Category: Culture

4

Bread, Not Politics, Rules The Day

A day after a major election, what rises to the top of the New York Times’ “most emailed” list? Rumsfeld’s resignation? The power shift in the House? No. Instead, a delightful pair: The Secret of Great Bread – Let Time Do The Work and its companion Recipe: No Knead Bread. Perhaps this intense interest in baking is understandable. The election is over and everyone needs a break. What could be more soothing than preparing a delicious loaf of homemade bread, then eating it? Perhaps all of us – Dems and Republicans alike – should get together over a fat yeasty loaf prepared strictly according to the Times recipe.

I wonder how long this languid state will continue. Will tomorrow’s most emailed article be another feel good piece – island spa massages under the stars, perhaps? – a chirpy politics cum pop-culture article (Obama’s book hits #1 on the charts) – or an anxiety inducing review of the Supreme Court’s argument on partial birth abortion? I know that I’ll need a day or two to relax and return to my normal business. Lacking the time to engage a fabulous slow-rising boule, perhaps I’ll stroll over to Cosi and purchase a squagel. It’ll go perfectly with the morning paper.

8

Borat’s Contract

Sacha Cohen’s movie “Borat” consists of a series of encounters in which the British comedian gets Americans to say and do all sorts of stupid things on camera by posing as a clueless — and often naively offensive — Central Asian reporter. (Heidi apparently liked the movie; given the presence of four-year-olds in my life I’ll have to wait for the DVD.) The BBC, which clearly relishes the prospect of an entire movie devoted to showing what morons the colonials are, reports briefly on the legal side of the gag:

They [Cohen’s subjects…victims?] would be told about the foreign correspondent making a film about life in the US, with the pitch tailored to each person’s specialist subject.

Then on the day of the interview, they would be presented with a release form at the last minute, be paid in cash and, finally, Borat would amble in, beginning with some serious subjects before starting his provocative routine.

I am very curious to see what is in that contract. It would be interesting to see the extent that it will hold up if Cohen gets to experience another aspect of trans-Atlantic barbarism: a good ‘ole fasion American lawsuit. (See the second to last paragraph)

[Update: Here is a copy of the contract via Slate]

1

Sacha Baron Cohen & Mark Twain

I knew very little about Sacha Baron Cohen before going to see “Borat” on Friday. (The full movie title being, of course, “Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan”).

I came out raving about the movie, essentially echoing the chorus of critics who call Cohen a brilliant social satirist. I think that New York Times film critic Manohla Dargis puts it very well when she says that Cohen, in giving racists, homophobes and misogynists just enough media rope to hang themselves unwittingly, more than realizes the goal that Jerry Lewis identified for comedians: “if the comic can berate and finally blow the bully out of the water, he has hitched himself to an identifiable human purpose.”

The scene that most stood out for me was a scene at a very large rodeo, in which Cohen, as Borat, gets the crowd to applaud wildly as he expresses violent, bloody sentiments toward Iraqis. It made me think back to a wonderful short story by Mark Twain that I’d read years ago called The War Prayer. I highly recommend reading the Twain story, and, of course, going to see Borat … (As for the parallel between the Twain story and the Iraq invasion itself – the parallel is less to that which we purport to be doing in Iraq, since we purport (sort of, when we’re not reciting other justifications) to be “liberating” Iraqis, and more to the hundreds of thousands of Iraqi deaths deemed to have occurred as a result of the invasion, and the relative media and public indifference to those deaths).

14

The Athenian Model

redrope.gifThe USA Today reports that shirking jury duty is an worsening problem. In response, local registrars are becoming punitive:

Tulare jury candidates who fail to show are warned that they could be found in contempt of court. If they do not respond, a second letter is sent, warning that a warrant will be issued for their arrest . . .

In Danville, Ill., a 19-year-old woman was found in contempt of court and sentenced to 14 days in jail for failing to appear for jury duty.

In Topeka, no-shows have been fined up to $100 a day.

In Grand Rapids, Mich., warrants were issued recently for the arrests of 56 people who failed to go to court and explain why they couldn’t serve.

It’s a trend. A foolish one. Why are folks always reaching for sticks, when there are carrots near to hand?

Seriously, jailing citizens for failing to be civic minded is, I think, a bad way of encouraging compliance. Why not try shaming, as the Athenians did with their famous red rope?

But, backwards.

Jurors ought to be given a public reward that will encourage norms of civic engagement. Like, say, a bumper sticker (“I love my state so I served on a jury.”), a t-shirt (“I’m not too sexy for jury service”), a newspaper advertisement (“Pennsylvania salutes its jurors . . . “), or a red ribbon. Such small rewards will have the incidental positive effect of making people happier with the experience itself. Jail time, by contrast, will only reduce civic support for the jury system, and will be unlikely to be enforced at levels sufficient to really deter shirking. And, tangible rewards are better than the empty rhetoric that currently marks the legal system’s approach to the reward-punishment problem:

“Conscientious service brings its own reward in the personal satisfaction that an important task has been well done. The effectiveness of our system of justice is measured by the integrity and dedication of the jurors who serve in our courts.”

6

Finally, Koons Won

blanch.jpg koons.jpg

Some of the most wrong-headed copyright law was developed by Post-Pop artist Jeff Koons–-by losing. It all started with Rogers v. Koons and Judge Haight (no relation & I’d deny it if there were just based on this opinion). In that case commercial photographer Art Rogers (yes, his name is Art with a capital A) sued Koons for copying his photograph of a seated couple holding numerous puppies on their laps. Koons sent the photo (he found it on a greeting card) to a art studio in Italy with instructions to reproduce it in a sculpture. Judge Haight easily ruled that this was copyright infringement and the 2d Circuit affirmed. In two subsequent SDNY cases, Koons had Judge Haight’s reasoning thrown back at him. (In these cases the photographer of “Boys with Pig” and the copyright owner of Odie were victorious.) Given Koons’ string of losses, photographer Andrea Blanch must have thought she won the jackpot when she saw her work reproduced in his collage painting “Niagra.” I don’t mean to comment on her motives, but the copyright lawyer she consulted probably envisioned attorneys fees.

There’s much to comment on here, including what the opinion does to fair use doctrine (especially transformative use & the parody/satire dichotomy) and what it does to the law’s treatment of appropriation art. But since I’ve written about these cases before, I’ll confine my post to an analysis of why the court reached a different conclusion in this case. As I read the opinion, I kept wondering why earlier Koons courts could not have taken the same approach. Let me first set out what’s the same in these cases. Koons has stuck with the same lawyer throughout, all the litigation has been in the 2d Circuit (SDNY), and this plaintiff’s profile is similar to Art Rogers’.

Now for the differences: 1) Here the plaintiff’s photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. In both the district court and 2d circuit opinion, plaintiff’s photograph is characterized as not being creative. (This affects the analysis under FU factors 2 & 3.) And as an advertisement, these courts are able to easily contrast it’s objective and message with Koons’ objective and message, thereby aiding Koons’ argument that his use is “transformative.” 2)The court “gets” Koons’ work. In the 1st Koons case, Judge Haight’s lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons’ 1st career was as a commodities trader & how he hires other artists to make his work.) After that, the 2d Circuit and subsequent SDNY courts replayed that assesment without any further opportunity for Koons to explain his work. The district court in this case produced a short opinion heavy on block quotes, including many from Koons’ affidavit. Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to “raw materials” such as Blanch’s photography.

In the end, justice was done here both to Jeff Koons and to the fair use doctrine. Unfortunately, the price of this legal success may be Koons’ status as bad boy of the art world. The doctrinal fit is so cosy that his work feels staid. It doesn’t push boundaries; it doesn’t piss off judges. His work is no longer illegal art, and, if we take him at his word that he’s created an entirely new work out of raw materials, it may not even be properly deemed appropriation art.

0

Xoxohth 1.1: The Past and Present

[This is Part I, Section 1, of the project I announced here. The goal of today’s installment is to set out the history of the XO board, and briefly describe its present statistics.]

goldencalf.jpgHugs and Kisses, Hope this Helps

The genesis of XO was less gripping, bloody, tortured, significant and miraculous than the Exodus, a tale which it otherwise resembles in important respects.

The community started as a group of posters at the Princeton Review Discussion Board [PR]. Some individuals began at PR in 1997-1998, as they were applying to college, and continued posting in that forum after matriculation. The reason that people spent time – sometimes 20 hours a week or more – at PR will become familiar:

Before I started law school, I posted on the former incarnation of xoxo (which was then run by the Princeton Review) because it was a wide-open and mostly unmanaged discussion. In one sitting I could have the most sober and serious conversations as well as the most silly and immature b******* sessions, all with the same group of people. The other, more “mature” boards were by comparison intellectual wastelands, partly because they were so “sober” and “mature.” All the really smart people shunned those boring boards in favor of pr (now xoxo).

But not all individuals were looking for information: some were actually, weirdly, (slumming) older alumni.

The standard foundation story holds that in March, 2004, PR switched to a new software format that users found irritating because it (1) enabled IP tracking; (2) discouraged use of multiple aliases; (3) discouraged abusive language through moderation and banning; and (4) eliminated the “‘tree’ format and switching to a vBulletin-type format that was heavily despised by most users.” See here and here and here for some posts from the period. One emailer explains:

The only moderators were Jeff Adams, a Princeton Review employee, and TPR Droid, who was a long-time poster that Jeff hired to moderate the board when he wasn’t around. Anger at TPR Droid’s moderation style was one of the main reasons for the initial rift — while Jeff was even-handed with deletions and bannings, many people felt Droid had an agenda since he would ban people for criticizing his favored posters, or delete racist threads directed at Jews and Christians while refusing to delete equally hateful threads about Muslims.

A group of users decided to leave PR as a group. However,

The law boarders didn’t know about the existence of xoxohth. [A user with the handle Rowan] organized an AIM chat and people were brainstorming ideas of how to re-create the board. I think rk even drafted a letter looking for corporate sponsorship . . . In the very beginning, the law and college boards were one. During those heady first days, all personal wars were called off – Edgar Martinez, Julia, RWA, LawyerBird got along – but soon order was restored and things returned to normal.

Obviously, the domain name had been purchased before problems on the PR board became exigent. According to a WHOIS search, the purchase of the xoxohth domain occurred on January 29, 2004. The buyer was Jarret Cohen, now in business in Pennsylvania. As you can see from this screenshot of the early board, it was intended to be a replacement for the PR community. Contrary to Eugene’s speculations, xoxohth is not a dungeons and dragons reference. It seems to stand for xoxo (hugs and kisses) plus hth (hope this helps).

It is also worth noting that there was an early worry that the former PR community would split into a college (XO) faction and a law faction, located at the JD2B board. A source comments:

[W]hen Marshall [Camp, JD2B’s owner] found out the xo board existed, he not only deleted the JD2B message board, but prominently linked to the board on his site and actively sent traffic our way; basically we were treated as JD2B’s unofficial messageboard.

That site probably accounted for 50-75% of our referring URL traffic in the early days

Organizational Control

Cohen’s – alias Rachmiel – and another user known as Boondocks (from the comics strip?) coded the initial software for the board, which (of course) was unmoderated. Boondocks, I am given to understand, is an African-American man who, though one of XO’s founders, forewent an administrative role after the first two months of the board’s existence.

Instead, in about May, 2004, Anthony Ciolli, a Penn Law student, became partners with Cohen. My sense is that Ciolli – alias “Great Teacher Onizuka” (manga comic reference?) – and Cohen split the board’s revenues 50/50, and share operational control over the permissions on the site.

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4

Race, Sports, and Hustle

Critical race analysis of sports law is a deep and rich scholarly topic. (See here for a nice example). It came to mind when a friend forwarded me this list, from the Major League Baseball website, which seeks to recognize the “Look Again Player of the Year“. As sponsor Joe Buck explains:

Behind every great team on the diamond, lurking in the shadow of baseball superstars, live the role players who sacrifice for their team in often unrecognized effort.

In other words, who are the overlooked hustle guys? The fan favorites. The gritty, wants-it-more, working-man’s players.

Notice anything interesting about the list?

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Net Neutrality: Law, Money, and Culture

dailyshow01.jpg

Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

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11

Anthony Trollope on Lawyer TV Shows

trollope.jpgOne of the unhappy side effects of a legal education is that it destroys your ability to enjoy lawyer movies and attorney TV shows. After I acquired the vast expertise of a single semester of law school, my wife informed me that I had become absolutely insufferable as a partner for watching “Law & Order” because I kept saying things like “That isn’t really how it works…” And “Law & Order” is actually a pretty accurate lawyer show. (Of course, watching ER with my wife is a pain.) Well, it would seem that legal nitpicking of the portrayal of the law in fiction is not new. I recently found the following complaint written by Anthony Trollope in his novel Phineas Finn (1869):

The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells them – as should be done by a strictly honest fictionist. . . . And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks, — when the rocks and the shoals have been purposefully arranged to make the taking of a pilot on board necessary? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand, — not used, however, generally, with much discretion.

McCoy.jpgIt would seem that litigation (notice that there are no TV shows – or Victorian novels – about transactional lawyers) has been “the biting interest” of fiction in “excited days” for some time, and the springes of the law (to use Holmes’ wonderful phrase) have been trapping unwary writers for many years.

Of course it could be worse. I once watched “24” with a friend of mine who works for the CIA. He would constantly be saying things like, “I can’t tell you guys any more, but this part is SO NOT realistic.” In his heart of hearts, however, I know that he wants to be Jack Bower. (He claims to be an accountant for the CIA, but my wife and I are convinced that he is actually a free-lance assassin on the “Company’s” payroll.)

Of course it goes without saying that no matter how often lawyers pick at “Law & Order’s” nits, they all want to be Jack McCoy.

2

Praising Allah In The Military

Congress is considering legislation that would allow military chaplains to use sectarian prayers at nondenominational events. Supporters argue that Chaplains should be free to pray as their faith demands. Opponents worry that such prayers (lets be more precise: prayers that invoke the name of Jesus) will have the effect of excluding some in attendance and erode cohesion within the unit. (The Pentagon, which opposes the bill, actually frames it less in terms of marginalized troops, and more in terms of marginalized chaplains, saying “This provision could marginalize chaplains who, in exercising their conscience, generate discomfort at mandatory formations.”)

This proposal is really a one-way ratchet which is likely to create discomfort for various non-Christian soldiers, but which will rarely marginalize Christian soldiers. For example, few Christian soldiers will be troubled by Jewish prayers since they always reference a single God, referred to typically in English as “God.” They are sort of like “lesser included” versions of Christian prayers. (It is possible that a rabbi might use a Hebrew term, and this would potentially be alienating…though in my experience, many might simply find it “curious.”) Christian prayers which invoke Jesus exclude all Jews and Muslims (and people of many other faiths, not to mention agnostics and atheists) because they involve praying to a person who, in other religions, is explicitly not God. Sooner or later, at a non-denominational event, a Muslim chaplain will praise Allah, an Arabic term for God (and indeed essentially the same singular God as one would find in Christianity and Judaism). But though Allah may reference the same God, the term now carries loads of cultural baggage, such that many may hear that invocation as an explictly anti-American or anti-Christian statement.

If I truly believed that the Representatives supporting this legislation were ready – even eager – to hear chaplains praise Allah at non-religious events, I’d be more sympathetic to their cause. Call me a cynic, but I suspect that they’re simply trying to promote Christianity in circumstances where they see little downside. Twenty years from now, if Islam has grown in importance within the military, I suspect that these folks would be the first to argue for non-sectarian prayer. “It’s just not fair to our Christian troops”, they’d argue.