Prequel: A Sequel in the Rye
J.D. Salinger has persuaded a district court judge to elevate a temporary restraining order to a preliminary injunction in his effort to prevent American audiences from reading 60 Years Later: Coming Through the Rye, which uses an aged Holden Caulfield in a narrative sequel to - or parody of — the iconic original.
I haven’t read the full opinion yet, but the passages excerpted by the New York Times strike me as not only wrong but bizarre. If I’m interpreting the opinion correctly, the judge ruled that the defendant’s use of the Caulfield character could not be excused as “parody” under copyright’s fair use doctrine because Catcher in the Rye is a parody of itself. The argument seems to go something like this: Salinger himself has occupied the field of parodies of Catcher in the Rye; therefore, no further parody is permitted. (I’m no literary critic, but the view that Salinger was being straight and “parodic” simultaneously is a view of Catcher in the Rye that’s news to me.) The opinion says this, according to the Times:
In fact, it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite — or perhaps because of — the latter, does not change the fact that those elements were already apparent in Catcher.
It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.
This case has a long way to go before a final result and opinion will be rendered, but for the moment, and if this passage is representative, then it seems clear to me that the district judge has badly misinterpreted and misapplied the law. If fair use permits producing a parody of a copyrighted work (and the Supreme Court says that it does), then the original copyright owner cannot preempt all parodies by parodying his own work in the original work itself. If Catcher in the Rye is a parody of itself, then the legal question is whether fair use permits a parody of the parody. As a matter of law, the answer has to be yes; Salinger has no legal right to prevent people from mocking him, or mocking the mockery that the judge says is Holden Caulfield. And is that what Colting, the author of 60 Years Later, is doing? Mocking the mockery? So it seems to me.
There is one case that seems to hold that mocking the mockery isn’t permitted – the Second Circuit’s Seinfeld Aptitude Test case, which can be reduced to the proposition that a book critiquing a TV show for its lack of content is infringing if the TV show is purposely devoid of content. But the Second Circuit has backed away from a broad view of that opinion, and it has been roundly criticized by the Seventh Circuit. I think that Holden Caulfield has more trouble ahead. At least I hope he does.
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I sometimes wonder if the flipside of the AI campaign to make machines more humanlike is a pharmacological campaign to make humans as quiescent as machines. As global competition increases the value of productivity, an underground world of neuro-enhancing drugs is a growing part of campus life. But what about “emotional enhancements?” Christopher Lane, whose work I’ve discussed before, foresees a new market, and new perils:
[T]he American Psychiatric Association . . . has generated untold amounts of publicity and incredulity . . . by debating at its convention whether bitterness should become a bona fide mental disorder. Bitterness is “so common and so deeply destructive,” writes Shari Roan at the Los Angeles Times, “that some psychiatrists are urging it be identified as a mental illness under the name post-traumatic embitterment disorder.” “The disorder is modeled after post-traumatic stress disorder,” she continues, “because it too is a response to a trauma that endures. People with PTSD are left fearful and anxious. Embittered people are left seething for revenge.”
[Read more →]
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Matthew B. Crawford’s new book, “Shop Class as Soulcraft: An Inquiry Into the Value of Work,” gives IP lawyers quite a lot to think about. (An excerpt appeared recently in the New York Times magazine, and the book as a whole originated as an essay at The New Atlantis.) Crawford is offering a modern take on an old idea: Working with your hands in a non-routinized, non-mechanical way – making things — is an ethical statement. It’s democratizing. It’s ennobling. It’s intellectually demanding, even enlightening.
Crawford may oversell his point just a bit, but there is something to what he says (and what Ruskin and Pirsig, among others, said before him). What’s the IP angle?
The “piracy” problem, among other problems on the copyright scene today, represents (among many other things) the inability of music lovers and consumers to see or hear the craft of the artists represented in the recordings (films, computer programs) being uploaded and downloaded. The commodification of popular music over the last 100 years — ever since Sousa complained that musical recordings would eviscerate traditions of family singing — is, in this sense, nothing more than the complete separation of the musical audience from the craftworkers who make the music. The closer the connection, however, the tighter the ethical bond that supports and justifies the obligation to pay — money, respect, or both — the creator. As that connection gets more and more attentuated, that ethical bond frays - and snaps, as it now has.
That is not to say that there isn’t craft in the production of contemporary music; far from it (this is where Crawford falls short — the skilled labor, craft, that supports certain kinds of “knowledge work”). Rob Merges has been writing recently about the structural role of copyright law in giving priority of economic place to creative professionals, whose output is and should be valued more highly by society, at the margins, than the output of creative amateurs. Merges and Crawford are using the same conceptual vocabulary, even if they aren’t speaking the same language, and proponents of “user-generated creativity (or “content”)” often mine the same vein, even if they see the output differently. “Creative professional” may be a misleading category; in some fields, it substitutes an (absent) ethics of the organization for Crawford’s ethics of skilled labor. It’s the skill, or the craft, that copyright might fairly favor. Some people look at “amateur” creativity, especially in online “remixing” contexts, and see emerging discipline; some people see that discipline only in established practices supported by traditional training. To the latter, “remixing” is little more than throwing spaghetti at the wall to see what sticks.
Crawford’s work has hit a nerve, from what I can tell, because it re-captures something that just won’t go away (motorcycle maintenance, perhaps, but I think that there is more), no matter how much economic modelers want to speak only of incentive, reward, and efficiency. Going forward, if “remixing” is to earn a safe foothold in the copyright system, one of the challenges for its proponents is developing and harnessing an as-yet-undeveloped vocabulary of craft production for what is currently celebrated in some quarters for its “undisciplined” (in several senses of that word) appeal.
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According to Help Net Security, Craig Gentry, a researcher at IBM, appears to have found a way to allow “the deep and unlimited analysis of encrypted information - data that has been intentionally scrambled - without sacrificing confidentiality.” The solution involves a an “ideal lattice.” I’ll leave the explanation of all the math to the math/computer science folks. As the Help Net article notes, the solution seems to enable some great advantages for anyone providing cloud computing for:
computer vendors storing the confidential, electronic data of others will be able to fully analyze data on their clients’ behalf without expensive interaction with the client, and without seeing any of the private data. With Gentry’s technique, the analysis of encrypted information can yield the same detailed results as if the original data was fully visible to all.
It all sounds wonderful. One could have encrypted data and let others data mine while maintaining anonymity or privacy. Yet, something seemed odd to me. So I did what lawyers do, I called someone who knew more about computer science and asked for some help. That person explained that yes this could mean one could query an encrypted database without decrypting the data. The example to consider is a database of book purchases. One could ask how many people bought both book A and book B and see that result without ever seeing what a specific person purchased. Great, right? Not so fast.
As this person reminded me, with other sources of information one can figure out what a specific person did. That reminded me of the AOL debacle. With a little work, people were able to figure out who the anonymous subjects were.
All of which highlights that privacy is not binary. The cluster of information and the ability to analyze it seems often, if not always, to lead to problems about the use of information. So if this breakthrough allows a company or the government to claim that we should remain calm and all is well, we may want to remain clam but show how all may not be well. A few regulations about the use of the data even if supposedly anonymous, might allow the beneficial aspects of the solution to thrive while limiting the harms that can occur.
Image: WikiCommons
By: Gwenda; License: Public Domain
(My apologies to CS folks if the image does not match the breakthrough’s area of encryption)
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I never thought this would happen, but today I heard my first radio ad directed specifically towards copyright. The ad, airing here in Boston, criticized attempts in Congress to add a performance right for recording artists, and it encouraged listeners to fight the “tax” on radio stations.
Now, if only all of copyright becomes perceived of as a tax….
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Michael Chabon has an elegiac essay in the New York Review of Books (”Manhood for Amateurs: The Wilderness of Childhood”) on what is denied to our children:
This is the kind of door-to-door, all-encompassing escort service that we adults have contrived to provide for our children. We schedule their encounters for them, driving them to and from one another’s houses so they never get a chance to discover the unexplored lands between. If they are lucky, we send them out to play in the backyard, where they can be safely fenced in and even, in extreme cases, monitored with security cameras. When my family and I moved onto our street in Berkeley, the family next door included a nine-year-old girl; in the house two doors down the other way, there was a nine-year-old boy, her exact contemporary and, like her, a lifelong resident of the street. They had never met.
The sandlots and creek beds, the alleys and woodlands have been aban- doned in favor of a system of reservations—Chuck E. Cheese, the Jungle, the Discovery Zone: jolly internment centers mapped and planned by adults with no blank spots aside from doors marked staff only. When children roller-skate or ride their bikes, they go forth armored as for battle, and their parents typically stand nearby.
There are reasons for all of this. The helmeting and monitoring, the corralling of children into certified zones of safety, is in part the product of the Consumer Reports mentality, the generally increased consciousness, in America, of safety and danger. To this one might add the growing demands of insurance actuarials and the national pastime of torts. But the primary reason for this curtailing of adventure, this closing off of Wilderness, is the increased anxiety we all feel over the abduction of children by strangers; we fear the wolves in the Wilderness. This is not a rational fear; in 1999, for example, according to the Justice Department, the number of abductions by strangers in the United States was 115. Such crimes have always occurred at about the same rate; being a child is exactly no more and no less dangerous than it ever was. What has changed is that the horror is so much better known. At times it seems as if parents are being deliberately encouraged to fear for their children’s lives, though only a cynic would suggest there was money to be made in doing so.
As I read and recognized what Chabon describes, I realized that much of it could be a useful metaphor for similar changes in copyright law and policy over the last 20 or 30 years. The analogy might resonate more strikingly for those inclined to view works of authorship as the metaphorical “children” of their authors, but the parenting analogy aside, it’s clear that authors and publishers express a great deal of anxiety about what happens when creative works are “out there,” free from monitoring, monetizing, and control — though it’s not clear that the level of risk is greater than it was before, as opposed to being more salient and starkly described.
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The gang at Language Log provides a thorough overview of the meaning and function of the vuvuzela, the device that provided the soundtrack to the just-concluded Confederations Cup soccer tournament in South Africa (the result in yesterday’s final: Brazil 3 - USA 2, more or less as I predicted last week). It leads me to a speculative question about environment and creativity.
Count me among those who hated the constant buzzing supplied by vuvuzela users, especially when Brazil was playing. I may not always root for Brazil, but I love the drumming that Brazil supporters supply, and I love to watch the Brazilian players occasionally match the rhythm of their play to the rhythms coming from the stands.
But my opinion doesn’t count for much. Let’s ask the players. Did the buzzing bother them? How about the Americans?
And the deafening blare of the vuvuzelas that some teams at the Confederation Cup have complained about? The Americans don’t mind them one bit.
“I think we’ve shown a spirit and competitiveness that people love, and that’s infectious for people,” [Landon] Donovan said. “We expect the same for tomorrow night, too, that people will be out there wanting to see us do well, and we thrive off that.”
[From MSN] Most of the American players, in fact, played tremendously yesterday; at least until the very end of the match, their mental discipline was extraordinary.
That raises the curious possibility that the unusual environmental circumstances — not only the novelty of playing in South Africa, but also the novelty of playing in stadia where the crowd isn’t really hostile but where the crowd’s actions provide what might be called a “sharpened” sense of place — actually helped the Americans, once they got a bit acclimated to what was going on. It’s probably impossible to separate the vuvuzelas from all of the other distinctive attributes of high-profile games against Brazil and Spain. But the team seemed to play a bit above itself in the final. My memory of the USA’s 1994 Independence Day match against Brazil at Stanford is similar: That day, before more than 80,000 fans –many of whom were Americans dressed in Brazilian yellow, dancing to the drums, happily and loudly supporting both teams – the USA again played above itself for most of the day, forcing the Brazilians to earn only one goal in a 1-0 defeat. (USA fans will remember that the team lost something more important that day - Tab Ramos.)
A question worth considering, then, is whether there is a way to identify an “optimal” degree of environmental “richness” in order to produce better/best production, innovation, and/or creativity – in this case, the collective performance of a soccer team. “Richness” is a mushy, imprecise word; I’m groping toward something that lies between a completely benign environment and a completely and unambiguously hostile. For the US Men’s National Soccer Team, let’s say that the two ends of the continuum are any national team venue pre-1994 and Estadio Azteca in Mexico City. The vuvuzela-powered South African stadia might be a “just right” environmental middle ground.
And to shift gears abruptly and dramatically: For the modern entertainment industry, we might suppose that the two ends of the continuum are the pre-VCR broadcast-television-broadcast-radio-and-LP era (the 1960s and 1970s) and the Wild West Internet of the late 1990s. Is it possible that the “governed” Internet that has been emerging over the last 10 years is actually good — net — for innovation and creativity?
Of course, there are crucial distributional consequences to consider. Amateur creators might still be like the US Men’s National Team: performing much, much better than ever — but still losing to traditional global powers.
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It appears that the Netflix Prize has been won.
Thet Netflix Prize is a $1 million prize being offered by Netflix for development of a “movie recommendation system” that is 10% better than Netflix’s own Cinematch system as predicting the movie preferences of Netflix subscribers. [Older story from the NYTimes here.] From the prize website, here are the rules:
Netflix is all about connecting people to the movies they love. To help customers find those movies, we’ve developed our world-class movie recommendation system: CinematchSM. Its job is to predict whether someone will enjoy a movie based on how much they liked or disliked other movies. We use those predictions to make personal movie recommendations based on each customer’s unique tastes. And while Cinematch is doing pretty well, it can always be made better.
Now there are a lot of interesting alternative approaches to how Cinematch works that we haven’t tried. Some are described in the literature, some aren’t. We’re curious whether any of these can beat Cinematch by making better predictions. Because, frankly, if there is a much better approach it could make a big difference to our customers and our business.
So, we thought we’d make a contest out of finding the answer. It’s “easy” really. We provide you with a lot of anonymous rating data, and a prediction accuracy bar that is 10% better than what Cinematch can do on the same training data set. (Accuracy is a measurement of how closely predicted ratings of movies match subsequent actual ratings.) If you develop a system that we judge most beats that bar on the qualifying test set we provide, you get serious money and the bragging rights. But (and you knew there would be a catch, right?) only if you share your method with us and describe to the world how you did it and why it works.
Serious money demands a serious bar. We suspect the 10% improvement is pretty tough, but we also think there is a good chance it can be achieved. It may take months; it might take years. So to keep things interesting, in addition to the Grand Prize, we’re also offering a $50,000 Progress Prize each year the contest runs. It goes to the team whose system we judge shows the most improvement over the previous year’s best accuracy bar on the same qualifying test set. No improvement, no prize. And like the Grand Prize, to win you’ll need to share your method with us and describe it for the world.
A prediction set meeting the 10% threshold was submitted last Friday, which triggers a 30-day period during which other prediction sets are to be submitted for judging.
There are two things worth noting here, though lack of time prevents much elaboration here. One is the purposive crowd-sourcing of Netflix’s question: How to improve its business model? (As I read the rules, competitors agree to a non-exclusive license of their work to Netflix. I haven’t found a more thorough explanation of what “non-exclusive” means in this context.) It appears that this is a context in which “the wisdom of crowds” may actually work. Two is the specific conditions under which “the wisdom of crowds” has operated well. Not only is “the crowd” oriented toward solving a specific problem, but “the crowd” isn’t really an undifferentiated mass. It’s a community of individual developers (and teams) that has been in regular and detailed conversation with itself, even during the competition. Competitors have been sharing details of their work with each other via a “community” forum, maintained by Netflix, and perhaps elsewhere.
Via Kottke
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Wired editor Chris Anderson, in a book entitled Free, in passages defining “free lunch” and the “TANSTAAFL” acronym, decides to get his authorial words for free from Wikipedia and to include them in Free without attribution. Guess what? Turns out that when it comes to lifting other people’s writing, there’s no such thing as a free lunch! Not the first Web 2.0 pundit to fail to grok (or respect) the importance of attribution in a reputation economy.
HT: James G.
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The technology turn and churn has claimed another piece of history. Kodak is ceasing to make its Kodachrome film. I don’t think that one should be upset about this change but some nostalgia seems proper. Here are some pictures in tribute to the film. And even if one is not a photographer, one can appreciate the pictures we have seen thanks in part to the development of this technology. As the CNET article about the end of Kodachrome notes
Photographers like Kodachrome for its warm colors and fine grain, which are perfect for shooting portraits. The famous portrait of the Afghan refugee girl with the bright green eyes that graced the cover of National Geographic in 1985 was taken with Kodachrome film by Steve McCurry. But even McCurry has moved onto digital and other still film.
Or in Paul Simon’s words
Kodachrome
They give us those nice bright colors
They give us the greens of summers
Makes you think all the world’s a sunny day, oh yeah
I got a Nikon camera
I love to take a photograph
So mama don’t take my Kodachrome away
Then again even the faithful have moved on.
Imeem snippet:
Kodachrome (Album Version) - BARRY BECKETT
YouTube has at least two Kodachrome/Simon inspired videos here and here.
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So first I must admit I am not a huge fan of Michael Jackson. What? Yes. No! I’m afraid so. That being said, for all the oddity that occurred in the later part of his life the man and his work highlight some interesting points in IP and culture. Thriller is the best selling album of all time. In other words, he may have been the pinnacle of the old music industry model (selling 1 million copies a week is probably impossible today). In addition, Mr. Jackson’s videos are often credited as breaking the color barrier on MTV. That shift opened the door to many other artists being able to reach the MTV audience. He also combined different genres such as funk, pop, disco, soul, and R&B to achieve a unique sound that influenced many artists and audiences around the world. In short, one may want to dig into all the full range of his work from the Jackson Five era and his solo career. There promises to be forgotten or less listened to gems merely because Thriller was such a dominant album. For me the album and song Off the Wall (which I reference in Information Privacy when teaching Kyllo) is a great example of pre-Thriller excellent work. Last, the mashups and parodies inspired by Mr. Jackson are rather good too. Examples of Fred Astaire meets Michael Jackson which works quite well (hat tip John Scalzi) and Weird Al are below the fold.
Here is the link for Off The Wall.
And while we are at it check out Don’t Stop ‘Til You Get Enough to see the early moves and seeds of the Thriller-man to come.
[Read more →]
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This article lists some general apps that one may want to add to an iPhone. The one that caught my eye, however, is the Federal Rules of Evidence. The company that provides the Rules, The Law Pod, also offer the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy, Federal Rules of Evidence, and the U.S. Constitution. Apparently more apps are to in the works too. If the company updates them wirelessly, these apps could be quite useful (FYI The Law Pod folks are smart enough to offer the products for Blackberry users as well).
Furthermore Law Pod claims “Because rather than embracing a traditional business model, after-tax profits from the sale of these applications will be used to provide financial aid in the form of grants and scholarships to law students in need.” That is a nice touch.
This move reminds me of an old film about medical school where med students pretended to know what they were doing and then pulled out a handy reference guide to check a diagnosis. To be clear, looking up information is a good thing. If I remember correctly, Akhil Amar urged his students to keep a pocket copy of the Constitution with them. This service solves the problem of carrying extra paper around. Of course, if one is giving a closed book exam, one now had even more reason to have students surrender all phones during the exam.
Image: WikiCommons
By: ALT1040
License: Creative Commons Attribution ShareAlike 2.0 License
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Here is a very nice NYT profile of Beth Noveck’s work at the White House to use technology to enhance democracy:
The White House made its first major entree into government by the people last month when it set up an online forum to ask ordinary people for their ideas on how to carry out the president’s open-government pledge. . . .
Most of the suggestions were closely related to the topic at hand, like publishing a list of everyone who meets with the president, using computer graphics to track how rapidly agencies respond to Freedom of Information Act requests and installing webcams to monitor federal offices. The administration’s goal is to devise regulations that would tell federal agencies how to make their operations more open to the public. . . .
Ms. Noveck has some confidence that the effort will result in better government because she has built something like this before. As a professor, she worked with the United States Patent Office to test a system that invited the public to help evaluate patent applications. Companies that apply for a lot of patents, like I.B.M. and General Electric, participated in the optional program because the public comments helped patent examiners consider their applications more quickly.
Having praised Noveck’s Peer to Patent, I’m thrilled she’s taken on more responsibilities in the new administration.
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The recent “World Copyright Summit,” sponsored by CISAC (the “International Confederation of Societies of Authors and Composers”) only came to my attention after the fact. Glancing through the program materials, I came across a framing editorial for the conference that begins this way:
Faced with an era of digital disruption, what would Michelangelo think of the ubiquity of his works available on the World Wide Web? How would Victor Hugo and Shakespeare cope with the most radical transformation the books industry faces since the creation of the printing press by Gutenberg? Would the great photography pioneer Nadar be preoccupied to see so many of his pictures on the internet? How would the Brothers Lumiere react to their works been posted on YouTube and mashed up with other material? And what would Beethoven make his hour-long symphonies shared on P2P networks via sub-standard sound quality MP3 files? And all of that without any of them being paid for their works!
On the one hand, these are great questions. On the other hand, and disregarding for the moment the “rabbit-goes-into-the-hat” character of most of them, “who cares?” is a plausible response in each case. “Creators” are necessary, vital participants in communities of artistic practice and the business of art, but the sometimes relentless, needy “me! me! me!” character of their claims for recognition and compensation sometimes undermines their claims concerning the special character of art itself. As Sting 0nce sang, if you love someone, set them free. As Stallman and other might amend, free as in free speech, not free beer. Separate arguments over compensation and reward from arguments over access and use.
To CISAC’s great credit, the entire program wasn’t dedicated to finding ways to maximize the creator pie. Among other things, Michael Heller, author of Gridlock Economy, was a speaker.
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In light of the events in Iran, many may laud the power of tools such as Twitter and Facebook as they allow information to reach the world. Here in the United States, however, a few stories highlight how social networking tools and blogs run into ideas of fairness, honesty, and even justice. First, the FTC is planning on investigating bloggers who are paid for their posts but who do not disclose their affiliation. The article claims “The common practice of posting a graphical ad or a link to an online retailer — and getting commissions for any sales from it — would be enough to trigger oversight.” Second, the Ninth Circuit has just ruled that a woman’s blog posts about her co-workers and job environment were not protected speech. As such, her demotion was lawful. Third, a recent Law.com article makes a strong argument that tweeting while on a jury should not be allowed and jeopardizes the fairness of a trial.
The FTC action seems too aggressive, yet it shows that the idea of blogs having some sort of purity is not always the case. But if it prompts bloggers to be more forthcoming about their affiliations and to develop some best practices (as the article suggests), that could be a good outcome. It also seems to embrace the idea of more information is better which may keep many online happy. Those who think tweeting is some sort of anointed right err. The trial context shows that rather well. As for the blog and speech case, I need to find the decision. The article claims that the court “concluded that [the plaintiff's] speech was not a ‘public concern’ but rather was ‘racist, sexist, and bordered on vulgar,’ and it characterized her behavior, in part, as ’salacious’ and ‘mean spirited.’” I leave it to the First Amendment folks to unravel that one, but I wonder whether this case will be appealed to the Supreme Court.
In any event, these three events show that while we can say that tools that enhance free speech are wonderful in the extreme cases such as the situation in Iran, the more subtle cases raise on-going questions about the contours of speech. As always the issues are familiar. Now, however, simply saying keep your hands off the Internet or keep it free is an insufficient guideline. Too many people are online and too much online behavior tracks offline experiences and problems. In other words, although the technologies seem to make the questions different and requiring special treatment, they may only make the old questions and responses more salient.
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For the moment, J.D. Salinger has in hand an order prohibiting the distribution in the U.S. of 60 Years Later: Coming Through the Rye, which is either an unauthorized sequel to (i.e., derivative work, based on) and an invasion of the privacy of the author of The Catcher in the Rye, more or less akin to the Seinfeld Aptitude Test, or a work of criticism and “meta-commentary” that is more or less akin to The Wind Done Gone.
Here is the Complaint.
Here is the brief in response to the request for relief, plus declarations on questions of “is it literary criticism?” (yes) and “will it damage sales of the original?” (no).
The Wall Street Journal’s Law Blog runs an interview that, oddly, highlights the more-hyped-than-real distinction between “prohibited” satire and “permitted” parody.
Either way the case ultimately comes out, and I hope that the Second Circuit gets a shot at reviewing the trial judge’s final order, whatever it is, the case will make great teaching material. Not because future copyright students will scrutinize it for its bearing on parody and satire, but because perhaps better than any hypothetical a law professor could imagine, it highlights the contrast between the strongest possible “moral rights”/personality rights vision of copyright law, based first, foremost, and finally on the author’s conception and control of the creative work of authorship, and a public-regarding vision of copyright law that sees creative culture as part of the fabric of human conversation. Few authors are as obsessed as Salinger has been with control over his creation; few uses of prior works are as transparently designed to exorcise that control (and make the original work relevant to a modern audience) as 60 Years Later seems to be.
The Wind Done Gone was produced in the same spirit, but the examples and the two sides of the debate don’t resonate quite so well with a modern audience, especially an audience of modern law students, as a case based on Catcher in the Rye. For one thing, Margaret Mitchell is dead, and even in life she was of multiple minds about the celebrity of her work [the link is to the recent Molly Haskell account of the making of the film adaptation]. For another, few people today have read the original GWTW novel. Salinger-the-recluse may not be well-known to current students, but many of them have had to endure Catcher in the Rye.
Meanwhile, I assume that the full text of 60 Years Later is available electronically — somewhere.
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I’ve had the pleasure of wandering through the Metropolitan Museum in New York many times over the years, but for the first time, perhaps, yesterday I was fortunate to see an exhibition that really changed the way I (and perhaps others) think about the world of art. If you’re able, run - do not walk - to see “Pen and Parchment: Drawing in the Middle Ages (through August 23, 2009). The reviews in The Economist and in the New York Times seem not too far off the mark: Few people think of “drawing” when they think of medieval art; few think of the craft of drawing in that era, or of the creation of artists’ tools, such as model books. Clearly, they will now.
Copyright specialists are not the only legal scholars who may be interested in these images. (The range of artistic creativity that flourished prior to the development of the printing press is broader than the conventional wisdom holds.) Historians of property law may find this image (a 12th century graphic representation of a Spanish land transaction) notable.
By the way, don’t miss the exhibition website, which includes a blog to which the exhibition curator, Melanie Holcomb, is posting. And she is responding to comments!
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Wired “senior maverick” Kevin Kelly has called a wide variety of P2P collaborations a new form of socialism. For example, he points to Craigslist as a collective where the principle “from each according to abilities, to each according to his needs” may well be functioning:
How close to a noncapitalistic, open source, peer-production society can this movement take us? Every time that question has been asked, the answer has been: closer than we thought. Consider Craigslist. Just classified ads, right? But the site amplified the handy community swap board to reach a regional audience, enhanced it with pictures and real-time updates, and suddenly became a national treasure.
Operating without state funding or control, connecting citizens directly to citizens, this mostly free marketplace achieves social good at an efficiency that would stagger any government or traditional corporation. Sure, it undermines the business model of newspapers, but at the same time it makes an indisputable case that the sharing model is a viable alternative to both profit-seeking corporations and tax-supported civic institutions.
Larry Lessig is not happy with the socialism talk. There’s a fascinating conversation in the comments there, but I just want to add a “legal realist” angle to the debate.
[Read more →]
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The recording industry’s inquisitorial pursuit of downloaders has reached new heights - or depths. Map Boon onto the interests represented by the RIAA and Katy onto the interests represented by the accused in this sequence from Animal House:
Boon: Unbelievable. A new low. I’m so ashamed. Almost sorry l missed it.
Katy: What did you do, human sacrifice?
Boon: No, just some harmless fun.
In other words, I just picked this up at CNN.com:
“A federal jury Thursday found a 32-year-old Minnesota woman guilty of illegally downloading music from the Internet and fined her $80,000 each — a total of $1.9 million — for 24 songs.”
That sum represents statutory damages under copyright law, based on a finding of willful infringement. Fred von Lohmann at EFF’s Deep Links blog summarizes the Constitutional issues surrounding the proportionaliy of the offense and the remedy — and the lack thereof.
The merits, however, are only part of the story. CNN’s URL indexes the story under the heading CRIME (http://www.cnn.com/2009/CRIME/06/18/minnesota.music.download.fine/index.html).
Perhaps American frat house humor isn’t the best metaphor for this pairing of outcome and rhetoric. The case may be truly Pythonesque. Jammie Thomas-Rasset didn’t expect the Spanish Inquisition.
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Finally, the United States bred a world class soccer talent. But Giuseppe Rossi was born in New Jersey to Italian parents and dreamed of playing for Italy, as the rules of international soccer allow. Now he is not only playing for Italy - but he’s scoring the goals that beat the United States.
The United States, like other traditionally soccer-poor countries, has benefited from the play of more than a few talented multi-national athletes, and it will again in the future. Jermaine Jones (German-American) is likely on his way, and the US would love to persuade Edgar Castillo to return from Mexico - though that seems unlikely.
One somewhat provocative way to look at these cases is through a property lens. No country “owns” a player, but national identity is a kind of intangible “thing” that comes with complex rules of origin, management, and disposition. Some of those rules are determined and managed by the countries themselves (for example, a player can’t compete for a country if s/he doesn’t hold a passport from that country); some are governed by FIFA, soccer’s international governing body (FIFA sets the rules that determine whether a player is eligible to play for a country other than the country is her/his birth); and some aspects of identity are claimed by the players themselves (who get to choose, at the end of the day, whether they will play for one country, the other or, as in Castillo’s unusual case, both). [I've added this link to the FIFA statutes. Articles 15 and 16 state the relevant rules. Keen-eyed lawyers who are soccer fans will note the implications of the difference between these rules, which are referred to in English as "statutes," and the "laws" that govern play itself.]
And don’t forget the fans. I think that Rossi’s success is a great thing (he left New Jersey at 12 to train in Italy and then England), but a lot of passionate American fans resent him, or worse.
For more on sport and national identity, see the interesting-looking Sport and National Identity in the Post-War World, by Dilwyn Porter.
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