Congrats to Joey, the new Online Director of Fix Congress First

Congrats and well-dones are in order!  My buddy and fellow Berktern Joey Mornin announced a few days back that he is the new Online Director of Fix Congress First, an organization dedicated to removing the institutional corruption (perceived in real) in the congressional process.  You can read the announcement here, and read about the organization’s chief piece of legislation, the Fair Elections Now Act (S.752 | H.R. 1826), here.

Kagan on the Supreme Court Nomination Process (in 1995)

The recent hearings on Supreme Court nominees, though, suggest another question: might we now have a distinct and more troubling confirmation mess? If recent hearings lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what [Stephen] Carter describes: not that the Senate focused too much on a nominee’s legal views, but that it did so far too little. Otherwise put, the current “confirmation mess” derives not from the role the Senate assumed in evaluating Judge Bork, but from the Senate’s subsequent abandonment of that role and function. When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures. Out, then, with the new mess and in with the old!

Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 920 (1995).

This is going to be an interesting summer.

Alex Chilton

Thank you, Alex.

Three Years Ago Today

(care of Flickr user L. Marie)

1/31/07 – Never forget.

In spite of all the great criticism that can come out of a non-crisis-turned-real-crisis-in-confidence like this, three years out I think we can all sit back and laugh at how silly we were back then…

… right?

Watching the news clip again, knowing what we know now, I’d say the most embarrassing thing about this whole endeavor is the failure in truth. The leap made instantly by every media outlet was that these were bombs or deliberate bomb hoaxes. The impression was strong enough for the two responsible to be indicted under a hoax device law, although the charges were later dropped.

How persistent that horrible rumor was that day, despite every college-aged kid running out to tell every adult they knew that (a) these things had been up for over a week and (b) we knew they were just custom-shopped Lite Brites. How tragic times are when our society immediately assumes that any urban art like this has sinister implications.

Let’s think twice before reacting like this again.

Howard Zinn: the Anti-Slacktivist

(image from Flickr user Douglas Brown)

I don’t have much to add to the outpouring of support for the life and memory of Howard Zinn, but I do want to put his life’s work in a bit of perspective.

A central plank of Zinn’s message always was this: change does not come from a ballot box; change happens when you stand up and do something. And the old adage (which I think came before Zinn, but he used it well) about standing still on a moving train holds true. Not acting these days is as much an affirmation as acting. There is no standing still in these times. I doubt there ever was.

We live in a world where a distortion, when repeated enough, becomes held as true. We have to expend real energy to get to honest truth, and no one will do that for us. At a time in which we need people, real people, up and out and getting peoples’ attention, we find pleasuring comfort in Internet slacktivism. And that simply won’t do. To quote Zinn:

If those in charge of our society – politicians, corporate executives, and owners of press and television – can dominate our ideas, they will be secure in their power. They will not need soldiers patrolling the streets. We will control ourselves.

And I don’t mean get offline, necessarily. The Internet is the best weapon the people have right now. But the gloves are off the corporations in the wake of Citizens United, and it simply is not enough these days to wear a bracelet, or protest via Facebook status, or add a ribbon to the back of a car.

So what would Zinn say about so-called slacktivism? I would guess it would go like this: write, but write to someone; post statuses, but post about ways for people to take real action; symbolic bracelets and ribbons are good, lawn signs and picket lines are better. Your friends and Twitter followers already know how you feel. To make change you need to reach more people, more strangers, and more adversaries. Only then will you change minds.

I saw Howard Zinn speak three times in my life, and each time was inspiring, uplifting, and most importantly, motivating. The world will sorely miss him, I’m sure. Rest in peace.

Clearing the Cobwebs

Happy 2010, all.

I’m back in DC after another lovely few weeks up in Massachusetts. I feel as though I’ve been out of touch with the world of current events, so I took a slice of my extended break to catch up on my RSS feeds. Here are a few stories that caught my eye. Once things settle down here a little bit I’ll start writing in earnest again.

• Although I never wrote much about it on this blog for reasons I expressed here, I’ve been following the recent developments in the Sony v. Tenenbaum case. After the jury verdict came down and formal judgment was entered in December, much has been made of the constitutionality (and in some circles, the prudence) of the $675,000 verdict in Tenenbaum and $1,920,000 in Captiol v. Thomas. The team defending Tenenbaum have now filed a motion for a new trial on these grounds, arguing the verdict violated due process under St. Louis I.M. & S. Ry. Co. v. Williams and progeny. Predictably, Torrentfreak sees this as potentially diluting the lofty statutory damages used by the RIAA to scare its patrons into so many $3500 settlements, while Ben Sheffner over at Copyrights & Campaigns notes the conspicuous absence of any case that has found statutory damages (as opposed to punitive damages) to be violative of due process. UPenn was gracious enough to host an excellent back-and-forth between Sheffner and Pamela Samuelson on this exact subject, for the especially curious. Constitutional question aside, Ron Coleman over at Likelihood of Confusion gives a great wide-angle perspective on the whole affair, which I found rather refreshing.
• Speaking of Mr. Sheffner, he posted up on Wired the 5 cases that defined music law for 2009. While I disagree with his analysis (I often do), he lays out exactly where we are in this field today: RIAA filesharing battles finding results with massive judgments against individuals, the MGM v. Grokster “inducement” theory finding some teeth in the Bit Torrent realm, and content creators clashing head-on with online service providers over DMCA safe harbors. (And Bridgeport v. Dimension Films is still good law, much to my chagrin.) And while we’re on the subject of Wired end-of-the-era lists, here are the top 10 cybercrimes of the decade.
• Meanwhile, some law nerd circles – including the always excellent Volokh Conspiracy – are buzzing about the constitutional questions raised by the health reform legislation pending in Congress. The argument, according to those raising it, is that the mandate that all persons buy health insurance is an unconstitutional exercise of congressional power under the Commerce Clause. As I was discussing with my roommates tonight (GWU Law 2Ls, the lot of us), I just don’t see this argument flying under the modern-day Lopez test. Nevertheless, there appears to be a lawsuit waiting for ripeness in the wings.
• On the music front, my friend Sawyer Jacobs’ fantastic music collective Underwater Peoples just released their winter sampler. For those of you that missed it, they made a good splash back in June with their summer analogue, including some rare praise from Pitchfork. Fully acknowledging my bias after spending a great summer with Mr. Jacobs last year as Berkterns, I think these guys are one of the coolest collectives to hit the scene since Elephant Six. And speaking of those cats, one of the first new issues to come out of E6 in what seems like years is a new Apples in Stereo / Olivia Tremor Control side-project, Thee American Revolution. Both the UP Winter Sampler and the Thee American Revolution albums have been in heavy rotation on the ol’ iPod over the past week or so. Well, those and the annual DJ Earworm United State of Pop mashup.
• My buddy (and singer-songwriter) Brian Bergeron has gone all Kerouac on me and moved from his (and Kerouac’s) hometown of Lowell, MA out to San Francisco. While out there he’s been firing up the blog and commenting on music, media, and society – subjects close to both of our hearts. I am delighted to see him take up the issue of net neutrality (which he correctly identifies as a less-flashy-than-normal cause for artists, but extremely important), and wish him all the best on his adventures out there.
• For Brian and my other music industry friends: take a moment to read Bob Lefsetz’s predictions for 2010 and beyond. It’s rather 30,000 feet and raises more issues than it solves, but I suppose those are the sort of characteristics that go with the future-predicting territory. I think he was dead-on to raise the potential Live Nation / Ticketmaster merger as the most significant event on the horizon this year. I’m studying antitrust law now, in part to help me wrap my head around this beast. My fellow industry wonks may also appreciate this recent interview of Donald Passman in the Berklee Music Business Journal, marking the release of the new seventh edition of his All You Need to Know About the Music Business.
• On the lighter side, way back in November Wicked Local Brookline brought us the best use of federal stimulus money I’ve heard yet: a proposal to fix the MBTA 66 Bus.
• My new favorite blog is the Legal Satyricon, brought to you by IP and First Amendment lawyer Marc Randazza (working in one of the most interesting places a First Amendment lawyer can work these days: the adult entertainment industry). Randazza is most recently famous for representing the owner of glennbeckrapedandmurderedayounggirlin1990.com against an attempted WIPO takedown by Glenn Beck himself. Randazza’s eventually successful response brief (PDF) has to be the funniest legal filing I have ever seen. As his casework suggests, the Legal Satyricon is a profoundly irreverent (and sometimes downright nasty) look at IP and free speech issues, delivered in a smug but intelligent way. Recently he took aim at  Alan Grayson for using an anti-fraud statute to attempt to imprison the founder of an anti-Grayson website (I know. I used to like the guy too.), and totally destroyed former Representative Ted Klaudt for trying to use “common law copyright” to keep news sources from printing stories about his conviction of child rape and witness tampering.
• Another excellent blogger is my friend and former coworker Chris Devers, who has been combining his various Internet presences into a Posterous blog which I’ve been following recently. A recent highlight was his writeup of the last day of the Zeiss Projector at the Boston Museum of Science’s planetarium. Half the fun of going to the planetarium was seeing that mutant steampunk barbell in action. I hope the new projector can live up to its predecessor.
• And finally, while I’m as excited as the next tech-minded 20something about the new Apple tablet, I share Mr. Colin Ashe’s well-honed and succinct skepticism about its ability to singlehandedly save the publishing industry.

It’s good to be back. Here’s to a successful new year in all of our endeavors.

Shepard Fairey recruits Fisher, Palfrey and Stewart

Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.

I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.

After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here  (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.

Specifically, the books Promises to Keep and Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys.  From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.

Their arrival on the case is pending Judge Hellerstein’s approval of Fairey’s motion. For more, check out Justia.

Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.

A Performer’s Tribute to Teddy Kennedy

Hello again.  I’ve been writing a lot since my last post, but no draft has quite percolated up to postworthy.  One or two of them will soon.  For now, I want to quickly re-post Universal Hub’s video of a man paying tribute to Senator Kennedy as his motorcade passed the Roxbury Crossing station on Mission Hill:

Thanks to UHub for posting this and Steve McCarthy for capturing this moment.  A Boston historian could spill gallons of ink on the imagery and subtext here, but I’d rather let the video speak for itself.

Rest in peace, Teddy.

Back in DC

Sorry for the unannounced hibernation here over the past few weeks.  I was finishing my work, taking a vacation, and moving my life back down to DC for my 2L year.  I don’t have much time to write, but I wanted to post this sign up a little memento from my summer in Cambridge:

“Violators will be towed perfunctorily.”  Only in Cambridge would you see an SAT word on a parking sign.  I’m going to miss the place.

A conversation with Beck and Tom Waits

Big thanks to the Anti- Records Blog for posting up a pair of conversations Beck and Tom Waits shared on Beck’s website.  A lot of it is inside jokes about LA, but you get a good discussion on the Oscar Mayer Wienermobile and Wienerwhistles, playing live shows, the lifespans and utility of songs, Japan, and yo-yos.  Check it out.

For more Waits interviewing, check out this amazing AntiBlog post from May of last year (just before the PEHDTSCKJMBA tour).  Quote of the post:

Q: What is a gentleman?

[Tom Waits]:  A man who can play the accordion, but doesn’t.