Worldview: Legal Matters
by A Concerned Citizen
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Retired on 31 December 2007
Table of Contents
The Framework
Introduction
Supreme Court
Civil Rights
Legal Nightmares
Introduction
Civil Liberties
Freedom of Speech
Crazy Lawsuits
Divorce Court
Other Articles
Doing Hard Time
False Convictions
Unfair Representation
Prison Horror
The Drug War
Juvenile Crime
Other Articles
Patents & Copyrights
Eternal Copyrights
Chipping Away at Fair Use
Internet Neutrality
Outrageous Drug Prices
The Framework
Introduction
8 Feb 07: This page focuses on specific problems with our legal system, starting in the second chapter below called Legal Nightmares (see menu above). However, this initial chapter addresses broad issues of the law, such as the Supreme Court or civil liberties. It is intended for my own education and is far from complete. At present, I am most interested in learning more about the history of the Supreme Court. I am also concerned about the status of civil rights and liberties, which is more fragile than I realized. For instance, the wars on terror and on drugs seem to have produced abuses of personal freedom, based on the mass hysteria our Constitution is supposed to protect us from. We take those freedoms for granted and assume they are synonymous with democracy, but political reality suggests otherwise. Concerned citizens must be forever vigilant against the dark side of politics and even of the popular will.
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The Supreme Court
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Introduction (8 Feb 07): The difficult issues addressed by the Supreme Court test one's commitment to principle over politics. For instance, I consider myself fairly 'liberal', yet I would have to admit that it is quite a stretch to find a right to abortion in the Constitution. (I do agree that it should be there, at least during the first trimester.) On the other hand, basic civil liberties for blacks, which are surely implied by the spirit of the Constitution, failed to become reality until well into the 20th century. Thus, one cannot count on the legislature to guarantee rights that are surely intended by the Constitution, even if they are not stated as explicitly as one would like ... or even if they are.
A further example of the ambiguity surrounding the Constitution is the whole question of Presidential war powers. The document clearly states that only the Congress has the right to declare war, yet many a President has taken us into war anyway, with no such declaration. Hawks, including many 'moderates', affirm that the President's duties as Commander in Chief give him the freedom to 'repel invasions' without consulting Congress, as he must act in a hurry. We have seen to where such thinking leads in the case of the disastrous and deceptive Iraq war, and with earlier cases such as the Gulf of Tonkin resolution that got us embroiled in Vietnam. It is ironical that the same 'conservatives' who pontificate about 'original intent' and 'judicial overreach' when it comes to domestic issues are only too eager to grant the President quasi-dictatorial powers in war, which are not in the Constitution. Indeed, the President seems to have the power to get us into a war almost at will, with the Congress generally abdicating its responsibilities, for fear of popular hysteria when it comes to national security. Conservatives are generally only too pleased to whip up this hysteria, for their own political gain, and because they are predisposed to the dark view of things.
NOTE: To be fair, one must distinguish between libertarians and the kind of radical and hawkish 'conservatives' into which the Republican party has degenerated in recent years, perhaps under the feedback influence of its own aggressive and sleazy propaganda.
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Roe vs. Wade (2 Jul 06): The Bush administration's recent belligerence towards the Constitution and the Supreme Court has moved my sympathies towards the Democrats, but lest you think I am a classic liberal, allow me to take on a liberal shibboleth, namely, Roe vs. Wade. I don't want to go into great detail over this; I only want to say that the conservatives are right that it is stretching the Constitution to the breaking point to find any right to abortion in it. I am completely in favor of a woman's right to choose, at least during the first trimester or so, but I also realize the importance of a properly functioning government, with the three branches working as they are supposed to. The Congress threw a hot potato to the Supreme Court, and this bit of cowardice set a terrible precedent. The issue of abortion should go back to the states, where most states with a first-world IQ will vote to preserve it, in more or less its present form.
Let me add that the 'right to privacy' is not totally absurd, but it is still too loose for comfort. Such judicial liberty could prove dangerous in other, completely different, contexts. For example, at the present moment, the Republicans interpret Article II, Section 2 to give the President a virtual 'blank check' as Commander in Chief, and this idea seems entirely contrary to the spirit of the Constitution, even if some famous presidents have behaved that way in the past. Just because a President has a big marble monument in Washington does not give him retroactive papal infallibility.
While we're on the subject, I don't see where Article II, Section 2 gives the President sweeping legal powers during wartime:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Several arguments are clearly, if implicitly, addressed to him, aimed at shifting the focus away from an abortion technique and toward broader jurisprudential issues in which Justice Kennedy is deeply invested.
For example, the federal law is depicted as an example of Congressional defiance of the court's authority to interpret the Constitution. The law lacks the exception for a pregnant woman's health that the court held in the Nebraska case to be constitutionally required; Congress simply declared that the procedure was never necessary.
Justice Kennedy is perhaps the leading expositor among the current justices of the court's primacy in constitutional interpretation. He wrote the landmark decision in 1997 that rejected Congress's effort in the Religious Freedom Restoration Act to trump the court's view of the First Amendment's 'free exercise' clause. Back to Supreme Court
The Justices (30 Jul 06): I missed out on blogging the great Roberts and Alito nomination brouhahas, but now it is time to examine the aftermath, as well as the general direction in which the court is going. If I seem biased starting with Ted Kennedy, it is only because his article gave me the idea to open this section up. Actually, the title of this section is too broad. Let it be taken as a statement of intent only, namely to take a closer look at the court and the justices. I have been engrossed in foreign affairs and other matters.
Back to Supreme Court
A First Look at Scalia (4 Nov 06): I am too much of a novice when it comes to the courts to write anything of a general nature. Therefore, I will proceed by accumulating snapshots and vignettes. Here, I will take a first look at influential justice Antonin Scalia, who has become the standard bearer for a strict and literal interpretation of the Constitution. I have already written on how conservatives who voice this opinion regarding social legislation, such as Roe vs. Wade, suddenly swing to the opposite view when it comes to, say, giving the President sweeping powers during wartime — powers which are difficult to discern in the actual and sparse text of the Constitution. Is this true of Scalia? Let us poke around on the net a bit and see.
Lately, I have become interested in the attempts of conservative Christian groups to encroach on the Constitution. For example, my common sense understanding of the 'separation of Church and State' would include barring the Ten Commandments from any courthouse or public building. This view is greatly reinforced from an 'original intent' perspective by considering the Treaty of Tripoli of 1797, in which the entire Congress, including all the signers of the Constitution, affirmed that "... the government of the United States of America is not in any sense founded on the Christian religion..." Hence, when Scalia declares that the Ten Commandments have long been accepted by the nation's majority as "a symbol of the fact that government derives its authority from God [. . .] The minority should be tolerant of the majority expressing its belief that this government comes from God," he is being more than a little ahistorical, if not hypocritical. True, he substitutes 'God' for 'Christianity', but this seems like a legal quibble to me. In fact, the distinction is moot, since the Ten Commandments are intrinsic to the so-called Judeo-Christian tradition, though even mention of an abstract 'God' has no place in our political life, as far as I am concerned. Indeed, the word 'God' is never mentioned in the Constitution.
How does Scalia fare on presidential powers? Here, he has shown that his judicial philosophy can sometimes defy political expectations. In the famous Hamdi case, he joined his usual liberal opponent, Justice Stevens, in affirming that the government could not detain Mr. Hamdi and strip him of his legal rights as an American, simply by declaring him an 'enemy combatant'. (Hamdi had been so designated by the administration upon his capture in Afghanistan, where he was allegedly fighting for the Taliban.) Scalia asserted that either Congress must suspend the right to habeas corpus or Hamdi must be tried under normal criminal law. (The power to suspend habeas corpus is provided in the Constitution, to be exercised only during times of 'invasion' or 'rebellion'.) By contrast, the other 'arch-conservative' justice, Clarence Thomas, was the only member of the court to side entirely with the government. It does seem to me that the unchecked power to declare citizens as 'enemy combatants' could result in much mischief, especially during times of war or extreme political tension. If the government has a case, then give the defendant his day in court.
Scalia is well-known for his opposition to Roe vs. Wade. I have also expressed my doubt that any such right is to be found in the Constitution. Abortion is an example of an issue where the majority of the nation may in fact favor a certain 'right', at least within limits, but for various political reasons, it is very difficult to pass an amendment encoding that right. This leads to the tempting proposition that the Constitution is a 'living document' that should adapt to the changing sensibilities of society over time. Scalia points out the danger in that view, in that society need not become more enlightened with the passing years, and the Constitution could in fact become eviscerated if the court indulges in subjective interpretations of the text. I wouldn't mind if abortion reverted to the states (or was passed in an unlikely amendment).
Scalia is said to be equally principled on the right of free speech. For example, he ruled against criminalizing flag-burning, in a close 5-4 decision, which no doubt outraged many mainstream conservatives. Here, I find myself in the curious position of being even more of an 'originalist' that Scalia. Based on my naive common sense, I don't see what flag burning has to do with speech. I couldn't care less if people burn flags, but I think it's a bit of a stretch to consider it the kind of 'expression' that requires judicial intervention one way or the other. For me, freedom of speech has to do with words, whether they be spoken, printed or encoded in digital bits. (I suppose it could be extended to sign language as well!) Scalia has been accused of thwarting free speech in other arenas, such as upholding a gag order on abortion counseling for health care providers receiving federal funding. While, I deplore the gag order, it seems not unreasonable to me for the government to stipulate conditions on the money it hands out, just as a contract might. Freedom of speech as a 'fundamental right' is clearly meant for political, intellectual and artistic expression.
Good God! If I continue I will turn myself into a Scalia! For a self-proclaimed 'moderate liberal', that would be like turning into a werewolf. Based on this preliminary and cursory investigation, I fault Scalia most for uttering the word 'God' while wearing his black robes. If I seem like a fanatical secular purist, then I will remind you once again of the Treaty of Tripoli, not to mention the absence of the word 'God' in the Constitution. (I just did a string search on a PDF version of the document! Nada. Zip. Zilch. Zero.) Neither is abortion mentioned, but this is trickier: I strongly favor a woman's right to choose during the first trimester or so, as does the majority of Americans, but when all is said and done, it just isn't in the Constitution. Scalia has seemed principled on free speech and presidential powers, in a way that could be called courageous for a justice less overweeningly self-sconfident than Scalia. My instincts are libertarian and secular, but perhaps the best way to preserve freedom is indeed to take the Constitution and the separation of powers seriously and literally. Or maybe it's not so simple. I need to study this vast and important subject further.
One can argue about this view, of course, but Congress generally chooses not to, despite occasional prodding from Supreme Court justices such as Antonin Scalia. In a dissent in Hamdi v. Rumsfeld, the 2004 decision requiring the administration to give detainees some neutral forum in which to make their case, Scalia noted that the Founders mistrusted military power 'permanently at the executive's disposal'.
'Many safeguards in the Constitution reflect these concerns', he said, including expressly involving Congress in the war-making function. Indeed, wrote Scalia, 'except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II'.
Scalia also chided Congress for its 'lassitude' on the topic. Back to Supreme Court
Other Articles
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Civil Rights
Introduction (25 Oct 06): Until recently, I had no idea that there was any fundamental problem with democracy and civil rights in this country. One exception was the war on terror, a novel and unique situation, which has led to some troubling new legislation and programs, and that has been discussed in detail on my page called Domestic Security. Civil rights issues related to the war on terror will continue to be addressed on that page, but all other issues will be addressed here.
What triggered my concern was a 2004 article by Robert Kuttner called America as a One-Party State. Notwithstanding that he is a liberal, lefty, partisan Democrat, or what have you, the article is sufficiently detailed and factual that it has credibility. I had vaguely heard of legal and electoral shenanigans by the Republicans, but I felt that must be business-as-usual, as we have also had from Democrats over the years. Kuttner argues that under DeLay, the Republican party leadership has taken a much more autocratic stance than ever before, severely circumscribing the legislative process, and rigging the electoral process as never before, sometimes in collusion with Democrats. Further, there is the issue of a sharp shift to the right on our courts, which could affect civil liberties and even the political process for decades to come.
Another source of concern was the website Theocracy Watch, which I have discussed at length here. This site argues rather persuasively that the Republican Party has effectively become the Christian Party. I once dismissed such ideas as liberal and leftist propaganda, but now I am concerned. We'd better not throw out the ACLU and similar organizations, even if they sometimes go too far!
At the same time, I realize how vulnerable this very discussion is to politics and hyperbole from all sides. So I will continue to collect a variety of articles, until I feel that I have a better overall picture of the situation. Until now, I have mostly been interested in foreign policy, so that my experience with the domestic scene is lacking.
This discourse in this section will remain general. Specific issues such as the Supreme Court or abortion are also addressed in the following sections. Here are some key websites related to civil liberties and preserving a healthy democracy:
And here are some articles to start us off:
Back to Legal Matters
Introduction
May 2006: I keep reading news stories that suggest that our justice system, far from being the best in the world, is often an outrageous nightmare. Men in prison for years for rape are exonerated by new DNA evidence. A child's prank turns into a lawsuit. The malpractice lottery drives doctors' insurance costs sky high while lawyers laugh all the way to the bank. O.J. Simpson goes free. (OK, I'm only 99% sure on that last one.) The legal nightmares, combined with political corruption and a dysfunctional government, could lead to a loss of faith and a weakening of the social fabric, with catastrophic consequences. We keep priding ourselves on being so much better than so many 'third world' countries, but how often does this fail to be true? Much of this legal insanity stems from good intentions, either from fear of crime or fear of injustice, but the remedies don't work if the system isn't honest and intelligent. Mass hysteria is part of the problem, e.g. in dealing with non-violent drug offenders, but ACLU dogmatism contributes its share too.
For now, I will collect articles as they arise, then maybe one day I'll write some more.
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Civil Liberties
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Introduction (Summer 2006): I had assumed that we were such an advanced and humane country that there were few problems regarding civil rights. (The controversy surrounding the War on Terror is a special and unprecedented situation, which must be dealt with separately, as I do here.) One must never have such naive faith in human nature. The Founding Fathers certainly did not. Humans are imperfect, and constant vigilance is required. The ACLU may go too far in some cases, but they perform an invaluable public service. And if they are too extreme, then responsible lawyers should get together and form a more moderate alternative.
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Questions About Tasers (18 Aug 06): Tasers are electric stun guns which are being increasingly used by the police in situations that do not seem to be necessary for self-defense, e.g. in pursuing fugitives or in controlling inmates. Billed as non-lethal, this has sometimes been taken as a license to use them like cattle-prods against human cattle. They can be very painful and even lethal. They can also be 'humiliating', in that they victim may feel paralyzed and on the verge of death. Though there are no doubt many rotten characters in our streets, these devices have also been used against mentally deranged people or even against a driver slumped on the wheel in diabetic shock. It is noteworthy that police departments cannot be trusted to develop humane guidelines on their own.
[. . .]
In the span of three months — July, August and September — Wilson's Taser-related death was only one among several. Larry Noles, 52, died after being stunned three times on his body (and finally on his neck) after walking around naked and 'behaving erratically'. An autopsy found no drugs or alcohol in his system. Mark L. Lee, 30, was suffering from an inoperable brain tumor and having a seizure when a Rochester, N.Y., police officer stunned him. In Cookeville, Ala., 31-year-old Jason Dockery was stunned because police maintain he was being combative while on hallucinogenic mushrooms. Family members believe he was having an aneurysm. And Nickolos Cyrus, a 29-year-old man diagnosed with paranoid schizophrenia, was shocked 12 times with a Taser stun gun after a Mukwonago, Wis., police officer caught him trespassing on a home under construction. An inquest jury has already ruled that the officer who shot Cyrus — who was delusional and naked from the waist down when he was stunned — was within his rights to act as he did.
[. . .]
Former U.S. Marshal Matthew Fogg, a long-time SWAT specialist and vice president of Blacks in Government, says that if stun guns are going to be used by law enforcement, training on their use should be extensive, and that the weapons should also be placed high up on what police officers call the 'use-of-force continuum'.
Fogg isn't alone in calling for such measures. In October 2005, the Police Executive Research Forum, an influential police research and advocacy group, recommended that law enforcement only be allowed to use Tasers on people aggressively resisting arrest. The organization also recommended that law enforcement officers needed to step back and evaluate the condition of suspects after they had been shocked once. Similar recommendations were included in an April 2005 report from the International Association of Chiefs of Police. That report also urged police departments to evaluate whether certain vulnerable groups — including the mentally ill — should be excluded altogether from being shot with Tasers.
Although Fogg's organization has called for an outright ban of Tasers until further research can be conducted, Fogg says that he knows responsible members of law enforcement are perfectly capable of using the weapons effectively. Officers who are willing to put their lives on the line for the sake of the community, he emphasizes, must be given the tools and training to be able to minimize harm to themselves and to others.
Fogg, who also serves on the board of Amnesty International USA, says that too many members of law enforcement seem to be using them as compliance mechanisms. 'It's something along the lines of, 'If I don't like you, I can torture you'', he says.
[. . .]
'When a person comes into our office after they've been [Tased], it's not as much the physical pain they talk about as much as the humiliation, the disrespect', she says. 'The people [who are stunned by these guns] talk about not being able to move, and thinking that they were going to die.'
As for actual Taser-associated deaths, Secrest believes that they should be investigated just as thoroughly as deaths involving firearms. Instead, Taser injuries and deaths are typically justified because officers report that the suspect was resisting an arrest.
'That's the magic word: 'resisted'', says Secrest. 'Any kind of police oversight investigation tends to end right there.'
[. . .]
In late September, Kevin Alexander, 29, was awarded $82,500 to settle an excessive force federal lawsuit after being shocked 17 times with a Taser by a New Orleans Parish police officer. The department's explanation: the shocks were intended to make him cough up drugs he had allegedly swallowed.
One recently settled Colorado case involved Christopher Nielsen, 37, who was 'acting strangely' and was not responsive to police orders after he crashed his car. For his disobedience, he was stunned five times. When it was revealed that Nielsen was suffering from seizures, the county settled the case for $90,000.
An Akron, Ohio, man also recently accepted a $35,000 city settlement. One day in May 2005, he had gone into diabetic shock and police found him slumped over his steering wheel. Two officers proceeded to physically beat, Mace and Taser him after he did not respond to orders to get out of the car. COMMENT (18 Nov 06): It seems that tasers are being used in situations other than to subdue truly aggressive suspects. The case of mentally-impaired people is particularly tragic and problematic. Many 'street people' are like this. And even if the taser is generally non-lethal, has enough thought been given to the pain that it causes? That is important too. How high should the voltage be set? 50,000 volts sounds like an awful lot! It appears that under a conservative federal government, a somewhat cavalier attitude has been taken towards the widespread use of tasers without adequate guidelines. Contrast that with the hysteria over drugs! I should think that police departments would have the innate decency to impose such rules on themselves, but only the 'far-left' bastion of San Francisco has taken such steps. That tells you something about the human-rights concerns of mainstream America, not to mention conservative America. Better not lynch those 'activist judges' quite yet! Nor the ACLU.
Back to Civil Liberties
Cops Fear Lawsuits (22 Aug 06): I don't want to seem one-sided on the issue of excessive use of police force. I realize that officers have a dangerous but essential duty to perform, and many difficult situations are a judgment call. Few Americans realize how harassed the police feel at the threat of lawsuits. Many of these lawsuits may be heard by 'juries of peers' which are sympathetic to the victim for racial or other such reasons. Often, they are manipulated by 'activists' who really care more about stirring up trouble than in establishing true justice. The O.J. trial is still fresh in my mind.
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Other Articles
Despite that publicity, the inner workings of Perverted Justice and its reclusive founder remain largely a mystery, even as the group has emerged as one of the most effective unofficial law enforcement groups in the country, a kind of Neighborhood Watch of the Net. But the group is also criticized by some legal and law enforcement experts, who accuse it of entrapment, making mistakes that ruin innocent lives and, paradoxically, disseminating its own brand of child pornography.
Peter D. Greenspun, a lawyer who defended a rabbi from Rockville, Md., caught in a 'Dateline' sting arranged by Perverted Justice, said that by posting online transcripts of conversations between would-be child molesters and volunteers posing as 12- and 13-year-olds, Perverted Justice was encouraging, rather than deterring, pedophiles.
'They are putting out for unfiltered, unrestricted public consumption the most graphic sexual material that they themselves say is of a perverted nature', Mr. Greenspun said.
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Freedom of Speech
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Crazy Lawsuits
2006
Horrifying as that statistic is, this one is worse: 'Twenty-nine percent of adults have experienced or observed sexual advances between people who work together at such gatherings.' Now, you may not have known that observed sexual advances are legally actionable. Frankly, it was news to us, as well. But that means your potential liability as a prospective host is through the roof. Duke Case
The same can't be said of their false accuser — who is in a world of trouble, since you're not supposed to make false accusations to the authorities.
But her dire fate will seem positively sunny compared to that of Durham DA Mike Nifong — who is certain to be sued for defamation, likely to be disbarred and very possibly charged with an open-and-shut case of perjury that could land him in jail for a long time.
Yet some of the most disgraceful actors in this case will go unpunished.
I'm referring to a huge cohort of the professors at the top-flight university attended by the three unjustly accused men. Some 88 of them — more than 10 percent of the entire Duke professoriat — engaged in a shocking rush to judgment in the weeks following the party where the accuser falsely alleged she had been raped. 2007
In a case where there was zero evidence of the defendant having transferred any of those files?.
It is one of the most irrational things I have ever seen in my life in the law. If the Judge doesn't set aside the verdict sua sponte, I expect there to be motion practice to set aside the verdict, based on its obvious unconstitutionality and numerous other reasons, and if that fails I expect there to be a successful appeal.
It is an outrage, and I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.
All the business people who make a living from the vibrancy, democracy, and freedom of expression which is the internet, need to get behind the RIAA's victims; if they do not, the world in which they hope to thrive and prosper will disappear rapidly.
The RIAA ghouls smelled blood in Duluth, and I guess they were right.
But it isn't over.
-R.B. Back to Legal Matters
Divorce Court
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Other Articles
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False Convictions
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Unfair Representation
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Prison Horror
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The Drug War
'Dissenting justices warned Thursday that police will now feel free to ignore previous court rulings that officers with search warrants must knock and announce themselves — giving residents at least 15 to 20 seconds to respond — lest they run afoul of the Constitution's Fourth Amendment', I wrote at the time.
The four dissenting justices pointed out that the decision erases more than 90 years of Supreme Court precedent. 'It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection', Justice Stephen Breyer wrote for himself and the other dissenters.
In fact, the Fourth Amendment contains no 'knock-and-announce' language. The so-called '15-second rule' was already a dangerous infringement of that right. ...
'Will anyone be surprised if some innocent parties, confronted by such a home invasion, reach for their own bedside shotguns, with loss of life resulting?' I asked back in June. 'Or will we simply be told, They brought it on themselves, all they had to do was obey the orders ... of strange home invaders shouting at them in the dead of night?'
NOTE: The article goes on to discuss an elderly woman who was recently shot under just such circumstances. Back to Legal Matters
Juvenile Crime
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Other Articles
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Eternal Copyrights
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Introduction (27 Aug 06): I love it when classic books and musical recordings become available online for free by passing into the public domain. Unfortunately, this takes many decades at present. Of course, the author or artist needs to derive income from his good work, but must this go on 70 years past his lifetime, as under current law? A maximum of 30 years from the date of publication sounds about right to me. I have heard that political pressure (i.e. money) from Disney on Congress keeps getting the Mickey Mouse copyright extended each time it is due to expire. Of course, all of the entertainment business benefits from this corrupt extension of their monopoly privileges, but what is the price to society? The more good information and entertainment are available, the better a democracy we will have, and the higher our quality of life. Few can afford a huge library, yet it is nice to be able to sample one at will from the computer terminal. How sad that this wonderful promise is being denied. Must greed determine everything in public life?
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Copyright Restricts Creativity (30 Aug 06): The article by Smiers argues that stringent copyright laws, far from rewarding creativity, may actually inhibit it. All culture is based on the exchange of ideas, and current copyright law severely restricts this exchange. I argued this a few months ago in the special case of the Kaavya Vishwanathan affair (see next item).
One might ask whether such a protective layer is really necessary for the evolving process of artistic creation. Our proposal, which will entail three steps, will demonstrate that this is not the case. The authors then propose an alternative. Note that copyright mostly enriches big entertaimment businesses and the few popular artists who strike it rich.
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Kaavya Vishwanathan (27 Aug 06): Here is a case involving copyrights that caught the public attention by storm for a few weeks back in early May, especially on the internet. Now this particular case is long forgotten and seems a bit antiquated and irrelevant, but I still think that some important principles are at stake. So, for the record, here is what I wrote at the time:
Now I certainly don't want to defend 'chick-lit', which I would surely never want to read. My anger is directed at poor Kaavya's almost unanimous trashing on the web, as though from a frenzied mob. Even Salman Rushdie felt the need to chime in. She appeared on TV and said that she had 'internalized' those passages years ago in her subconscious, and they came out unintentionally when she wrote her book. This explanation is entirely credible! Haven't many great artists done something similar? Picasso once said, Good artists copy, great artists steal. Creativity without imitation is sterile mediocrity. I know music better than literature, and I can assure you that so powerful a genius as Beethoven owes a huge debt to Mozart, Haydn, Handel, Bach and others, even in his later works. One could easily argue that many of his musical 'phrases' are borrowed and 'repackaged'. None of Kaavya's 'borrowings' are outright copying, though some of them bear a strong resemblance to other passages by other authors. So what? How many ways are there to say something, anyway? Especially something trite? If you write a sentence that shares a few words in common with somebody else's, are you a criminal? At what point? Can it even be measured?
Here is one of the few articles I found on the web expressing sympathy for Kaavya. It starts by making an excellent point nobody else has, that Kaavya's few passages make up less than 1% of the total and so probably come under 'fair use'. A copyright lawsuit would probably fail! Yet this young woman has been left out to twist in the wind, and her career may be irreparably damaged. Nobody came to her defense. And who can refute her claim that the similarities are unintentional?
Copyright is a good idea in principle, but it has degenerated into nothing but money, money, money, like so much else in American life. I have been told that the expiration date on copyrights keeps getting pushed back in Congress so that Disney can keep owning Mickey Mouse. It's all done through the usual campaign contributions. Money in Congress rules everything! Pretty soon, we won't even have fair use anymore. The creative process requires sharing. There must be a balance between the author's right to make money and society's right to a vibrant culture. The threat is to more than mere entertainment; it is a threat to the soul of our society.
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Other Articles
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Chipping Away at Fair Use
Introduction (27 Aug 06): Fair use is an exemption to copyright for such uses as research or satire. It keeps getting chipped away by the greedy publishing and entertainment industries, through their bribery of Congress. A generous policy of Fair Use is essential to a healthy democracy and a vibrant culture.
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Internet Neutrality
Bill Moyers: The Net At Risk (19 Oct 06): This is a very important documentary, which you can read online if you missed it on television:
Note that there is already a discrimination based on price: DSL, cable, T1, etc. That is not what is meant. Rather, the point is that once you choose your service, any website comes up at the same speed, just as all vehicles have the same access to our roads. Even with a toll road, the vehicles are treated the same, once the toll is paid. With regards to the net, this allows small voices to be heard, which provides an enormous and much needed boost to our democracy, which is constantly in peril of being swallowed up by big business and its huge clout over our corrupt congress. Democracy is not a magical solution for good government. The danger of corruption is always there, and the internet is one populist miracle that we must not have stolen from us.
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Outrageous Drug Prices
Introduction (27 Aug 06): The price of many drugs is outrageous. I realize that there are research and other costs to recuperate, but the sheer magnitude of the prices is way out of line. They clearly are an artificial product of the patent stranglehold, which drug companies have interpreted as though they were gangsters. At some point, this stranglehold needs to give way to simple decency, especially with human life at stake (and I already have some doubts about this shibboleth myself). Obscene drug prices may eventually turn the public against the idea of free markets. Indeed, they are a betrayal of the free market, despite the rationalizations of some, and they arise from bribery of Congress, just like excessive copyrights. Unfortunately, most of the public seems clueless about this vital issue. Democracy seems to be failing. This is also discussed on my Healthcare page.
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Other Articles
Back to Legal Matters
Introduction
Roe vs. Wade
The Justices
A First Look at Scalia
Other Articles
U.S. CONSTITUTION
Article II, Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
All I read here is that the President is the Commander in Chief, which means that he gives orders to the armed forces during wartime. Yet, like medieval theologians, the hawks discern vast regal powers, including over the judicial process. This is said to be the 'traditional' interpretation. By now, tradition could be used to justify Roe vs. Wade. That doesn't sound to me like a rational approach to governing. Speaking of wartime, the Constitution explicitly says that war must be declared by Congress, but usually it is not. Where is the conservative outrage over that? Even with something as solemn as the Constitution, which is supposed to define our essence as Americans, it is the usual political games. Well, at least these games provide entertainment for the educated public, something to talk about if nothing else.
THE ROBERTS COURT TAKES ON ABORTION
Linda Greehouse, NYT, 5 Nov 06
Justice Sandra Day O'Connor, who retired in January, voted with the 5-to-4 majority. No one knows whether either of the two newest justices, her successor, Samuel A. Alito Jr., or Chief Justice John G. Roberts Jr., might step into her shoes. But the fate of the federal law may rest with Justice Kennedy, the only one of the four dissenters who accepts the court's precedents on the basic right to abortion.
Sen. Edward Kennedy (WaPo): Roberts and Alito Misled Us
Weekly Standard: Antonin Scalia, the good judge
Jan Crawford Greenburg: The Truth About Clarence Thomas
WHY WOULD CONGRESS SURRENDER?
Fred Barbash, WP, 31 Jan 07
The delegates changed the wording to 'declare war', not to remove Congress from the process but to leave the commander in chief the 'power to repel sudden attacks', as James Madison put it. 'The executive should be able to repel and not to commence war', agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because 'no executive would ever make war but when the nation will support it', said delegate Pierce Butler.
George Will: Supreme Court cleans up after 9th Circuit
Linda Chavez: Reshaping the courts
Dahlia Lithwick (Slate): What the Supreme Court justices won't say
BBC: Supreme Court refuses to hear 200-year porn sentence
John O. McGinnis: How the Supreme Court really works
Stephen J. Fortunato Jr.: Supreme Court Inc.
Robert Kuttner (Prospect): America as a One-Party State
People for the American Way: Bush Judges Confirm Opponents' Fears
Introduction
Questions About Tasers
Cops Fear Lawsuits
Other Articles
UCLA STUDENT GETS TASERED
Martini Republic, 15 Nov 06
Not sure what happened here. Disturbing video of a screaming student getting tasered by guards. I would expect a taser to be used only in a scuffle with a guard or policeman. It seems that at times the guard is ordering the screaming student to 'Stand Up!' Can one be resisting arrest while lying down? Perhaps he was kicking and thrashing and screaming, but perhaps that was due to the tasering, and he really couldn't get up. I can't imagine shooting someone who is lying down. Need more facts. Here's another take from (arch-conservative) Michelle Malkin. In general, I have some real questions about tasers, which sound like torture devices to me. Isn't it better for two burly guards to each grab an arm or something, if necessary?
UNTOLD STORY OF TASER-RELATED DEATHS
Silja Talvi, In These Times, 13 Nov 06
TASER International Inc. maintains that its stun-guns are 'changing the world and saving lives everyday'. There is no question that they changed Jack Wilson's life. On Aug. 4, in Lafayette, Colo., policemen on a stakeout approached Jack's son Ryan as he entered a field of a dozen young marijuana plants. When Ryan took off running, officer John Harris pursued the 22-year-old for a half-mile and then shot him once with an X-26 Taser. Ryan fell to the ground and began to convulse. The officer attempted cardiopulmonary resuscitation, but Ryan died.
AP: Man zaps wife's grandma with stun gun
Breitbart: Man dies after being shot with Taser
Insight Mag: Many cops fear being sued more than being murdered
Theodore Dalrymple: Real Crime, Fake Justice
ACLU: A video on how to deal with police, especially if you're guilty!
Sonja Barisic (Breitbart): Judge Orders Teen to Cancer Treatment
WEB SITE HUNTS PEDOPHILES, AND TV GOES ALONG
Allen Salkin, NYT, 13 Dec 06
Perverted Justice is best known for putting its online volunteers at the disposal of the television newsmagazine 'Dateline NBC', which has broadcast 11 highly rated programs in which would-be pedophiles are lured to 'sting houses', only to be surprised by a camera crew and, usually, the police.
NOTE: I'm not claiming these sting operations are necessarily a bad idea, but they raise some subtle civil rights issues (e.g. entrapment) that must be considered. Also, making a TV 'lions and circuses' spectacle out of it seems questionable.
Financial Times: UK report says robots will have rights [stupid!]
Detroit Free Press: Adultery could mean life in prison in Michigan
Paul Craig Roberts: The Empire Turns Its Guns on the Citizenry
Breitbart: UK Mother May Lose Custody of Obese Boy
WP: Fairfax schools ban all touching
George Will: Deconstructing 'Bong Hits 4 Jesus'
BBC: US woman injured and jailed for 'neglected' lawn
David French: The Unending Hypocrisy of Campus Censorship
London Times: Libel ruling heralds new era for British journalism
Sebastian Mallaby: No Defense For This Insanity (Vioxx trial)
Lawrence W. Schonbrun: Stop the con game of class-action suits
Margaret Talbot: Students are suing their way to the top
USA Today: Jury awards $11.3M over defamatory Internet posts
CatDogBlog: Principal May Be Charged in Cat Killings
GET SUED AT THE OFFICE HOLIDAY PARTY
Dahlia Lithwick, Slate, 1 Dec 06
According to this article, in a national phone survey of 1,051 U.S. adults ages 18 and older, conducted only two years ago, 'nearly one in four (24%) adults do not know that a party host who serves alcohol to a clearly drunk guest may be legally responsible if that person goes on to hurt or kill someone in a car accident'. Yet, the article continues 'one in five (20%) adults will host or co-host a holiday party this year at which alcohol will be served'.
60 Minutes: Duke Rape Suspects Speak Out [more]
Breitbart: Prosecutor Yet to Interview Rape Accuser
CBS 60 Minutes: Expert Admits "Big Error" In Duke Case
ABC News: Duke Prosecutor Wants Out
Slate: Did the Duke DA commit a crime?
DUKE CASE: WHO WON'T PAY
John Podhoretz, NY Post, 23 Mar 07
It seems that the trumped-up charges against three young men who played for the la crosse team at Duke University will be dismissed either today or sometime next week. That will mostly end their ordeal, though they'll still have to deal with millions of dollars in legal fees (which, in the end, the city of Durham, N.C., will probably have to pick up).
Questionable Conviction of Connecticut Teacher in Pop-up Porn Case
Breitbart: Passengers Sued Over Imams' Removal
ABC News: $67M dry cleaning lawsuit; case not thrown out
Times Online: Sex.com and a web of intrigue
$222,000 PENALTY FOR STEALING 24 SONGS
RIAA vs. People Blog, 5 Oct 07
A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?
St. Louis Post: Doughnut may cost man 30 years to life
Sean Thomas: With these laws, marriage is for mugs
Matthew Hutson: Scientific selection of juries
MyWay: Kevorkian's Cause Founders As He's Freed
Clarence Page: The Court Does Democrats a Favor
Woman arrested for allowing 18-year old son to drink at party
McDonald's employee who over-salted burger jailed
USA Today: Man exonerated by DNA walks free after 24 years
Toronto Star: Battling false child porn charges
60 Minutes: Katrina Doc Denies Mercy Killings
Texas List of Executed Offenders with Last Statements
Cognitive Daily: False confessions: Not as rare as you might think
Times Online: 201 wrongful convictions are tip of the iceberg
Steve Chapman: Why Moussaoui Escaped Death
National Geographic: Surviving Maximum Security
US DOJ Study: An Analysis of Non-violent Drug Offenders
John Stossel: Prison for You, but Not for Me
Theodore Dalrymple: Romancing Opiates
Neal Peirce (Seattle Times): King County's sensible take on drugs
THE UNCONSTITUTIONAL WAR ON DRUGS
Vin Suprynowicz, LV Review-Journal, 3 Dec 06
On June 15 of this year, by a slim 5-4 majority (thanks to the replacement of Sandra Day O'Connor by Samuel Alito, almost certainly), the Supreme Court ruled that — so long as they have a warrant — police can now break into homes and seize evidence without even knocking.
Radley Balko (Reason): Why former narcs say the drug war is futile
Website: Law Enforcement Against Prohibition
MS sufferer serving 25-year sentence for taking pain killers
Alternet: Will a New Study Force Changes in Drug Law?
Arianna Huffington: The War on Drugs Is Really a War on Minorities
Politico: Rep Barr Becomes Lobbyist For Marijuana Policy Project
Paul Armentano: New York City Is Hell for Pot Smokers
Kathleen Parker: It's Time to Rethink Marijuana Laws
BBC: Killer daughter case ignites US debate
Kathleen Parker: Sex, lies and prison [more]
KXXV (Texas): 4-year-old accused of improperly touching teacher
Herald-Mail (Maryland): School accuses 5-year-old of sex harassment
Slavery, the Prison/Industrial Complex, and American hypocrisy
Introduction
Copyright Restricts Creativity
Kaavya Vishwanathan
Other Articles
Joost Smiers (IHT): Imagine a world without copyright
We must keep in mind, of course, that every artistic work - whether it is a soap opera, a composition by Luciano Berio, or a movie starring Arnold Schwarzenegger - derives the better part of its substance from the work of others, from the public domain. Originality is a relative concept; in no other culture around the globe, except for the contemporary Western one, can a person call himself the owner of a melody, an image, a word. It is therefore an exaggeration to gratuitously allow such work the far-reaching protections, ownership title and risk-exclusion that copyright has to offer.
Early May 06: It seems that copyright law is becoming a threat to creativity. The following is actually a bad example, since we are not talking about high art, but the principle is the same, and I feel sympathy for this young woman. Kaavya Viswanathan is a sophomore at Harvard who wrote a 'chick-lit' book called How Opal Mehta Got Kissed, Got Wild, and Got a Life, which got her a $500,000 advance, unprecedented for a 17 year-old author. When it was revealed that some passages bore some resemblance to other books of the same genre, a scandal resulted, her book was withdrawn, and her contract was cancelled.
In fact, I am quite sure that true creativity is such an unconscious and spontaneous process, that those auteurs who truly mind their words are in a calculating frame of mind that produces only mediocre though perhaps lucrative works. You can call them 'career artists'. None of them have a true muse. This would include the whole slew of resentful would-be authors who attacked Kaavya so viciously on the web. (I'm sure that being a Harvard student only increased their glee.) These are often the same kind of people who are obsessed with the ups and downs of celebrities and politicians and who thrive on rumor and gossip.
Brand Name Bullies: How corporations misuse copyright ...
LA Times: Barney's Thin Purple Skin
Beethoven's Fur Elise melody now a patented trademark in Europe
Derek Slater: Copyright And Innovation Can Coexist
Basically, the issue is whether the internet continues to treat everybody equally, as do our roads and ports, or whether the mega-corporations who run the net will be allowed to discriminate based on price. Given the colossal importance of the net to the very fabric of our democracy, it is vital that internet neutrality survive. Unfortunately, this is a somewhat arcane topic, and it is not clear that the public will understand in time before the middle-of-the-night lobbyists can work their perfidy. One good sign is that groups as disparate as MoveOn.org and the Christian Coalition have come together to fight big business.
Robert Reich: The War on Internet Democracy
Julian Sanchez (in Reason): No need for new laws to keep the net open
John Nichols (in The Nation): House Rejects Net Neutrality
Brian C. Anderson (City Journal): Hands Off the Net
CPI: How the pharmaceutical industry gets its way in Washington
Peter W. Huber: Of Pills and Profits: In Defense of Big Pharma
60 Minutes: The High Cost of Drugs
Chicago Sun-Times: A dose of Wal-Mart may ease Rx costs
Webpage on how to sue telemarketers
Video: Carol Lam: A very nice U.S. Attorney [more]