derivative work

Peter Dizikes writes about a number of right-wing myths about oil in today’s Salon.com.

Unbelievably enough, there are people who believe:
# There’s more oil in Alaska than in the Middle East
# The Chinese are about to start drilling — or are already drilling — off the coast of Florida (the Cuba/China menace — Russia/Cuba 2.0 — new and improved!)

and — wait for it —

# Oil is not a “fossil fuel” but a nearly infinite non-organic resource like, I guess, rocks.

It’s like they just cut and paste the weather forecast — every goddamn day.

WEATHER FORECAST

This Afternoon…Mostly cloudy with a slight chance of showers and thunderstorms early…then partly sunny with showers and thunderstorms likely. Some thunderstorms may produce frequent lightning and small hail…then some thunderstorms may produce gusty winds…frequent lightning and small hail. Highs in the upper 70s. West winds around 5 mph…becoming north. Chance of rain 60 percent.

Tonight…Mostly cloudy with a chance of showers and thunderstorms in the evening…then mostly clear after midnight. Some thunderstorms may produce gusty winds…frequent lightning and small hail in the evening. Lows in the lower 60s. West winds 5 to 10 mph. Chance of rain 40 percent.

So this flight attendant is suing a televangelist who assaulted her, and in addition to emotional damages and hemorrhoids, the flight attendant is claiming she is owed damages for loss of faith. Broadsheet, Salon.com, 8/8.

Obviously the First Amendment is going to pose real problems for the plaintiff — American courts establishing a monetary value on religious faith (and loss thereof) seems to pose a real Establishment Clause problem. Entanglement, preferencing religion over non-religion — a fun case.

But if by some miracle this plaintiff prevails on this claim, can we children of fundies get damages for having faith imposed on us as children?

This article (”Dark Night for Bats”, Kirsten Weir, Salon.com) compares the current wave of bat deaths with bees’ colony collapse disorder. I’d add the precipitous decline in frogs, as well.

how on earth does blizzard keep winning these horrible cases? do they bribe the courts?

Patry covers the new case on software cheats, MDY Industries v. Blizzard.

How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. … Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

Read all of Patry’s analysis, as well as the opinion.

links from G.B. @ Public Citizen

in the middle of a blogging break (for good reasons! welcome ada marie) i bring you this article from salon.com which is scary as fuck and makes me fear for little ada’s future:

Apocalypse Now by Mike Davis.

Davis does not buy any of the Gore-style cheerleading that we might avert a climatically disastrous future through alternative energy sources and sustainable economics. Instead, he predicts that in the new “Anthropocene” (the human-determined geological era just declared “open” by the Geological Society of London) the rich will get richer, the poor will get poorer, and we will become a “planet of slums”.

yaay habeas corpus.

Kennedy is the difference between a conservative — someone whose values I frequently dislike and disagree with, but who is in many ways a respectful person — and a proto-fascist.

For the right-wingers who like to throw the term “fascism” around, the core concept of fascism is that the State takes precedence over the Individual. Habeas corpus — the right to appeal imprisonment by the State (to another arm of the State, usually) — is the fundamental human right that distinguishes fascism from non-fascism. Other human liberties — freedom of expression, freedom of belief, freedom of movement — are likely more germane to most of the people most of the time. But habeas corpus is the counter to the most basic power representatives of the State assert: the power to imprison individuals. It’s pretty limited as far as rights go — it boils down to a right to argue with the reasons for imprisonment. But without this fundamental check on the State’s power, every other human liberty is a hollow promise.

Roberts’ dissent — effectively, “what are they complaining about? we treat them so well!” — is the same response that can be heard in any institution that has robbed people of their liberty, from dictators to slaveholders to prison keepers to that horrid Austrian guy who said, “I could have killed my daughter” (instead of imprisoning and raping her for decades).

So yaay habeas corpus. Yesterday’s decision gives me some hope that we may yet arrest our slide into unmitigated fascism.

… a few more thoughts on reading Boumediene v. Bush:

Souter’s concurrence (joined by Ginsburg & Breyer): Souter takes on the dissent’s cries of judicial activism, which essentially argued that the case wasn’t sufficiently politically ripe — that the Supreme Court should have sat on its hands and not rushed to judgment to cut out the proper executive (read: military) procedures. I liked it a lot so I quote in full:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years []. Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of ROBERTS, C. J.) (”[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (”[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate”); post, at 8 (”[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country.
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. [] The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. [some internal cites omitted]

Bill Patry was withering in his critique of the Copyright Alliance’s efforts to define itself as one of the big kids. For example,

Leaving aside the painfully juvenile use of © in voi©e, the math used by the Alliance challenges even the math used by the IIPA in its annual country “piracy” reports.

That is pretty funny, and you should probably go over there & read Bill Patry’s scathing comments instead of my own overheated meanderings. If you’re staying here, you should know that basically the Copyright Alliance is an organization designed to give voice to copyright-holders, the “11 million Americans whose livelihoods depend on the principle of copyright.” Not just give voice, but “one voice”, as their new ad campaign says.

In the few minutes I had today between efforts to get various air conditioners running (thank you, East Coast heatwave), I spared a few of my non-melted brain cells to this organization and its ad campaign. “One Voice.” Probably not an original observation, but one voice for copyright holders — or even those who profit from copyrights — is utterly impossible. There are just too damn many of us and our personal financial interests in copyrights are far too diverse for us to have remotely any ability to speak with “one voice” on copyright. Every creator is representing reality to some extent, but every aspect of reality that they represent also has its own interest. Photographers’ interests are in opposition with those of their subjects and the creators of their subjects and of course those who commissioned their works. Everybody is in opposition with those who seek to represent the same slice of reality

The copyright industry, in fact, has shot itself in the foot. By expanding copyrights ever further, they have in a sense radically democratized copyright ownership. We all now have copyrights in every chicken pot. Instead of a limited monopoly granted only to a few for a short time — a compromise most of us could roll with in order to keep those few doing what they did — now copyright is something that each of us has over all kinds of stuff, and something that each of us interfaces with multiple times on a daily basis. Thus with everybody holding and using multiple copyrights simultaneously we all have the potential to interfere equally with one another. It’s like mutually assured destruction, and so it’s no surprise that some folks are going to advocate for copyright disarmament.

My brain cells really are melting into one another — the similes just keep on coming. I am also reminded of the Libertarian Heinlein myth that an armed society is a polite one — the “wisdom” goes that if everybody has a gun, then everyone has an interest in being polite to everyone else. So too must have gone the wisdom with copyright at some point — if we all have copyrights then we will all be interested in respecting them, we can all live together in the best of all possible copyright maximalist worlds. But the Heinlein armed society is a myth because people may not act in their own self-interest, or their definition of self-interest may not correspond with your definition of their (or your) self-interest, or their self-interest may be benefited by disproportionate harm to others’ self-interest, or they just may not be able to act in a way that makes reciprocity function smoothly … well one could go on for a while but it’s like Dick Cheney shooting birds in a blind — too easy to be sportsmanlike. Anyway just as the Heinlein armed society is a myth, so too is the universal copyright / copyright-respecting society. Everyone can probably find someone to agree with them about how copyrights should be defined, respected, used, and so on, but the differences in opinion mount so quickly it’s hard to imagine a large group of individuals sustaining “one voice” for any significant amount of time.

So there you have it. Heat-addled ruminations on the decline and fall of the copyright industry and its lobbying arm. I’m spinning off into ecological models now, with the copyright industry outgrowing its ecology in the absence of natural predators, so I think I’m going to go splash some cool water on my face & lie down in the shade.

My father-in-law (in Massachusetts) was in town for his fiftieth MIT reunion — class of 1958! He took my partner and me to a couple of events, and we noticed among the red-jacketed men a few red-jacketed women. By various accounts, there were nine to fifteen women (out of a thousand students) in the Class of ‘58 at MIT, a half dozen of whom were at the 50th reunion.

Tonight, five of them — representing mathematics, chemical engineering, mechanical engineering, and physics — got together and revisited a song they sang back in the 50s, called something like “My mother was a Tech Coed” — apparently a takeoff of another MIT favorite, “My father was a something something engineer.” We chatted with some of them tonight for a while, and got to hear amazing stories about classes, the women’s dorm that held only 17 students — so the rest had to live off-campus — and other experiences of MIT in the 1950s.

But the song was the highlight, and they were kind enough to give us permission to reprint the lyrics that they sang — they said there were probably ten or fifteen verses altogether in the original. The first four are what they recalled of those verses. The last two they wrote at the reunion.

She never held me on her knee
But she was all the world to me
That lady with the pointy head
My mother was a Tech coed.

She couldn’t cook she couldn’t sew
But she could fix a radio
She used T-squares to make a bed
My mother was a Tech coed.

As she approached maternity
She also got her PhD
And started working on Pre Med
My mother was a Tech coed.

Her cocktails were a potent brew
She learned the trick in 5.02*
She always bought her cakes and bread
My mother was a Tech coed.

…

Now 50 years have come and gone
I still remember dear old mom
Her dying breath she taught me well
Above all else, that Tech is hell.

We are the queens of gray and red
The very coolest Tech coeds.

* Second semester freshman chemistry.

Wow, after four men, a female human being’s genome finally got sequenced. Go Dutch.

Amsterdam, Netherlands, May 27—Geneticists at Leiden University Medical Center (LUMC) have announced the first complete sequencing of a woman’s genome. The announcement was made at Bessensap, an annual meeting bringing together scientists and the press in the Netherlands.

The DNA of Marjolein Kriek, a clinical geneticist at LUMC, will be made public after a full bioinformatics analysis that will take approximately six months. “We considered that sequencing only males, for ‘completeness’, slows insight into X-chromosome variability. So it was time, after sequencing four males, to balance the genders a bit,” remarked Gert-Jan B. van Ommen, head of the LUMC team.

eurekalert.org via partner’s subscription to компютри втора употребаBioTechniques Weekly

I guess that answers Dorothy Sayers’ question.

an upsetting day. so, reading the news.

Farewell to the crown, farewell, the velvet gown, won’t you all come tumbling down? Goodbye to the crown! (Chumbawamba, “Farewell to the Crown”)

Nepal votes out their monarchy and institutes a republic. Gyanendra has to vacate the palace within two weeks or face eviction. Also, he had to start paying his own electric bills a while back. Ha ha, I love that. It is balm to my troubled soul. The palace building will be turned into a museum.

The NYT also reports that former Illinois governor George Ryan, with six years left on his prison term for racketeering and fraud, will seek executive clemency from Bush.

The lawyer, James R. Thompson (also a former Illinois governor), said any larger purpose in the conviction and sentence of Mr. Ryan, 74, had been served. “The man has gone from being the governor of the state of Illinois to being a prisoner in a federal penitentiary,” Mr. Thompson said, later adding: “His career is gone. His reputation is gone.”

Ah if only that were the standard for all prisoners. Anyway I will say that Ryan did a good thing by ordering a moratorium on the death penalty after learning of wrongful convictions.

And, finally, the NYT reports on McCain’s use of Bush for fundraising:

Despite the efforts by the McCain camp to keep at arm’s length a president with an approval rating stalled at 28 percent, it is worth remembering that that 28 percent can be fiercely loyal and often wealthy. … “He is very popular with high-dollar donors,” [conservative economist] Mr. Bartlett said of the president.

updated 5/29: Also this note on how the presidential fundraising travel expenses get billed:

By blending official events with party fundraising, Bush dramatically reduces the cost of presidential travel that’s charged to the political campaigns. Taxpayers pick up the rest of the tab.

Our cyberpunk future approaches: monkeys with brain implants can control robotic devices.

So Adam Nagourney certainly was annoying me today, but yesterday, I was way more irate at someone I don’t usually hate, Tom Ashbrook, in his radio show “On Point”. Granted, I was driving around in Boston traffic, trying to find parking in the over-crowded Longwood Medical Area, and did I mention that I was driving around in Boston traffic? with Boston drivers? or perhaps I should say “people in Boston who drive cars but really should never have been given licenses to do so”.

Still even though I had massive external provocations (why is it that people in Boston do not seem to have learned how to make left turns in an intersection?) Tom Ashbrook was far more annoying. “On Point”, hosting an hour-long discussion on the earthquake in China’s Sichuan province. At one point a caller made the eminently reasonable point that US resources were committed to Iraq, leaving us vulnerable to natural disasters; he brought up the US national response to Hurricane Katrina.

Now, there are sooo many reasonable responses to this point. But Tom Ashbrook totally ran this one off the rails onto his own bizarre tangent. Which apparently was an interest in discussing how authoritarian governments stack up against democratic governments in responding to natural disasters.

Read the rest of this entry »

Two things annoyed me in the last 24 hours. Well, two media things.

First, this morning in an article about same-sex marriage in the NYT, there was utter stupid cluelessness that led me to conclude the article must have been written by a straight person. And indeed, But then I just looked at the byline and it was by Adam Nagourney, which explains this article. Why is Adam Nagourney so bad? Anyway today he wrote in paragraph 1:

Read the rest of this entry »

Well, I loved the California same-sex marriage decision. Not just because it granted same-sex marriage, and not just because it said that the state needs to use the same term to refer to same-sex and opposite-sex unions, but because it significantly expanded Equal Protection jurisprudence.

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (”suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

Following an action at my own BPL, the anti-DRM organization Defective by Design is calling for libraries to boycott products that use DRM.

The Open Letter to Libraries is posted @ DBD’s website, and they have also made a sample letter / template available for us to send our own letters.

Link via cory @ boingboing

Canadian Club (”CC”, not Creative Commons) has been running these really offensive & annoying ads aimed, apparently, at a very small demographic: straight white men with masculinity issues and daddy issues.

My partner pointed them out to me — plastered on bus stops in our ethnically diverse and progressive, queer-friendly community — and we enjoyed speculating on how enterprising billboard alteration-ers (certainly not us, I’d like to emphasize) might edit the ads to be more appropriate for our community. (Way to do stupid poorly-targeted advertising, jack-asses.)

For instance, the ad that showed a guy making out with a woman in a lounge, that implied “dad” was cheating on mom — that could easily be edited to make it appear that mom was picking up a stray businessman to fulfill those needs that dad wasn’t capable of satisfying. Again, I repeat, we would never consider doing the alterations ourselves. Pure speculation.

An improved Canadian Club ad.

Anyway, Rebecca Tushnet reports about another woman’s response to the ad campaign. CC ran one of those cheesey “get involved and do it yourself” fake participation schemes so that straight white overcompensating men with daddy issues could put their own daddies into the ads. Michelle Koenig-Schwartz began Project: Canadian Club - Your Mom Had Groupies in response.

The pictures are awesome, and I have to note that these would go over a lot better in Jamaica Plain. Tushnet’s post also contains great analysis, so read the whole thing.

New York’s state tourism board is seeking to reclaim their “I heart NY” slogan. (link from michele) According to the article, the slogan was developed for them pro bono by graphic designer Milton Glaser in the early 1970s. It was used prolifically as a mark; then they let their registration lapse and stopped policing it; and then everybody and their sister started selling products with “I heart NY” on them. Over the last few years the tourism board (”Empire State Development”) realized the “error” (read: revenue stupidity) of their non-policing ways so they renewed their registration and began policing the mark.

How did they begin? By threatening to sue Mr. Glaser (the original graphic designer, remember, who donated the logo pro bono), who had, after 9/11, designed an “I heart NY More Than Ever” logo. He was naturally outraged.

… Anyway, just a note on terminology. Here again we have people talking about “fakes”, which is the accepted jargon within trademark circles for unlicensed products. Note, however, that they’re not “fake” in any way that ordinary people would understand fake: It’s not like the t-shirt or mouse pad or bumper sticker is not really a t-shirt or mouse pad or bumper sticker. “Fake” means “unauthorized” — that the NY tourism board didn’t license the use of their registered mark to the t-shirt, mouse pad, or bumper sticker maker.

Well, “unlicensed” or “unauthorized” might arguably be serious when people are actually paying good money for the brand. Traditionally marks are meant to help consumers identify the source of a good or service, so that they can choose to pay top dollar for goods and services with good reputations for high quality. Quality might be quality of components — well-made, true cotton and not poly-blend, etc. Or it might be more money than the bare physical elements of the product are worth, for instance, as in paying top dollar for a Gucci purse. Here we’re getting into more ephemeral attributes and qualities: quality of design, maybe, and of course “authenticity”.

But how does that apply to “I heart NY”? Slogans can be marks; you can associate a slogan with a particular good or service. “I can’t believe it’s not butter.”

Read the rest of this entry »

I had been seeing “ftw” in internet chit chat for a while, and I just finally got around to looking it up and seeing what it actually means: “for the win”.

In the meantime, I had just sort of assumed it was an inversion of “wtf” — sort of taking the aghastness of “wtf” and adding onto it a fillip of “wack”! So I’d been reading it as “fuck the what!”. I actually like that a lot better than “for the win”.

According to Robert Brauneis’ new paper, “Copyright and the World’s Most Popular Song”, the song “Happy Birthday To You” — long held as an example by us copyright reformists — is most likely not copyrighted after all, due to the tortuous path of ownership and failure to re-register.[linked from patry copyright blog]

See also the brauneis website for the song’s history.

The author draws four important lessons, summarized here:

1. [T]he perils of using anecdotes in legal and policy arguments. (p.3) Hoho. Yes.
2. Noting the utter lack of litigation over this song, despite the weaknesses in the copyright and the money at stake ($2M/year), Brauneis suggests, “[T]he absence of such challenges strongly suggests that there are structural barriers to mounting them, and those structural barriers are worth exploring.”
3. Noting what was effective abandonment of the copyright of the work for long stretches of time, despite significant uses by others, Brauneis reminds readers that “Were “Happy Birthday to You” a piece of real property, its open, unopposed use over such a period could have resulted in the acquisition of prescriptive rights.” Developing doctrines of adverse possession / prescriptive easements to go along with the propertarian rhetoric of copyright maximalists has been on many people’s proposal lists (even I, as a lowly 1L in properly law, came up with this argument), but this article gives the “dead hands” arguments new teeth by tying the ongoing copyright term extensions to his newly uncovered history: “In light of that increase [in copyright term], it may be necessary to develop some doctrine to avoid the inefficiency and inequity that could result from reassertion of copyright in a work that had been published and used by others without opposition over a long period of time.”
4. A lesson about the difficulty in tracking copyright, and a reminder that that difficulty will only increase as copyright terms lengthen. Brauneis refers to Copyright Office records, which, reminder to readers, were decimated by the abolition of formal registration requirements in the 1976 Copyright Act. This is also an opportune moment to plug the Orphan Works Act, recently re-introduced in both the House & the Senate. (See beSpacific, 4/27; Wired Campus, 4/25)

Also, just in the matter of women’s musical history, Brauneis does a great job in recovering and fleshing out the story of Mildred Hill and Patty Hill.