product rather of modern military doctrine and the current political economy of warfare which are not fixed or inevitable. The current shift to "fourth generation warfare" will have a big impact on this argument.

6. The third position one could take would be a pragmatic one. Here the argument would be that in an ideal world one of the other two positions would apply (probably 3 above) but in the actual world we inhabit we have to perform a cost-benefit analysis and follow the course that we judge will maximise liberty in the long run. This does not mean that there is a fixed, permanent gap between the real and the ideal (i.e. that libertarianism is an inconsequential fantasy that cannot be realised). The aim must be to act in such a way as to reduce the gap and to make the actual ever more coincident with the ideal. One can than argue that in some circumstances, such as a clear and profound physical and ideological threat to liberty on a large scale, the use of military force is sadly justified, although other options should be explored first. The question for libertarians is then one of prudence or practical judgement about the effects and implications of a particular policy choice. This was broadly J. S. Mill's position for example.

7. I certainly agree with you that libertarianism does not imply a particular take on international relations. Apart from the fact that not all libertarianism is derived from rights theory (there's also consequentialist and human flourishing derivations) it seems to me that libertarianism only leads to clear conclusions about international relations and particular policy choices if it is also combined with other judgements or assumptions, such as whether all public goods problems are soluble without coercion or whether one should hew always to the theory or take notice of real historical conditions. This is true for any political philosophy that has a strongly normative element, socialism being a case in point.
What Mark seems not to realize, perhaps due to his relucant imaginings that Libertarians are closet racists, is that because Libertarians are seriously concerned with the individual rights of all, they struggle more with these difficult moral questions than those statists (whether of the left or right) whose instincts are simply to support any state "policy" that the intelligensia currently thinks will lead to better results for "society."

A much much more respectful and nuanced critique is provided by John Quiggin over at Crooked Timber in his post, Libertarians and War. John's post and most of the comments that follow, some of which are are quite insightful, display the tone I have come to expect from that blog. Commentators there also provide some useful links to other posts on the subject.
Ilana Responds (and more): Always thoughtful and provocative, Ilana Mercer takes up the challenge of how Libertarianism does have foreign policy implications in her column, Return to Reason, on WorldNetDaily. (In the process she both ridicules antiwar Libertarians and the war in Iraq at the same time.)

Along the way, I learn that she had previously made the argument I advanced in my article, Constitutional Legitimacy in the Columbia Law Review and in Restoring the Lost Constitution;

From the fact that many libertarians believe ... that the state has no legitimacy, [they] arrive at the position that anything the state does is illegitimate ... Consider the murderer who, while fleeing the law, happens on a scene of a rape, [and] saves the woman ... Is this good deed illegitimate because a murderer has performed it?
Jeffrey Utech at A Stranger in a Strange Land replies to The Vindicated Cynic's critique of Libertarianism's alleged immorality.

PS: I have no firm view of whether "Libertarianism" should be capitalized or not (it recently was by one of my editors and I did not object), but I certainly do not use the term to refer in any way to the Libertarian Party.

Thursday, July 29, 2004

This Song Is Whose Song?

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.

Cryptonomicon excerpt:

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:




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.

What happens if the Inauguration gets bombed?

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.

What happens if the Inauguration gets bombed?

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.

Copyright remedies:

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.

"Effect on market" in fair use:

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").

Mocking the original vs. using original to mock others: Several people e-mailed me about the This Song Is My Song complaint. Some weren't wild about the distinction between using a song to mock or comment on it, as opposed to using a song to mock or comment on something else. Well, maybe that isn't that great a distinction, but it's what the Supreme Court set forth. Here's the heart of the Court's argument:
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."]
So, rightly or wrongly, if the JibJab item is seen as commenting entirely on Bush and Kerry, and not on This Land Is Your Land, the fair use argument will probably be weaker than the argument (which basically won) in Harper & Row. Ah, but does the item comment on This Land Is Your Land? The Court said that the test here is "whether a parodic character may reasonably be perceived" -- and again remember that to the Court, "parodic" meant commenting on the borrowed work. The Court reasoned that
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. . . .
Nick Morgan argues that something similar is present in the JibJab use of This Land Is Your Land:
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.
That's certainly the argument that I'd make if I were JibJab's lawyer, but I doubt that it would fly. It seems to me that very few people would understand the cartoon as even partly "lampoon[ing]" Woody Guthrie's work; I think nearly all of them would see it as entirely a lampoon of Bush and Kerry. The joke isn't that there's something naively idealistic about what Guthrie sang -- it's that there's something amusing (and perhaps amusingly unidealistic) about modern politics. Now of course figuring out the True Meaning -- or even a Reasonably Perceptible Meaning, since the Court's analysis acknowledges that a song may have multiple meanings -- of comedy is a questionable proposition. Perhaps the Court was wrong in calling on judges (in the first instance, and in the first and last instance in preliminary injunction hearings, where there's no jury) and perhaps juries (if the judge concludes that there's a genuine issue of fact as to whether the meaning is reasonably perceptible, and the case comes to trial) to draw such distinctions. But that's what the test calls for; and my sense is that most judges and juries would treat the JibJab item as a "satire" of Bush and Kerry, and not a "parody" of This Land Is Your Land. Note, though, that I've tried throughout (see here and here) to speak in terms of probabilities, not certainties -- for better or worse, that's what the often extremely vague fair use inquiry requires us to do. I stick by my original analysis, which is that the copyright owner probably has the better of this case. But I even more firmly stick by my tentativeness. The one thing you can be pretty sure of here is that anyone who says "JibJab's use is obviously fair" or "JibJab's use is clearly unfair" isn't quite right.
Copyright in government records:

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.

More on the Moral Foundations of Libertarianism: In his essay, Understanding Political Libertarianism, on Tech Central Station, Will Wilkinson offers his reply to Edward Feser's The Trouble with Libertarianism. Will's approach is quite similar to that which I defend in my new paper, The Moral Foundations of Modern Libertarianism (which he generously cites). As I was trying to capture and defend how many Libertarians are thinking these days, rather than identify a new position, I am not at all surprised that he adopts a similar stance. Here is a taste:

[L]ibertarianism, construed as a practical political theory, does not require a "deep" metaphysical justificatory theory. We needn't wait until the last libertarian utilitarian or natural rights theorist dies in the last ditch in order to say what libertarianism really is. The content of political libertarianism is to be found in the overlap between these different comprehensive libertarianisms. Something like: a relatively small state governed by a rule of law that protects rights to personal autonomy, contract, and private property from within the context of a robust and free market economy.

One of the points of liberalism, and hence libertarianism, is to provide for a social order within which a plurality of different philosophies and worldviews may coexist and flourish, and within which debates over fundamentals may peacefully proceed. A liberal polity is one in which rights theorists and utilitarians, Mormons and wiccans, Aggies and Longhorns can lie down together in a peaceable kingdom of ends. The political libertarian argues that the sparse libertarian framework can be affirmed from a multiplicity of different points of view, because it is sparse, and because its principles are not bogged down with assumptions unique to any one particular point of view. It is a cosmopolitan, pluralistic theory designed for a cosmopolitan, pluralistic world.
What amazes me is not that others would disagree with this position, but that they would misunderstand it to assert that Libertarians are somehow amoral, or even against morality, or that Libertarians adopt a political philosophy that permits them to gratify their every whim. To reiterate, separating the political (how society should be structured) from the moral (how people should live their lives) is not to deny existence or importance of the moral.

Update: Case in point: Libertarianism is fraudulent

Some Responses to Libertarianism & Foreign Policy: As usual I have received some thoughtful comments on my post, Libertarianism and Foreign Policy--not all of which I have had the time to acknowledge personally given that I am still squeezing blogging in between lectures and other activities here in Gummersbach. Thomas at Liberty Corner blogged about this both before and after I did here and here. Hervé Duray writes:

I'm a blogger (in France, Le monde à l'envers) and consider myself "libertarian". Just like you, I happen to know many libertarians opposed to the Iraq war (I prefer to use the term "liberation"), and we argued a lot about foreign policy and libertarian principles.

I'd like to add that many hardcore libertarians have no consideration for states, yet they are the same advocating non-interventionism which is a tacit acknowledgement of state borders. If libertarians only care about individual rights, why would they care about abstract things like
A similar point was made at greater length by Jack Diederich:

As you suggest, libertarianism doesn't require the isolationist stance on war & war waging. In fact libertarianism doesn't have anything to say on the matter so people just take what they know and extrapolate it to a strange conclusion:

Nations are People.
Once you make this jump from the micro to the macro the isolationist view makes sense. You can think about Mr. France and Mr. USA arguing over punching Mr Iraq in the nose. But nations aren't people, so this fails.
He then sends this along from his now defunct blog:

Nations are not people. For the slow, Nations are NOT people. There is just so little overlap between inter-country and inter-personal relations it is silly. NANP.

"Oh" you say, "Isn't that why we have the UN, to be a nation to its members/people?" Because the members are nations, we treat them like nations. Bill Gates wets his pants at the thought of going to jail, Saddam Hussein couldn't give a shit when served his 17th search warrant by the UN. NANP.

"Well," you prattle on, "couldn't we just have one world government and then we wouldn't have to worry about the NANP problem?" The problem is there really are things called nations. Groups of people really do believe in very different philosophies and identities. This is good because we haven't perfected government yet; we're still trying out different stuff.

In your Star Trek future time they'll all agree on government and can create the Federation (right after they abolish scarcity and money). Until then we will have nations, we will have people, and we still won't be able to treat them the same.
Some wrote to defend "defenseism" as following from Libertarian principles (I did not get permission to use their names):

Compulsory taxation for governmental services should only be justified for protection of taxpayers from bodily harm and theft and destruction of property. Therefore, police and fire departments are justifiable (put aside for a moment the case to be made for private contracting of such services).

Taxation can be supported for a military as long as it provides similar protections against foreign threats. While humanitarian missions to Sudan are nice, they can no more be justified by Libertarians can could compulsory taxation for welfare payments supporting domestic humanitrian missions.
Another writes:

It seems to me that there is a significant difference between a situation where a government is defending its own citizens and where a government is defending citizens of another country. In the first case, the citizens have a say in the decision; in the second, they don't. A government acting in accordance with Libertarian principles will have processes in place giving its own citizens at least indirect control of its policies, including defense. The citizens of another country may not want intervention; as individuals, some may be in distress, and some not. Often, the intervener is in the position of separating hostile factions intent on killing each other (as in the former Yugoslavia) while all factions would prefer to have the intervener stay away.

Libertarianism puts a premium on individual liberties, and with liberties comes responsibility. The individual citizens of a given country are the ones primarily responsible for sorting out its problems. They can't do so if another country steps in, pretending to have divine knowledge of what is right for them. I suppose that if the various factions could unanimously ask for help, then Libertarianism would not prevent intervention. But, if the factions could get unanimous agreement, they could probably work out their own problems without help.

So, I think that "defenseism" does follow from Libertarianism.
Finally (for now at least), the always generous-of-spirit Mark Kleiman poses this challenge to all nonpacifist Libertarians on his A Fair and Balanced Weblog:

I can imagine a defensive war, fought on national territory, that didn't violate anyone's rights, as Libertarians conceive them. (Other, that is, than the right not to be taxed or conscripted. A Libertarian war would have to be fought by a volunteer army in the fullest sense of that term: not only not conscripted, but unpaid.) But how could one conceivably invade and occupy another country without violating people's rights?

The fact that a power plant, for example, is a legitimate military target doesn't make it any less someone's property. The owner of the power plant is hardly responsible for whatever actions of his country's government justified the war; still less so the workers there. But when the power plant is bombed, the owner's property will be destroyed and some of the workers killed.

Therefore, if human beings have rights not to be killed or have their goods destroyed, then it's impossible to fight modern wars without violating those rights. And even that assumes that modern war can be waged without "collateral damage," which is obviously not the case; some of the innocent people killed when a city is bombed were doing nothing more aggressive than sleeping in their own beds.

There are two possible conclusions here: either (1) war is always wrong, or (2) Libertarianism as a moral philosophy (as opposed to the libertarian tendency in politics) is not merely false but transparently silly, since no actual group of people could live under Libertarian principles unless some other group of people did the dirty work of collective self-defense for them.

Now this isn't a hard one for me; I have other strong reasons for thinking that (2) is correct. But presumably Barnett has convinced himself that it's possible to wage war without violating rights, and I'd really like to know how that miracle is supposed to be performed.
Sadly, he cannot resist closing with a gratutous innuendo:

I'd hate to imagine that Libertarians don't mind violating rights as long as the people whose rights are violated don't look like them.
I take some solace from the fact that he is "fair and balanced" enough that he hates to imagine such things.

Wednesday, July 28, 2004

Obama vs the rest

A number of commentators have linked this passage from Barack Obama's speech:

t's what allows us to pursue our individual dreams, yet still come together as a single American family. "E pluribus unum." Out of many, one.

Now even as we speak, there are those who are preparing to divide us, the spin masters and negative ad peddlers who embrace the politics of anything goes. Well, I say to them tonight, there's not a liberal America and a conservative America — there is the United States of America. There's not a black America and white America and Latino America and Asian America — there is the United States of America.

The pundits, the pundits like to slice and dice our country into red states and blue states; red states for Republicans, blue states for Democrats. But I've got news for them, too. We worship an awesome God in the blue states, and we don't like federal agents poking around our libraries in the red states. We coach Little League in the blue states and have gay friends in the red states. There are patriots who opposed the war in Iraq and patriots who supported it. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.

with a number of other themes from the convention: Bill Clinton saying that Republicans "need" Americans to be divided and Democrats don't; Howard Dean's call to "take back" America; John Edwards' claim that there are now two Americas but there can be one; and Kerry's "Let America Be America Again."

I don't see it. Obama's statements seem to me different in kind.

First, and most importantly, this portion of Obama's speech was symmetrical with respect to partisan, cultural, and religious divides. It's "pundits" who seek to describe us as divided. But in fact, we're all red and we're all blue. Supporting the war, worshipping God, and playing Little League are symmetrical with not liking the Patriot Act, opposing the war, and having gay friends. That's very different from the "Those nasty conservatives are divisive, unlike us nice inclusive liberals" theme that's kept popping up.

Relatedly, there's something offensive in the "Take America back"/ "Let America be America again" stuff. It's something I fully expect to keep hearing; it's something I remember loathing about the first Clinton inauguration. It's the necessary implication that Republicans, and Republican government, aren't really American, that Democratic rule is not only preferable (of course Democrats think that) but the natural order of things, an order that must be restored (notice the restoration theme in both "take back" and "be America again"). Obama didn't imply any of that, either.

Finally, unlike Edwards, Obama's not imagining one America as some future state of affairs to be accomplished with a Democratic victory. It's a present state of affairs-- we are, already, genuinely united.

A fair criticism of Obama's speech might be that it's too nice, too apple-pie, to really stake out much of a position on anything. But you can't criticize it, the way you can the rest, for communicating the message that "we'd all be united, if it weren't for those nasty un-American Republicans." And I find there to be something genuinely touching in his version, and something really grating in theirs.

[disclosure: Obama is, of course, my faculty colleague at the University of Chicago in addition to being my district's State Senator.]

Don't blame the lawyers:

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).

Lithwick on Democrats and Judges: Dahlia Lithwick has an article up on Slate asking why Democratic candidates are not talking more about the importance of who appoints judges. Lithwick seems genuinely puzzled. She reports on various theories floated at a recent American Constitution Society panel that included several distinguished legal scholars. The theories ranged from the observation that most people just don't care about judges to the idea that Republicans have done a better job creating a coherent set of jurisprudential principles.

  I am far from my area of expertise here, but I wonder if Lithwick and the panelists have missed a more obvious reason. It seems to me that in the majority of hot-button cases decided by the Supreme Court after Bush v. Gore, the Court has ruled in ways that a majority of Democratic voters prefer. Most notably, the Court has allowed affirmative action, invalidated sodomy laws, rejected the Bush Administration's views on detention in terrorism cases, and found jurisdiction over Guantanamo. Given these decisions, most Democratic politicians probably see it as a challenge to run against the courts.
How I Learned to Stop Worrying and Love GM Food:

The National Academy of Sciences has issued yet another report reaffirming the basic scientific consensus about genetically engineered food: It's safe. The NAS has (once again) concluded that what matters is the product, not how it was produced. This means that for regulatory purposes it should be irrelevant whether a given food product was produced through "traditional" cross-breeding of the sort practiced for centuries or through the advanced rDNA techniques recently developed in scientific labs. All such techniques involve genetic modification of the underlying plant or animal, and there is no scientific basis for deeming one "less safe" than any other. What matters are the resulting characteristics (e.g., whether the food product contains proteins that are likely to provoke allergic reactions, etc.). Of note, to date there is not a single documented and verified case of an individual getting sick or otherwise suffering harm from a genetically engineered food product. About products produced by "traditional" cross-breeding techniques, however, we can say no such thing.

"First 'black' drug nears approval":

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).

New Article of Mine Up on SSRN: I have a new law review article up on SSRN, entitled The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. It is forthcoming in the Michigan Law Review, and likely will be published in September or October. (I have had an early version of the abstract up for some time, but now you can download the draft.) Here's the new abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.

Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.
  As always, I would be delighted to hear any thoughts or comments. The article will be published along with responses to it from Peter Swire of Ohio State law and Sherry Colb of Rutgers-Newark law; a draft of Peter's response has been up on SSRN for a while and can be found here. I have also authored a brief reply to Swire and Colb that will be published along with the responses and the lead article.
The Patriot Act and Criminal Law: Alex Tabarrok responds to my analysis of his Patriot Act criticism. Alex concludes that I have committed "the lawyer's vice," namely, "to miss the forest for trees." He writes:
The point is that laws passed for one purpose are often used for other purposes not originally intended (RICO, anyone?). . . . In this case, the Patriot Act and the general increased willingness to defer to law enforcement have not to my knowledge led to many arrests of terrorists but have been used for all manner of other purposes.
I think this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive. I'm not sure if any supporter of the Patriot Act has ever claimed that the Patriot Act has no application in the field of criminal law. If they have, they were wrong. As I have written elsewhere, many of the provisions enacted into law in the Patriot Act were proposals relating to criminal law that had been considered and debated in Congress since the Clinton Administration. Many of the criminal law provisions are dual-use: they can be used in terrorism investigations, but can also be used in routine criminal investigations. Because there are lots more criminals than terrorists, and criminal cases tend to be much more public than terrorism investigations, it shouldn't be suprising that we hear more about the Patriot Act in criminal cases than in terrorism cases.

  Supporters of the Patriot Act have not tried to hide the fact that many of the sections relate to criminal law. Indeed, in the DOJ's recent report on cases in which the Patriot Act authorities were used, some related to terrorism but many did not. I happen to think that many of the sections of the Patriot Act are good ideas, when addressed on the merits. A few may have gone too far and should be tweaked, but most were good ideas that are neutral on civil liberties. (In this assessment I believe I am joined by Anthony Romero of the ACLU, who has stated that "much of the Patriot Act is neutral legislation for civil liberties," but that "it contains about a dozen provisions that simply go too far." ) But to the extent that provisions of the Patriot Act are being used in criminal investigations, that's not only true but quite by design.
Trade news

A very reassuring post from Matthew Yglesias on Laura Tyson's convention discussion of Kerry on trade. Relatedly, see his post at the Prospect's convention blog ("We still need to know which advisors will have Kerry's ear if he gets into the White House. So far, most indications I've seen indicate that the free traders have the upper hand.") and Ryan Lizza's "Rubinomics Redux" post at the TNR blog. All sounds like pretty strikingly good news. (No, I don't expect Kerry to be perfect on trade. But he does, at the moment, seem to get that Clinton's way is better than Gephardt's-- or Bush's.)

JibJab SoSue:

The pretty funny Bush/Kerry parody with the "This Land Is Your Land"-based lyrics (from 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.

Week in the Life of a Defense Attorney:

If you're a law student interested in practicing criminal law, you should be reading Ken Lammers' CrimLaw blog. In particular, read the regular "Week in the Life of a Criminal Defense Attorney" posts, where Ken goes day-by-day through his week. There's a new one up today; check it out.