It didn't get much notice today, but a California Appeals Court has overturned an outrageous decision that posting DVD-encryption codes on the Internet violates laws against trade secrets.
When the DVD Copy Control Association first tried to get an injunction banning the posting of this code on the Internet, I went out and bought a T-Shirt with the code printed on it.
This case is perfect illustration of a larger issue that I hold steadfast - "trade secret" laws are inherently invalid and unconstitutional. They are merely a tool used by companies and special interests to prevent true competition in the marketplace by stifling free speech about business operations.
Patents on the other hand are entirely valid, provided that they are granted for genuinely limited times. "Trade secrets" are merely an end run around patent law which ends up expanding patent-style protections far beyond what they were designed for.
Regardless of my opinion of Gay Marriage, the opponents of Gay Marriage appear to be right, Gay Marriage has ended acceptance of Marriage generally. It didn't take long. Go figure.
Rosemary at Dean's World (really enjoy the blog FYI), writes about how instead of attacking gay marriage, No-Fault Divorce should be attacked first. I think she has a very good point. Here's my only question though. Say 35% of the population thinks that No-Fault Divorce is bad and would prefer Fault Divorce. 35% of the population thinks No-Fault Divorce is no big deal, but opposes gay marriage. 30% of the population thinks both No-Fault Divorce and gay marriage are okay. What should happen? Well in a democracy, we would have no-fault divorce but no gay marriage either. It is then no consolation to the 35% who are opposed to No-Fault Divorce to tell them...Well, too bad you lost that battle, so now you get to lose this battle too even though they now are part of the majority on the gay marriage issue. That just doesn't seem like how democracy ought to work.
A lot of people are complaining about how Bush's proposed Amendment (which he hasn't even announced the language of yet) will be the First to Enshrine Bigotry into the constitution, or one of the first to decrease rights instead of increase them(which for now I take no position on). So I have an idea, one that should make everyone happy Right? How about this amendment:
When a court interprets a state or the federal constitution to strike down a statute or order an elected official to do an act because the constitution requires it, that interpretation, must be put to vote. In order for a federal interpretation to be approved a majority of 3/4s of the states must concur in the judgment of the court, and for a state constitutional interpretation to be valid, it must be concurred in to the same degree that that state's constitutional amendment process requires.
Now, everybody's rights are expanded...We get to vote on the constitutional interpretations of the courts. What do you say? Of course this tends to strongly presume the constitutionality of enacted statutes, but the courts are already supposed to assume that right? I mean we did elect these folks...but not the judges. (In most cases)
"Controversial Calblog Husband" here. It's good to see that the leading Democratic presidential contenders have discovered the concept of federalism and "states' right". Specifically, at the Democratic presidential debate held here in Los Angeles last night, Kerry and Edwards were asked whether they supported "gay marriage". Both said they did not, but that they were against President Bush's proposed constitutional amendemnt since the matter should be left to each individual state. Like gambling. And Edwards added that no state should have to recognize a "gay marriage" performed in another state if it did not want to.
Does anyone seriously think that these guys are so stupid they don't know the plain language of our Constitution? Specifically, Article IV, Section 1 provides in part that:
"Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."
The answer of course, is that both of them are aware of this. And both of them really support "gay marriages", despite their mumbo-jumbo answers to the question.
A "gay marriage" in one state is a "marriage" in every other state. Bush did the right thing.
The Magic Castle in Hollywood is considered by some to be the most prestigious magic club in the entire world.
For over 40 years, it has been a Hollywood landmark, occupying the historic Lane Mansion that was originally built in the first decade of the 20th Century.
Now, word is that the Magic Castle is having problems securing a new long term lease with the owners of the Lane Mansion and is now contemplating a move.
There a lot of twists and turns behind the scenes in this drama, with some referring to the situation as an attempted "hostile takeover" of the club.
This has caused quite a bit of friction within the magic community and caused some rifts within the Magic Castle membership.
A few of the details about the situation can be found here.
I have not seen and will not see the film. My meditations on and understanding of Christ’s suffering do not require (and may not benefit from) a graphic visual depiction of it. At least not at this point in my spiritual development. First, it upsets me enough that I can’t learn from it. Second and most importantly, my recent focus is on the spiritual trauma (e.g. “My God, why have you forsaken me”)
The main reason for saying that is to say that my comments here are based on Justin’s summary only. Justin said:
What of the "big" historical question regarding alleged anti-Semitic subtexts? The only real problem I had was that it depicted the Pontus Pilate and the Jewish hierarchy in such a way that it made it seem as though the Jews had the authority to boss Pilate and the Romans around and order that Jesus be crucified. Pilate isn't portrayed as merely conflicted about the question of sentencing Jesus to death, but there are implications that he was actively sympathetic towards Jesus and only ordered his crucifixion under the threat of a Jewish rebellion by the high priests. The only reason that I bring this up is because, as far as I know, this interpretation of Pilate is not supported by Scriptures (If readers wish to post Scripture sections in the comment section that specifically speaks to Pilate's mindset about the events, then I assure you that I will look at them with an open mind. Perhaps there is plenty of Biblical evidence to justify this depiction of Pilate and I'm just not familiar with it.)
That has been my understanding of Pilate’s role for most of my adult life. Here are the bible quotes that would support it.
Matthew 27:2
They bound him, led him away and handed him over to Pilate, the governor.Matthew 27:11
Meanwhile Jesus stood before the governor, and the governor asked him, "Are you the king of the Jews?" "Yes, it is as you say," Jesus replied.Matthew 27:13
Then Pilate asked him, "Don't you hear the testimony they are bringing against you?"
Matthew 27:17
So when the crowd had gathered, Pilate asked them, "Which one do you want me to release to you: Barabbas, or Jesus who is called Christ?"Matthew 27:19
While Pilate was sitting on the judge's seat, his wife sent him this message: "Don't have anything to do with that innocent man, for I have suffered a great deal today in a dream because of him."Matthew 27:22
"What shall I do, then, with Jesus who is called Christ?" Pilate asked. They all answered, "Crucify him!"Matthew 27:23
"Why? What crime has he committed?" asked Pilate. But they shouted all the louder, "Crucify him!"Matthew 27:24
When Pilate saw that he was getting nowhere, but that instead an uproar was starting, he took water and washed his hands in front of the crowd. "I am innocent of this man's blood," he said. "It is your responsibility!"
Ok, so the “Jews” crucified Him. There’s one historical point that I think has been missing from all the coverage I have read. I saw a snippet of an interview with Gibson where he alluded to it. The early Christians not only were born Jews but expected to continue to be Jews. If anything, the most they planned was a separate sect of Judaism, not a separate religion. The Gospel does not blame the Jews. It blames the believers, us the Christians.
Just got out of a private advance screening of Mel Gibson's "The Passion of the Christ".
Here's the bottom line - There are two kinds of films. One kind of film generates emotions and connections to the characters though the skillful use of storytelling. The other kind of film relies on the audience to supply such emotions and connections on their own based on either a pre-supposed background knowledge of the subject matter or a pre-existing vested history with its characters before walking into the theater.
"The Passion" is the second kind of film. For those who already have a vested interest in Christianity, know why Jesus generated a following, believe in the Resurrection and the all of the implications that flow from it, then they will know doubt be moved by this film in a profound manner.
For those that don't fall into this category, however - the film will likely be seen as a mere two hour treatise on a guy being tortured. That's about it I'm afraid.
And admittedly, most film critics don't fall into this category - hence the mixed reviews.
This is a film that will
preach to flock, but not create many converts.
Sure - it fills a void after decades of religious films that never showed the true brutality of crucifixion, which thousands of people endured in that era. But that begs the question as to why Gibson would choose to be so seemingly focused on that aspect of the story at the expense of more involving elements (i.e., why Jesus had a following to begin with; what the Resurrection meant/means to man, etc.)
As to the level of the violence in the film - it certainly is not for kids. But I disagree with those who suggest that it is so violent that it should have been considered for an NC-17 rating. For those of us who grew up on a steady diet of horror and war films, "The Passion" will certainly seem extremely violent, but it doesn't push any envelopes in this area. I would compare it to the level of violence in "Saving Private Ryan" - but without the raw visceral impact of that war film due to an editing and sound design that is much more modest in scope. It's very violent - but not "numbingly" so. And I found it no more "disturbing" than most other depictions of graphic on-screen violence. But maybe the years of horror and war films have dulled my senses more that the average movie goer.
As to historical accuracy - I am not an expert in the fine details of either the Holy Scriptures or of the historical period in general. Though I did pick up on one or two minor discrepancies that I heard a radio commentator also mention.
For one, most accounts agree that the Last Supper was supposed to be a Passover Seder where Jews would be required to eat matzah. But in this film, they seem to be eating fluffy, leavened bread.
Another minor error was the fact that Jesus is nailed through his palms in this film, while all historical accounts point to crucifixions being done through the lower wrists (in point of fact - a nail would eventually pass right through a person's palm and fail to support them on a wood cross since there are no bones in the hand sturdy enough to support one's body weight against a nail placed there.)
But this is perhaps nitpicking, admittedly.
What of the "big" historical question regarding alleged anti-Semitic subtexts? The only real problem I had was that it depicted the Pontus Pilate and the Jewish hierarchy in such a way that it made it seem as though the Jews had the authority to boss Pilate and the Romans around and order that Jesus be crucified. Pilate isn't portrayed as merely conflicted about the question of sentencing Jesus to death, but there are implications that he was actively sympathetic towards Jesus and only ordered his crucifixion under the threat of a Jewish rebellion by the high priests. The only reason that I bring this up is because, as far as I know, this interpretation of Pilate is not supported by Scriptures (If readers wish to post Scripture sections in the comment section that specifically speaks to Pilate's mindset about the events, then I assure you that I will look at them with an open mind. Perhaps there is plenty of Biblical evidence to justify this depiction of Pilate and I'm just not familiar with it.)
Your humble blogger is not able to question faith, but it seems to me that if an interpretation of people and events is debatable or unsupported from a specifically religious standpoint (versus a secular historical viewpoint), then it is fair to ask the filmmakers why they chose to go in a certain direction in their depictions of events.
You have to remember that the Jews (like many nations at the time) were an occupied people living under Roman authority and had no power to order the Romans to do anything. Pilate himself put down so many threats to his rule by the Jews in such a violent manner that he was castigated by Rome itself for his behavior. There is no hint of this in the film.
People may think that I am nuts, but the best film portrayal of Pilate remains the one by rock star David Bowie in "The Last Temptation of Christ". (also a flawed film for very different reasons, but Bowie was great even though he had a mere one scene.) His few minutes on screen showed an ambivalence steered by political calculations - but no real sympathy. Bowie's Pilate was probably the most "emotionally" accurate portrayal of Pilate, if not historically accurate.
Does this make it anti-Semitic? No. But it is problematic enough such that it deserves the time to be put into a more accurate context when issues surrounding this film are discussed.
I suppose that is the ultimate point of the film - a launching pad for discussion about faith.
On that level it certainly succeeds.
If taken only as a film - it is merely a focus on one of the countless people who endured unspeakable torture by tyrannical regimes throughout history (and sadly enough, even the present). It's neither numbing, nor particularly engaging - though the debate surrounding this film certainly can be at times.
I continue to have trouble finding time to blog and
so I continue to add co-bloggers. The folks I have
now, especially that controversial Calblog husband,
focus on politics, always one of the mainstays of this
blog. Another mainstay though is the idle
observations of life. To hold up the latter, I am
adding on a non-California blogger, Hanni. You can
read her blog here.
Because I'm just a little behind the 8-ball, I wanted to comment a little late on a couple posts from others on SUVs, the first is from Calpundit (who for as often as I disagree with him, find his site enjoyable to read), the second from the good Professor (there are certainly many other good professors on the web). I personally find SUVs quite obnoxious, as not only do they do all the annoying things that those two describe, but they also blind my vision at night, as every SUVs headlights are so high up they always appear to have their high beams on. Furthermore, the most egregious of SUVs get a tax break. This problem could be fixed, but it doesn't appear anyone in Sacto can come to a compromise in fixing the code, Nation came up with a bill AB 848. I disagree with Nation on just about everything else, but I would like to see some compromise here, a business tax cut of some sort or something in exchange for closing a pretty big hole in the tax code. Until then, I fear I will only find more Hummers on the road, which also damage the roads more and require more expensive road repair to be done more frequently, and kills more of us folks who don't need or want a battleship of a vehicle.
Calpundit makes an excellent point about gerrymandering. His basic point is that it is one issue that Democrats and Republicans agree on. He's right. Gerrymandering has allowed representation to become less representative as gerrymandering has become more accurate/predictable. The solution? Well, I do know that in California there is a Constitutional Amendment being circulated that would make gerrymandering less political in California. I don't know that the proposal is perfect, but it does seem like a reasonable first-step.
It was difficult to watch Carlie Bruscia being taken away to what we know was her death. It was particularly painful for her parents. They taught her not to talk to or go off with strangers Yet there she was, following him with reluctance, but no resistance.
In the aftermath, the media has focussed on why the killer was even out on the street. I have not seen talk about why she went so easily. Here's my theory:
The guy was wearing a uniform. She's cutting through a car wash parking lot. A guy wearing a car wash uniform stops her. I believe he said something like "you're on private property. Come with me."
In all the talks with children about safety, we do not emphasis this scenario enough. Yet the fake uniform and show of authority is an old ploy. We still teach our children, especially preteens entering the rebellious years, to respect authority no matter what.
For reasons too long to go into here, I have often worried about this scenario. so we have a plan that we practice regularly. The twins have cel phones. If they are stopped by anyone with "authority" they are instructed to say, "ok I will go with you but I must call my mother." A legitimate security guard will respect this request. A "bad guy" won't. We practice the encounter with them. We're hoping it reduces one more risk.
Here's an interesting phenomenom that I have observed on this blog but I have not experienced AT ALL in real, offline life. Commenters will say "You're a lawyer and . . ." Here's a sample from a post on gay marriage:
You are a lawyer? Oh, jeez, give me a break.
If you were a lawyer, you would know that marriage (in the civil sense) is whatever the civil authorities declared marriage to be.
Apparently the commenter thought my reference to the fact that the Catholic church instructed its followers to be against civil gay marriage meant I didn't understand civil marriage at all. In that post, I actually don't take a posiition on gay marriage but wonder about the long term changes.
But I digress. I often get comments, emails, whatever, that start like this. The gist is usually either that if I'm a lawyer, I should agree with their opinion, which they see as so glaringly obvious or that I should engage in an intense debate on a topic of their choosing, under the ground rules they choose. This morning, I got an email accusing my response as being childlike. (My response was along the lines of "you;re not understanding this and I don't have time to explain." I'm not quite sure how an adult gets to say that but because I'm a lawyer, there ws an epectation that, rather than being dismissive, I should provide indepth analysis. (Ever notice how being dismissive never dismisses anyone. They just stick around anyway.)
Now although all of this is a little annoying, what really causes it to take up space in my brain is that it happens repeatedly but only on the blog. If I'm sitting in a bar having a drink, no one challenges my comment with "you're a lawyer."
I expected a lawsuit by some organization in favor of gay marriage but I really didn't expect it to be the City of San Francisco. Just another thing that makes this case interesting.
Calblog husband has been tolerant of my chickens. However, bird flu does worry him. The eggs came from NC and if bird flu is ever found in the original flock, then he wants the chickens gone. Now cats (2 of them) have caught bird flu in Thailand (yes, Thailand is not close). I can see my sweet chickens will be under close observation since the 5 Calblog cats are quite important around here.
From the NY Times:
Mr. McEntee, the president of the American Federation of State, County and Municipal Employees, defended his decision to abandon the campaign, saying he told Dr. Dean that he did not want to spend another $1 million of his union's money "in order to get him a couple of extra points in Wisconsin.""I have to vent," Mr. McEntee, the often blunt leader of the nation's largest public service union, said in a leisurely interview in his office here. "I think he's nuts."
Calblog Husband here. After the recall campaign there was quite a bit of blogging about letting San Francisco secede from the rest of California, considering that the Sourdoughs were idiotic enough to vote NOT to recall the most inept governor in state history.
Now, we really need to let them go. The City of San Francisco, in blatant disregard for the defintion of "marriage" under California law (not to mention how that term has been defined in 5,000 years of civilized history), is issuing round-the-clock marriage licenses to gay and lesbian couples, including over the holiday weekend.
This act of civil disobedience is obvioulsy just the next step by the radical gay agenda telling us who can get "married" to whom. They want to get as many of these "marriages" on the books as they can before some court finally has the sense to intervene and stop them. They also want to generate greater public acceptance of and sympathy for their radical agenda. When the "marriages" are later found to be illegal, the next step will be a lawsuit claiming that you can't void a "marriage" after it has been performed.
It's just another example of how the City of San Francisco is totally out of step with the rest of California, not to mention the rest of the country.
Personally, as Justene will tell you, I have no problem with gay people. I don't agree with their lifestyle, but as a quasi-libertarian they are free to do whatever they want as far as I am concerned (for example, I thought the Supreme's anti-sodomy decision was correct). However, even 15 years ago, the idea of "gay marriage" was considered completely out of the manistream. Now, under the guise of it being a "civil rights issue", we are supposed to overturn 5,000 years of human history--and if you are against it, you are somehow a bigot, like George Wallace standing on the schoolhouse steps in the early '60s. What will be the next step? If gays are allowed to marry because they have made a lifestyle choice, what about polygamy? What about group marriages? What about "marriage" being whatever I subjectively decide it is?
History Pop-Quiz:
Pre-Civil War, of What did Lincoln complain about in his House Divided Speech?
Think it through when you seek to use the courts to achieve your objectives.
Drudge is reporting that there may be a Kerry infidelity scandal. I suspect that infidelity is no longer enough to derail a Presidential campaign.
I'm struggling with the gay marriage issue. As a practicing Catholic, I'm supposed to be against it. With my libertarian leanings and personal connections with gay couples, I should be for it. Since California has domestic partnerships with a wide range of benefits, the issue is not as crucial as it is elsewhere.
None of that is what I am struggling with. I was able to make a small contribution to the recall debate. I'm unlikely to impact this one. So my personal opinion is not important. What I struggle with is what this will look like when we're done.
I think we are on track to a society where we will have gay marriage. I think we are one generation away from having "marriage" without the "gay" qualifier. What difference will that make?
Will it be like interracial marriage, originally shocking, now generally accepted, but still subject to individual prejudices?
Will it be like abortion, still controversial and divisive, but legal and prevalent?
Or are we on a new societal course that we haven't seen before?
The answer to the above headline title is that they all have come together to prove what an utter disaster copyright and trademark law have become and how the courts have tailored intellectual property in such a way as to stifle free speech.
Want proof? Check out the "revealing" (and R-rated) picture of Miss Piggy over at the Trademark Blog.
Other blogs that have commented on the trademark hypothetical that the picture poses have some interesting comments - but they ultimately miss the bigger picture.
The fact of the matter is that the "Cat in Not in the Hat!" case was wrongly decided. Any subsequent argument that doesn't recognize this simple fact will then start off with a false premise that will only lead to ridiculous (and freedom stifling) conclusions.
For those who haven't clicked on the links and probably have no clue what it is I am talking about, the question is this:
If copyright and trademark laws do not extend to parody, then what exactly is "parody"? Must the parody be making fun of the underlying protected work that it borrows from? Or can it borrow from the work in order to parody an unrelated subject?
A federal appeals court has said that it must comment on the underlying work. The correct answer should be that the question is irrelevant because to ask it forces judges into the roles of art and literature critics.
Just like the outrageous instance of a court judging a piece of art to see if it is "transformative" enough in their own personal opinion to survive a right of publicity claim, the idiotic 9th Circuit has said that a work entitled "The Cat is Not in the Hat" doesn't parody the original work by Dr. Seuss - it only uses it to parody the O.J. Simpson case.
Oh really?? And how does the court determine this? What about the claim that tying the "Cat in The Hat" to O.J. Simpson's case isn't really using Dr. Seuss to comment about O.J., but rather it is using O.J. to comment on Dr. Seuss? Isn't taking the very adult themes of murder in race in the U.S. and using them to parody the well known convention of children's books (as best exemplified by Dr. Seuss's story) a legitimate form of parody centered at Dr. Seuss's work?
Either claim is legitimate. And that's the whole point! The question of just what is being parodied in a work is an entirely subjective enterprise based on artistic interpretation and should in no way be a function of the courts or law.
Despite that exercise of common sense, courts still have no problem proclaiming that if a drawing resembles an Andy Warhol piece then it is protected speech, but if it resembles a lifelike charcoal sketch - then it somehow infringes on people's rights because it isn't "transformative" (whatever the hell that is supposed to mean when you are talking about art).
Is the photographer really using Miss Piggy to comment on Janet Jackson? Or rather, is it using Janet Jackson to comment on the childlike world of the Muppets? Maybe there is no Janet Jackson reference at all. Perhaps its just a shot of sexuality to parody the Muppets and any reference to Janet Jackson is just a coincidence in the mind of some individual viewers.
It is impossible to truly know what is in the mind of the artist or those that view the art. Perhaps there was attempted parody made in good faith but just ended up failing artistically. Shouldn't that be a protected form of speech? Or do we wish to live in a world where if you fail at successfully parodying something then you are then open to a financially devastating lawsuit?
Apparently its that latter. At least according to the 9th Circuit. They will tell you both what is true "parody" as well as the underlying thematic subject matter of the parody.
If you happen to disagree with the court? Tough! You don't have judicial robes. You weren't appointed to be the legal art critics for life! You are a mere lowly consumer and conveyer of information in a supposedly free society and you have no right to make such artistic decisions without first getting permission either from the courts or the copyright holders.
Unfortunately, the Seuss case did not use its appendix to reproduce the author's parodying "The Cat is NOT in the Hat!" work that toyed with the drawings of Dr. Seuss as well as its prose. If you are able to see the actual work itself, it will be even more obvious just how far the 9th Circuit overstepped its bounds in that case.
One more time folks. The judicial art critics from up high have declared that THIS is protected speech, but THIS is an infringement of someone's rights. Get it? (If you still don't get it, click on the two links in this paragraph and go to pages 12 and 30 or the respective documents. Adobe Acrobat will be required.)
There is no difference in this instance between copyright, trademark, or publicity claims here. The point is that the scope of all such rights hinge on the personal artistic preferences of judges. There is no other way to characterize this. "Intolerable!" I say.
It is not a matter of respectfully disagreeing with the 9th Circuit about the subject of a parody or the court's conclusion in the Seuss case. It is a matter of not allowing them to decide the question in the first place. Once we allow judges to decide such questions, then the core of the First Amendment is ultimately in jeopardy.
So - the bottom line is that the Miss Piggy photo posted at Trademark Blog shouldn't infringe on any Muppet/Jim Henson/Janet Jackson trademark. But, because of the ridiculous ruling by the 9th Circuit, people who don't appreciate the broader realm of parody that the photo touches upon can use that case to stifle what is (in this humble blogger's personal opinion) a great creative and funny work.
Perhaps the Trademark Blog doesn't really feel that the Miss Piggy picture would be an infringing work. Otherwise it wouldn't be posted on the site - lest it too would be held liable by the corporate forces of Jim Henson Enterprises and/or Janet Jackson, Inc. (Of course it could claim "fair use" based on news or academic considerations - but my broader themes and criticisms in this post could easily apply to what the courts have done with those subjects as well. We can save that for another post.)
Still, any serious discussion of the Miss Piggy trademark subject must center around the propriety of the Seuss v. Penguin Books case. This legal excrement must be overturned as soon as possible and in the broadest manner available.
Whew! Enough of that rant.
Sorry. It really gets my blood boiling.
Now on to calmer stuff like the death penalty...
UPDATE: A friend challenged me to summarize my point on this into one sentence rather than an extended rant. Ok. Challenge accepted. Here is the media sound bite version -
It is illegitimate for courts to use subjective artistic interpretations in order to decide substantive issues of law.
By a vote of 9-2, the 9th Circuit Court of Appeals ordered that certain evidence in Kevin Cooper’s case be given a new look by the lower District Court. (Adobe Acrobat required for the link).
Cooper was sentenced to death in 1985 for the hacking to death of Doug, and Peggy Ryen, their 10-year-old daughter Jessica and their 11-year-old house guest Chris Hughes. Eight-year-old Josh Ryen was also attacked but managed to survive.
Two interesting and relevant points that I haven't seen the media pick up on:
First, the court granted the delay to give Cooper's defense team time to test Cooper's blood found on a T-shirt connecting him to the crime scene for EDTA - a crime lab preservative agent used to prevent blood samples from spoiling.
This is the exact same defense that O.J.'s defense team used!
Don't you remember them calling a witness blood expert who testified that he found EDTA in blood stains from a sock found in O.J. Simpson's bedroom and a stain on the back gate at the Bundy residence??
In short, Cooper’s defense team is taking a cue directly from Johnnie Cochran’s playbook.
They even got Jessie Jackson to state that Cooper's execution would amount to a "legal lynching".
Ah. Jessie Jackson - Playing the race card...and dealing it from the bottom of the deck.
The second interesting point is the argument the two dissenting judges on the 9th Circuit made.
Judges Tallman and Bybee noted that
the bloody t-shirt that the defense attorneys want tested for EDTA has been in the continuous possession of the state court since Cooper’s original trial in early 1985 – before the advent of forensic DNA testing!
Therefore, the law enforcement officials would have had to have planted the blood while foreseeing the future invention of DNA technology evidence in trials that would point to Cooper’s guilt. (?!!)
The dissenters also noted that the tampering claim was dealt with both at his trial and at every proceeding since his trial over the course of 18 years.
Sure. The media will give us the headlines. But will they give us these details?
After all, what is a capital murder case built on if not details?...
After 10 years in Pasadena, the Calblog husband and I are moving our firm to downtown LA next week. Yes, the commute will be longer. However, we are hoping that the move will resolve a number of other challenges. If it does, the commute will be a minor factor.
The past couple of months have been taken up with the move. First we had the negotiating for space and the accompanying decision-making processes. Now it's the packing. Since we are reducing the amount of square-footage, we are shipping a lot to storage and so I'm personally going through each file to determine where it goes. It doesn't take much time to put it in the box once I've decided where to send a file, so I'm packing boxes too.
The days go like this -- court or client meeting, then all drafting that must be done to meet court deadlines, and the remainder of the day packing. Calblog husband says it hasn't been too stressful. Of course, he gets to ask "Are we on schedule?" and hear the word "Yes."
With luck, in 10 days or so, I'll be back to blogging just in time for the CA primary and initiatives.
Lee Blog has a great summary of the oral arguments this week in the seminal Grokster case, which could be vital to future of copyright and technological freedom in this country. (thanks to the Legal Theory Blog for directing me to Lee Blog.)
I too listened to the recording of the oral arguments at the 9th Circuit Court of Appeals and agree with Lee Blog's observations. However, there were a couple of additional points that struck me:
1. I was disappointed that nobody in this debate seemed to challenge the notion that any trading of copyrighted material should be considered a per se violation of copyright law. This shows just how far the notion of "fair use" has been swept under the carpet in recent years.
If I purchased a music CD at a store, and the CD either turns out to be defective or gets destroyed in a mishap, don't I have at least a colorable argument that I should be able to use file-sharing technology to regain my purchased songs rather than be forced to go back to the store to exchange it or buy another copy?
What about music scholars doing legitimate research on hard to find music tracks?
The point is that parties should not just ask what is being traded on file sharing systems but why its being traded in each individual instance. A claim for copyright infringement is always fact instensive for each individual instance of copying. The fact that entertainment companies can't keep up with the volume of copying should not be of any concern to file sharing software companies, nor should the courts change that long-standing equation. This also goes to the heart of the question posed by the Sony case - is a technology capable of "substantial non-infringing uses"?
This leads me to the second criticism of the arguments:
2. There was much debate on just what the phrase "substantial non-infringing uses" means - both in the context of the Sony VCR case and as it applies to Internet file-sharing programs. Unfortunately, both sides got sidetracked into a debate on "percentages" of unauthorized copyrighted files versus authorized or public domain files.
Grokster's attorney Fred von Lohmann even committed a minor mistake at one point and suggested that if the number of authorized files traded were only under 8% of the total files traded, then a minor side note in Sony's factual background suggests that it might still be an open question if this is "substantial non-infringing use".
This of course is to miss the point of Sony entirely. Sony declares that a technology must be capable of "substantial non-infringing" uses. Percentages of non-infringing use verses infringing uses are completely irrelevant.
For instance, if the entire nation were to drink some strange Kool-aid that made everyone use Xerox machines only to make complete copies of copyrighted novels, could courts reverse their earlier rulings and then declare Xerox machines to be illegal based on new factual evidence? Of course not! The solution would still be to target the individual copiers.
The lawyers got blindsided by the phrase "substantial" when von Lohman should have emphasized the phrase "capable of".
"Substantial" in this instance is connected to the phrase "capable of" in relation to its core function. In other words, it is not enough to show that a VCR can be used as a paper-weight, a door jam, or thousands of other uses unrelated to taping television shows. It must simply be shown that it has the mere potential to be used to tape shows in a non-infringing manner that is not merely de minimus.
To put it another way, the phrase "capable of substantial non-infringing uses" has nothing to do with the number or percentages of non-infringing uses that it is actually used for. Rather, the phrase refers to the kind or quality of use that it has the potential to be used for - aside from the fact that it can also be used to violate copyright protections.
It is also for this reason that the intent of the technologies' creators are wholly irrelevant to the inquiry. Even if these programs were created solely for the purpose of violating copyrights in the minds of the inventors, the Sony principle will still stand if a technology's end users manage to find a substantial non-infringing use for it.
Let me note here that these criticisms are nitpicking overall. Von Lohman did a GREAT job and the judges were surprisingly on top of the big picture here.
Von Lohman's "percentage" remark was really a brief off-the-cuff observation that did little to detract from his overall presentation. Anyone who cherishes freedom in this country owes him a big "thanks".
The overall arguments seemed to center on the following question: Was the Sony case a narrow ruling largely limited to its facts? Or was it a template for a much broader principle that suggests the Napster case is the narrow ruling limited to its facts?
I have seen many instances where judges' questions give the impression that they will rule one way, but then end up ruling the other way. They often like to pose questions just to put on a show if the truth be told (any appellate lawyer will back me up on this).
Still, the overall session was very encouraging. Now we just have to wait and see.
One thing I think we often forget about America, is that it truly is Freedom's Last Redoubt. Truly, if America falls to some kind of unfree state, there will be no one to free us but ourselves. We will be left only to our own abilities. After all, who would set us free? The French, Germans they have shown themselves to fall to the temptation of despotism, as the same is with China. Japan is free, but they lack any capability to free us. In some ways, this speaks to the poignant necessity of the second amendment. As Kozinski writes, it is, our doomsday provision. Additionally, we must be careful for only a small minority of citizens would stand up for what they believe to be right. The more we denigrate this small minority, the more likely that when our number is punched (the government moves to target us) there will be fewer to stand up and shout "Stop!, this is wrong and cannot happen."
On February 10, my mother will have been dead 12 years. On February 17, she would have been 64. I would have enjoyed teasing her about getting old, even if I weren't considering the alternative. I was thinking about this today as I was calendaring something else for the 17th. I have an urge to call her up and say "ok, 12 years, you've been dead long enough. Stop fooling around." Maybe year 13 will bering acceptance.
Amanda was convinced it was an accident. Then I showed her the picture of Janet was "wearing" underneath and she changed her mind and decided it must have been planned. Conversely, I now believe the "wardrobe accident" since the fuller explanation is that the leather was supposed to come away and a red lace bustier was suposed to stay. Only problem is that the nipple ring under a strip of red lace is only slightly less shocking. For more coverage, check out Blogcritics.
Tomorrow is D-Day at the 9th Circuit Court of Appeals that will have huge ramifications on the future of both music and information technology.
The original ruling that allowed peer-2-peer technology to exist is based on solid precedent. But that has never stopped courts from overturning rulings that go against their political and business interest biases.
The judge panel in this case consists of Boochever, Noonan and Thomas who have set aside a special 1:30 pm session in their calendar to hear arguments in this case alone after the usual slew of cases from the morning session.
This at least is a good sign that the court understands how important this case is.
How do the judges line up? Here is the little that we know:
Boochever is in his late-80's and was appointed by President Carter to the 9th Circuit in 1980. At the risk of sounding ageist, I am a bit concerned about an 80-something issuing vital decisions about new technologies.
That said however, one hopeful sign is that Boochever wrote the great decision in Hoffman v. Capital Cities/ABC which limited the nonsensical "right of publicity" when virtually everyone else was arguing that Dustin Hoffman should be paid boat loads of money because a magazine used his picture in a spoof without his permission.
Many people consider the "right of publicity" to be a form of intellectual property, so perhaps this is a hopeful clue. (Then again, maybe I am just clutching at straws in order to soothe my fears over how dumb courts can be sometimes.)
Next up - Noonan.
Noonan is in his late-70's and was appointed by Reagan to the bench back in 1985.
Harvard educated. Stints with the National Security Council and professorships at Notre Dame and Berkeley.
Wrote many books on Establishment Clause topics ("church vs. state" issues).
Wrote a book on federalism and state sovereign immunity where he criticizes the Supreme Court's current thinking on the issue. This includes apparently criticizing a Supreme Court decision that gave state governments immunity against claims of intellectual property infringement.
I didn't read the book, so hopefully his argument is centered on federalism that just happens to be incidentally related to copyright in that instance.
A critique of the book is here.
Also joined a decision that held that ideas with only limited range of expression are infringed only by virtually identical copies.
And finally - Thomas.
51-years-old. Appointed by Clinton in 1996. University of Montana Law School.
Not enough case background info at this time. Will advise.
No really, he leads in the delegate count despite recent events. (Hat tip: Real Clear Politics) Now, many of Dean's delegates can still switch their support but so far, we do not know of any who have.
I'm not easily shocked anymore. The double-entendres in that commercial for the daily "male enhancement" supplement were the last straw. As far as I'm concerned, anything goes. Why are they blurring out Richard Hatch's nether regions? Nipple-gate is just the next step.
The only interesting discussion is whether it was intentional and who was in on the intention? Justin claims it was a "wardrobe malfunction". Calblog twin Amanda believes him. I pointed out that Janet was wearing the solar thing underneath and why would she be wearing that if she didn't expect it. Amanda gave me that know-it-all sigh that 12-year-olds master so well and said "Mom, she's a singer."
So there you have it. Move on.
