feminist blogs

(Crossposted on “Alas” and on “TADA”)

David Post writes:

The National Jazz Museum (who knew there was such a thing?) has apparently acquired a true treasure trove of early jazz recordings. The collection — nearly 1,000 discs! — was recorded in the 30s and 40s by William Savory from on-the-air radio broadcasts, and includes performances by Lester Young, Benny Goodman, Coleman Hawkins, Lionel Hampton, Billie Holiday, Teddy Wilson, and many others of the great names of jazz (from the greatest era of jazz). Savory, apparently, is something of a legend in recording engineer circles, and many of the recordings are of stunningly high quality (and many of the performances masterpieces).

If you’re like me, and consider American jazz of the 30s and 40s to be one of the great artistic outpourings of all time, the story induces something like a swoon of ecstatic delight. [...]

So needless to say I can’t wait to hear the reissues. But alas, that may never happen. As the original article noted (with additional commentary here), the potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings. Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental, and quite possibly an impossible, task, and it may well be that nobody steps forward with the resources to (a) undertake the efforts required and (b) take on the risk of liability.

In a passage that’s worth reading twice, Post goes on to write:

…copyright, inherently, operates to the detriment of the public when applied in retrospect, to works that have already been created. Lester Young, alas, can no longer be incentivized to produce these performances — they’ve already been created. We won’t get any more brilliant performances by Teddy Wilson if we protect these works. All we — the public — get from applying copyright here is a restriction on our ability to encounter magnificent works of art. Now of course, copyright is only ever applied in retrospect, and if we always ignored it when applied to already-existing works it would cease to exist, and would therefore no longer serve its incentivizing function prospectively.

And there’s your copyright balance; what we seek is a way to give creators enough of an incentive to create, but not too much, because too much gives us, the public, too much of an impediment to actually enjoying the works that have already been created.

Here’s the thing: Most creators need very little incentive to create. Yet our laws pretend that if we don’t have a monopoly extending to decades after our deaths, most creative sorts will hang up our pens and brushes and saxophones and go “oh, heck with this! I’d rather pump gas.”

Music only has value when it is heard. If it can’t find an audience, it’s dead. A copyright regime that kills music is one that needs reform.

There’s a brilliant comic strip, Barnaby, which is – rumor has it — not being reprinted because the creators’ family is unrealistically waiting for someone to offer Peanuts-size royalties. Or maybe they just loathe their father and want to see his legacy of art forgotten. Maybe they’re just used to seeing enormous sums of money from Harold and the Purple Crayon, and so don’t think it’s worthwhile to let their father’s comic strip see daylight, because they have no souls and think art is crap. Or maybe they have other reasons.

But I don’t really care, because they didn’t create Barnaby. They didn’t write it, they didn’t draw it, they have basically no moral right to that work. In particular, they have no right to lock up another person’s creative legacy in a vault, and deprive the reading public of that work.

Keeping a comic strip out of print, when there are plenty of publishers who’d love to print it, is no different from grabbing the Mona Lisa and chucking it into a fire. It’s censorship, and it’s a kind of censorship they’re only able to accomplish because copyright laws irrationally give them that right. I do think there are many situations where the creator of a work has a right to keep it from the public. But why should people who didn’t create the work have that right?

Yes, legally, they’re the heirs. But why should copyright be passed down to heirs at all? Is the thought that if Crockett Johnson hadn’t been able to imagine his heirs keeping his work out of print forever, he never could have motivated himself to draw a daily comic strip at a time when drawing comic strips was admired and extremely rewarding?

How does this situation benefit anyone? How am I, as a cartoonist, encouraged to create new works because I can see that Barnaby is being kept out of print, and because I can imagine my hypothetical future heirs deciding to keep my own work out of print? I don’t think I am.

I think I’m just being robbed as a member of the reading public. And I think Crockett Johnson is being robbed of one of the things that matters most to almost any popular artist — an audience.

I express my heartfelt appreciation for the gestures of goodwill and support from our Jewish friends and colleagues. Your support is a reflection of the great history of mutual cooperation and understanding that Jewish and Muslim civilizations have shared in the past, and remains a testament to the enduring success of our continuing dialogue and dedication to upholding religious freedom, tolerance and cooperation among us all as Americans.

–Imam Feisal Abdul Rauf, one of the group planning to build a mosque two blocks from Ground Zero in New York. “The pro-Israeli lobby JStreet collected over 10,000 signatures in support of the center that were delivered to the Landmarks Preservation Commission ahead of its vote on the Cordoba House.”

To which I say: Go Team Jew!

Mayor Bloomberg gave a good speech:

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies’ hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

“For that reason, I believe that this is an important test of the separation of church and state as we may see in our lifetimes, as important a test. And it is critically important that we get it right.

“On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, ‘What God do you pray to?’ (Bloomberg’s voice cracks here a little as he gets choked up.) ‘What beliefs do you hold?’

“The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked.

“Of course, it is fair to ask the organizers of the mosque to show some special sensitivity to the situation, and in fact their plan envisions reaching beyond their walls and building an interfaith community. But doing so, it is my hope that the mosque will help to bring our city even closer together, and help repudiate the false and repugnant idea that the attacks of 9/11 were in any ways consistent with Islam.

“Muslims are as much a part of our city and our country as the people of any faith. And they are as welcome to worship in lower Manhattan as any other group.

[Crossposted on "Alas" and on "TADA." If you want to defend Howell's views, take it to TADA, please.]

An adjunct professor who taught courses on Catholicism at the University of Illinois has lost his teaching job there, and he claims it is a violation of his academic freedom.

Kenneth Howell was told after the spring semester ended that he would no longer be teaching in the UI’s Department of Religion. The decision came after a student complained about a discussion of homosexuality in the class in which Howell taught that the Catholic Church believes homosexual acts are morally wrong.

One thing that makes this story interesting is that we can actually read the email Howell sent his class, which prompted the complaint (which we can also read).

My initial reaction, upon reading this story, was to think the U of I was wrong to fire Howell (technically, Howell wasn’t fired — he was just not asked to return).

After all, the Catholic Church does believe homosexual acts are wrong. A professor should be able to describe the Church’s arguments in a course about Catholicism. And Howell sounds very agreeable when he says things like this:

Howell said he was presenting the idea that the Catholic moral teachings are based on natural moral law, and the Catholic understanding of what that means.

“My responsibility on teaching a class on Catholicism is to teach what the Catholic Church teaches,” Howell said. “I have always made it very, very clear to my students they are never required to believe what I’m teaching and they’ll never be judged on that.”

There’s an obvious free speech value in professors being able to state controversial and disliked opinions without being fired. And, as well, an educational value in students encountering a variety of views, including views that I hope most students disagree with.

So Howell’s firing was unjustified, right?

I’m not sure.

1) We don’t actually know that Howell was fired (or not asked back) because of the student complaint. That one event follows another doesn’t prove that one event caused the other.

2) Howell’s account is disputed. Howell claims to run a classroom in which students are encouraged to disagree with Howell’s own views. On the other hand, the letter of complaint claimed Howell “would preach (not teach) his ideology to the class …the teacher allowed little room for any opposition to Catholic dogma.” If that claim is true, then U of I is entirely justified in not asking Howell to return.

Of course, I have no idea if the claim is true or not.

3) Judging from the one example of his teaching we can see — the email — Howell is arrogant, hypocritical, ignorant, and a bad teacher. As PZ says, “I think it entirely reasonable to boot Kenneth Howell out of UI because he’s not very bright and doesn’t meet the intellectual standards I expect of UI professors.”

In his email, Howell wrote:

Unless you have done extensive research into homosexuality and are cognizant of the history of moral thought, you are not ready to make judgments about moral truth in this matter.

In context, it’s clear that Howell considers himself to be someone who is ready to make judgments, based on what I can only assume he considers to be his own “extensive research into homosexuality.” Which is laughable, because Howell also wrote:

To the best of my knowledge, in a sexual relationship between two men, one of them tends to act as the “woman” while the other acts as the “man.” In this scenario, homosexual men have been known to engage in certain types of actions for which their bodies are not fitted. I don’t want to be too graphic so I won’t go into details but a physician has told me that these acts are deleterious to the health of one or possibly both of the men.

So Howell is plainly an ignoramus. But worse: He’s the kind of arrogant know-nothing who believes he knows a lot, and presents myths to students as if they were facts. And he presents a terrible example of scholarship for students to emulate (i.e., “a physician has told me” — now there’s a valid academic source!).

If this email is a fair representation of Howell’s abilities as a teacher, then it’s likely that his students become more ignorant, and worse scholars, because they took his class. Frankly, if that’s why Howell was let go, then the only thing I’d ask is “what took them so long?”

Richard’s story in this post reminds me of is the Jake Baker case, in which a male student posted an explicit fantasy about raping and murdering a female classmate, and posted the story on Usenet, signing his own name. The story also named and described the student Baker fantasized about murdering.

After Baker’s story was noticed, the authorities searched his computer and found emails he was exchanging with a Canadian man he met online. In the emails, the two men were either planning to work together to carry out their rape/murder fantasies in real life, or (as Baker claimed) they were role-playing. Or, alternatively, Baker was role-playing but the man he was corresponding with was serious).

Baker was expelled from the university and charged with conspiracy to commit murder, but was found not guilty at trial. Several civil liberties organizations objected to Baker’s treatment, saying he had a free speech right to write his stories and exchange emails about fantasies.

I agreed with Baker’s expulsion.

1) Publicly posting a rape/murder fantasy about another student, including her name and description, isn’t behavior that colleges should tolerate. In a very real way, publishing the story was an attack on his fellow student.

2) It would have been unreasonable to expect the target of Baker’s fantasy to continue attending the same school as Baker; but if she and Baker can’t attend the same school, then Baker, as the one who created the situation, should be the one to go.

3) The University had to take a risk. If they expelled Jake Baker, they risked expelling a student who actually never would have physically harmed anyone, and was guilty mainly of having horrible fantasies. If they hadn’t expelled Jake Baker, they risked that eventually Baker’s fantasies would have turned into real-world attacks on female students. Given that choice, it’s better to risk expelling Baker than to risk not expelling Baker.

Since this case took place 15 years ago, it might seem strange to post about it now. It still feels relevant to me because the Jake Baker case was what convinced me to stop being a free speech absolutist.

I’m embarrassed that I didn’t hear about this until last night, especially since my husband attends the very campus in question. (In my defense, I was in the mountains for most of last week.) In response to Muslim students’ protest* of Israeli ambassador Michael Oren’s visit to campus, the UC Irvine Muslim Student Union has been suspended for one year.

Whether the students’ choice of direct action was wise is a debate of its own - and one that I’m not interested in having on this thread - but the university needs to realize the deeper ramifications of its decision. It’s almost impossible to imagine a Jewish or Christian group being punished this way for the actions of Jewish or Christian students; I’m assuming that the Muslim protesters were members of the MSU, but it must be noted that they didn’t act on behalf of the organization. The message the university is sending, whether it means to or not, isn’t that some forms of protest are unacceptable. The message it’s sending is that Islam is not as legitimate as other religions at UCI.

The MSU is appealing the decision; check their website for updates.

Via the Debate Link.

ETA: According to the LA Times, the office of student housing claims that the MSU organized the protest with plans to deny it later. At this point the evidence seems shaky, though.

*David Schraub points out the following in the comments:

The MSU was not suspended for “protesting” Ambassador Oren’s appearance. They were suspended for disrupting the appearance — trying to make it impossible for Ambassador Oren to present at all via, in essence, continually shouting him down. Particularly since there are many out there who suspect that any protest or critique against Israelis or Israeli policies will be met with “muzzling”, this is not a trivial distinction, and is extremely important to make it. Students should be absolutely free to protest, but universities have every right to prevent actual disruption of educational events.

On Balkinization, Christina Mulligan points out that the characters in “Glee” violate copyright law left and right:

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

You might be tempted to assume that this tension isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops,to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don’t hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

I’m too lazy to reproduce all the links in the above-quoted paragraph, so go to the original post to see the links. And also to, y’know, read the entire post. :-)

Current law favors copyright holders. But morally, there’s nothing wrong with singing your heart out. Remixing isn’t stealing, and copyright isn’t property. Copyright is a privilege — actually six specific privileges — granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren’t “property” in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices — choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

From the LA Times:

Secretary of State Hillary Rodham Clinton won praise in June after pushing to extend many federal benefits traditionally provided to diplomats’ spouses to gay and lesbian partners.

Since then, unmarried heterosexual couples have been lining up to ask for benefits too. They have approached the State Department’s personnel office and the diplomats’ union, arguing that they are entitled to equal treatment. At least one couple has threatened to challenge the rules in court as discriminatory.

The U.S. Office of Personnel Management, which is responsible for policy on federal workers, is weighing such an extension of benefits, U.S. officials say — to the consternation of conservatives.

This is predictable. If same sex couples cannot marry, then “marriage-light” policies have to be created for same-sex couples. But why should “marriage-light” policies exclude heterosexual couples?

Marriage laws, fundamentally, are how we turn someone unrelated to us, into our legally recognized closest relative in the world. I don’t think that purpose is undermined by opening marriage lite provisions to straight couples.¹ However, there’s no doubt that conservatives who oppose equality for gay people do see marriage lite laws as diluting marriage, which makes it ironic that their actions make the continued growth of marriage lite arrangements inevitable.

In somewhat related news, the DC group Full Equality Now! has walked back its initial opposition to anti-gay ads on public buses (which they now say was just a draft), after the Gay and Lesbian Activists Alliance and the ACLU stood up for the free speech rights of anti-gay groups. Good for GLAA and the ACLU, and good for FEN! for being willing to back off their mistake (even if they did it a little ungracefully).

Hat tips to Marriage Debate.

1. Although I can see a disadvantage to having a multiplicity of marriage and marriage-lite laws; the more such laws there are, the less they will be universally understood, which makes them less useful.

[This post is reprinted from Attempts, a blog I read and highly recommend. (Those "Alas" readers who aren't interested in comics may still want to check out "Attempts" for posts like this one about Roman Polanski).

[Thanks to Stephen Frug for his kind permission to repost this on "Alas." --Amp]

* * *

Thoughts on the copyright reclamation by the heirs of Jack Kirby, sparked by this post by Alan David Duane.

(In reading the below, remember I’m neither a lawyer nor a policymaker nor even one who has read the relevant legal documents; I’m going by a (semi-informed, but distinctly) layman’s readings of the news stories about them. If that doesn’t interest you, bail now.)

1)

The heirs of Jack Kirby have filed a notice of copyright reclamation in the case of superheroes he had a hand in creating for Marvel in the early 1960’s, characters such as the Fantastic Four, the Hulk, and even Spiderman (who was created by Steve Ditko more than Jack Kirby).

2)

It’s important to remember what’s going on here. Kirby’s heirs aren’t suing anyone — at least not yet. They are filing a notice of reclamation. They are able to do this because of the odd nature of our current lengthy copyright system.

Until 1976, copyrights were good for 56 years — an automatic 28 with a single optional renewal. In 1976, Congress extended that period — first to 75 and then later to 95 years (oversimplifying but in essence). This was not only prospective, applying to works copyrighted in 1976 and later, but retroactive, applying to old works too.

But this created an odd situation for those who had sold their copyrights prior to 1976. What they’d sold was copyright as it existed then, i.e. the 56 year term. What to do about the extensions for sold copyrights? Should they belong to the original owner (on the grounds that they only sold the existing copyright of 56 years and not any more), or should they belong to the new purchaser (on the grounds that the purchaser bought the copyright and the extension doesn’t affect that)?

(Note that this is also a different legal situation than the one involving DC/Superman/Jerry Siegel’s heirs.)

3)

This entire debate is distorted by a broader misconception in our culture about the relation of worth and wealth to merit and effort.

It is a strong cultural myth in our society — an essential undergirding of one of the two major political philosophies of this country, and an almost-as-important one for the other — that people who get rich deserved it. They worked hard, or had a good idea, and therefore they made it. Conservatives tend to (implicitly) assume this is the end of the story: if you work hard and/or are smart, you’ll get rich; if you’re poor, it’s your own damn fault. Liberals, in contrast, recognize unfairness and randomness to a degree, so they tend to say that people can work hard and stay poor. But neither side tends to see the fact that wealth is at least a much a matter of chance and luck as it is of merit or effort.

The reason we don’t like to see that, of course, is that it upends the supporting intellectual assumptions of most of our society: if the rich are simply lucky, then the enormous favor they receive is unearned and unfair.¹

This is never more true than when we are talking about intellectual property.

I’m not (repeat, not) saying that artistic merit has no relation to how well a work does. But it’s been extensively argued on theoretical grounds, amply seen throughout history and shown in controlled laboratory studies that merit is, at best, a necessary but not sufficient factor. Harry Potter may have been a good series of children’s books — but there are a lot of other books that are equally good (as I’ve had children’s librarians say to me); J. K. Rowling may have been good, but she was mostly very, very lucky.

However true this is of the success of original works, how much more strongly true is it of intellectual properties² which have success in derivative works!

This distorts our discussion in numerous ways. In part it leads to people saying things like

I won’t argue with anyone who tells me Herb Trimpe is unlikely to return to Marvel and create a blockbuster, breakthrough character that generates millions of dollars, no matter what sort of compensation deal is in place.

…which implies that the talent and effort of Herb Trimpe (who was the first man to draw (although he did not create) Wolverine) was a major role in Wolverine’s becoming a breakthrough character. This is not because of what Herb Trimpe did or didn’t do.³ It’s because time and chance — and broad social forces such as create a market for characters such as Wolverine — and, above all, fashion are what made Wolverine worth what he’s worth today.

The fight that will follow over the ownership of the Fantastic Four isn’t quite like a fight over a lottery ticket; but it’s far, far closer than anyone is granting in this discussion.

4)

There is a third party to every legal battle over intellectual property, one which has neither lawyers nor lobbyists on its side. Thanks to the recent intellectual growth of the copyleft movement, it has some advocates; but their position is largely based on reason and fairness and the public good, and is therefore extremely weak. But it is the most important party nonetheless.

I speak, of course, of the public.

Intellectual property — a misnomer, really, since there is no thing to be owned — is a government-enforced monopoly restricting freedom of speech. It restricts your ability to say what you want to say, in person or print or on film or in comics — if what you want to say is, for example, “I was the shadow of the waxwing slain by the false azure of the windowpane; I was [REMAINDER DELETED DUE TO DMCA TAKEDOWN NOTICE]” It equally, and even more indefensibly, to your ability to tell an original story — if that story is about, for example, Superman or Spiderman.

There are reasons for so limiting speech — which is why the power to do so is explicitly granted in the Constitution — but given that it is limiting very basic human rights, the power is moral only insofar as it is necessary to accomplish its stated ends. (Whether or not it is legal is a separate matter.)

5)

The moral case for creators’ rights is both essential and irrelevant to the Kirby-copyright issue.

It’s irrelevant because neither party has a very good moral (as opposed to legal) claim. On one side we have Kirby’s biological heirs; on the other, the corporate descendants of the companies he worked for. Neither set of people had much to do with the effort or talent put into these characters; they are fighting for an inheritance, and like any fight for inheritance they are fighting for things they may have title to but don’t in any moral sense particularly deserve.

But it’s essential because it was only because of the (perceived) moral rights of creators that copyright was extended in the first place.

If the case before Congress had been that companies wished to extend their intellectual monopolies to make more money from them, then even that bribery-pliant group of sellouts would have a hard time justifying such a vote. So it was all talked up in terms of the struggling, lonely dreamer, hoping to turn his or her talent into a win for his or her heirs.

This was a fiction, of course — as much of a fiction as the notion that estate taxes hit small farmers rather than wealthy businessmen, and a fiction of the same kind, i.e. a propagandistic one designed to hide the true beneficiaries of public policy. But in terms of the copyright extensions passed in the 1970’s, and then again in the 1990’s, and then again whenever Mickey Mouse next threatens to go out of copyright, it’s an essential one. Without this fiction, the extra value that came from the copyright for years 57 - 95 of an intellectual property simply wouldn’t exist — or would, rather, be held by the public and not by anyone in particular.

This is why you can’t say of copyrights what you’d say of, for example, real estate. If you sell a house in a poor neighborhood, and then it becomes trendy, and the owner therefore (through luck) becomes rich, you can’t complain that you didn’t know its worth when you sold it. But no one seriously doubts (pragmatically if not morally) the perpetual property rights to real estate.⁴

Whereas the purchasers of these monopolies, which have become valuable only due to chance (and the efforts of thousands, morally and artistically indistinguishable from similar efforts which led nowhere), have any chance of extending them at the expense of the public only by appealing to the moral claim of their creators.

Marvel wants to argue that, for the good of people like Jack Kirby, it must have the right to hold a monopoly on his creations — against, in this case, his actual heirs. They need the appeal to Kirby’s rights to win the broader public debate, and need to squash that same appeal to win the narrow legal one.

The myth that wealth is earned is necessary to make us think that the financial windfall is significantly due to Kirby’s talent in the first place, and that this fight over a lottery ticket is a fight over who really deserves it — blinding us to the real answer, no one.

6)

Artists can’t threaten to withhold their next breakthrough character from big companies if they’re not fairly compensated, because they have almost no say in whether they can create one. They put their effort and talent into what they make; but what makes it valuable is fashion, and the efforts of others, and luck, and a host of other factors.

Companies have extended copyright based on a myth of the individual creator — who they are trying to screw over at every other moment so as to make money for themselves.

Of course artists should be fairly compensated for their work — and there is, as I have said, a very strong pragmatic argument for copyright, one I don’t disagree with (assuming that said copyright is, as provided by the U.S. constitution, “for limited terms”). But the vast wealth at stake here is irrelevant to that right, since it is all-but-irrelevant to that success.

And of course companies should be able to get funding to make (say) movies, and then profit from those endeavors. But they want more than that; they want to maintain a public monopoly on the ability to tell stories about certain characters who, for whatever reason, have caught the public’s imagination, so that not only can they make and profit from stories about their characters, but so that they can ensure that theirs are the only stories about those characters that are there to be told.

7)

Since I’m not a lawyer or policymaker, but simply a citizen with opinions on public policy, I can say that I support neither Kirby’s heirs nor DC/Marvel. I think that, 56 years after their creation, all works should be in the public domain. The supreme court, alas, disagrees – which seems to mean little more than their unwillingness to open the can of worms of recognizing that our current Congressional system is so poisoned by legalized bribery that no judgments of Congress (or the President, or really the Courts) can be understood as representing the public interest save incidentally. They said it was Congress’s call to make — which would have been a reasonable argument if Congress wasn’t bought and paid for by the stakeholders on one side of this particular issue.

But the Congress was bought and paid for, and the Court was unwilling to enforce the rights of the public. So what we are left with is a debate over who should get to steal from the public the winnings of a lottery.

8)

To anyone not convinced by all of the above:

I have one more argument for my position. It’s a knock-down, irrefutable, overwhelming argument, such that if you heard it you could not even begin to imagine disagreeing with me. It would, in fact, revolutionize your thinking on every aspect of this issue.

But since this set of concepts can, as it happens, only be expressed in metaphorical terms as an X-Men story, I’m not legally allowed to share it with you until the X-Men go into the public domain.

Until then, you’ll just have to trust me.

1. Incidentally, the consequence of this argument isn’t necessarily a socialist economy, which I wouldn’t actually favor; there are extremely strong pragmatic grounds for favoring the retention of a capitalist system and, as part of that, a robust set of property rights. It’s just that such a system should be supplemented by a far stronger redistributory state (in a tax-for-social-goods-sense) than is true of the U.S. today; and also (and this is almost as important) that the public culture and debate should recognize the preponderance of luck in the outcomes of economic lives.
2. What a vile phrase.
3. Although in fact I think that Wolverine’s blockbuster status has far more to do with Chris Claremont, and to a slightly lesser extent Frank Miller, than it does Herb Trimpe or Wolverine’s creators — although Claremont and Miller have even less legal claim than do Wolverine’s originators.
4. Except the bible, of course, which wanted everything reset to zero every fifty years to ensure justice (Leviticus 25:13). What socialist commie pinko wrote that, eh?

Cathy Young argues that our current copyright system isn’t working as originally intended:

My argument: copyright law as it currently exists does the opposite of its original intent (as formulated in the U.S. Constitution, which allows Congress to legislate on copyright, and in the very first copyright statute enacted in 1790): to promote arts and letters and encourage learning, by giving authors an incentive to create new works by ensuring that they can fairly profit from their writings. (In olden days, it wasn’t at all uncommon for unauthorized editions of books to be legally sold with no profits going to the writer.) Today, copyright violation claims are commonly invoked to suppress new works — whether it’s 60 Years Later, The Wind Done Gone (the “Gone With the Wind-from-a-slave’s-point-of-view” novel that was finally declared legal after much wrangling in the courts), a production of a James Joyce play, or fan-made Xena: Warrior Princess videos on YouTube.

I agree. But Cathy also writes:

Would it really be perfectly fine, from a libertarian point of view, if, after the huge success of the first Harry Potter book, Joe Smith or Mary Jones quickly popped out a sequel before J.K. Rowling could publish the second one?

Well, I’m not a libertarian. But why not?

I’d suggest that Smith and/or Jones should be legally required to pay Rowling some sort of licensing fee if their book has a print run over a thousand copies in a year; and that the front cover include a clear (”not written or authorized by J.K. Rowling”), so consumers aren’t deceived.

But with that in place, I don’t see what the problem is. Few if any Harry Potter fans would have said “oh, why even bother reading the Rowling versions when they come out, now that quick knock-offs are available,” so it’s not as if allowing the knock-offs would deprive Rowling of her ability to earn a living.

Meanwhile, forbidding Smith and Jones from publishing their Harry Potter knock-off might well deprive them of their ability to make a living as Harry Potter knock-off writers, and it arguably infringes on their freedom of speech.

I can already hear people saying: “Who cares? Smith and Jones don’t have an original thought in their head. They don’t have a right to other people’s speech.” But some artists work best by reimagining works they already love, rather than by creating “from scratch.”¹ Sometimes the result is a better work than the original — think of Stephen Sondheim’s great musical Sweeny Todd, which was adapted from a play. I think the culture be richer for it if artists who feel compelled to work with the books and characters they loved as kids, were free to do so, and to do it full-time if there’s enough of a market for their work.

Often, when I make this argument, people ask me how I’d feel if someone out there produced a sleazy porno Hereville comic. Well, obviously, I’d be appalled. But just because I find someone else’s work appalling, doesn’t mean it should be illegal.

1. Actually, no artist in the world creates from scratch.

On another thread, Amy wrote:

If you don’t like freedom of speach then TURN THE STATION! Oh my god! I do not agree with most of Rob or Arnie’s mentality but I do agree that they have the freedom to say what they feel. And if you are a true listener of the show, you know that they would never advocate child abuse. It’s absurd and I’m extremely frustrated that everyone having an issue with this is so stupid to just change the channel if what they say upsets you so much. It’s YOUR choice to listen to what you want to on the radio. No one is forcing you to listen to them. All these posts have so much disdain for them. If you hate them so much, why are you listening. Its people like you who make our men fighting this devastating war we’ve been in for years, feel like they are doing it for nothing. Our freedom of speach is one of the many things they are fighting for. I have many gay and lesbian friends and I feel that transgenders are born the way they are and support them 100% in their choices - but this vigilanty actions towards two radio dj’s who most of the time make jokes on air - it’s ridiculous. And they have made fun of things that I stand for or represent - but I don’t take it personally - I just change that channel.

Amy, freedom of speech doesn’t mean freedom from criticism, and it doesn’t mean freedom from consequences.

* * *

There are times I have doubts about boycotts because of something someone said. It seems wrong to boycott (for example) a brand of pencil because you’ve heard that the pencil manufacturer is anti-gun-control. Because even if only governments can censor, there’s still a threat to free speech created if people are frightened of losing their jobs if they say something unpopular.

But I don’t feel that way about radio DJs. It is their job to be popular. There are some jobs you can’t do if your opinions make you so repulsive that listeners and sponsors revolt, and DJ happens to be one of those jobs. If Rob and Arnie can’t take being judged for their words, and being judged by how valuable they are to their sponsors — then they really, really chose the wrong industry to work in.

* * *

Free speech has consequences. I think you believe Rob and Arnie’s speech only has consequences because people are kicking up a fuss, instead of turning the dial. But I think you’re mistaken about that.

Amy, imagine for a moment that you’re a 13 year old kid who doesn’t fit into the gender roles assigned to you (either because you’re trans, or because you don’t fit in in some other way). Imagine the self-hatred you’ve learned from society around you, and think of how hard that is to overcome — as if being 13 isn’t hard enough on most of us already. Then imagine hearing this on the radio:

They are freaks. They are abnormal. Not because they’re girls trapped in boys bodies but because they have a mental disorder that needs to be somehow gotten out of them. [...] You know, my favorite part about hearing these stories about the kids in high school, who the entire high school caters around, lets the boy wear the dress. I look forward to when they go out into society and society beats them down.

Can you imagine how devastating that could be? Sure, it would be only one more straw on an already heavily burdened back — but it would be a big, vicious straw. It’s the kind of straw that, combined with hundreds of other straws, sometimes leads kids to take their own lives.

What would have happened if no one had kicked up a fuss — if everyone had shrugged and said “that’s just good old Rob and Arnie, their regular listeners know they didn’t mean any harm?”

Well, they still would have done harm. They would have done harm to every kid, trans or cis,¹ whose own self-contempt would have been made more implacable by hearing Rob and Arnie’s contempt; and they would have done harm through every person who heard their jokes and got the message that trans people are “freaks” who deserve disdain.

There are always, always consequences.

There was never, ever an option for Rob and Arnie to tell these vicious “jokes” without consequences.

Someone would have suffered the consequences.

The only question was, who.

If no one had objected, if no one had spoken up and said “that’s stupid, horrible, vicious bullshit, and Rob and Arnie should be ashamed, and KRXQ should be ashamed, and anyone who sponsors this show should be ashamed,” then the consequences would have been borne mainly by trans people, and also by some non-trans kids who nonetheless suffer gender-related bullying and self-hatred. It would have been another brick in the wall; just another thing pushing our society to be marginally more brutal, and marginally more contemptuous, towards people who don’t fit into the standard gender/sex roles.

Instead, some people did speak up. And as a result of that…

Well, now a portion — not all, but part — of the consequences have been diverted, so they are now suffered by Rob and Arnie, rather than solely by the kids they’ve displayed so much “joking” contempt for. Is that such a bad thing? Seems very fair to me.

And maybe Rob and Arnie will make the apology good, and maybe some trans kid will hear them say that expressing contempt for trans kids is wrong in every way. And maybe that’ll do some good. And I suspect they’ll be doing some fundraising or donations to organizations that help trans kids, and if so, maybe that’ll do some good.

Or maybe some trans kids will hear about this, and know that people got angry on their behalf, and hear that even major corporations like AT&T and Carl’s Jr found the open expression of trans-hating “jokes” so repulsive that they yanked their advertising. Maybe some kids will, as a result of this, feel like a few of those straws have been lifted from their backs. And that’ll do some good.

And maybe future radio DJs will remember, before they make similar “jokes,” that jokes which express contempt towards the oppressed and the marginalized always, always carry consequences, even if those consequences are usually suffered by people who aren’t famous and who don’t have their own radio shows. Maybe they’ll remember that their “jokes” can do harm, and they’ll decide to tell a joke about how much the airlines suck instead of picking on trans kids.

Would that be so awful?

And yes, maybe deep inside, they’ll still be thinking that it would be hilarious to “joke” about society beating trans kids down, and how swell that would be. And maybe the only thing keeping them from making that “joke” on the air will be that they’re frightened that maybe, this time, they will suffer some of the consequences themselves. Maybe they’ll bite their tongues and just tell those “jokes” in a bar among friends, instead of on the air to tens of thousands of listeners.

Would that be so awful?

I don’t think it would be.

What would be awful would be a society in which freedom of speech never had consequences; in which people who disagreed with Rob and Arnie’s “jokes” didn’t speak up; in which the message would be communicated that it’s acceptable to talk about trans kids as if they’re less valuable than dirt and no one objected. That would be awful. And I’m very glad that didn’t happen. You should be, too.

UPDATE: For more on consequences, please read this post at Bunny’s Hutch. (Thanks, Elusis.)

1. ”Cis” means “not trans.”