Category: Movies & Television


The Fight For Internet Censorship

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.


Stanford Law Review Online: Don’t Break the Internet

Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.


Health Care Blues

Two things happened over the past few days that caused me to think more seriously about health care reform.  First, my daughter, a physician, brought me a copy of a documentary film, Vanishing Oath, by physician-filmmaker Ryan Flesher.  The film looks at the lives of health care providers under the current health care system and documents the abandonment of the profession by seemingly good and dedicated physicians.  The film is well-balanced but offers no suggestions about change, focusing only on the likely doctor shortage.  I recommend it to anyone teaching a law and health care policy course.

Second, today I spent almost an hour on the telephone with Social Security and the Medicare Coordinator of Benefits trying to determine why I had been enrolled in both Medicare part A and B since I am still working and covered by my University’s health care plan.  I did not want to be charged the $115.40 monthly premium for Medicare part B.  Even though it was their mistake I still had to send a written request to Social Security asking to be dropped from Medicare part B.

Although I support universal health care provided by a single payer, this experience gives me pause.  Do I really want to government in control of health care access?  An Associated Press-GfK poll found that public support for comprehensive health is dropping.  My concern is timely given the ongoing and fractious debate in Congress about the budget, including discussions about reform of Medicare.  Further, on Wednesday President Obama is expected to propose modest changes in Medicare and Medicaid.  (Please comment on his proposal.)

I agree with Princeton economist Paul Krugman that privatizing Medicare is problematic.  I prefer to spend that hour on the telephone talking with a kind public servant.  But I also realize that cost controls are necessary if the program in some form is to be preserved.

I a relatively affluent educated American am fearful about my access to health care and physicians in retirement and the future of Medicare.  Barring some health catastrophe, I will survive, but I cannot image what the majority of Americans will do if needed reform substantially undercuts these benefits.


Mad Glee-actica: The Virtues of Extreme Recycling

I don’t watch much TV.  So, I am hardly the person to make strong claims about its quality or trends.  That said, I find it fascinating that three of the best shows of the past few years—Battlestar Galactica, Madmen, and Glee—share a really odd structural feature:  They have all taken ridiculously bad ideas from cringe-able eras and turned them around completely, made them not only fresh, but evocative, disturbing, intriguing.

Where's the goo?

They are, in short, evidence of the virtues of extreme recycling.

Just imagine the pitch meeting for Galactica:  We’ll take what has to have been one of the dumbest pop-culture packing peanuts ever and make it stronger, faster, better:  How about an allegory about civil liberties and faith after 9/11 using Cylons and vats of goo?

Or what about Madmen:  Let’s explore the most virulent cancers on our culture with lovingly pornographic attention to detail, to demonstrate the complex symbiosis among banality, beauty, evil and exculpation.  Madmen is the money shot of commodity fetishism, proving once again the truth of Chomsky’s admonition that if you want to learn what’s wrong with capitalism, don’t read The Nation, read the Wall Street Journal.

And Glee?  Well, all I can say is:  Don’t Stop Believing.

Which may lead you to this question:  No one really takes the “and everything else” part of CoOps’s desktop mantra seriously, so what the frak does this have to do with law? Read More


Signing Off (Plus Some Advice for Law School Admissions Committees)

In the coming weeks and months, law school admissions committees will be making decisions on the Class of 2013. And they’ll be watching the numbers carefully, trying to make sure their inputs look good in the next U.S. News rankings. If your school needs help with GPA numbers but has some cushion on the LSAT, this star of MTV’s Jersey Shore could be just the ticket. As covered here, here, and here, Vinny Guadagnino boasts a 3.9 undergraduate GPA, although he calls his LSAT score “mediocre.” He says that law school’s “on the back burner,” but maybe now that his stint on the show is over he’ll be willing to entertain offers.

Speaking of stints being over, I wanted to thank Dan, Jaya, and the rest of the Concurring Opinions crew for the opportunity to guest blog here these last few weeks. I’ve really enjoyed it.


Legal TV Review

I don’t watch much TV, but I will admit to enjoying “House.” “Polite Dissent,” an engaging blog by someone with medical knowledge, publishes a useful medical review of each House episode, which runs down the medicine in each show and notes the medical errors committed each week. But what House really needs is a legal review. Because really, whatever medical errors they commit, House and his team also commit almost unbelievable torts and crimes on a regular basis. 

CAUTION: Many spoilers ahead.

Read More


The Informant!

It’s not often that I hear about a new Hollywood movie based on the facts of a case that I first encountered while clerking, but The Informant!, directed by Steven Soderbergh and starring Matt Damon, is just such a film. It tells the story of Mark Whitacre, a central actor in a case decided while I was clerking for my judge on the Seventh Circuit. Whitacre served as the key informant in a successful FBI investigation into price-fixing charges against Archer Daniels Midland Co. that sent top executives to prison. As my co-clerk Kevin Metz observed, the case featured the type of direct evidence of an agreement to fix prices that antitrust professors explain is almost never available in antitrust prosecution. Whitacre secretly recorded many hours of conversations with co-conspirators in the lysine industry over three years, all while bragging carelessly to others about his role as an FBI informant and embezzling millions from ADM under the FBI’s nose. During my clerkship year, we worked on a number of memorable cases, but United States v. Andreas probably featured the most colorful facts. Whitacre was a very odd and unpredictable personality who suffered from bipolar disorder, which Matt Damon plays up for comic effect in the movie.


Why so… socialist?

Sometime in the past few days, just in time for the President’s birthday, posters of Obama in Joker-style makeup appeared on a Los Angeles overpass. The images quickly spread across the internet and have sparked predictable praise from the right or criticism from the left. Whether or not the posters are unduly offensive to President Obama, they are a serious insult to Heath Ledger’s Joker and his gleeful nihilism. What strikes and fascinates me is the poster’s angry incoherence: under the image of Obama is the word “socialism.” Did this artist even see The Dark Knight? Or perhaps I should ask, what does this artist think socialism is, anyway?

Consider that socialism is associated with the concepts of “central planning” or a “planned economy,” in which a centralized authority manages everything (or at least the economy) according to plan. Now, thanks to a conversation with Brooklyn Law prof Nelson Tebbe, who offered a profound analysis of The Dark Knight, I watched that film with the close attention of a serious academic, ready to learn what it could teach me about violence. I even read the script. And the Joker’s worldview seems pretty antithetical to socialism. Here’s what the Joker has to say about planning:

Read More


Death on a Factory Farm

I caught a few minutes of HBO’s new documentary Death on a Factory Farm the other night. It focuses on an undercover investigation of a hog farm in Ohio, the graphic footage of abuse it revealed, and the legal case that followed. It was so disturbing that I actually had to turn it off, but then again I’m a vegetarian – it’s those who are not that need to watch.


The Concurring Opinions Watching Election Results (COWER) Guide

Thanks to Dan & the gang for inviting me back. For my first post, I’m keeping it light: to help me make sense of the election returns, I’ve tooled around the web to gather state poll closing times, which I’m listing below along with each state’s recent polling average (from and number of electoral votes; below that I’ve posted lists of which Senate races have a decent chance of yielding a party switch. Basically, you can make this the home version of the red/blue map game that Chuck Todd, John King, et al., will be playing all night; see if Obama is or isn’t picking up the electoral votes (EV) he needs in the first hour or two or three of poll closures. (Disclaimer: Because I’m not a profrssional at this, I may well have gotten some of the below wrong; please post any corrections in the comments, and I’ll try to get on it — though I’ll be pretty swamped all Election Day, so I can’t promise a promt fix to any errors, sorry.)

Electoral Vote Counts:

• Obama’s EV from the Kerry ’04 states: 252 (includes PA but not Bush ’04 states Obama may win)

• Obama’s EV from the Kerry ’04 states plus IA+NM (the Bush ’04 states Pollster is listing as “solid blue” for Obama): 264

• 11 possible “Bush ’04 swing states,” ones Obama has a shot at picking up: CO,FL,GA,IN,MO,MT,NC,ND,NV,OH,VA

• Obama needs 6 more EV from the 11 possible Bush ’04 swing states (above), or 27 more EV if McCain wins PA

Poll Closing Times for the key Bush ’04 states and PA:

(all times Eastern)

7:00 pm:

• Indiana (M +0.5): 11 EV

• Virginia (O +5.7): 13 EV

• Georgia (M +2.9): 15 EV

7:30 pm:

• North Carolina (tied): 15 EV

• Ohio (O +3.8): 20 EV

8:00 pm:

• Pennsylvania (O +7.7): 21 EV

• Florida (O +1.8): 27 EV

• Missouri (O +1.4): 11 EV

• North Dakota (O +3.1): 3 EV

9:00 pm:

• Colorado (O +6.7): 9 EV

• Nebraska (?): divides its 3 EV by Congressional district; Obama may have a shot at the 1 EV in the Omaha district (no recent polling I know of that district)

10:00 pm:

• Nevada (O +6.8): 5 EV (may count quickly b/c over 70% of state already voted)

• Montana (M +1.9): 3 EV

Senate Races: Possible D Pickups, with recent poll data in parentheses (all are R seats that could switch to D; there are no D seats in which the R is within 10 points in the polls)

• Almost Certain Switches: VA (D+28.2), NM (D+16.4)

• Very Likely Switches: AK (D+4.9), NH (D+7.7), CO (D+10.4), OR (D+5.9)

• Possible Switches (slightly better than 50/50 shot): NC (D+4.1), MN (D+1.9)

• Iffy (slightly worse than 50/50 shot): MS (R+5.0), KY(R+3.1), GA (R+3.8)