Deluxe Pabst Blue Ribbon

No, I'm not kidding.  The owners of Pabst Blue Ribbon are releasing an up-market, premium beer branded with the PBR label, called "PBR 1844."  In China.  For thirty times the price of the ordinary stuff sold there.

If there was ever an offender in the "hoppy, semi-sweet, tasteless, too-carbonated barley pop" category, it would be PBR.  There was never a sillier trend than when affluent urban hipsters collectively decided to drink PBR as an ironic affectation of their communion with the blue collar lifestyle.

I understand the corporation that bought out the original rights to the brand name wants to get value for their money and that the profit margin on premium beer may well be enough to justify making and selling something more on the order of barley wine than ordinary suds.  But the niche they've carved out for themselves is one that borders on the edge of kitsch; their other branding properties include Colt 45 Malt Liquor, Lone Star, Schaefer, Schlitz, Schmidt's, Old Milwaukee, Old Style, Stroh's, and St. Ides Malt Liquor. 

So did they not also get the rights to use "Best Select" along with the PBR brand?  That was the original name, after all.  Maybe you tie an actual blue ribbon around the neck of the bottle in another nod to the brand's history.  Seems like a good idea to me, but then again I chose a career in law, not in marketing.  So let's just add this to the "world turns upside down" file.

Via James Joyner.

Too Scared To Sue

This only makes sense.  And it demonstrates the real power of the Christian majority of the nation.  Even if a tiny person, whom you could easily sue and roll over under other circumstances, steals your intellectual property for their private profit, no one wants to be seen as "anti-Christian."  So, although protecting your trademarks and copyrights ought to be something that is neutral with regards to religion, in fact a lot of merchants are able to make Christianized parodies of all sorts of stuff and never get called on it which has led to the creation of a $4.6 billion industry that is wholly and totally illegal.  I say, stealing is stealing, even if you do it in the name of Jehovah.  H/T.

Who Dat Gonna Beat Dem Saints?

Looking at the results of what should have been the toughest game on New Orleans' schedule, my guess would be no one, at least not in the regular season.  (Congratulations to Drew Brees for throwing a statistically perfect game, only the twenty-sixth quarterback to do so since 1980.)  Their remaining five games are at Washington (3-8); at Atlanta (6-5); home versus Dallas (8-3); home versus Tampa Bay (1-10); and finishing at Carolina (4-7).  No game is easy in the NFL but only Dallas looks like it will even be a challenge for them.  It seems a foregone conclusion that they will play Minnesota in the NFC championship game and, I guess, Indianapolis in the Super-Big Game At The End Of The Season(r).

Runners World

This cover of Newsweek goes a long way towards making Sarah Palin look unprofessional and suggesting that she is not to be taken seriously.  When I first saw it, I wondered, "Why would she allow a photograph like that to be taken in the first place?"  I thought she was smarter than that.  She may have her own brand of sometimes earthy politics (recall the interview she gave a year ago in which she deliberately stood in front of a bleed-out funnel while Thanksgiving turkeys were being slaughtered behind her -- that was intentional imagery), but she does know to control her image.

A little looking around reveals that when she did the photo shoot, she thought the photos were going to be used in an athletic magazine, Runner's World, where professional dress is not how a subject of an article is expected.  And it only makes sense; she is an avid jogger.  To make it even slimier, it appears that Newsweek got the photograph without the permission of either the photographer or Runner's World.  One of those two owns and controls the copyright to that photograph.  Unclear, at best, how or if Newsweek got the rights to the photo.

I don't like a good portion of the prominent policy positions that former Governor Palin appears to have taken, either in the Presidential campaign or after.  I do like her concern about the strength of our money and I hope other politicians follow that lead.  I don't get the impression she's learned enough about public policy to be a serious candidate for high office -- but she is presumably smart enough to learn, and I think that if she seriously made the effort, she could overcome the impression of being an intellectual lightweight, similar to the way Ronald Reagan overcome his "Hollywood airhead" image.*  And ye Gods am I weary of the tawdry affairs of the insipid personal doings of Clan Palin and those somehow connected to it.

But this Newsweek thing ain't Sarah Palin's fault -- she's getting a bum deal about it from scuzzy, likely sexist newsmagazine editors.  It's fair to evaluate the political stances she takes, the candidates and politicians she associates with, where the money she raises comes from and how she spends it.  In other words, judge her as a politician, based on her behavior and her policies.  But I can't fault Palin for allowing herself to make a public appearance while dressed inappropriately.  There is nothing inappropriate about appearing for a photo shoot for Runner's World wearing clothing that is appropriate for, well, running. 

Newsweek should be ashamed of itself for an unfair and even deceptive cover photograph; even liberal media watchdogs are saying so.  Oh, and if you're going to review her book, make it a point to at least read it first.  It's not nearly as long as the health care reform bills.


* Reagan had the tutelage of none less than William F. Buckley, Jr. to get him up to speed on not just the big picture and finer details of public policy, but also the intellectual and philosophical underpinnings of that philosophy.  I don't know what kind of contemporary equivalent to Buckley could be found to play Yoda to Sarah Palin's Luke. And query if Palin would think such a thing was necessary, which is getting back to why I'm not particularly a fan of hers.

I Forsee Copyright Problems (UPDATED)

A left-leaning publication house called OR Books is going to release a book called Going Rogue:  Sarah Palin An American Nightmare on the same day that former Governor Palin's memoir Going Rogue: An American Life will be released.  The font, layout, and cover illustration of both books are very similar.

OR Books is in some trouble if they go through with this plan, I should think.  It's not that they can't criticize Gov. Palin, -- it's that they can't do it by poaching her intellectual property.  The book is, I presume, a for-profit venture by Palin and she's entitled to trade off her own ideas (or those given to her by her publisher, who is definitely in it for the money).  For the record, I think publishing a book with an eye to selling it and making money from the sales is a very good thing to be doing and I wouldn't begrudge Palin a penny of the royalties she earns.  Similarly, if OR Books thinks there is an audience for an anti-Palin book, well, she's a politicians so criticizing her is fair game and they, too, are entitled to whatever profits they can earn from the market.

Now, the title is different and there is certainly no problem with using a photograph fo Palin to illustrate the contents of a book critical of this public figure.  But it's really difficult to look at the two books side-by-side and conclude that one didn't intentionally steal the artwork from the other -- and do so with the intet to confuse a potential buyer.  I consider myself a fairly attentive consumer, one who looks closely at details -- and someone who was attuned to the issue before approaching the subject matter.  Still, I was confused.  If an attentive, legally sophisticated, and pre-advised consumer was confused as easily and thoroughly as I was, the "average" consumer would almost certainly be led astray to the point that it would be little better than chance to have bought the actual correct book.

That is the essence of copyright -- you can't take someone else's work and pass it off as your own.  The EW article I linked to below shows yet a third book called "Going Rogue," this one also critical of Palin -- but at least that one has artwork sufficiently dissimilar from Palin's real memoir that I would have had no doubt about what it was I was buying and what to expect in the book.

If OR Books goes through with its plan, I kind of hope Sarah Palin sues them for all they're worth. I'm not a particular fan of Sarah Palin but she's entitled to write, market, and sell her book on fair terms.  There's plenty of ways these OR Books dudes could have made their point and sold their book without intentionally confusing people or stealing Palin's intellectual property.

UPDATE:  Good points here from Prof. David Post at Volokh -- the applicable standard in copyright is "beyond fair use," and fair use includes parody or criticism.  But in trademark law, confusion is the applicable standard.  So maybe there is a good defense to copyright -- but "fair use" in the trademark context is very different than "fair use" in the copyright context.  A "fair use" of someone else's mark is what happens when you compare attributes of your product or service with the competitor's.  There is another point -- the OR book critical of Palin will be sold in paperback, and the actual Palin memoir, at least right away, will be sold in hardback, which is usually a larger size than a paperback.  But I still say that the obvious intent is not just to parody the real Palin book but rather to emulate its look a closely as possible.  And even if it's non-actionable plagiarism, that's still pretty scuzzy.

Good Things Can Happen When You Stand Up To Bullies

A company called PRL USA Holdings, Inc. apparently owns the copyright to an image of a model wearing clothing sold under the Ralph Lauren label. I presume "PRL" stands for "Polo by Ralph Lauren." Someone, somewhere along the way, thought it would be a good idea to use Photoshop to alter that image to make the model appear freakishly skinny. The result looks something like the image that appears to the left.

What you see on this blog is not exactly that image, however, because I have altered it.  I found the origianl image on boingboing. Boingboing, in turn, found it on a humor website called Photoshop Disasters. It would appear that when PRL USA Holdings, Inc. hired the Century City Office of Arrogant Expensive & Condescending, Attorneys At Law a big-shot law firm to issue a Digital Millenium Copyright Act takedown notice, the publisher of Photoshop Disasters thought it would be a prudent thing to do to take down the photo despite the rather humorous line of "Dude, her head's bigger than her pelvis."

Boingboing, however, was not so easily intimidated:

So, to Ralph Lauren, GreenbergTraurig, and PRL Holdings, Inc: sue and be damned. Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models.

One of the reasons I like being a lawyer is that I do not like bullies. And that's exactly what these folks are. "Oh noes U maad funn uf uz so u gonna get SOOOOD!"
Now, I've gone and posted the work here.  But before you decide to sue me, do take a good look at what I've done with the advertisement. That would be what folks in the IP world call a "derivative work" and the additional elements to the work which I have added using advanced digital imaging software* contain criticism, commentary, and reporting of the original work's artistic content. I'll also use it as a "teachable moment" to help educate my Readers about perhaps the most critical part of copyright law. And the moral gravity of using the law to bully people who have done nothing wrong instead of promoting the benefits of our free society.  See, you can use someone else's copyrighted work to criticize it, and that, by definition, is not an infringement of their copyright.  Movie critics do it all the time.

Not to mention the evils of promoting a deadly mental health problem. Seriously, it was simply irresponsible to run an advertisement like this. There is nothing at all glamorous or even defensible about women -- people, really -- starving themselves to death to look like fashion models. To then artificially make the fashion models look even skinnier than their already-skeletal appearances may well lead to the death of some girl somewhere whose lack of self-confidence leads her into thinking she needs to actually look like that image in order to be beautiful. She'll literally starve herself to death before that happens.  Maybe you don't mind that blood on your hands, but you should.

So call off the lawyers (who are surely smart enough to know better than to actually file a copyright suit here) and step back to consider the ethics of your advertising campaign instead.  Which, to be fair, is something that the shot-callers at Ralph Lauren seem to have actually done.  Because here's the great thing about that kind of criticism -- sometimes, it works.  Sometimes, having someone point out that you've done something bad makes you stop and think, "Gee, maybe I have," and you do things differently.

So at the end of the post, I have to sincerely applaud the folks at Ralph Lauren. Somehow, the ad got approved and sent out, and that was a mistake. And then, someone overreacted when the company got called on the mistake and decided to sic the lawyers on the messenger. But when the heat didn't go away, it eventually got to someone with a cooler head, and that person got the company to turn around and do and say the right things. So there's no need to ban Ralph Lauren -- they made a mistake and now they're cleaning it up, which is all we could reasonably ask of them.  This, then, is an object lesson in the power of the new media.


* Well, how about we call it MS Paint and leave it at that?

Damn It, I Can't Help Myself

The ongoing squabble between Sarah Palin and Levi Johnston is more than a little bit like the Britney Spears - Justin Timberlake divorce. You know that you're wasting your time by pursuing it. You know that it is utterly and totally irrelevant to anything that even remotely matters in your life -- even if you are a political junkie. But somehow, when Vanity Fair publishes its interview with Johnston, called "Me and Mrs. Palin," you can't help yourself any more than you can stop that impulsive upgrade to a super-sized order of fries, and you hate yourself afterwards for doing it. But you are somehow compelled to go look and see what's up.

And Vanity Fair rewards you by giving you exactly what you went there for, just like a condescending pornographer or drug pusher, and you take it even though you despise yourself for it. "Oh! You want this, don't you? Here you go, you gossipy bitches. Yeah, you know you want it. You need it, don't you, bitches? Come on, now, who's your daddy? Now fork over the dough and patronize our advertisers!"

Come on, you know Andrew Sullivan has a big old pup tent down in his shorts because of this.

The picture, by the way, appears to be the galley of what actually appears in the magazine; I've hotlinked to the magazine's website to generate the picture here. Presumptively, the image is copyrighted by Vanity Fair Magazine. It also will serve only to drive traffic to the magazine's website which attracts eyeballs to the magazine's website and will no doubt increase sales of the magazine itself, so Condé Nast attorneys -- please do take just a moment to think about the fact that I'm doing your client a favor by using the image here before you send me any cease and desist letters. Besides, it's fair use under 17 U.S.C. § 107 as commentary so if you sue me you'll lose and I don't have any money for you to collect anyway. Just leave me alone.

Watchmen Coming March 6

Great news from the entertainment industry: Fox and Warner have settled their dispute, and Watchmen will be released on schedule.

This lawyer is unsurprised -- there's too much money at stake for them to not release the movie. They probably needed a pronouncement from the court as to which one of the two studios had the upper hand in the negotiations, which you sometimes need in a case (and which is why judges who refuse to give such guidance and instead encourage the parties to "go settle it" are so useless, but that's another gripe for another day).

This geeky fanboy is excited. The previews look great, capturing the essence of the comic. I'm happy enough to post a smiley-face.

Plagiarism And Memory

It's my considered opinion that people remember things that generate intense emotions; things that generate only mild emotions tend to slip away into the fog of one's generalized recollection of the past. Examples:

• I can remember, with great clarity, how great I felt getting married. I remember my best man telling me early that day that it was important to eat. I remember what my wife looked like during the ceremony intensely. I don't remember everything the officiant said other than that he defied my instruction for a civil ceremony and invoked Jesus at the end, and that I decided that was OK because it would be pleasing to most of our families.
• I also remember, with no small amount of clarity, what it felt like to travel to Tennessee and realize that the job I thought I'd had lined up for myself was not ever going to happen. I can remember the terror I felt there scrambling around to financially provide for my family. A terrible feeling, and I remember it and the times I experienced it quite well. And there are other bad things I can recall happening to me about which I am more reticent to write in detail -- confrontations with enemies (indeed, even coming to the realization that I had somehow acquired an enemy) were tough times. Learning of the deaths of family members was tough.
  
• I do not remember with any particular clarity, whether the traffic lights on my way to work yesterday were in my favor or not. I can't really remember whether the coffee I got from McDonald's the last time I drove up to Stinking Bakersfield worked out or not. I think the last time I bought a shirt it was a little bit too small, but I'm not real sure about that. None of those things inspired intense emotions.

When I hear of people saying that they've repressed memories of particularly traumatic things, I am skeptical. It seems to me that if I went through a really bad experience, it would not only be difficult to repress, it would be difficult to stop thinking about it. I remember my grandfather, a combat veteran from WWII, seemed to have no trouble remembering what he'd been through -- he didn't care to talk about it much, but he clearly remembered everything that had happened.

So that's a little bit of my thinking of how the human mind works. With that background, I have little trouble at all reacting with some sympathy to this story -- Neale Donald Walcsh wrote a book called Conversations With God in which he claimed to have, through episodes of what can be called "automatic typing," communicated with Jehovah.

Well, Walcsh also writes for the religious website beliefnet.com. In his recent essay,* he related a heartwarming story, about a schoolgirl in a Christmas play was supposed to hold the letter "M" in a display reading "Christmas Love." But she held it upside down, so the text the audience say read "Christ was Love." (Now is the time for all Christians in the audience to go "Awww....".)

The book caught on and he sold millions of copies. Problem is the upside-down "M" story was not original to Walsch; another Christian author, Candy Chand, wrote the same story in a Christian magazine back in 1999. So when she saw Walsch's posting on beliefnet, she got mad, and now she's suing him for copyright infringement. And we're talking about a fairly extensive and serious bit of plagiarism here:

Except for a different first paragraph in which Mr. Walsch wrote that he could “vividly remember” the incident, his Dec. 28 Beliefnet post followed, virtually verbatim, Ms. Chand’s previously published writing, even down to prosaic details like “the morning of the dress rehearsal, I filed in ten minutes early, found a spot on the cafeteria floor and sat down.”

What does Walsch have to say for himself?

In a statement posted Tuesday afternoon on his blog on Beliefnet, which is owned by the News Corporation, Mr. Walsch said he had made a “serious error,” and apologized to Ms. Chand and his readers.

“All I can say now — because I am truly mystified and taken aback by this — is that someone must have sent it to me over the internet ten years or so ago,” Mr. Walsch wrote. “Finding it utterly charming and its message indelible, I must have clipped and pasted it into my file of ’stories to tell that have a message I want to share.’ I have told the story verbally so many times over the years that I had it memorized and then, somewhere along the way, internalized it as my own experience.”

Now, this is in no way a legal defense to the claim of copyright violation. Chand wrote the story, and Walsch copied it -- apparently nearly verbatim. But frankly, I have little difficulty believing Walsch's explanation. I've seen this process in action in my work a lot. I see people who act as though they are convinced of things that aren’t true all the time. Common protest from an unlawful detainer defendant: “No, I paid the rent!” They act like they really think they did. My client, however, never got the money. But I have to entertain the possibility that not only do the tenants act like they really think they paid it, but that indeed, they really, really do think that they paid it.

So it’s easy for me to see how Walsch might have put this story away for a long time and, to use his words, “internalized” it and ultimately convincing himself that it was his own. That’s not objectively true, but over time he could have forgotten where he learned of the story without forgetting the story itself.

The reason I think this is possible is that the story does not elicit a particularly strong emotional response. Oh, sure, it's cute, especially if you are a Christian. But it's forgettable, based on cheap wordplay. You can build up a story like this with some fluff and background, maybe help the punch out a little bit, but at the end of the day, it's not much of a story and it likely doesn't even inspire a huge sense of awe even in a true believer. Far be it from me to question the authenticity of his Christianity, but Walsch is a guy who is both willing to indulge himself in the vanity that God literally types through his own hands, and then to sell the putative product of such a extraordinary conversation for profit. There is a possibility that in the course of making his living -- which is gathering, packaging, and then selling stories to a religious market -- he lost track of where he picked up particular stories that he sells.

Chand is clearly in the right here, both legally and morally. She wrote the story, she deserves to profit from it. I'm not going to say Walsch was a horrible thief, but he did take and exploit something that was not his and he needs to make that right. I suspect that he will and that his contrition is genuine. But the big insight out of this story is not that authors sometimes plagiarize, it's the insight into how the human mind works.


* Beliefnet.com has taken the original essay down since the story erupted. The link should take you to a mirror site maintained by Google.

Quis Didtiet Ipsos Custodes?

The answer to the question, as we now know, is "Fox, not Warner Brothers." In a summary judgment ruling on the issue of who owns the distribution rights for the movie Watchmen, the U.S. District Court for the Central District of California ruled that Fox and not Warner Brothers owned at minimum the right to distribute this sure-to-be-profitable movie.

Watchmen is one of the most-anticipated movies of 2009. It is based on the landmark graphic novel by Alan Moore and Dave Gibbons, who also re-spun the Batman character into the darker, brooding form he is known by today. But Watchmen is what started the whole "comic books for grownups" thing -- and it really does tear down and deconstruct the whole genre of comic books and superheroes, as surely as the movie Unforgiven did to the western movie.

I just re-read Watchmen after seeing the really good trailer and was reminded of how really great it was. Apparently the movie is cut to two and a half hours long and is, with some labor, as close to true-to-the-book as can be done. (After re-reading it, I can understand how it was thought by many to be "unfilmable.") That is longer than most distributors like to have movies cut for. Now, the Lord of the Rings movies proved that people will sit through a 150-minute movie, and go back to see it again and again. But they'll only do that if it's really good.

Fox is, I hope, intelligent enough to leave a good movie alone. I can only hope that Watchmen is good, that it has a good script to back up what appear to be superb visuals. But at this point, I can only hope that the movie gets distributed at all.

And, Readers, if you haven't read Watchmen yet, I recommend it. It's not like anything you've ever read before, or since, and it holds up just as well now as it did twenty years ago when I first read it.

Student Law Review Articles

Yesterday's post about the Emoluments Clause and its effect on eligibility for Executive office, turns out to have had its roots in an article written by a then-law student. The author is now a USMC JAG based at Camp Pendelton. And the author has a very interesting take on the anticipated Clinton-State nomination.

It's encouraging to see young lawyers, new scholars, having a real-world effect on things. For them, it's probably gratifying enough that someone other than their parents and editors actually read the articles they write. I know for myself that it's exciting to see other people take the ideas you throw out and use them and debate them. (For instance, I give myself at least partial credit, for instance, for the practice of political campaigns buying ASCAP licenses.)

Lame Duck Expands Cabinet

You didn't notice. You probably didn't care. But there is a new Cabinet-level branch of government here in the United States, as of today. Congress, in the midst of the worst financial crisis in three generations, in the middle of a dramatic Presidential election, and while we are fighting not one but two land wars in Asia -- those heroes in Congress found the time and energy to protect their rich donors in the entertainment industry from college students sharing music files.

I kid. Protecting intellectual property is important, precisely because our intellectual property is on its way to being the biggest export of the United States to the rest of the world. Creative people need to be rewarded for their work and copyright is how we do it.

But that doesn't mean I think it's a good idea for the government to create a Cabinet-level position to do it. Online music and video piracy is a fluid, rapidly-changing environment. Can anyone trying to run an organ of the United States Government called the Office of the United States Intellectual Property Enforcement Representative possibly react with the kind of speed and technological savvy necessary to keep up with Sergei and Xia, who are busy even now finding new and innovative ways to move music around for cheap from their hidden cyberbase located somewhere around Vladivostok? I don't think so.

There are significantly enhanced criminal penalties in the new law, like mandatory trebled damages for trademark counterfeiting. But I despair -- Congress' solution to this problem is to create a new bureaucracy to fight it, not to rely on the people who directly benefit financially to enforce their intellectual property rights. Disney does not need anyone to tell them to go out and sue people who steal their stuff. What Congress should have done was to make it easier and more cost-effective for civil enforcement. As I understand it, the Bush Administration wasn't real happy about this bill, but it passed with veto-proof majorities and enjoyed broad bipartisan support, so it got signed into law today and soon enough, we will have an IP Czar joining the many other Czars floating around the government. Now if only we could have a Czar of Czars to oversee what all of these policy-specific Czars were up to...

Atheist Meme

I discovered an interesting counterpoint blog to my own, called PinPonPun. There, I saw a meme that apparently was circulating around a number of atheists but somehow never made its way to me. I challege other atheists and nonbelievers reading this poll to at least answer these questions for themselves, and better yet to do so on the web and post links back to them here. Unlike a lot of these surveys, there are some thoughtful questions and it is useful to have given more than an instant's consideration to their answers.

1. How would you define “atheism”?

A lack of a belief in the supernatural. This includes both a creator-god who is now passive as well as a more activist deity who is involved with the affairs of human beings. It also includes a lack of belief in things like ghosts, demons, souls, and angels. It does not exclude an openness to the possibility that there are real entities or animals in the universe whose existence is not yet known or perceptible, although a healthy dose of skepticism is called for when those kinds of ideas are floated.

2. Was your upbringing religious? If so, what tradition?

I was raised in the Roman Catholic tradition, although my parents were not particularly observant. I claimed to believe in it for a long time, largely to please my family, but privately I gave it up about the time I was 15 years old or so, and I “went public” with it when I was about 21.

3. How would you describe “Intelligent Design”, using only one word?

“Creationism.”

4. What scientific endeavour really excites you?

Research into energy-efficient fusion and cost-efficient water desalinization technologies. The science of doing these things exists already, the question is how can it be done cheaply enough to be applied at an industrial scale. Cheap desalinated water will do wonders for health and food production and save literally billions of lives – and obviate the need for resource wars in the future. Economically feasible fusion energy will produce huge environmental benefits and hopefully make electricity so cheap that in the future, only the rich will burn gasoline.

5. If you could change one thing about the “atheist community”, what would it be and why?

At least within the United States of America, I would try and make it less dominated by political liberals. Not that there’s anything wrong with being liberal, Obama supporters, or otherwise being on that side of the political spectrum. But seems to me that there is too much visceral reaction on the part of atheists to the religious right. Yes, the Christian right has politically mobilized and from time to time it uses atheists as their whipping boys. But on the other hand just because someone is “conservative” does not mean that their ideas are necessarily theocratic and wrong. For instance, conservatives are more likely than liberals to advocate making it easier to develop nuclear power plants, and we need more of those in this country. But because politicians who are also big social conservatives are on board with these other ideas (some of which are good) atheists tend to reflexively assume that the ideas are bad or must be opposed. Were more atheists, agnostics, secularists, humanists, rationalists, et. al. doing their own thinking instead of reacting, we’d be seeing a greater diversity of political thought among atheists and maybe, being an open atheist would be a less political kind of statement.

6. If your child came up to you and said “I’m joining the clergy”, what would be your first response?

Once I got over the shock of actually having a child at all, I'd say, “If you’re really going to do it, then do it right and don’t do it for the money. It’s a very emotionally demanding job, and you will find that you have to give up a lot of personal time and space to do it right. Please try and offer good practical and real-world advice to your parishioners as well as the religious advice you will dispense. And please accept my best wishes that this path brings you happiness.”

7. What’s your favorite theistic argument, and how do you usually refute it?

The argument I enjoy refuting most is that we have a moral imperative to follow the commands of Jehovah in the Bible. This is easy and fun to refute by pointing out some of the rather ridiculous things that would earn you execution in the books of Leviticus and Numbers, like sodomy or masturbation. Christians often protest that this was the ‘old covenant’ and the ‘new covenant of Jesus’ means it’s now okay to eat bacon, I point out the passage in the gospel of Matthew which has Jesus affirm “every jot and tittle” of the ancient Hebrew laws. So this argument ends up by getting the commands of Christianity diametrically opposed to good ethics.
The theistic argument that I respect the most is the argument that there must be a first cause, a creator of some kind, because science and available evidence cannot provide anything even approximating an explanation for the cause of the Big Bang. The Judeo-Christian theist who argues this typically also argues for a figurative or metaphoric interpretation of the Genesis story and is perfectly willing to concede that evolution is the manner in which God created humans and all the other animals – this is a theist who does not reflexively deny the teachings of science but instead possesses the suppleness of mind to dovetail science and faith. Answering the argument by saying that we don't know what the answer to that issue is yet is not intellectually satisfying and leaves open the issue that everyone needs to rely on something non-scientific, non-evidentiary in order to wrestle with that issue.

8. What’s your most “controversial” (as far as general attitudes amongst other atheists goes) viewpoint?

Placing a high priority on not only respecting but advocating for the rights of religious people to practice their faiths in appropriate places and ways. This means that I think we as atheists should be arguing in favor of the rights of a street preacher to annoy us as we walk across a public square; we should not only tolerate but be outspoken in standing up for the rights of students in a public school to have a voluntary prayer group that is truly voluntary. I say this because the rights of a religious person to engage in free religious practice are the same rights that we as atheists have to be free from having a religion rammed down our throats by the government. The free exercise and establishment clauses are really about the same thing. By advocating for the rights of people with whom we disagree, we can demonstrate that we take very seriously what those freedoms are about.

9. Of the “Four Horsemen” (Dawkins, Dennett, Hitchens and Harris) who is your favourite, and why?

I’ve not read very much Dan Dennett. Of the other three, I like Sam Harris the best. He is the most willing to recognize that theists are acting out of a desire to do good rather than evil and to concede the fact that people have mystical experiences which can produce value and happiness. Some claim that makes him a stalking-horse for Zen Buddhism, but that need not be the case.

10. If you could convince just one theistic person to abandon their beliefs, who would it be?

Barack Obama. As the soon-to-be leader of the free world, President Obama would be in a remarkable position to lead by example, demonstrate that you don’t need God to be good. He would also gain politically by casting off his connection to a church and a preacher who became a drag on his political fortunes.

Ah Ha! The Defense Is Revealed!

In previous posts, I have argued that the McCain-Palin 2008 ticket should stop using the song “Barracuda” because it is contrary to the wishes of the owners of the song. I think that analysis still holds. However, there is an additional fact which I was not aware of.

The McCain campaign has an ASCAP performance license. That changes everything. The reason it changes everything is that by distributing their song through ASCAP, the Wilson sisters have agreed to ASCAP’s licensing and royalty distribution scheme. Part of that scheme involves making ASCAP their agent for the purpose of issuing licenses to perform sound recordings of the song. ASCAP sells those licenses for all of the artists who list their songs with it en bloc. And it collects money from the performer of the song (“performer” here meaning the person or entity that plays the sound recording) each time the song is played. As a practical matter, no artist who wants to sell music to a mass audience can do so without the assistance of ASCAP or its primary competitor, BMI. And those licensing agents are only useful commercially because they sell en bloc licenses to anyone.

See, all of my analysis was predicated on the assumption that the campaign had not bothered to get a license beforehand. I based that on the behavior of the Clinton-Gore 1992 campaign, which my research showed simply played its popular music and waited to see if there was any objection. But in this case, the defense to a copyright violation claim would be “consent.” The Wilson sisters’ agent, ASCAP, consented in advance to the McCain campaign’s use of the song. That consent was conditional upon the payment of money, and at least according to the Slate article linked above, the money has been paid. Re-tooling the en bloc licensing agreement to accommodate the wishes of these particular artists may simply not be practicable, and that may also constitute a breach of contract between ASCAP and its customer, the campaign.

That’s a good defense. And it respects the property rights of the Wilson sisters. If they don’t want just anyone to come along and buy the right to use their music, they need to work out special arrangements with their licensing agent. So, upon further review, I call “no foul.”

Barracuda

I've said it before -- both in an academic journal and in these pages. A politician should not use someone else's copyrighted music, like say, the popular song "Barracuda," without the permission of the copyright owner. Niether the GOP nor the McCain-Palin '08 campaign own the song and it is doubtful that they have even offered the standard royalty for its use at the RNC and at campaign rallies. Even if they have, the actual owners of the song, Ann and Nancy Wilson, have specifically specifically withheld permission for the Republicans to use that song, going so far as to send a cease and desist letter. The Republicans should stop using it, as they have been, trying to play off of Vice-Presidential candidate Sarah Palin's high school basketball team nickname "Sarah the Barracuda."

It does not matter that the Wilson sisters would likely have given permission to the Obama campaign to use their song. It is their song, to use and control as they choose, in their sole discretion. The First Amendment does not preclude the existence of copyright law -- indeed, copyright laws are specifically authorized by Article I, Section 8. The point of copyright is that the owner of a song gets to control when and how it is used. That control is a property right. The owner can demand a fee for the performance of the song, whether that performance is live or by way of a sound recording. And the owner can withhold that permission completely.

Evil Olympics, Day Nine: How The Chinese Steal Our Intellectual Property

Intellectual property is important because it is how a culture is created in a capitalist society. It is how technology is encouraged to advance. It is responsible for the countless innovations and richness of our lives. Respecting and enforcing the intellectual property of others -- copyrights, patents, trade secrets -- is fundamental to the value of our civilizations.

In that sense, China is a different civilization than ours. In theory, the PRC is a member of the World Intellectual Property Organization and therefore it is charged with enforcing internationally-registered copyrights, trademarks, and patents consistent with the Berne Convention for the Protection of Literary and Artistic Works. And in 1998, special intellectual property courts were created in China to attempt enforcement. The problem is that limiting control of particular works to the artists who created them (so that they can be exploited for profit for a time) seems to be a concept foreign to the PRC. I cannot determine whether there is simply a lack of education about it, or some kind of a a cultural incompatibility with the concept.

But foreign businesspeople seem to repeat, again and again, that when they discuss the idea of copying the intellectual work of someone else as a moral wrong, their Chinese counterparts return blank, uncomprehending stares -- they simply don't get it. These are ideas, not property, they seem to think; how can anyone own an idea like "beauty" or "efficiency"?

It seems that while the leadership of the country wants to make a show of trying to enforce intellectual property laws, but there is no real desire to do so, no real understanding of why it is important other than that all of China's Western trade partners seem to think it is terribly important.

So China remains high, and maybe even still atop, the list of nations where intellectual piracy is an industrial-scale problem. Pirated movies, albums, books, software, handheld electronic devices, and counterfeited designer merchandise of all sorts are openly manufactured and sold both within China and exported for sale on street corners as far away as Kansas City and Pisa. Chinese-hosted websites remain the primary nexus for file-sharing, and the masters of these websites possess sufficient technical skill to hide themselves from the simple sorts of traces that all but the most sophisticated enforcers might use. There is no will on the part of the Chinese government to expend the resources necessary to rigorously police its own corners of the internet for this; they are too busy clamping down on criticism of themselves to bother with what, in their hearts, they consider to be legitimate businessmen.

The outsourcing of much legitimate reproduction work to the tens of thousands of companies in China -- reprinting authorized DVDs of videos, for instance -- has led to the creation of an industrial infrastructure that lends itself to the quick, inexpensive, large-scale, and anonymous piracy of newly-released artistic works, to the substantial financial detriment of the artists who created them. New music CDs and new movie DVDs (the latter of which are frequently of movies still in theaters in the U.S.) can be had for as little as one U.S. dollar on a Beijing street corner -- although I'm willing to bet that most of those "merchants" have been shuttled away from sporting, media and housing venues by authorities acting at the direction of the image-conscious Communist Party authorities during the Olympics.

Don't believe me? Ask the U.S. Government, who characterizes the problem in China as "improving" but still "serious" and a "priority" for future enforcement efforts.

What, after all, can one say about a country whose tradition of counterfeiting the intellectual and cultural achievements of others is so rich that it enjoys its own epithet? The phrase "Chinese copy" means to crudely reverse-engineer a device without gaining any understanding of the science or concern for precision that may have gone into an original. The People's Republic of China has been doing this for well over a hundred years, particularly with military technology from the west -- one remarkable example includes the startling resemblance of the PRC Tu-4 bomber to an American B-29. A government may lead by example as well as by enforcement of laws.

To some extent, we have to allow for China, as a sovereign nation, to set its own agenda for priority in law enforcement and to choose for itself the way it will govern these issues. But particularly if China is going to sign off on international treaties promising the rest of the world that intellectual property rights will be enforced and valued within its borders, and we do business with them concerning these valuable commodities in reliance on those assurances, we have a right and a reasonable expectation that the Chinese will do what they promise. And we are entitled to maintain our beliefs and priorities, too -- if China is a land with a high incidence of intellectual property theft, chalking up that theft to a "cultural mismatch" is only worth so much.

A Subject Near And Dear To My Intellect

Not a lot of people have paid attention to the question of the use of popular music in political campaigns. I wrote a law review article about it. My analysis favored the artist; I tried to attack the issue from a practical as well as a theoretical perspective and I found that the unauthorized use of a copyrighted piece of music by a political campaign was not fair use under section 107 of the Copyright Act.

So I'm inclined to think that Jackson Browne will eventually win his lawsuit concerning the use of his song "Running on Empty" to attack Barack Obama's suggestion about tire inflation in response to pressure over rising gas prices. It's questionable whether the McCain campaign or a state Republican Party is responsible for the ad, though, so he may lose against McCain. But I think he should win against somebody.

I was also intellectually flattered to learn that someone had written an article taking the opposite point of view to mine, specifically refuting my fair use analysis and reaching the opposite conclusion based on the importance of political speech. I still think I'm right, but it's cool that someone else cared enough about my article to put in the time and effort to refute me.

Note that my use of the cover art from Browne's album (which is also copyrighted by him) is fair use, since it is a minimal use of the artwork, associated with comment about the art in question, and does not impact the commerical market for the song in any way. The use of the song in a campaign commercial, however, could tend to alienate voters from Browne by suggesting his association with a political belief Browne does not advocate and neither comments about nor parodies the work itself, but rather uses the work to comment on or parody something else. The weak point in this argument is that the album art and the song are different copyrights, although I would argue that they are closely associated with one another in the minds of the average consumer.

Note also that in the linked article, Jackson Browne's attorney is forceful in stating that the lawsuit is not politically motivated and is simply an attempt by Browne to control his song. Of course, writing and performing music is Browne's livelihood, and "Running on Empty" is probably the most valuable piece of music Browne has produced, so one can understand his wanting to protect it. But at the same time, I have a lot of difficulty seeing this same lawsuit filed against the Obama campaign.

Breathtaking Cupidity: This Month's PSA

One of the services I provide to my clients is assistance with trademark applications. The application process is not quite simple enough that a layman of average intelligence can do it right the first time, so some of my clients would rather not bother to learn how to do it and hire me instead. But once you've done a few, it's pretty easy and now I can get an application done online in a short, predictible amount of time. So while the fee charged by the USPTO for the application varies, I can charge a flat fee for my service.

Now, I have all the marks registered to my office. That's because I want to present the completed trademark (it comes in a nice cardstock folder with an official-looking Federal gold seal on the front) to the client and be a hero; and also because of stuff like what I got today. Once you register a trademark (or a patent, or a copyright) a bunch of "vendors" start sending you junk mail because the address is right there in a public record for anyone to see. They charge a fee for the "service" of informing you of things that the USPTO would inform you of anyway.

What's underhanded about this is that they all have official-sounding names for their businesses, like "United States Trademark Registry, Inc." or "International Trademark Clearinghouse Organization GmbH, North American Division." They make their junk mail and solicitations look like official government agency forms, although if you actually read them, you will see that they are really solicitations for services. Still, I can see where a lot of people would get these sorts of advertisements in the mail, be deceived into thinking that there are additional steps they need to take to protect their marks, and send money to these vultures. But today I saw one that really takes the cake; it appears to the left of this paragraph.

The sheer cupidity of the solicitation is breathtaking. At first glance, and even at second glance, it appears to suggest that my client's U.S. trademark will also be registered with the World Intellectual Property Organization (which is a real intergovernmental entity). If that were true, the service would actually have some value to some trademark holders, so that their marks are protected not just in the U.S. but in every WIPO nation (which is most of the countries a business would care about, except for China). I don't know that the amount of fee that is being charged (over $2,000) would be fair for this service but then again, I've never registered a trademark with WIPO (haven't needed to) so I wouldn't know if it's especially complex. But if you read the solicitation closely, you will see that the service that is actually offered is registry of your mark in this vendor's private database, which is published in book and CD-ROM form quarterly.

This is about the slickest "official" solicitation I've seen -- and the one asking the most money to provide a non-service. So while I've redacted out my client's identifying information, I've left the identity of the "vendor" ascertainable from the picture. If any of you get solicitations like this in the mail, read them carefully before sending money. Just because it looks official does not necessarily mean that it is so.

So Much For Rocktober

In the end, it came down to John Papelbon pitching to Seth Smith. Not names for the ages, I don't think, but the Red Sox's pitching was just too much for the Rockies, who got themselves swept in the Series. So I'd better enjoy using the phrase "Rocktober" while I can, because some playoff-happy executives in Denver decided that they would trademark that phrase, so beloved of classic rock radio stations nationwide.

Chef Sues Sous Chef

It's not my own headline, but I couldn't possibly have improved on it. And it's 100% accurate. Seems that a sous chef for a high-end seafood restaurant in New York copied, ingredient for ingredient and technique for technique, all of the significant recipes of the restaurant that he worked out, and used them in his own place.

"The stakes are so high," said an intellectual property lawyer asked to comment on the situation, and I agree. But the thing is -- what was the theory used by chef claiming that the other chef stole her work? It probably isn't a trade secret -- most restaurants do not make their workers sign non-disclosure agreements, even though a secret recipe is a classic example of the kind of information that is protected by trade secret law. And this most closely resembles a trade secret claim.
Maybe it's copyright. Of course, that would require that a) the chef who made the recipe had written it down somewhere, and then that b) the sous chef copied that writing (rather than, say, being told what went into the dish and reconstructing it from memory), and c) that the now-former sous chef copy and exploit the recipe.

An interesting story to follow. I hope that there is follow-up on it.