From Mousewords (which I’ve just added to the blogroll, by the way):

Mousewords has more. I’m not as certain as she is that the Rep is close to success in chasing off Planned Parenthood, but it’s disturbing and anti-free-speech that he’s even trying.

I’m sure that FIRE will be on this issue any day now - after all, they’re concerned with the first amendment, and are in no way a right-wing organization dedicated only to the protection of right-wing speech. Right?

(Actually, I’m glad FIRE exists - some of the free speech violations they fight are really disgusting.)

The New York Times Magazine has an okay article summing up the current conflict over copyright. There’s nothing new here for folks who have been following the issue, but if you’re unfamiliar with the issue the article will provide a decent introduction.

One thing that struck me about the article, though, is who is quoted. Record company executives are quoted. Law professors are quoted. What’s missing, though, are quotes from artists on either side of this issue - although both sides make it clear that they are fighting for artists’ best interests.

Ages ago, I mentioned that I’d like to see a far more radical copyright reform than any I’ve seen proposed. One of Alas’ readers asked me how I’d design a copyright system.

Well, I’d start with a few principles in mind…

1. Everyone owns their own mind, and should be free to make use of whatever is poured into that mind. This means that if I want to write my own “Harry Potter” novel, I should be free to do so.

2. Everyone has a right to profit from their own creations, assuming the market is willing to pay for them.
3. Corporations are not people and are incapable of being creators.
4. It should not be legal for publishers – or creators - to keep once-published creative works out of print and unavailable to consumers indefinitely.

So what kind of copyright law would I enact, if I were elected despot someday?

1) No more work-for-hire laws, period. The creator or creator(s) are the ones who actually created the work (whatever that work is); their ownership of their own work cannot be sold or even given away. (I’ve blogged about the ways work-for-hire harms creators here and here).

What about currently existing work-for-hire creations? If possible, ownership of those works should be returned to their true creators. If that’s not possible (if the original creators have died, for instance), then the work becomes public domain.

2) Compulsory licensing should be the law of the land, allowing anyone to publish any work at will.

What is compulsory licensing? Just what it sounds like - “A compulsory license forces a copyright (or patent) owner to permit someone else to use the work for a predetermined fee. Accordingly, it precludes the owner of the copyright (or patent) from refusing to license her work to other people…”

Say, for instance, I wanted to publish a proper edition of J.K. Rowling’s Harry Potter and the Philosopher’s Stone - one in which the original British language is retained. I wouldn’t need permission to do that; I’d just need to start sending the royality checks to J.K. Rowling’s representatives.

3) Derivative works also benefit from compulsory licensing.

Current “fair use” laws would still apply. Authors would be free to use brief quotes from J.K. Rowling without permission in certain contexts (for an epigram, say, or as part of a scholarly book discussing Harry Potter).

But what if I write my own Harry Potter novel (”Harry Potter and the overly restrictive copyright law“). Again, compulsory licensing would apply. I can write as many Harry Potter books as I want - but if they start turning a profit, I (or my publisher) must send royalty checks to J.K. Rowling. (Rowling’s percentage would be lower for this than for a straight-out reprinting, however.)

4) Open book policy. To keep corporations from falsely claiming that there are no profits to share, publication of a work - or a derivative work - legally obliges the publisher (distributor, label, studio, whatever) to completely open their books and financial records to the creator’s legal and financial representatives.

5) In collaborative works, each creator is a co-owner of the final creative product. Everyone gets a share of the profits. The default (if no contract says otherwise) is for all creators’ profits to be divided equally between all creators; however, creators can write agreements to divide profits in a different manner.

6) In collaborative works, each creator is the full owner of their own contribution to the degree that their contribution can be separated from the creative work.

To see why this is needed, remember the old ABC sit-com Three’s Company. When the show’s co-star Suzanne Sommers, who played “Chrissy,” left the show, she was arguably the most popular TV actress in the USA; yet no other TV network was willing to hire her for over five years. Why not? Because ABC, bitter over losing Sommers, threatened to sue any network that hired Sommers, on the grounds that ABC owned “Chrissy’s” distinctive likeness.

This is what inevitably happens when large corporations are permitted to own copyrights; rather than using them to encourage creativity, which should be the purpose of copyright, corporations use copyright to prevent other creators from creating.

Under my system, Sommers would have been free to continue to perform, without threat of a copyright lawsuit.

In other examples, Joss Whedan should be free to shop around his script to Aliens 4 around to other movie studios, since he was reportedly displeased with how the first script came out. Steve Gerber, who created Howard the Duck in an issue of The Incredible Hulk (published by Marvel Comics), would fully own Howard, and be free to publish more Howard the Duck as he pleases. (Of course, Marvel can also publish their own version of Howard the Duck - but they’d have to pay Gerber royalties for publishing a derivative of his work).

That about covers it, I think… suggestions? Comments?

The Curmudgeonly Clerk - currently guest-blogging at Crescat Sententia - disagrees with both myself and PG of En Banc regarding a parade in Florida, in which parade organizers kicked out Veterans for expressing “patriotically incorrect” opinions about the war on Iraq.

Wait, no, that’s not true. The Curmudgeonly Clerk didn’t disagree with me, or with PG, for the most part; he just made up some strawmen to disagree with. From CC’s post:

I entirely agree with all of that. And I never said or implied otherwise.

Of course the VFW is entirely within their rights to kick veterans out of their parade for expressing “patriotically incorrect” views. Of course this is an essential free speech right - just as newspaper editors have an essential free speech right to choose not to publish an article.

Nothing I or PG wrote can fairly be read as advocating forcing “the VFW to involuntarily adopt, associate with, or distribute a political or moral message with which it disagreed.” For CC to imply that either I or PG would advocate such a thing is unfair and untrue.

* * *

Here’s the thing.

The VFW, as a private group, has a first amendment right to organize a parade.

They also have a first amendment right to kick Veterans who state “patriotically incorrect” opinions out of their parade.

I in turn - as I’m sure CC would acknowledge - have a first amendment right to criticize the VFW for their decision.

CC apparently believes that if I utilize my first amendment right to criticize the VFW, I am advocating taking the VFW’s first amendment rights away. But CC is mistaken; just because I criticize how the VFW used their first amendment rights, it in no way follows that I think they shouldn’t have first amendment rights.

* * *

Unlearned Hand (also of En Banc) has also replied to CC. Unlearned attributes CC’s strawman reading to “the dangerous tunnel vision that comes from spending too much time with law and legal arguments.” Or, as the cliche goes, to someone holding a hammer, every problem looks like a nail.

* * *

Also on Crescat Sententia, Will Baude - responding to Unlearned Hand’s response to CC - stages a defense of the parade organizer’s actions. (Unlearned Hand has also posted a response to Will, which I wholeheartedly endorse).

I’m afraid I’m unmoved. Baude points out that there are ways in which the parade organizers could sincerely believe that allowing a group called “Veterans Against the War” to march would be disrespectful to veterans.

I don’t question the organizer’s sincerity. I do question their views, and their methods.

Adina, in the comments to my previous post, stated it very well:

As I said earlier, I feel the parade was organized in bad faith; it’s not about honoring veterans, as it claims to be. It’s about honoring veterans with “patriotically correct” opinions.

Will writes “In other words, kicking people out of a parade because they don’t support what the parade does is a perfectly reasonable thing to do.”

I disagree. The reasonable thing for the parade’s organizers to do - if they really couldn’t abide a veteran’s parade which included a diversity of opinion - would have been to turn down the marchers when they applied to be in the parade. After all, it’s not difficult to infer what a group called “Veterans against the War” might stand for. How it is reasonable to accept their money and their application to march, only to kick them out once the parade had begun?

It’s not just that the organizers kicked out these veterans (although I find that bad enough); it also appears they went out of their way to do so in the most humiliating and hurtful manner imaginable. And that, to me, is not a “reasonable” act.

Nor do I accept Will’s implied assumption that using political ideology to select which veteran groups will or won’t be able to march in a parade honoring veterans is reasonable. Veterans are not being honored for their support of George Bush; they are being honored for their courage, and for the sacrifices they made for the sake of the nation. Since it is not reasonable to suppose that liberal veterans were not courageous and did not make sacrifices, I don’t think it’s reasonable for parade organizers to exclude people for expressing liberal views.

(Note that I am not denying that the VFW has a right to act in a way that I consider unreasonable.)

Will points out that the VFW didn’t kick out all anti-war Veterans, only those who spoke out. However, I don’t find “you can march with us, but if you disagree with our politics you better keep your damned mouth shut” to be a reasonable attitude.

On the contrary, I think that a better Veteran’s Day parade would want to honor all veterans for the sacrifice they made. And understanding and respecting that even honored veterans hold a diversity of views is, to my way of thinking, a far better way of honoring not only the veterans themselves, but of honoring the American ideals that veterans fought for.

POSTSCRIPT: Two further thoughts.

One, I should clarify that the title of this post - “Parade of Strawmen” - was a reference to CC’s post, not to Will’s.

Second, in my comments, The Arbitrary Aardvark wondered if the kicked-out veterans might have a breach of contract claim. I have no idea, but since so many bloggers of legal experts are watching this debate, I wonder if any of them have an opinion?

This is pretty despicable.

Jim Leitzel - normally of Vice Squad, but in this instance guest-blogging on Crescat Sententia - reports that the Federal Government is cracking down on the owners of “Extreme Associates.” According to an ABC News report from August:

Jim also links to the case of a couple in Dallas who were “found guilty of three federal obscenity charges last month.” Following the link Jim provides, we learn that

And in an earlier post on Crecat, Jim links to “an amazing case” of “a couple in California who ran an Internet bulletin board was found guilty in Tennessee of purveying obscenity. (The same material might not have been considered to be obscene in California, which has different “community standards.”)” Following the link, it turns out that once again the material being prosecuted involved pornographic depictions of rape.

I wonder, is there a pattern here?

First Amendment lawyer Lawrence Walters, discussing the Extreme Associates case, fails to provide any independent reason we should care if Extreme’s customers are deprived of the chance to jack off to images of women being brutalized and raped. Instead, Lawrence suggests a “slippery slope” argument: we must defend Extreme Associates or Playboy magazine will be next! This argument assumes two things: first, that censorship of Extreme Associates will reliably (or even probably) lead to the censorship of Playboy, and second, that it would be an unbearable loss to culture if Playboy was unavailable.

Putting aside the question of why we should care if Playboy ceases to exist, I have to wonder - is there any evidence to support the theory that censorship of extreme rape porn will inevitably lead to the censorship of soft porn? After all, child pornography has been aggressively censored for decades, without any apparent “slippery slope” effect completely destroying our other free speech rights. If child pornography is any example, it should be possible to aggressively censor rape pornography without suffering any unbearable slippery slope effects.

Tyler Cowen of the Volokh Conspiracy links to the same article I linked to Friday - the one showing that over 99% of the money left over after all expenses and other parties have been paid, goes to the label, and less than 1% of the money goes to the band - and argues that this shows how important copyright is:

Plus $750,000 gets soaked up in pure profit for the record label.

Say what? In the example given, it’s very unlikely the artists will ever see any copyright income. Why? Because they don’t own the copyright to their works - the record label does. Under “work for hire” laws, the label, not the artist, is the legal creator and copyright owner. And decades from now - when the artists might want to make a little pin money rerecording their old songs - they might not be able to, because the copyright owner will still be the record label.

Regarding an industry I’m more familiar with - comics - I can think of several instances in which copyright hurt the interests of creators. Steve Gerber, for instance, ended up being unable to publish works featuring his best creation - Howard the Duck - for years and years, because Howard’s copyright was owned by Marvel Comics. Had Howard the Duck not been copyrighted, Steve Gerber could have done his own version of the comic book - one that would certainly have been a better, more entertaining comic book than Marvel’s version. It seems to me that consumers would have benefited, too.

My point is not to be anti-copyright - I actually agree with Tyler Cowan, who (if I’m reading him correctly) approves of the general idea of copyright law but disagrees with how they’re currently implemented. My point, rather, is that when two negotiating parties are enormously unequal, then copyright (and all the protections copyright entails) will inevitably wind up in the hands of the stronger party - and that party is usually not the artist.

Meanwhile, at Crescat Sententia, Will Baude responds to me about the “deal memo” bands often sign. Just to review things, here’s how Steven Albini describes the “deal memo”:

Will doesn’t believe this could be true, unless there’s a secret cartel:

I didn’t realize that you had so much ready money at hand, Will. Since you do, however, may I suggest that you start your own comic book publishing label as well? I’ve got some stuff I can submit to you.

As for a “secret cartel,” it’s no secret - it’s just capitalism at work. There are a very limited number of labels who can provide access to a national audience (radio play, nationwide distribution of CDs, etc). There is a virtually unlimited number of young bands full of members who are sick of flipping burgers for a living and who are starving for a chance to reach a nationwide audience. Simple supply and demand would suggest that bands will be willing to accept very lousy terms indeed.

Add to that the realities of the situation. On one side, there’s a very wealthy record label, run by smart, business-knowledgeable executives, with its own legal team and decades of experience writing contracts. On the other side is a band of folks desperate not to blow their only chance at making a living creating music instead of flipping burgers, none of whom know anything about contract law, none of whom have any real business experience.

No, they’re asking for access to the nationwide networks that puts songs on the radio and CDs on the store shelves. And they have a better grasp of the reality than you do, Will: they realize that if they don’t take that access on the record labels’ terms, then they won’t get access at all.

Why would the label agree to a different contract, Will? The label isn’t losing anything by waiting. There are a hundred other bands willing to sign the label’s preferred contract, after all. And it’s not like the band insisting on “a different contract” can go sign with the competition - the band gave up that right when they signed the deal memo.

With all due respect, Will, this passage suggests to me - more than anything I’ve read lately - the enormous chasm separating libertarians from reality. There is no such thing as a “symmetric deal memo,” and never will be. A symmetric deal memo would not only forbid the band from working with any other labels until a contract is signed, it would forbid the label from working with any other bands until a contract is signed.

And yes, if that was the case, then certainly signing such a memo would be to the band’s advantage. But that’s not the case and never will be - no record label will ever offer a “symmetric” deal memo. There’s no reason for a record label to agree to terms that bad - only artists are expected to do that.

You ask “why can’t the band use its stand-off bargaining power just as well as the label can in this sort of time-limited standoff equilibrium?” The answer to your question is, the band has no “stand-off bargaining power.” It doesn’t matter to the label if they sign the band or not, because there are a thousand more bands waiting in line.

That’s what so many libertarians seem incapable of understanding - in the real world, contracts are negotiated from very unequal positions, in which the party with the power sets the terms.

Will also brings up an argument about the minimum wage. He’s wrong, of course, but that’s a matter for another post.

Finally, I should point out that Will and I agree on one thing - Napster and similar programs should not be outlawed. They have a perfectly legitimate, legal use - exchanging free music and other files that are either uncopyrighted, or that are intended for free distribution by the copyright owner. The fact that Napster has illegal uses shouldn’t make the existence of Napster illegal. After all, trucks can be used to smuggle - but no one argues that we should therefore outlaw the trucking industry.

In an earlier posting, I wrote that one reason I have very little sympathy for the whining of major record producers about how Napster “steals” from artists is that, by and large, the money from record sales never goes to the artists. Instead, the record companies use their overwhelmingly superior bargaining position to force artists to sign recording contracts which overwhelmingly favor the company.

Will Baude responded:

I don’t disagree with Will that the RIAA (or, rather, the labels the RIAA represents) provides benefits to artists. I do think those benefits are ridiculously disproportionate to the value artists provide. Steven Albini, best known for producing Nirvana’s “In Utero,” provides a useful description of both the process and the money.

First, before a contract is ever signed, a “deal memo” is signed, stating that the band members and the label have agreed to sign a contract at some future point. What bands usually don’t realize is that once they’ve signed the deal memo, they have signed away all their options; they must sign a deal with that label, which may or may not bear any resemblance to what was discussed when the “deal memo” was signed. And if they don’t, they will lose all rights to perform and record, potentially forever.

Of course, a band could just refuse to sign the “deal memo” until they talk to a lawyer… but the band knows perfectly well that there are a thousand other bands who would be thrilled to sign the memo without making a fuss. Besides, they think, it’s just a memo - how binding could it be?

But once a band signs with a record company, if they do well, then they’ll make tons of money, right?

Not exactly. As Albini points out - and he provides the detailed numbers - in a typical case, virtually all the money goes to the label, not to the artists. For instance, if the artists grosses $3 million dollars, that translates to $750,000 of profit for the record label. How much does a band member get? $4031.25.

But not really. Because the band is also $14,000 in debt to the record company. So for a deal which gave the label $750,000 profit, the band profits approximately $5,000. Put another way, after all expenses are accounted for, and everyone but the band and the label has been paid, of the remaining money 99.4% is paid to the label; the remainder is paid to the artists.

And that’s if the band did really, really well.

(Remember that, the next time someone tells you that when you illegally download music, the person being hurt is the artist. As David Draiman, lead singer of Disturbed, says, the RIAA is fighting for corporate profits, not to help artists).

And that’s not the end of it. Because the band has signed away ownership of their own work, forever. So in ten or twenty years time, when the band is no longer hot enough for a major label to bother with, maybe the band members could make a little bit of money by selling self-published CDs of their songs. Too bad - the label owns the copyright, and will keep the songs out of print forever rather than letting the artists self-publish.

Do I think that makes it not stealing to illegally download music? No. But if our goal is to increase justice in the recording industry, there are many more important fights than protecting the labels’ right to prevent people from hearing artists’ music.

1. For instance, work-for-hire laws (the legal fiction which allow labels who have never created anything to become the legal “creators” of music) should be abolished entirely. Nothing the labels bring to the negotiation process justifies taking creatorship of the work away from the artists.

2. There should be a legal limit - say, four months - on how long a band can be held in limbo because an agreement cannot be reached - especially before the labels have actually paid out a single cent, but have only signed a “deal memo.” If a band and a label can’t reach agreement, the just thing for them to do is part ways - not for the label to legally push the band out of existence.
3. It should not be legal for labels to use contracts and copyright as a way of keeping music out of print and unavailable to consumers indefinitely. This practice doesn’t benefit consumers, doesn’t encourage creativity, and goes against the original purpose of copyright laws.
4. Exclusive publishing agreements - in which an artist agrees to publish not only a current album, but all future albums, with a particular label - should be abolished. These publishing agreements are anti-competitive; they give the labels the right to negotiate with as many artists as they want, while artists are robbed of the right to shop around and get the best deal the market will offer them.
5. More generally, all of the applicable rights that Scott McCloud proposed for cartoonists ought to be legally secured for all creators working with publishers or labels. By no means will doing this rob labels of their ability to make a profit; but it will rob labels of their ability to take such a disproportionate share of the benefits and profits away from artists.

I’m just spitballing ideas here - perhaps some of the specific proposals wouldn’t be so great in practice. My point is, if our concern is eliminating injustice in the recording industry, the deprivations of Kazaa really shouldn’t be that high up on our priority list. Compared to how labels screw over artists, Kazaa is unimportant.

Isn’t it wrong to use the law to alter the balance of power in negotiations? No, I don’t think so. Minimum wage laws, for example, prevent employers from using their greater negotiating power to force people to work for a dollar an hour (in the US, at least). The recognition that vastly unequal negotiating positions lead to unjust outcomes, and in some cases ought be legislated against, increases fairness in the marketplace.

Josh Chafetz of Oxblog has a cover story (!) in the current Weekly Standard, “The Disgrace of the BBC.” First of all, Maziltov! to Josh on the story publication - I think the cover of the Standard is quite a cap-feather.

What’s striking to me about Josh’s story is how much envy I feel of Brits. They, after all, did have critical coverage of the lead-up to war on major networks. That wasn’t all they had - it’s my impression that the interested Brit could find plenty of pro-war views in both major dailies and on the major networks - but that had it at all is, to me, something stunning. In the United States, there was no critical coverage of the “march to war” until well after the war had begun.

This is a much more important “free speech” issue than the censorship of Demon Beast Invasion, by the way. The marketplace of major news outlets - which sells their product to advertisers, please recall, and not to the general population - decided, for whatever reason, to be overwhelmingly in support of George Bush in preparing the American people for war with Iraq. From September 2002 to March 2003, a large minority of Americans - between 33% and 43% - opposed invading Iraq. (The numbers opposed to an invasion were larger in other polls, depending on how the question was asked; for example, a CBS poll in February 2002 found that 61% of Americans prefered to “wait and give the United Nations and weapons inspectors more time.”)

Admittedly, 33-43% is a minority - but it’s a very large minority, and one whose size was never reflected in the coverage given their views in the lead-up to war on TV or in major newspapers. For example, FAIR did a study of major American network coverage in January and February, and found that “17 percent of the total on-camera sources, represented skeptical or critical positions on the U.S.’s war policy– ranging from Baghdad officials to people who had concerns about the timing of the Bush administration’s war plans.” That’s not just folks who were anti-war; there were only 17% of sources who were skeptical at all. Other numbers are even more depressing; of the 267 Americans interviewed by the major networks in reports on Iraq, only 17 (about 6%) expressed any skepticism about invading Iraq.

So somewhere between 33% and 43% of Americans opposed invading Iraq; but if you were watching network news, only 6% of the Americans you saw were even skeptical about the prospect.

Isn’t that a problem? To my mind, this kind of censorship - the kind of marketplace preference that makes certain views simply disappear into insignificance - is the biggest problem in the media today.

Meanwhile, conservatives in the US are infuriated that even one British network had the nerve to express any skepticism.

Oy.

If it’s true - and I’m not at all convinced it is - that the BBC had an anti-war bias in its reporting, then my feeling is, great. At least British TV viewers had that one alternative; they could flip their channels and see more than one view on the war presented. In the US, viewers didn’t have that option. (Unless they had cable TV, that is. With cable, we could choose between the war boosters on the networks, and the war cheerleaders on FOX).

Josh’s case against the BBC isn’t that impressive - basically, in months of 24-hour reporting, the Beeb made a handful of generally slight errors. Not exactly a stunning indictment. As Kevin at CalPundit argues:

Kevin goes on to point out that on the most substantial issues, the BBC seems more correct than wrong:

Meanwhile, some significant counter-evidence - such as an academic study which found that the BBC was actually one of the most pro-war of British networks - is simply ignored in Josh’s article.

Sadly, Josh hasn’t yet replied to CalPundit, although he did reply to the (in my opinion less substantial) criticisms made on Matt Yglesias’ blog (by both Matt and Matt’s readers). Mainly, Josh seemed put off - understandably - that one person accused him of being a “sell-out,” and many questioned the motives of a Rupert Murdoch-owned magazine criticizing Murdoch’s competition.

Josh also seem annoyed at how many people brought up the case of FoxNews for comparison. But Josh has only himself, or perhaps the Weekly Standards‘ editors, to blame for that. The sub-headline of his story (” Unfair, unbalanced, and afraid”) implies a comparison between Fox and the BBC; it seems a little unfair of Josh to object to critics making the same comparison.

There is something of an ad hominom in certain of the criticisms (such as the “sell out” comment), and Josh is right to treat those comments with disdain. But I think he’s missed a larger point - and one that, admittedly, in no way refutes Josh’s case against the BBC. Nevertheless: The Weekly Standard didn’t publish Josh’s article because it was well-researched, or well-written (although it was); nor did the Standard print it because they are in any way opposed to media bias. They published Josh’s piece for one reason only: Because it attacked the BBC.

To see what I mean, imagine that Josh (who, to his credit, dislikes Fox News) wrote an equally good article outlining Fox’s considerable bias. Is there any chance that the Standard would run it as a cover feature? Heck, would they print it at all? No, of course not. Doing that would be be criticizing both Murdoch and the right, and the Standard will not do that (unless they’re trying to avoid being dragged down with a drowning man, e.g. their criticism of Trent Lott). The Weekly Standard doesn’t care about media bias or dishonesty; they only care about these things insofar as they’re useful as partisan tools for bashing the left.

In that sense, I think the critics of this piece were on to something. Until the Standard finds dishonesty, bias and hypocrisy on Fox News worth criticizing, it does seem rather self-serving and smug of them to criticize the BBC’s far less egregious bias on their cover. Regardless of the fact that Josh’s own motives in writing the article were, I believe, high-minded.

Some readers have asked me to explain this passage, from the post before this one, in more detail:

Avram responded:

The analogy I’d use is elephant ivory. Having a market for new elephant ivory is obviously a bad thing; it encourages poachers to kill elephants, leading to near-extinction.

What’s not so obvious is that having a legal market for old elephant ivory also encourages poachers to kill elephants. Why? Because in practice, it’s practically impossible to tell the difference between new and old elephant ivory. Therefore, if there’s a profitable market in old elephant ivory, that will motivate poachers to kill elephants and sell the new ivory, falsely claiming that it’s old ivory.

If we want to take as much of the profit out of poaching as possible, it’s not enough to just outlaw selling new elephant ivory. We also have to outlaw selling anything that’s in practice nearly impossible to distinguish from new elephant ivory.

Similarly, it’s not enough to outlaw possessing or selling “real” child porn - by which I mean, child pornography that was produced by actually sexually abusing real children. We also have to outlaw “virtual” child porn - that is, child-porn-like images so realistic that they’re indistinguishable from the real thing. If there’s a marketplace for material that’s for all practical purposes indistinguishable from real child porn, in practice that creates a market on which real child porn - falsely marketed as “virtual” - can be sold.

The same argument applies to rape porn (that is, photos or films depicting realistic-seeming rape scenes). If we want to outlaw people making money by selling films of real rapes, then we have to outlaw all rape porn.

To see why, imagine the police raid a porn producer’s studio and find tons of photos of children being raped. The porn producer says “sorry, I bought all of these from someone - I forget who - and he said he generated them on computer.” Suddenly, it becomes, for all practical purposes, impossible to enforce child-porn laws. I’m not willing to pay that price in order to protect the market viability of virtual child porn.

Lis wrote:

I wouldn’t outlaw prose and poetic descriptions - the only “virtual” porn I’d outlaw is visual representations so realistic that they’re not easily distinguishable from the real thing, for the reasons I just described in my answer to Avram.

Also, I’m calling for this in the context of the Miller decision - which says that no work that, taken as a whole, has serious literary, artistic, political or scientific value, can be obscene. So performances of Romeo and Juliet would be safe.

UPDATE: Reading the comments, I think I’d better clarify something (thanks, Charles and Kip!).

This post is not calling for an expansion of censorship laws. On the contrary, I’m saying the censorship laws should be narrowed, so that fewer works are deemed “obscene” and therefore lacking first amendment protection.

Under current law, all the stuff I talk about above is obscene - plus many more things besides, such as Demon Beast Invasion. What I’m advocating is that only rape porn and child porn (as defined in this post, above) should be censored; nothing else should be. I’m arguing for less censorship than we currently have, not more.

Jim of Unqualified Offerings responds to my previous entry thus:

* * *

Apparently Jim entirely missed the point of my previous post, which was

1. the reason the jury found no serious artistic or literary merit in Demon Beast Invasion is that there was none to be found; and
2. folks like Jim who think this ruling strips first amendment rights from the entire comics medium have misunderstood the decision, and are needlessly spreading panic. Contrary to Jim’s opinion, the sky has not fallen.

* * *

I’m not sure what Jim means by a “feminist” disapproval - as anyone who knows feminism knows, many feminists disagree about obscenity laws. (Try asking Nadine Strossen, the very feminist president of the ACLU, or Avadon Carol what they think).

More importantly, Jim’s putting words in my mouth. Of course, I don’t think Jesus Castillo deserves a felony on his record, a $4000 fine, or any jail time. I’d rather that Texas had never put Mr. Castillo on trial at all; as I said in my previous post, prosecuting this case was a waste of court time and taxpayer money.

The good news for Jesus Castillo is that Jim has again misunderstood the case. Mr. Castillo was sentenced to a year’s probation; assuming he doesn’t break probation, he won’t spend any time in jail. And his conviction is a misdemeanor, not a felony, so he’s spared reporting a felony conviction on future job applications. (I got this info from William Dwyer’s excellent post on the case, by the way - link via Jim).

Of course, $4000 is still way too high a fine (it certainly seems like a whopping sum to me - that’s a third of my annual income!), but compared to other miscarraiges of justice (innocent folks on death row, Patriot-Act-related travesties, etc) it doesn’t seem like a world-shattering injustice. And the good news (via Tom Tomorrow) is, the fine has been paid ” by customers of the shop and other local supporters.” (Good for them!)

* * *

It should be pointed out that first amendment crusaders like the CBLDF are part of the problem in Mr. Castillo’s case, not part of the solution. Without the drumbeat of first amendment crusaders demanding a courtroom fight, Mr. Castillo might have chosen to cop a plea, and would probably have gotten off with a $500 fine. Since he was clearly guilty under the law, that would have been the most sensible course for him to take.

It’s only because he went to trial (and because his lawyers failed to get a record of the sentencing hearing, making it impossible for Mr. Castillo to appeal his sentence) that he wound up being sentenced as harsly as he was

* * *

By the way, don’t any of the CBLDF’s donors and supporters care that the defense in this case seems to have been rather on the incompetant side? If I were a CBLDF donor, I’d be pissed off; those folks are definitely not getting their money’s worth.

* * *

More generally, what censorship laws would I approve of?

Personally, I think that child porn and rape porn should be censored as heavily as possible (within the bounds of the Miller decision) and driven as far underground as possible. Allowing a market for child or rape porn (including “virtual” stuff) to flourish is wrong, because those markets encourage porn producers to harm real people.

Beyond that, I really don’t give a damn. But for me, “not giving a damn” goes two ways. I don’t agitate for Demon Beast Invasion and its ilk to be censored; but neither am I going to panic and start screaming “comics have lost all first amendment protection!” when a piece of worthless porn crap with zero artistic merit like Demon Beast Invasion gets censored.

UPDATE: I’ve removed a couple of paragraphs speculating about how the fine could be paid, replaced by the good news that customers and local supporters have paid the fine. Thanks to Lis for providing that info in the comments. Also, to prevent confusion, I changed my wording in the final paragraph; see my exchange with Eli in the comments for details.

SECOND UPDATE: See this response to me from Jim at Unqualified Offerings. The area of disagreement between me and Jim has gotten much narrower.

I also very much agreed with this post of Jim’s, in which he calls for the comics press to investigate this case, and in particular investigate whether or not the $60,000 CBLDF defense screwed up the case.

There’s lots of outrage in the comics blogosphere, because the Supreme Court declined to reconsider a finding that the comic book Demon Beast Invasion (issue two) is obscene. Jim at Unqualified Offerings writes:

Peter David - the much-acclaimed writer who’s associated with the Comic Book Legal Defense Fund (CBLDF) - concurs:

Damn, sounds bad, doesn’t it? Fortunately, it’s bullshit.

First, despite Jim’s claim, he has no way of knowing what the jury bought or didn’t buy. It’s quite likely that they examined the comic book, listened to the testimony, and decided that Demon Beast Invasion was obscene.

To be obscene in the United States, a work needs to meet the three-part Miller standard. The Miller standard asks:

Much has been made of the two expert witnesses, who the defense called to try and establish that Demon Beast Invasion has “serious literary, artistic, political, or scientific value.” But it’s plausible that the jury decided that the testimony of the two experts simply wasn’t very credible. Frankly, from what I’ve read, I don’t find their arguments very convincing. (I say this despite the fact that one of the experts is a friend).

• Both experts claimed that the worth of Demon Beast Invasion (issue two) couldn’t be judged without having also read issues one, three and four, but that’s not very plausible. After all, issue two was sold alone, as a distinct unit (the store didn’t even have the other issues available, according to the testimony of the Detective who bought the comic book). Comic books are sold in issues, and fans are entirely used to judging artistic merit by reading just one issue. Professionals do it too; it’s not unusual for comics to win awards based on only a single issue of a longer-running serial.

• Both experts testified that Demon Beast Invasion reflected Japanese culture, and used themes that were common in works of Japanese literature (although one expert, Scott McCloud, admitted under cross-examination that Demon Beast Invasion issue two consists of “basically sex”). But inevitably, even the worse imaginable piece of crap will draw on themes and reflect something of its cultural context. That isn’t enough to show serious literary or artistic merit (unless one wishes to argue that all art, regardless of how awful it is, has such merit).
• One expert, Professor Susan Napier, claimed that Demon Beast Invasion was beautifully drawn. I’ve seen artwork from DBI reproduced online, and from what I’ve seen it’s badly drawn hackwork. If I could recognize that, so could the jury.
• I’ve seen several people - including Peter David and the CBLDF - claim that there was no testimony to contradict the expert testimony. But that’s simply not true - the policeman who bought the comic testified that he felt the comic had no serious artisitc worth, and met the requirements of US obscenity law. One could argue that his testimony shouldn’t have been allowed, because he’s not an expert - but in order to argue that, the CBLDF lawyers would have had to have made that objection during the trial. They did not. Maybe that was an error on the CBLDF’s part - but if so, they shouldn’t blame the jury.

The bottom line is, the jury believed their own eyes. They were given a comic book to read featuring demons variously seducing/raping humans; the comic had no characterization to speak of, lousy drawing, and had nothing to say. It was an empty-headed collection of mean-spirited, degrading sex scenes. It had no artistic merit - at least, not to anyone who doesn’t consider the idea of artistic worth to be more than a joke.

(And speaking frankly, it’s hard to imagine my friend the expert witness - who has very refined taste in comics, and has often pointed out to me this or that comic book that was artistically interesting or exciting in some way - ever saying to me, “hey, Barry, check out this issue of Demon Beast Invasion, it’s really good.”)

* * *

It’s also been claimed that this decision is dangerious because it sets a precedent that comic books are for kids, and therefore should be judged by a different standard than other media.

No such precedent was set. In fact, the court never ruled on that question one way or the other. Why not? Because the CBLDF’s lawyers, once again, failed to object to such testimony during the trial - and thereby gave up the right to argue that such testimony is or isn’t allowable.

So - for better or worse - the Dallas Court of Appeals’ decision (which is the one that carries the precedental weight) on this case doesn’t consider this question one way or the other.

* * *

The fact is, the court did not censor Demon Beast Invasion because it was a comic book. They censored Demon Beast Invasion because it is obscene and not protected by the first amendment. The idea that this decision puts Watchmen or Maus - or Peter David’s work, or my own - in any danger is absurd.

The problem for Peter David and the rest of the CBLDF crew is, Demon Beast Invasion is obviously obscene, misogynistic crap. It has no value of its own. No one’s life will be lessened because they lose the chance to read it, and the political and artistic discourse in the United States will if anything be improved by a lack of Demon Beast Invasion in the mix.

So instead, we get the slippery slope argument: This isn’t a case about Demon Beast Invasion! They’re going to take away first amendment rights from all comic books!

Get real. The jury found no artistic merit because there was none to find. If a comic book that actually had some artistic merit had been under issue - one of Robert Crumb’s pornographic comics, for example, or an issue of Naughty Bits - the defense would have had a much easier time, because then they could have made substantial, reasonable arguments for artistic merit.

But it’s unlikely that any Crumb comic would ever get to that point - because prosecutors and police don’t like losing cases, and don’t tend to pursue unwinnable cases. Which is almost certainly why the cop picked out Demon Beast Invasion, rather than picking out Crumb or Naughty Bits.

Just to be clear, I’m not saying that all obscenity convictions are reasonable. There have been unreasonable decisions - and those are battles worth fighting. It’s true that an obscenity conviction like this one is a waste of courtroom time and taxpayer money. But it’s also true that defending Demon Beast Invasion is a waste of the CBLDF’s time and their contributors’ money.

And to claim that this decision - which says nothing more than that the same old obscenity laws that have always applied, still apply - has suddenly put all comic books in danger of widespread, arbitrary censorship is nonsense.

UPDATE: Whoops - I originally credited the decision to the Fifth circuit. Actually, the decision was made by the Dallas Court of Appeals (which is “technically, the court for the fifth of fourteen appellate judicial districts in the Texas state-court system”). I’ve updated the post above. Thanks to Beldar for providing this info in comments.

That’s quoted from Colorado public defender Eric Vanatta’s legal brief defending a high school student who was charged with disorderly conduct for swearing at the principal (via Calpundit). Despite the fact that five months remain in the year, The Smoking Gun has given this brief the 2003 legal document of the year award. Go ahead and read the whole brief - it’s a very rewarding and somewhat silly examination of the F-word.

That said, I do have a quibble with the passage quoted above. Like so many people, Mr. Vanatta gets the cliche wrong: it’s perfectly legal to yell “Fire!” in a crowded theatre. What’s illegal is falsely yelling “Fire!” in a crowded theatre (Justice Holmes’ exact quote is, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”). The distinction is, as Mr. Vanatta says, constitutionally significant.

Incidentally, Schenck - the case the “falsely yelling fire in a theatre” quote comes from - is one of the most appalling attacks on free speech in Supreme Court history, in which the Court turned logic on its head to argue that arresting people for peacefully distributing anti-war pamphlets did not violate the first amendment. It’s ironic, and annoying, that the Supreme Court case most often quoted in defense of free speech was actually defending the opposite principle.

* Excellent posts on the appalling UNFPA situation over at the Appalachia Alumni Association blog here and here, including info on how to donate to UNFPA.

From an AAA post:

* There is one bit of good reproductive rights news: Senator Barbara Boxer successfully proposed an amendment to State Department funding which overturned the global gag rule last week. Senator Boxer succeeded in getting six pro-life Senators to vote for her amendment, providing the margin of victory, by emphasizing that the global gag rule is a free speech issue.

Unfortunately, the global gag rule remains operative unless the House of Representatives also votes to overturn it, which I don’t think is likely.

There’s been a lot of good blogging at The Fifty Minute Hour lately (a blog which I’ve just this week added to the right-wing section of my blogroll). I think my readers will probably enjoy this post about how the US’s war on drug hurts Afghani farmers, and this post criticizing father’s rights radio host Glenn Sacks for spreading around dubious info from a biased father’s rights study.

But she’s utterly wrong about the Nike v. Kasky case.

For those of you unfamiliar with the case, what happened is this: Nike and many activists have been involved in a long dispute over Nike’s labor practices abroad. Nike claimed, in a series of press releases, official letters, and one paid advertisement, that their labor practices were great. Kasky, an activist, decided to sue Nike for false advertising.

Nike responded by saying that the first amendment precludes Kasky’s suit. The appelate court agreed with Nike; the California Supreme Court (pdf file) overruled the appellate court and said that Kasky could sue. Most recently, this has been in the news because of the Supreme Court’s decision to let the California ruling stand (although the Court could choose to revisit the issue at a later date, of course).

Note that what’s at issue in this specific ruling isn’t whether or not Nike lied. (That’ll be determined by a future court case). What’s at issue is - assuming Nike did lie - can Nike can be sued for lying?

The Fifty Minute Hour argues that Nike wasn’t “attesting to a property of a product they were trying to sell; they were responding to claims that the company is morally bad in some way.” But Nike was attesting to a property of their merchandise; how merchandise is made is a property of it.

In fact, The Fifty Minute Hour agrees with me in the next paragraph: ‘If it turns out that they said, “you should buy Nike shoes because they’re made by happy workers who each make six figure salaries,” and the statements of fact are not true, they shouldn’t be protected.’

By saying that, the Fifty Minute Hour is siding against Nike. Nike is arguing that, as a First Amendment matter, they should be protected against lawsuits over false statements like “Nike shoes are made by workers who each make six figure salaries” or (more realistically) “Nike pays average line-workers double-the-minimum wage in Southeast Asia,” so long as those statements are made in press releases and other such outlets, rather than in paid ads. If Nike had won this case, then it wouldn’t be possible to sue them over such false statements.

For the free market to function well, consumers need access to accurate information. Consumers who’d prefer to avoid buying shoes made with virtual slave labor, for example, need accurate information about labor practices in order to be able to express their preferences in the marketplace. Simply to keep the free market running reasonably well, corporations should not be given a right to lie about their products’ characteristics - including how the products were manufactured - in their press releases and public statements.

Reclaim Democracy has a good page of resources concerning this case. (Although they take Kasky’s side in the lawsuit, they also provide links to many pro-Nike arguments.)

Via Half the Sins of Mankind, this interesting Slate article argues that folks abroad ought to be free to plagiarize Harry Potter as much as they want.

I’d prefer to be both less and more extreme than the Slate writer. On the one hand, I do think that all publishers of derivative works should be required to pay a small portion of profits (say, 1%) to the original creator; creators deserve to profit from their creations, including their indirect creations. This idea (usually applied to medicines) is called “compulsory licensing”; the creator has a right to profit from her creation, but not to prevent other producers from using her creation.

On the other hand, I do think Rowling has the right to control the use of her own name. So although I’d like any publisher to be able to produce a “Harry Potter” book, I don’t think they should be able to print Rowling’s name on the cover or advertising without her express permission (which she presumably wouldn’t give, or would give only in exchange for suitable compensation). “Half the Sins of Mankind” worries that “people who buy the Chinese book in the mistaken belief that it is a new addition to the series have been defrauded,” but we could avoid this by letting Rowling have an exclusive right to put “written by J.K. Rowling” on the cover.

In exchange for this, society gets the benefit of dozens - perhaps hundreds - of Potter and Potter-derived novels.

On the other hand, why limit the Potter bounty to folks abroad? Why should writers in China and Russia be free to write (and profit from) Harry Potter sequels, but not writers in Britain and the USA? It’s not as if derivative works are necessarily more valuable because they’re created abroad; if preventing such works is a market flaw internationally, it must be a market flaw domestically as well.

UPDATE: Letters from Limbo comments on the same article, and pretty much agrees with my views.

As Alas readers no doubt know, the Supreme Court’s final rulings of the season gave liberals some reason to be happy. In what Jack Balkin called “a great day for liberty in the United States,” the Court overturned Bowers v. Hardwick and virtually all of the country’s anti-gay sodomy laws. And Intel Dump is convinced that this ruling begins the end of the military’s homophobic “don’t ask, don’t tell” rules.

I also can’t resist reprinting (via the Sideshow) this comment from Mark Evanier:

Plus affirmative action in higher ed survived - a bit battered, to be sure, but better battered than banned.

Two things that the Court has (apparently) decided not to do provide good news for abortion rights advocates.

First, the Supreme Court refused to hear an appeal from the pro-lifers in the “Nuremberg Files” case. This is good news for pro-choicers and, in my opinion, for free speech in general; it wouldn’t have done political debate in the US any favors for implicit death threats to have been enshrined as protected speech.

Secondly, unless there’s a surprise announcement to come, it appears that no Supreme Court justices are retiring this term. This is probably good news for Republicans, since a Supreme Court nomination fight would probably increase friction between moderates and right-wingers in the Republican party, as well as increasing press attention on domestic issues that Democrats enjoy.

From a pro-choice perspective, this means that Sandra Day O’Connor is likely to still be on the Court when they issue a ruling on the federal Partial Birth Abortion ban. This means that the ban will virtually certainly be found unconstitutional - the only real hope the ban had was the replacement of O’Connor with a more pro-life justice.