I haven't posted much recently; exam-time is upon me, and there is much weeping and gnashing of teeth. If I survive, I will post more on May 2nd. I have much to say about the Supreme Court's latest abortion decision banning "partial-birth" abortion, even aside from the fact that it overturns many of our Constitutional Law professor's elaborate and fascinating theories about what the Supreme Court considers a "fundamental right". I am actually rather curious as to what elaborate and fascinating theories his students will have to learn next year.
A lot of both Constitutional and Administrative law appears to be post-hoc explanation of decisions that were very obviously politically motivated. Except that no one mentions the political motivation in the decision itself, instead choosing to come up with very elaborate theories on why virtually identical fact patterns came out different. Which makes it very confusing for a political ignoramus (like myself) to learn.
Monday, April 23, 2007
Wednesday, March 21, 2007
Of Internet Radio and Ragtime (a reprise...)
This blogging thing is addictive. I keep finding new things to talk about.
Here.
At least they're reconsidering it; though being a cynical sort of creature, I think I know which way it'll come out. Heads they win, tails we lose.
I came across the original controversy in a ragtime newsgroup I'm on. One of the members runs an Internet radio station devoted to ragtime. He would be unable to afford the new (increased by a factor of 27) fees (he's a college student), and the radio station would have to close.
Let's ask ourselves who benefits from this, shall we? The ragtime musicians whose work appears on this radio station get pennies. Alas, no ragtime performer is going platinum any time soon. So for the musician, the gain from the increased royalties would probably be in the double digits. But what of the loss from the exposure that Internet radio provides? How many lost sales would that be? How many lost potential listeners? Yes, if you've got a platinum album and you want to increase your sales revenue from $1,000,000 to $27,000,000, it's all fine and good - but what if you're going from $1 to $27? Is it really worth it?
Moreover, a lot of innovative and fascinating services would be lost. I have recently become addicted to www.pandora.com - an Internet radio station that learns your preferences and only plays stuff you like. It's a really nifty idea and a wonderful way for obscure musicians to be heard; but I'm not sure they can afford to pay 27 times what they're paying now. Can anyone?
Oh, and I would be remiss to not mention http://www.ragtimeradio.org/ - listen to it while it's still here.
Here.
At least they're reconsidering it; though being a cynical sort of creature, I think I know which way it'll come out. Heads they win, tails we lose.
I came across the original controversy in a ragtime newsgroup I'm on. One of the members runs an Internet radio station devoted to ragtime. He would be unable to afford the new (increased by a factor of 27) fees (he's a college student), and the radio station would have to close.
Let's ask ourselves who benefits from this, shall we? The ragtime musicians whose work appears on this radio station get pennies. Alas, no ragtime performer is going platinum any time soon. So for the musician, the gain from the increased royalties would probably be in the double digits. But what of the loss from the exposure that Internet radio provides? How many lost sales would that be? How many lost potential listeners? Yes, if you've got a platinum album and you want to increase your sales revenue from $1,000,000 to $27,000,000, it's all fine and good - but what if you're going from $1 to $27? Is it really worth it?
Moreover, a lot of innovative and fascinating services would be lost. I have recently become addicted to www.pandora.com - an Internet radio station that learns your preferences and only plays stuff you like. It's a really nifty idea and a wonderful way for obscure musicians to be heard; but I'm not sure they can afford to pay 27 times what they're paying now. Can anyone?
Oh, and I would be remiss to not mention http://www.ragtimeradio.org/ - listen to it while it's still here.
Tuesday, March 20, 2007
On Affirmative Action (yipes)
We are just reading some affirmative action cases in Constitutional Law; amazing how much racial discrimination can pass the court's strict scrutiny if the institution in question avoids outright quotas (and does it really matter how the discrimination is done?) and claims to have a benign purpose for said discrimination. As a Jew from the former Soviet Union, with vivid memories of Soviet institutions using affirmative action for the not-so-benign purpose of keeping Jews out of the top universities, I really wonder how benign those "benign" purposes really are. I presume that no top law school will actually admit that it's conducting an affirmative action program for the purpose of keeping Jews out. Or keeping Asians out.
I also rather wonder how they define "white". Again, I'm a Russian Jew. Genetically, I have as much in common with a Swede as I do with a Zulu. Ashkenazi Jews are a distinct and highly homogeneous ethnic group. For that matter, so are Swedes. So are Italians. So are Irish people. So are Icelanders (who are also a distinct and widely studied ethnic group; they are also very homogeneous). Many of the above ethnic groups have been discriminated against in the US; anyone remember the "No Irish Need Apply" signs? Anyone remember when Jews couldn't go to Yale? (not too long ago, in fact) And yet, all of these distinct and diverse ethnic groups are lumped into the same catch-all category of "white" - why?
Ah well. This is all old stuff; it just happens to be the homework for tomorrow, hence the above.
I also rather wonder how they define "white". Again, I'm a Russian Jew. Genetically, I have as much in common with a Swede as I do with a Zulu. Ashkenazi Jews are a distinct and highly homogeneous ethnic group. For that matter, so are Swedes. So are Italians. So are Irish people. So are Icelanders (who are also a distinct and widely studied ethnic group; they are also very homogeneous). Many of the above ethnic groups have been discriminated against in the US; anyone remember the "No Irish Need Apply" signs? Anyone remember when Jews couldn't go to Yale? (not too long ago, in fact) And yet, all of these distinct and diverse ethnic groups are lumped into the same catch-all category of "white" - why?
Ah well. This is all old stuff; it just happens to be the homework for tomorrow, hence the above.
Thursday, March 15, 2007
Of Public Domain, Freedom, and Ragtime
Ragtime is the music of the 1900's, 1910's, and 1920's, the precursor to jazz. It is (I believe) an unjustifiably obscure musical form that deserves to be much better known. Most people have heard of "The Maple Leaf Rag" and "The Entertainer", but not more than that; there is much, much more, and it is glorious.
Relevance to copyright law? All "classic" ragtime is in the public domain. Which means that the community of ragtime enthusiasts (and there are quite a few, myself included) is blessedly free of worries about copyright infringement. Not just weakly hoping that we would fall into the fair-use exemption, or lining up good lawyers to take our case all the way to the Supreme Court - completely and totally free from worry.
What does this mean? Well, first of all, quite obviously, ragtime sheetmusic can be distributed on the Internet with no penalty. I can have a website devoted to distributing such sheetmusic, and not have a potential $25,000 statutory fine hanging over my head. If I wanted to arrange a rag for guitar, I could put the tablature online and not worry about a thing. I can perform those rags anywhere and not worry about getting licenses (and about the extortionate fees that some of those licenses entail). I can create an arrangement of two rags melded together in an interesting way and not worry about what the Supreme Court will say. I can compose my own rag and not worry that it has a sequence of three notes that sounds just like three notes in the Maple Leaf Rag (in one case, three notes was found to be enough for copyright infringement). As long as I stay in 1922 or before, I am free.
There are several points to be made about this. First of all, the obvious point - this is music from a long-gone time. This is not even my grandparents' music; it's my great-grandparents' music (the Maple Leaf Rag was written before any of my grandparents were born). Like most of the other works from 1922, ragtime has largely been forgotten, except by enthusiasts. One can hardly talk about promoting a living tradition by use of the public domain in this case; there is not really a living tradition - more of a dead tradition that has been revived. One can hardly argue that the public domain exists "to promote the progress of science and the useful arts" if the only useful arts one can use in one's own creative work are the arts of our great-grandparents that have been forgotten by the general public. Quick: how many popular songs, important cultural figures, fads, popular books, and popular entertainments of the 1910's can you name?
Second of all, note the timing of the ragtime revival - the 1970's. What happened in the 1970's to make people so interested in ragtime? "The Maple Leaf Rag" entered the public domain. People were suddenly free to play around with this piece (and others), to modify it, to orchestrate and record it without worry. Because even fair use of a copyright-protected work still comes with worry. Fair use is so vaguely defined that no one really knows what a court will say in each individual case. Moreover, copyright lawyers are expensive, and your average musician cannot afford one - send him a threatening letter, no matter how unjustified, and he will silence himself rather than risk bankruptcy. It is nice to know for sure that you are immune from prosecution - and this immunity is what spawned dozens of ragtime festivals throughout the country, lots of composers creating new ragtime pieces, lots of website distributing MIDI files and scanned sheetmusic - all this lovely freedom. Until that freedom came about, ragtime was a largely-forgotten art form; the composers were long dead (with a few exceptions - Eubie Blake and Joseph Lamb lived to see the "ragtime revival"), and the music was not being played. It stayed like that - silent and forgotten - until it came into the public domain.
I suppose the upshot of all that is that we all ought to explore the culture, music, books, fads, and trends of the 1910's and 1920's (and before). There is a lot of fascinating stuff out there. And it's all free - free as in cost, and free as in worry-free. Next time you want to make a mashup, a rap, or any other "derivative" work - why not pick something from the 1910's as your base material?
Relevance to copyright law? All "classic" ragtime is in the public domain. Which means that the community of ragtime enthusiasts (and there are quite a few, myself included) is blessedly free of worries about copyright infringement. Not just weakly hoping that we would fall into the fair-use exemption, or lining up good lawyers to take our case all the way to the Supreme Court - completely and totally free from worry.
What does this mean? Well, first of all, quite obviously, ragtime sheetmusic can be distributed on the Internet with no penalty. I can have a website devoted to distributing such sheetmusic, and not have a potential $25,000 statutory fine hanging over my head. If I wanted to arrange a rag for guitar, I could put the tablature online and not worry about a thing. I can perform those rags anywhere and not worry about getting licenses (and about the extortionate fees that some of those licenses entail). I can create an arrangement of two rags melded together in an interesting way and not worry about what the Supreme Court will say. I can compose my own rag and not worry that it has a sequence of three notes that sounds just like three notes in the Maple Leaf Rag (in one case, three notes was found to be enough for copyright infringement). As long as I stay in 1922 or before, I am free.
There are several points to be made about this. First of all, the obvious point - this is music from a long-gone time. This is not even my grandparents' music; it's my great-grandparents' music (the Maple Leaf Rag was written before any of my grandparents were born). Like most of the other works from 1922, ragtime has largely been forgotten, except by enthusiasts. One can hardly talk about promoting a living tradition by use of the public domain in this case; there is not really a living tradition - more of a dead tradition that has been revived. One can hardly argue that the public domain exists "to promote the progress of science and the useful arts" if the only useful arts one can use in one's own creative work are the arts of our great-grandparents that have been forgotten by the general public. Quick: how many popular songs, important cultural figures, fads, popular books, and popular entertainments of the 1910's can you name?
Second of all, note the timing of the ragtime revival - the 1970's. What happened in the 1970's to make people so interested in ragtime? "The Maple Leaf Rag" entered the public domain. People were suddenly free to play around with this piece (and others), to modify it, to orchestrate and record it without worry. Because even fair use of a copyright-protected work still comes with worry. Fair use is so vaguely defined that no one really knows what a court will say in each individual case. Moreover, copyright lawyers are expensive, and your average musician cannot afford one - send him a threatening letter, no matter how unjustified, and he will silence himself rather than risk bankruptcy. It is nice to know for sure that you are immune from prosecution - and this immunity is what spawned dozens of ragtime festivals throughout the country, lots of composers creating new ragtime pieces, lots of website distributing MIDI files and scanned sheetmusic - all this lovely freedom. Until that freedom came about, ragtime was a largely-forgotten art form; the composers were long dead (with a few exceptions - Eubie Blake and Joseph Lamb lived to see the "ragtime revival"), and the music was not being played. It stayed like that - silent and forgotten - until it came into the public domain.
I suppose the upshot of all that is that we all ought to explore the culture, music, books, fads, and trends of the 1910's and 1920's (and before). There is a lot of fascinating stuff out there. And it's all free - free as in cost, and free as in worry-free. Next time you want to make a mashup, a rap, or any other "derivative" work - why not pick something from the 1910's as your base material?
Monday, March 5, 2007
On Trademarks, Lord Peter Wimsey, and Pig Milk
This is what started this rumination. I note that the way it ended was in defeat - the T-shirt is no longer available. All it took was a threatening letter.
Corporations want to colonize our mental space. The whole marketing thing is about pushing slogans into our minds - about making these slogans more familiar to us than just about anything else. It's about creating easy and easily accessible verbal associations. They spend lots and lots of money in order to make sure that when we are thinking or talking, slogans come easier to us than, say, quotations from literature or philosophy. Instead of learning the multiplication table or Shakespeare's sonnets, we now learn advertising slogans - and those seep deeply into our subconscious and become part of who we are. They are an easily accessible part of our culture; I may be unsure about whether a conversation partner knows what Blaise Pascal said about religion, but I am perfectly sure that he'd know what "The Other White Meat" is.
Mind you, this wasn't always the case. Here's where Lord Peter Wimsey comes in. He's a character created by mystery novelist (and scholar) Dorothy Sayers, and he has a habit of incessantly quoting stuff - mostly "classics" of various kinds, though I'm not educated enough to tell which ones. Lord Peter would be immune to such restraints on free speech - but how many of us are that educated in the classics?
Now, when we actually want to produce something - to create, to communicate to others - we draw on the mental associations that our minds give us. And what are those phrases, words, mental associations that come easiest and are most likely to be understood by our audience? Those given us by corporations. Except we can't use those - those are protected. Thus, we're effectively hobbled in our ability to express ourselves - the very associations that are most likely to reach our audience are unavailable to us for use. Note that when we saw "The Other White Milk" on a t-shirt, we all instantly knew why it was funny. It didn't have to be explained to us. The phrase is part of our culture. Had she used an obscure phrase from Aristophanes, I doubt that the t-shirt would have been as funny - or, for that matter, as comprehensible.
Because trademarks and corporate slogans are such a huge part of our discourse, a corporation that dislikes what someone is doing can instantly "pull the plug" on their "free speech". So, if the Pork Marketing Board had received some very nice money from some very nice baby formula manufacturers who wanted to shut down this lady's site, they would be able to do that easily. They wouldn't even have to sue - the threat is enough to force most people to voluntarily censor themselves.
First Amendment? What First Amendment?
Corporations want to colonize our mental space. The whole marketing thing is about pushing slogans into our minds - about making these slogans more familiar to us than just about anything else. It's about creating easy and easily accessible verbal associations. They spend lots and lots of money in order to make sure that when we are thinking or talking, slogans come easier to us than, say, quotations from literature or philosophy. Instead of learning the multiplication table or Shakespeare's sonnets, we now learn advertising slogans - and those seep deeply into our subconscious and become part of who we are. They are an easily accessible part of our culture; I may be unsure about whether a conversation partner knows what Blaise Pascal said about religion, but I am perfectly sure that he'd know what "The Other White Meat" is.
Mind you, this wasn't always the case. Here's where Lord Peter Wimsey comes in. He's a character created by mystery novelist (and scholar) Dorothy Sayers, and he has a habit of incessantly quoting stuff - mostly "classics" of various kinds, though I'm not educated enough to tell which ones. Lord Peter would be immune to such restraints on free speech - but how many of us are that educated in the classics?
Now, when we actually want to produce something - to create, to communicate to others - we draw on the mental associations that our minds give us. And what are those phrases, words, mental associations that come easiest and are most likely to be understood by our audience? Those given us by corporations. Except we can't use those - those are protected. Thus, we're effectively hobbled in our ability to express ourselves - the very associations that are most likely to reach our audience are unavailable to us for use. Note that when we saw "The Other White Milk" on a t-shirt, we all instantly knew why it was funny. It didn't have to be explained to us. The phrase is part of our culture. Had she used an obscure phrase from Aristophanes, I doubt that the t-shirt would have been as funny - or, for that matter, as comprehensible.
Because trademarks and corporate slogans are such a huge part of our discourse, a corporation that dislikes what someone is doing can instantly "pull the plug" on their "free speech". So, if the Pork Marketing Board had received some very nice money from some very nice baby formula manufacturers who wanted to shut down this lady's site, they would be able to do that easily. They wouldn't even have to sue - the threat is enough to force most people to voluntarily censor themselves.
First Amendment? What First Amendment?
Sunday, February 18, 2007
Introduction
Welcome to my blog. Here, I will endeavor to write -- in the limited free time available to a first-year law student -- about the legal issues that outrage me, excite me, or make me wonder, "Just where we are going? And what is this handbasket for?"
Intellectual property is a rapidly changing area of the law, fueled by equally rapid technological changes, and I find that many moral and legal questions in this field have not yet been answered. I hope to outline at least some of the questions.
A short introduction seems to be in order. I am entering the legal profession as a second career; my first graduate degree was in biomechanical engineering, followed by a few years of work as a mechanical engineer in Silicon Valley. I hope to specialize in patent law after graduation.
Intellectual property is a rapidly changing area of the law, fueled by equally rapid technological changes, and I find that many moral and legal questions in this field have not yet been answered. I hope to outline at least some of the questions.
A short introduction seems to be in order. I am entering the legal profession as a second career; my first graduate degree was in biomechanical engineering, followed by a few years of work as a mechanical engineer in Silicon Valley. I hope to specialize in patent law after graduation.
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