[Wilkerson's] project has less in common with the documentary populism of the nineteen-thirties, which, like Chicago School sociology, was always about the collective (if you could just talk to enough people, take enough photographs, conduct enough surveys, you could, finally, record what it meant to be human), than with the new narrative journalism of the nineteen-sixties, which was always about the individual (if you could just find the right person to talk to, and it had to be an ordinary person, you could write the story of everyone). Wilkerson’s work, in other words, is more novelistic than documentary ….

Narrative nonfiction is risky; it has to be grabby, telling, and true. To bear analytical weight, it has to be almost frighteningly shrewd. In “The Warmth of Other Suns,” three lives, three people, three stories, are asked to stand in for six million. Can three people explain six million? Do they have to? Your answers probably depend, mostly, on your intellectual proclivities. You’re reading this magazine; chances are you lean toward thinking that stories, good stories, explain. But if you’re an empiricist the only real way to decide is to see it tried.

There an “either/or” argument here that is a little too clever, but like the best New Yorker writing, in a meta-way Lepore offers a little story that persuades, at least up to a point.  And it leads to the following observation about legal scholarship.

Over the last couple of decades, perhaps a little less, a style of legal scholarship has emerged — some of it in the law reviews, some of it spilling over into book-length popularizations of journal articles — that borrows a weak form of the method that Lepore characterizes as narrative nonfiction and attaches it to a seemingly conventional (if often interdisciplinary) analysis of law and public policy.  Here are three or four engaging anecdotes about problems or events in the world; here is a new way of linking them analytically; here is a set of legal questions and answers that can be packaged as a pleasing bundle of solutions.  I’ve done this myself.

Some people might call this a method (or worse, a “methodology”), but it isn’t really a method, it’s a style.  And as a style, it should be less persuasive than it seems to be.  The problem, as Lepore reports in her different context, is that few law professors have the “almost frighteningly shrewd” eye or ear to choose anecdotes that are at once “grabby, telling, and true”:  the few stories that truly stand in for all of them.    Even the very best practitioners of narrative nonfiction — John McPhee is my favorite, but I have read many others — occasionally misfire in their choice of subject.   The odds that law professors might borrow the style and make it really work — avoid the challenges of empiricism and instead tell stories that really show us the nature of things — are extremely low.   More precisely, legal scholarship that borrows the style often strikes me as not sufficiently attentive to the rhetorical claim implicit in the work as a whole:  These anecdotes are more than entertaining ways to grab the reader’s attention.   They justify the claims of the piece in their entirety — premises, analyses, conclusions, recommendations.  If they don’t, then I’m better off skipping the anecdotes (or the editors should delete them), and diving into the meat of the argument.

I don’t expect the stylistic trend to abate.  The market for legal scholarship and the limited attention that student editors can give to most manuscripts means that law professors need ways to distinguish themselves and their work.  Spurious claims that “this article is the first to argue …” have become accepted parts of the wink-and-a-nod submission and acceptance dance.  (Note that scholarship can be valuable even if it is not pathbreaking, and few articles are genuinely “first” in more than a nominal sense.)  Introductory, surface-skimming nods to the narrative techniques of Malcolm Gladwell make the same point less directly.  If it’s clever, then it’s original!  When the time comes to convert a journal article (or a series of journal articles) into a book, casting the manuscript in narrative terms can help bridge the divide between popular and scholarly audiences. 

There is absolutely nothing wrong with casting legal scholarship in narrative terms, or with using the techniques of the novelist to make claims about the legal world.  I read the New Yorker; I “lean toward thinking that stories, good stories, explain.”   But poorly chosen stories, bad stories, and worse — incomplete stories — don’t.

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I can hear the boys of Seminole County now, breathing a sigh of relief that their principals have finally figured out exactly which girls should be allowed to wear short skirts to school to properly develop the boys’ school spirit. And it’s so good to be told that boys should stare at the cheerleaders to ensure the success of the school’s sports teams. Heaven forbid that they would ever stare for other reasons. And heaven forbid that any cheerleader would EVER wear her uniform to school for reasons other than school spirit.

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So why not just let go of the conceit of originality, and let the songbook stand? The revival problem is also the repertory question. Very few people complain that “Hamlet” is restaged every year. Why treat music differently from any other art? Once the original authors are absent, and we agree that their ideas are perfect as is, there seems little reason to monkey with them.

I admit to having dismissed most of these acts out of hand on first listen. Their live shows began dismantling my skepticism. We are broadly taught to respect the innovator, to trust that he or she is doing something important. But we also like what we like, and I like a strong downbeat. …
In an interview with Philip Roth, Milan Kundera said, “When I hear learned arguments that the novel has exhausted its possibilities, I have precisely the opposite feeling: in the course of its history the novel missed many of its possibilities.” If so many musicians are comfortable with returning to the past to pick up lost possibilities, we might do well to let go of our allegiance to our heroes, so that more of their work can reveal itself.

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There seem to be a number of historical explanations as to why copyright infringement attracts strict liability.  They include the fact that, at least in the United States, registration and notice of copyright works were historically linchpins of the system and so potential infringers were relatively easily said to be put on notice of the copyright owner’s claim to his/her copyright.  Additionally, there seem to have been a lot of historical analogies made with property law, and the tort of trespass in particular.  There is also the argument that between the plaintiff and the defendant, the defendant is often best placed to avoid the loss, so as a matter of economics, it makes sense to put the liability risk on the defendant.  A corollary to this point is that it is often difficult to for a plaintiff to prove what a defendant’s subjective intent was with respect to his/her use of the protected work, so strict liability is a fairer option.

I’m interested both in whether I’ve missed any historical explanations and as to whether many of these explanations still hold water.  It seems to me that notice and registration of copyright works are now less significant than in the past because of compliance with the Berne Convention.  I’m also a little leery of the analogies between copyright infringement and real property trespass (although I’ve recently been reading some of Wendy Gordon’s work in this area which runs some good arguments to the contrary).

Does anyone know of any good recent work on the issue of intention/strict liability in copyright?  I’m particularly interested in looking at the direct infringement question, because obviously the defendant’s state of mind has been relevant in various forms of secondary liability – well at least contributory liability.

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It is quite possible to thwart the YouTube Content ID system, but some methods mangle the song too much to be used in anything useful. . . . The most subtle approach is to use a resampling function, which simply increases or decreases the speed of playback. For these modifications, a speed increase of 5% or greater will work, as well as a speed reduction of 4% or greater.

No problem for some artists. Justin Bieber is basically unlistenable until you slow down his songs by 800%.

Via: Meanjin.

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Everybody hates a patent troll. But the broader economy of Web 2.0 is not exactly a landscape of virtue rewarded and failure punished. One of the recent put-downs of Paul Allen’s patent lawsuit inadvertently puts that fact into high relief.

Describing Allen’s gambit, Dean Takahashi writes:

[I]t looks like Interval patented basic operations of web sites that seem pretty obvious — and therefore should not have been granted patents. They govern the navigation of audio visual data on a web site, allow information to be located quickly, and present images to get users’ attention. If [Allen's entity] Interval Research had never existed, these “inventions” would have happened anyway.

For someone who wants to protect the likes of Google, Facebook, and eBay from suits like Allen’s, the “would have happened anyway” line is a bit dangerous to pursue. There was long-standing consumer demand for a social network: maybe Facebook just happened to be consumers’ darling when internet speeds and social conditions were optimal for rapid scaling. I find it hard to believe that any given Silicon Valley billionaire is a thousand times more talented than a peer with a “mere” million. As Jaron Lanier writes, some of the Web 2.0 business model is merely a game of redistribution from content creators to content aggregators:

“Web 2.0” designs . . . [have] valued the information content of the web over individuals. It became fashionable to aggregate the expressions of people into dehumanized data. There are so many things wrong with this that it takes a whole book to summarize them. Here’s just one problem: It screws the middle class. Only the aggregator (like Google, for instance) gets rich, while the actual producers of content get poor. This is why newspapers are dying.

It might sound like it is only a problem for creative people, like musicians or writers, but eventually it will be a problem for everyone. When robots can repair roads someday, will people have jobs programming those robots, or will the human programmers be so aggregated that they essentially work for free, like today’s recording musicians? Web 2.0 is a formula to kill the middle class and undo centuries of social progress.

Though I would not go as far as Lanier, I have to admit that I find it hard to get excited about some recent economic battles affecting Silicon Valley, ranging from net neutrality to patent trolling. Given the endless string of privacy snafus coming out of Palo Alto, should I really care if Facebook ends up being owned by Mark Zuckerberg or Verizon? Both subject users to lots of surveillance, and both are profit-maximizers. Here is “Zuck” from an early IM session:

Zuck: Yeah so if you ever need info about anyone at Harvard

Zuck: Just ask.

Zuck: I have over 4,000 emails, pictures, addresses, SNS

[Redacted Friend's Name]: What? How’d you manage that one?

Zuck: People just submitted it.

Zuck: I don’t know why.

Zuck: They “trust me”

Zuck: Dumb f***s.

It’s hard to trust Silicon Valley any more than one trusts Wall Street.

Power law dynamics in Web 2.0 create “big winners” in various realms online (tweets, search, social networks, picture sharing, etc.), and we can’t assess the extent to which any winner’s success was due to the sheer luck of offering a certain service at the right time. If net neutrality or anti-troll legislation is really all about assuring that the gains of innovation go to the lucky instead of the powerful, I don’t really see the value in pushing them.

(Don’t get me wrong–I think there is a really good case to be made for net neutrality, via the work of people like Jerry Kang (see Race.net Neutrality), Paul Ohm (focusing on privacy), and Dawn Nunziato (focusing on the First Amendment). I also think there are many powerful arguments available against patent trolls (in books ranging from The Gridlock Economy to Patent Failure). I just don’t feel the “equity” argument very strongly in the Web 2.0 field, where legal commentators appear all too prone to celebrate black box technology as business genius and social transformation.)

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If this song can reach just one person…

(Via The SprigMan)

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Brett Frischmann has moved to Cardozo Law School at Yeshiva University.

Rob Heverly has moved to Albany Law School

and Josh Sarnoff has moved to DePaul University College of Law.

May the blogging continue.

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I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.

Two recent developments have me wondering whether the trend towards limiting the DMCA’s overreach has reached a point where it’s now possible to declare victory of a sort. First, two Circuits—the Fifth and the Federal—are now on record as essentially requiring a plaintiff in a DMCA case to prove copyright infringement, and a third court, the Sixth, is not far behind. … Second, each recent round of the Librarian of Congress’s triennial DMCA rulemaking incorporates stronger and stronger protections for users. The 2006 rulemaking allowed DVD access controls to be circumvented by some users; the 2009 rulemaking (which was delayed until just last month) dramatically expanded this to include virtually all noncommercial users, so long as not too much of the underlying copyrighted content is taken (which looks an awful lot like a fair use type of inquiry).

Tim concludes by wondering “whether the DMCA controversy is now behind us; whether the worst of the statute’s sharp edges haven’t now been effectively worn away.”

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