I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Saturday, May 31, 2008

It's OK now Problem with blogging software I took out the Sitemeter

The Sitemeter (which records visitor data) that was at the bottom of the sidebar was causing the trouble, so I removed it. I will try to re-install it later -- hopefully the problem will be cleared up by then.


Friday, May 30, 2008

Defense briefs in "Imagine" suits

Time is running out for decisions on whether to issue preliminary injunctions in the lawsuits against use of the song "Imagine" in "Expelled." I was sure that there would be decisions this week, but this week has come and gone. If the temporary restraining orders in the lawsuits apply to Canadian theatres, then the judges need to either poop or get off the can very soon because the movie is scheduled to open in Canada on June 6 and the theatre owners need to know very soon. How in the hell can the theatres even advertise "Expelled" as a coming attraction if they don't know if it can open on schedule.

While waiting for the decisions of the courts, I decided to while away the time by commenting on the defense briefs. The federal-court defense brief is here and the state-court defense brief is here. Many of the arguments are the same in both briefs. I will just comment on the state-court brief here -- I may comment on the federal-court brief later.

The state-court defense brief says,
Plaintiffs impliedly acknowledge the First Amendment necessity of the fair use defense by asserting fair use "subsumes and supplants independent First Amendment analysis." Pl. Memo at 9 n. 3. This is simply another way of saying that fair use protection is essential to keep common law copyright protection from triggering First Amendment concerns. (page 15 of pdf, page 9 of document).

I disagree with both the plaintiffs and the defense here. As for the plaintiffs' statement, there is of course no "independent" First Amendment analysis because that analysis must be part of or incorporated into the fair use analysis. As for the defense statement that fair use protection prevents copyright protection from "triggering" First Amendment concerns, of course attempts to enforce copyright protection trigger First Amendment concerns unless there is blatant market-substitution.

Also, the state-court defense brief has a lot of argument that "Expelled"s use of "Imagine" is "transformative." However, to me the term "transformative" means that the borrowed work is altered, and "Expelled" did not alter "Imagine." My interpretation of "transformative" is supported by a footnote in the brief:

In Campbell, the US Supreme Court explained that Sony's presumption of market harm is limited to situations where the secondary work "amounts to a mere duplication of an original" and does not apply to situations where "the second use is transformative." Campbell, 510 U.S. at 591. (footnote, page 23 of pdf, page 17 of document)

The plaintiffs have their own strange meaning of "transformative":

Plaintiffs contend transformation turns on whether using "copyrighted material was necessary to the asserted purpose of criticism [or] comment" and go on to observe that it was not strictly necessary to use the clip of Imagine in the Film.(page 19 of pdf, page 13 of document)

"Not strictly necessary"? King Lear said in Shakespeare's play,

O reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man's life is as cheap as beast's. Thou art a lady:
If only to go warm were gorgeous,
Why, nature needs not what thou gorgeous wear'st,
Which scarcely keeps thee warm. But, for true need--
You heavens, give me that patience, patience I need.
You see me here, you gods, a poor old man,
As full of grief as age, wretched in both.

The state-court defense brief says,
Plaintiffs also complain the public is confused about whether Imagine was licensed for use in the Film, and this confusion is causing harm to its reputation based on accusations from internet bloggers that Plaintiffs "sold out" the legacy of John Lennon by permitting it to be used in the Film . . . . But any such "confusion" was the result of false accusations by internet bloggers, which was corrected in any event. See McMullan Dec. Ex. A (Wall Street Journal story stating filmmakers did not have permission to use the song). Any harm those false accusations created was inflicted by the authors of them, not Defendants, and Plaintiffs fail to explain how the injunction they request would undo that harm in any event. It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material, and this fact should neither undermine Defendants' rights nor support an injunction pending the resolution of those rights in this dispute.(pages 27-28 of pdf, pages 21-22 of document)

The plaintiffs did not claim that the false accusations by the internet bloggers were the sole cause of alleged harm to reputation -- the plaintiffs also claim that listing "Imagine" in the credits at the end of the movie also gives the false impression that permission to use the song was granted.

The plaintiffs' claims of damage to reputation might have some validity if protecting reputations of songs and songwriters were one of the purposes of copyright law, but as I show here and here, that is not one of the purposes of copyright law.

As for the statement "It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material," there is a strong possibility that these unscrupulous BVD-clad bloggers were aware of this but just didn't care whether their accusations were true or not. Congress is poised to grant the "reporter's privilege" to these same unscrupulous BVD-clad bloggers.

Also, if the courts accept this argument about alleged damage to reputation, that would mean that the courts accept the idea that giving permission to use a copyrighted work can properly be interpreted as endorsement of the borrowing work, and IMO that is a very bad idea.



Tuesday, May 27, 2008

Yoko seeks a copyright protection given only to visual art

The plaintiffs in the Yoko Ono v. Premise Media lawsuit complained extensively that the use of the song "Imagine" in the movie "Expelled" is damaging the song's reputation and their reputation. However, the only US copyright law that considers damage to reputation to be a factor in copyright protection -- 17 USC §106a -- applies only to certain kinds of visual art. Furthermore, the protection in 17 USC §106a covers only destruction, distortion, mutilation, or other modification of the work, and the "Expelled" movie did not modify "Imagine" in any way. 17 USC §106a says, in part,
(a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation(emphasis added); and
(3) subject to the limitations set forth in section 113 (d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation(emphasis added), and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights. — Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

"Work of visual art" is defined as follows by 17 USC §101:

A “work of visual art” is—
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include—
(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.

I don't know why so many things are excluded from the law's definition of visual art, and many of the exclusions are extremely vague (e.g., diagram, model, applied art). Also, I don't know why works made for hire are excluded, or why there is a distinction between works made for hire and works made for sale.

Anyway, I think the reasons for this special copyright protection for works of visual art are that the covered works may be unique, rare, and/or irreplaceable. And since songs are not covered by this special protection given to certain works of visual art, it may be inferred that Congress did not intend songs to have this special protection, which includes the kind of protection that Yoko Ono et al. are seeking -- protection from use that is "prejudicial" to the creator's "honor or reputation." So Yoko Ono et al. are asking for a kind of copyright protection which Congress apparently did not intend to grant to songs. My legal analysis here is an attempt to read the mind of Congress, but the courts often go much farther in trying to read the mind of Congress than I have done here. For example, the Supreme Court's decision in Blum v. Stenson, 465 U.S. 886 (1984), was entirely based on what a Senate report's cited court opinions said or did not say about issues that were not addressed by the Senate report! See Blum, 465 U.S. 886, 892-895. The Senate report was talking only about attorney fee awards in "nonpecuniary" cases (i.e., cases where a monetary award is not sought) whereas Blum v. Stenson's findings from those court opinions that were cited by the report were only about cases where the plaintiffs get non-profit or pro bono representation.

Well, Judge Stein is expected to make some kind of decision this week -- his "Temporary Restraining Order" is no longer temporary. The judge in the related state court suit will probably also make some kind of decision soon.

A related article on this blog: Damage to reputation not grounds for denying fair use.



Monday, May 26, 2008

Judge Jones hypocritical about peer review



Judge John E. "Jackass" Jones III's Kitzmiller v. Dover opinion, like Darwinists in general, makes a fetish out of peer review. The opinion said (page 89),

. . . . we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.

The terms "peer review," "peer-reviewed," and "peer-reviewing" all together appear 23 times in the opinion!

Well, I have just discovered a dirty little secret about American law journals (often called law "reviews") -- a high proportion are not "peer-reviewed"! To make matters worse, many of the law journals without peer review are edited by law students! I am not saying that the editing by students is necessarily bad per se (I think that law students are capable of being good editors of peer-reviewed law journals), but in combination with the lack of peer review, student editing is particularly bad! How can a scholarly journal not have peer (or expert) review?

Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, says,

IN ACADEMIC LAW, AS IN MOST ACADEMIC FIELDS, the principal vehicle for the publication of scholarly work is the scholarly journal. But in other academic fields, except law, the most prestigious journals are edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal. Not only that, but in deciding what to publish, the scholar-editors usually are strongly influenced by the advice they receive from other professors, to whom they refer the submitted articles for peer review . . . .

The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length . . . . (emphasis added)

This system -- so strange, even incomprehensible, to scholars in other fields -- first emerged in the latter part of the 19th century, when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them.

Ironically, law students, who are allowed to edit law journals without supervision, are not even considered fully qualified to write law journal articles themselves -- their law journal articles are called "notes." Something else I have noticed is that a high proportion of American law journals are published by individual law schools whereas scholarly journals in other fields are typically published by scholarly societies -- it is apparent that the student-editing of law journals helps to account for this difference.

As I said, to me the big problem is not the student editing but the lack of peer review. Often even faculty members are not well-qualified to review articles outside their very narrow areas of specialization. Often the best potential reviewers are outside the law school that publishes the journal and sometimes even outside the legal profession altogether. I am not a legal professional, but on this blog I have specialized in "monkey trials" -- e.g., Kitzmiller v. Dover, Selman v. Cobb County -- and have read dozens of articles and court opinions about them and written dozens of articles about them (see post label list in the sidebar), and so I understand how long it takes to become familiar with a very narrow area of the law. A psychology professor of mine once observed, "you can't be a genius if you don't know anything" (he was explaining why educated people tend to do better than uneducated people on intelligence tests) -- the principle applies to individual subjects as well as knowledge in general. No, Voice in the Urbanness, I am not immodestly saying that I am a genius about monkey trials just because I have read and written so much about them -- in fact, I abjectly concede that I got from others what are IMO some of my best ideas about monkey trials, e.g., (1) the idea of nonjusticiability of the evolution controversy and (2) the "political insider/outsider" principle of the endorsement test for establishment clause cases. The most important thing in legal research is to come up with the right keywords or key phrases -- then a layperson can do the research.

The law journals published by law schools are not just educational exercises for the students -- the Harvard Law Review alone was cited 4410 times (!) by federal courts alone in the decade 1970-79 alone (though the frequency of law journal citation by the courts has declined sharply). The courts' acceptance of law journal articles that have not been peer-reviewed shows that the law profession has very low standards. Another sign of the profession's low standards is the practice and acceptance of arbitrary censorship of visitors' comments on law blogs. Law X.0, a law blog published by the University of Cincinnati, a public university, won't even consider any of my comments for posting.

There is evidence that this general lack of peer review of law journals is changing. Here is an article about peer-reviewed law journals. The Harvard Law Review now requires faculty review of submitted articles, and considering Harvard's great influence, other law journals may follow suit--

. . . unlike many journals, we require faculty reviews and a vote of our entire staff before we can accept a piece.

Also, the website of the Berkeley Journal of Criminal Law offers peer review and implies that peer review of law journals is unusual:

BJCL is one of the first legal journals to have instituted a Faculty Advisory Committee, which reviews articles we accept for publication. If you publish with our journal, you will have the benefit of peer review of your scholarship by leading criminal law faculty at Boalt Hall.

However, IMO in-house peer review by the faculty of the law school that publishes the law journal is not enough, because -- as I said -- sometimes the best potential reviewers may be outside that law school or even outside the law profession altogether. Also, the term "expert review" is better than "peer review" because sometimes the best reviewers might not be "peers." The authors of the classic book on the mathematical analysis of heat conduction in solids are not engineers or scientists but are mathematicians, H.S. Carslaw and J.C. Jaeger (they didn't even know the difference between radiation and convection).

Also, peer review is not just for the purpose of screening articles for publication but is also for the purpose of improving articles.

Anyway, the hypocrisy of Judge "Jackass" Jones, who condemned Intelligent Design for allegedly not being published in peer-reviewed journals while he comes from a profession where a high proportion of journals -- including journals that are most frequently cited in court opinions -- are not peer-reviewed, is glaringly apparent ("jackass" is what Dover defendant Bill Buckingham called him in on the PBS NOVA TV program about the case). Also, the Dover opinion itself was not "peer-reviewed" because it was not appealed. Indeed, IMO Judge Jones showed lack of restraint in writing the Dover opinion because he knew the decision was not likely to be appealed.

Judge Jones once said that peer review
is needed to show that something's true.
But that's OK,
he didn't say,
his Dover ruling was peer-reviewed too.

John Jones was a federal judge,
he had a mind that was a kludge.
He was that kind,
when he made up his mind,
the facts couldn't cause him to budge.


The idea of peer (or expert) review actually makes more sense in law than in technical fields. For one thing, the law lends itself to peer review to a greater degree than technical fields. In the field of law, everything is out in the open for everyone to see and references are easily checked to see that quotation or paraphrasing is accurate and that there is no quote-mining, but a reviewer of an article in a technical field may find it difficult or impossible to reproduce experimental results, verify mathematical derivations, check computer coding and computer output, etc.. Hence, peer review in technical fields is often an exercise in futility. Also, because of the principle of stare decisis (i.e., stand by bad decisions) in law, the consequences of wrong or bad ideas may be longer lasting in law than in technical fields. There is no principle of stare decisis in technical fields -- wrong or bad ideas in technical fields are readily discarded. (I have also added these arguments to the comment thread).



Sunday, May 25, 2008

Texas Board of Education buys a pig-in-a-poke

This one is so comical that I decided to share it. A news article reported,

The State Board of Education's debate on new English and reading standards took another rowdy turn Friday as members approved a never-before-seen version of the lengthy document which materialized less than an hour before the board was to take a final vote.

After a wacky and terse debate on the new curriculum, the board voted 9-6 in favor of the new version, which will remain in place for the next decade and sets standards for state tests and textbooks, as well as classroom teaching.

Experts and teachers have been working on the new curriculum standards for two and a half years.

"I find it's really wild that we can work for three years on a project and then the board is so qualified they can pull it out of their hat overnight," said board member Pat Hardy, a Fort Worth Republican who, like other board members, received the substituted document when it was slipped under her hotel door less than an hour before their meeting was set to convene Friday morning . . . .

"I'm appalled by the process that we've taken part in," said board member Bob Craig, a Republican from Lubbock. There's been "no opportunity to review it, no teacher group is involved, not even the (Texas Education Agency) staff was involved or had seen it." . . . .
"I'm voting against it. I'm sick of this," replied board member Mavis Knight, a Democrat from Dallas, moments after the discussion started . . .

Science curriculum, which includes the divisive teaching of evolution, is next up for review by the board.

"It does not bode well for any of us with the science (curriculum) review coming up," Canaday [Jennifer Canaday, a lobbyist for the Association of Texas Professional Educators] said. "Everyone I spoke to about this week's meetings asked me why on earth would English be considered a controversial subject. If it's this difficult to change the English curriculum, it's just going to be a war when it comes time for them to try to agree on science standards."

The senior member of the board sent the governor a letter asking that the board chairman be replaced.

I can hardly wait for the board's debate over the evolution education standards -- particularly in the wake of the ouster of the Texas Education Agency's Darwinist science commissioner Chris Comer (see sidebar post label list for link to articles about Comer). LOL




For too long, I have bent over backwards in observing my no-censorship policy by allowing trolls to clutter up this blog with breathtakingly inane comments. I have finally gotten fed up and have decided to institute some new rules. The trolls will scream "censorship," but this is not real censorship -- I will still be allowing readers to express their opinions on the issues. The real censorship goes on at Wickedpedia, Panda's Thumb, Uncommon Descent, the blogs of Fatheaded Ed Brayton, Sleazy PZ Myers, Wesley "Ding" Elsberry, etc.. The trolls have been falsely accusing me of censorship anyway, so I have nothing to lose. This is not a matter of me having a thin skin -- this is a matter of this blog being cluttered up with garbage. And my angry responses waste more comment space.

The party's over, trolls.

Comments containing any of the following will be subject to deletion without trace. The examples I show are real -- I am not making anything up --
(1) Gossip about the private affairs of anyone -- I have already established this rule.

(2) A comment containing nothing but personal attacks.

(3) A factual statement not based on personal experience or a reliable source. Example -- saying that I lost all of my court cases.

(4) A statement that I or any commenter "knows nothing" about the law, or about science, or about this or that, or similar statements.

(5) Saying that I or anyone else misunderstood something without giving another interpretation.

(6) An attempt to prove or disprove a general statement by using me as an example. For example, suppose that I say, "arbitrary censorship of visitors' comments on blogs is a big problem." Then Voice in the Urbanness will answer, "but you have never given any example of where you were arbitrarily censored." A mathematics professor of mine once astutely observed, "we can't prove anything by example because we can never run out of examples."

(7) A misstatement or misrepresentation of a factual statement. For example, suppose a news report says, "Judge Jones said that the school board election results would not affect his decision." Then ViU will say, "Judge Jones said that he would follow the law in making his decision." That is a misstatement of fact because it is not what Judge Jones actually said. It would be OK (sort of) to say, "Judge Jones implied that he would follow the law in making his decision," because that statement is an opinion. IMO it is a worthless opinion, but it is still an opinion.

I may add to this list if necessary.

A comment containing any violation of the above rules will be subject to deletion without trace. I am not going to accept any comment just because it has some worthwhile stuff mixed in with a lot of garbage.

In some borderline cases, I may just issue a warning without deleting.

I may follow Panda's Thumb's example by establishing a Shithouse Wall file for deleted comments, where readers can go to see that the comments were properly deleted.

I expect that these rules will eliminate 99 percent of the garbage posted by ViU and other trolls.


Saturday, May 24, 2008

Update on Yoko Ono v. Expelled federal court suit

At last I found a news article about the May 19 oral hearing on a motion for a preliminary injunction in the Yoko Ono federal-court lawsuit against expelled. I previously reported on a related suit in state court.

The article about the federal court suit says,

U.S. District Judge Sidney Stein said he will rule quickly in the case after both sides described the issues surrounding the song and movie in harsh terms during arguments on Monday.

After getting no shrift -- not just short shrift -- in my court cases, I am very resentful of the special treatment that courts give to celebrities. Even the "money talks" principle does not apply, because I pay the same court fees that rich people pay (maybe those sleazebag judges are paid under the table).

Lawyer Anthony T. Falzone said the movie, ``Expelled: No Intelligence Allowed,'' was set to open in Canada on June 6 and DVD rights needed to be finalized by the end of May for distribution in October. The movie is still being shown in about 200 theaters in the United States.

He said an adverse ruling by Stein would mean "you have muzzled the speech of my clients" because they would have to replace the song with other images, losing the chance to make the issue important enough that it could even influence the U.S. presidential campaign.

"If you issue that injunction, you trample on these free speech rights and you put a muzzle on them and you do it in a way that stops them from speaking on this political issue leading up to the election," Falzone said.

That's a novel fair-use argument -- enforcing a copyright could prevent a work from influencing a presidential campaign, even if the argument has some truth to it. There is no question that the movie has had a significant impact on the evolution controversy, which has been an issue in the campaign (e.g., all the Republican candidates were asked about whether they believed in evolution). So IMO it is a good point.
If the ruling does not occur fast enough, "it truly jeopardizes the whole Canadian release and DVD date," the lawyer said.

That's true about the Canadian release date -- movie theatres must be able to book films in advance, and any delay or threat of delay in starting a run is very disruptive. There may be more flexibility about the DVD release date. The article does not specifically say whether the judge extended the terms of the temporary restraining order that had been in effect prior to the hearing (i.e., no new theatres, no production or distribution of video recordings), but I presume that he extended them.

The judge required EMI Blackwood Music Inc. and the family of John Lennon to post a $20,000 bond by Wednesday, to show they can cover any losses suffered by the film's producers as a result of the lawsuit.

For a film that has earned $millions so far, a $20,000 bond to cover potential losses does not seem like much.

Ono has accused the movie's producers of infringing the song's copyrights by using portions of it without her permission, giving the impression that the Lennon family had authorized it.

Damage to reputation is not considered grounds for denying fair use -- see this post. Ironically, in Dr. Seuss Enterprises v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), the 9th circuit ruled that a borrowing that does not attack the borrowed work cannot be considered to be a "parody" and therefore cannot ever be considered fair use! (See this post and this post). So a borrowing from another work must at least attack the other work in order to be eligible to be considered fair use!

Dorothy M. Weber, a lawyer for Ono, Sean Lennon, Julian Lennon and EMI Blackwood Music Inc., said the makers of the movie "took away their right to stay no."

They have no right to say "no" if the use is fair use.

She said the defendants _ Premise Media Corp. of Dallas, Rampant Films of Sherman Oaks, Calif., and Rocky Mountain Pictures Inc. of Salt Lake City _ had obtained authorization for the other songs used in the movie, a point the judge noted himself.

Not having seen the movie, I don't know the circumstances of the other songs' use in it. Maybe the other songs were used just as background music instead of objects of commentary as in the case of "Imagine," and it is appropriate to require authorization for songs used just for background music. If the use of a borrowed work may be considered fair use, then getting authorization to borrow from that work should be considered a courtesy rather than a requirement. IMO the other songs are irrelevant.

About 20 to 30 seconds of the song are played in the movie.

The reports I seen said that only 10 words and only about 15 seconds of the song were played in the movie.

Weber acknowledged that there are instances when portions of songs protected by copyrights can be used without the copyright owner's permission, a legal right known as "fair use."

But, she said, "fair use is not about destroying the other person's market. It's about carving very, very limited exceptions to a copyright proprietor's monopoly."

"Destroying the other person's market"? How so? There is no risk of "market substitution" here, i.e., where sales of the movie could replace sales of the song. Also, as I noted above, damage to reputation is not considered grounds for denying fair use. IMO the only valid claim that the plaintiffs might have is the weak claim of denial of payment for use of the song (the claim is weak because this use appears to be fair use), but the plaintiffs are not demanding payment.

There are other considerations:

(1) The argument that the movie could just recite or display the words of the song instead of playing the song is not valid because the plaintiffs are demanding complete removal of the song from the movie. Anyway, as I said, playing the song is appropriate for the medium, film.

(2) The song is arguably not copyrightable because it asks us to "imagine no possessions."

(3) The name of the song "Imagine" is at the center of the Strawberry Fields Memorial in Central Park's 2½-acre Strawberry Fields section, which is on land donated by the city. The advertising value that Yoko Ono gets from this section is probably greater than her donation of $1 million for landscaping the section, and she should give something back by allowing a few seconds of fair use of a song in a movie.

Items #2 and #3 above fall in the category of "the nature of the copyrighted work," 17 USC §107(2).



Friday, May 23, 2008

Arbitrary censorship on the Internet promotes "truthiness"

Boy Scout salute


What is truth?
-- Pontius Pilate

Book reviews and summaries on Amazon.com's website for "True Enough: Learning to Live in a Post-Fact Society" say,

From Publishers Weekly
In 2005, Stephen Colbert catapulted the word truthiness -- the quality of an idea feeling true without any backup evidence -- into the public consciousness. Salon blogger Manjoo expands upon this concept in his perceptive analysis of the status of truth in the digital age, critiquing a Rashomon-like world in which competing versions of truth vie for our attention . . . .

From the Inside Flap
In True Enough, Manjoo presents findings from psychology, sociology, political science, and economics to show how new technologies are prompting the cultural ascendancy of belief over fact. In an age of talk radio, cable TV, and the Internet — the blog --- and YouTube-addled million-channel media universe — it is no longer necessary for any of us to confront notions that contradict what we "know" to be true. Stephen Colbert calls this "truthiness"— when something feels true without any evidence that it is. Here Manjoo probes the cognitive basis of truthiness, exploring how biases push both liberals and conservatives to select and interpret news in a way that accords with their personal versions of "reality."

Why has punditry lately overtaken news, with so many media outlets pushing partisan agendas instead of information? Why do lies seem to linger so long in the cultural subconscious even after they've been thoroughly discredited? And why, when more people than ever before are documenting the truth with laptops and digital cameras, does fact-free spin and propaganda seem to work so well? True Enough explores leading controversies of national politics, foreign affairs, science, and business, explaining how Americans have begun to organize themselves into echo chambers that harbor diametrically different facts — not merely opinions — from those of the larger culture.


"The news media are supposed to help us understand the world, and faster, better, more varied communication technologies are supposed to enrich that process of understanding. True Enough explains why things have so often worked in reverse—and why Americans no longer disagree just about opinions and political values, but about basic factual realities. This problem of 'truthiness' is depressingly familiar, but Farhad Manjoo adds useful information and insights about its origins, effects, and possible solutions."
—James Fallows, National Correspondent for the Atlantic Monthly and author of Breaking the News

"Well worth reading. Make no mistake: this is no run-of-the-mill exposé of media bias, but a sophisticated analysis of the ways and means by which lies and distortions do so well in today's fractured, cynical media world."
—Todd Gitlin, Professor of Journalism and Sociology, Columbia University, and author of The Bulldozer and the Big Tent

A major, largely unrecognized cause of this problem of "truthiness" is a sick, cynical Internet culture that condones and even approves arbitrary censorship of website visitors' comments and contributions. This arbitrary censorship not only prevents the presentation of a variety of opinions but also prevents the presentation of inconvenient facts and corrections of factual errors. And the Internet has enabled arbitrarily-censoring BVD-clad bloggers and Wickedpedian "bureaucrats" (Wikipedia's own title for top administrators) to reach much larger audiences than they otherwise would have. Furthermore, Wickedpedia and blogs are being authoritatively cited by court opinions, scholarly journal articles, and other authorities, making this arbitrary censorship even more of a problem.

Larry Fafarman
-- Association of Non-Censoring Bloggers



State court judge extends TRO against "Expelled"

I previously reported that in addition to the Yoko Ono v. Premise Media suit in federal court, EMI Records and Capitol Records filed a copyright infringement suit against the same defendants in a state court. The name of the state court, New York Supreme Court, is a misnomer -- it is actually a trial court of original jurisdiction.

The more closely watched of the two suits is the federal suit. In that suit, a hearing on a motion for a preliminary injunction was scheduled for May 19 and I still have not seen any news about a decision. I am thinking of getting a PACER account so that I can follow court actions directly.

Meanwhile, the Wall Street Journal has reported that the judge in the state court suit decided to extend the terms of a temporary restraining order against "Expelled" -- I presume that the terms of this TRO are the same as the federal court's, i.e., (1) no new theatres and (2) no production or distribution of video recordings. The WSJ article says,
Lawyers from both sides have declined to comment, but Columbia copyright guru Tim Wu told us this: “I don’t think this is a hard case; nor a close case. Playing 15 seconds of a song to criticize it is as fair as fair use gets. With respect to Yoko Ono: if this case isn’t fair use, then copyright law has become censorship law.”

But in the state court PI hearing this morning, Judge Richard Lowe wasn’t nearly as convinced as Professor Wu. Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.

IMO attorney Falzone's answer to the judge's question is weak. My view is that playing the song excerpt was appropriate for the medium, film -- the era of silent films ended 80 years ago. Playing the song is much more attention-getting to bored and dozing viewers than merely reciting or displaying the words.

Also, this is only a state court, so I wonder how far its jurisdiction extends. Actually, IMO, copyright law and court actions should be considered to be pre-empted by the federal government, because of the following constitutional provisions:

(1) Article 1, Section 8

The Congress shall have power to . . .

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . .

(2) Article III, Section 2

The judicial power [of federal courts] shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States . . .

(3) Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Since copyright regulation was delegated to the United States by the Constitution, the Tenth Amendment says that the right to regulate copyrights is not reserved to the states. Also, copyrights involve interstate commerce, which is another area of regulation that the Constitution delegated to Congress.

There is something called the "dormant" commerce clause, which is the presumption that the Constitution, by delegating interstate commerce regulation to Congress, implicitly prohibits the states from regulating interstate commerce without approval from Congress. So maybe there should also be a "dormant" copyright/patent clause.

IMO "Expelled"s verbal comment about "Imagine" is inane -- saying that Sleazy PZ Myers was not being original but was borrowing a page from John Lennon's playbook -- but it is still fair use.



Wednesday, May 21, 2008

Methodist Church mislabels ID as "faith-based"

The National Center for Science Education reported,

At its General Conference held in Fort Worth, Texas, from April 22 to May 2, 2008, the United Methodist Church adopted three resolutions relevant to the teaching of evolution in the public schools. First, and most directly concerned with education, the UMC expressed its opposition to "the introduction of any faith-based theories such as Creationism or Intelligent Design into the science curriculum of our public schools," noting that "the United Methodist Church has for many years supported the separation of church and [s]tate" and that "[t]he promotion of religion or any particular religion in the public schools is contrary to the First Amendment."

. . . . .With over eight million members in the United States served by over forty-five thousand ministers, the United Methodist Church is the third largest religious denomination in the United States.

Intelligent Design is not "faith-based" -- it entirely consists of scientific observations and scientific analysis. The Methodist Church has obviously been taken in by Darwinist propaganda.

The text of the resolution is here.

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Tuesday, May 20, 2008

Yoko suit documents should be filed electronically

As I previously noted, the temporary restraining order in the Yoko Ono v. Premise Media ("Expelled") copyright infringement suit required hand delivery of documents. A June 2004 press release from the federal district court where the suit was filed says,

The United States District Court for the Southern District of New York announced today that beginning June 7, 2004, all District Judges and Magistrate Judges will assign newly filed civil and criminal cases to the Electronic Case Filing (ECF) system . . . .With certain limited exceptions, documents filed in ECF cases must be filed electronically and will not be accepted in paper form . . .

Older cases . . .as well as pro se cases, Habeas Corpus cases, Social Security cases, and Multi-District Litigation will not be electronically filed and should continue to be filed on paper. . . .

Don't have a computer or scanner? Bring your ECF password and the paper documents to the courthouse, and you can use our public computers to electronically file your documents.

Electronic filing has a lot of advantages -- instant transmission, the documents can be easily accessed, copied, excerpted, and re-transmitted from anywhere, and the documents cannot easily be misplaced.

At first I was confident that the judge would deny the plaintiffs' motion for a preliminary injunction, but now I am beginning to wonder -- this judge is beginning to look like a nutcase.



Phyllis Schlafly snubbed at honorary degree ceremony

A news article said,

The most sustained applause during Washington University's commencement ceremony went to legendary producer Quincy Jones.

But more than half the crowd stood and turned their backs as a controversial author received an honorary degree.

Phyllis Schlafly, a national leader of the conservative movement who is opposed to feminism, was presented the degree Friday morning at Brookings Quadrangle.

Prior to the graduation, students handed out fliers and white armbands in a silent protest.

They said her philosophies don't follow that of the university's.

In response to week-long protests by students and some staff, the University said they were simply honoring an alumna of the school whose life has had a broad impact on America.

Throughout the presentation and protest, the smile never left Schlafly's face.

According to photos, including the above photo, it appears that the statement that "more than half the crowd stood and turned their backs" is an exaggeration.

Other controversial figures -- e.g., Judge John E. Jones III and Eugenie Scott, director of the National Center for Science Education -- have received honorary degrees, but I doubt that they have been subjected to this kind of rude treatment.

I know that Phyllis Schlafly is a controversial figure in general, but I know her best for her article that criticized the Kitzmiller v. Dover decision. In that article, she said,

Judge John E. Jones III could still be Chairman of the Pennsylvania Liquor Control Board if millions of evangelical Christians had not pulled the lever for George W. Bush in 2000. Yet this federal judge, who owes his position entirely to those voters and the Bush who appointed him, stuck the knife in the backs of those who brought him to the dance in Kitzmiller v. Dover Area School District.

Judge Jones is fond of quoting that statement from Phyllis Schlafly. In a speech to the Anti-defamation League, Jones said,

Ms. Schlafly authored a January 2006 column and within her column she noted that, and I'm quoting here, that I "owed my position as a Federal Judge entirely to the evangelical Christians who pulled the lever for George W. Bush in 2002" and that I, I'm still quoting here, "stuck the knife in those who brought me to the dance in Kitzmiller versus Dover Area School District" . . . . .

. . . . .The premise of Ms. Schlafly and some others seems to be that judges can and should act in a partisan matter rather than strictly adhering to the rule of law. Now, to those who believe that judges must cast aside precedents and rule as according to an agenda, let me say that I believe that the public's dependence upon the impartiality and the integrity of judges is absolutely essential to its confidence in our system of justice.

However, IMO Schlafly was only saying that Judge Jones' benefactors were only expecting neutrality -- not favoritism -- from him. Schlafly said in her article,

Contrary to most media coverage, the Dover case was not about whether the theory of evolution or Intelligent Design (ID) is correct or should be taught. The Dover school board did not propose to say ID is scientific or valid, or even to decrease its teaching of evolution . . . . .

Judge Jones exhibited his bias for judicial activism with public remarks that should have caused his recusal . . .

Judge Jones' pursuit of the spotlight illustrates what is wrong with our judiciary today . . . .

He lashed out at witnesses who expressed religious views different from his own, displaying a prejudice unworthy of our judiciary.

It is noteworthy that Judge Jones showed extreme prejudice against ID and the Dover defendants -- regardless of whether ID is a religious concept -- by saying in a Dickinson College commencement speech that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Judge Jones is slated to be a keynote speaker at the "Darwin's Reach" conference at Hofstra University next year. His speech will probably be another harangue about the virtues of "judicial independence."


Sunday, May 18, 2008

Flast v. Cohen: Flaws and misinterpretations of major precedent concerning taxpayer standing in establishment clause cases

Flast v. Cohen, 392 U.S. 83 (1968), has been a major precedent on taxpayer standing to sue in establishment clause cases, yet it is badly flawed and has been widely misinterpreted. Flast said at 102-103,

" The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute . . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds [392 U.S. 83, 103] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8. (emphasis added)

It is generally falsely assumed that the first requirement shown in bold ("It will not be sufficient to allege ...") was added by Hein v. Freedom from Religion Foundation [1] [2]. I was not even aware of that sentence in bold until I saw it cited in Caldwell v. Caldwell, which was decided before Hein. In Hein, even the majority in the appeals court decision ignored Flast's above statement in bold -- Supreme Court Justice Alito, in an opinion joined by two other justices, said,

A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congressional appropriation.” 433 F. 3d, at 997. This was the case, the majority concluded, even where “there is no statutory program” enacted by Congress and the funds are “from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power.” Id.,at 994. According to the majority, a taxpayer has standing to challenge anything done by a federal agency or officer so long as “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is greater than “zero.” Id., at 995. . . . . .

. . . . . The Court of Appeals denied en banc review by a vote of seven to four. 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence … can only be resolved by the Supreme Court.” Ibid.

BTW, the lead federal party when the case was in the appeals court was Chao and not Hein, so the correct citation for the appeals court decision is Freedom from Religion Foundation, Inc. v. Chao, 433 F. 3d 989 (7th Circuit 2006). Also, the district court decision in the case is designated as Freedom From Religion Foundation, Inc. v. Towey, No. 04–C–381–S (WD Wis., Nov. 15, 2004). All very confusing -- they should stick to one set of names for the parties.

Another appeals court judge said in the denial of the request for an en banc rehearing,
The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary. Taxpayers lack standing to complain about almost all expenditures. Flast v. Cohen, 392 U.S. 83 (1968), held that taxpayer suits about religious outlays are special . . . . To the extent that the Establishment Clause forbids taxation to support religion, people subject to the illegal levy may obtain relief, but plaintiffs in this litigation do not say that they have paid one extra penny because of the grant. Where's the concrete injury? The loss (if any) is mental distress that plaintiffs, who are bystanders to the challenged program, suffer by knowing about conduct that they deem wrongful. Article III does not permit courts to entertain such complaints. (citations omitted) . . . .Our panel's majority has concluded that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks. I grant that proposition -- but comprehensiveness and rationality are not this doctrine's hallmarks. Why may taxpayers complain about outlays of cash but not about a distribution of real or personal property? (citation omitted) . . . . Why may taxpayers complain about modest expenditures (the grant in Laskowski was $500,000, or less than a cent per U.S. taxpayer) but not about slightly smaller ones? . . . .Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of "under God" in the Pledge of Allegiance. [my comment: the Supreme Court threw out Newdow's suit on the grounds of the technicality that he did not have legal custody of his biological daughter, his mascot in the suit] . . . .

But this arbitrariness is built into the doctrine as it comes to us . . . .The problem is not of our creation and cannot be solved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule's proprietors can bring harmony -- whether by extension or contraction -- or decide to tolerate the existing state of affairs. (emphasis added)

Regarding that statement in bold about mental distress not being grounds for standing to sue in federal courts: mental distress is the sole basis for many kinds of federal suits. Darwinists have failed to show why plaintiffs' mental distress alone was grounds for standing to sue in Kitzmiller v. Dover and Selman v. Cobb County but not in Caldwell v. Caldwell.

Also, though the Supreme Court granted the Flast plaintiffs standing to sue, the suit did not satisfy Flast's above condition that "[i]t will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute," because the federal statute in Flast did not expressly authorize the alleged unconstitutional expenditure of tax funds -- Flast said (392 U.S. 83, 85-87),

Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. 1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.

The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks [392 U.S. 83, 86] and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under 205 of the Act, 20 U.S.C. 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement

"that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . . ." 20 U.S.C. 241e (a) (2).

Under 206 of the Act, 20 U.S.C. 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, [392 U.S. 83, 87] and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." 20 U.S.C. 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must

"provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State . . . ." 20 U.S.C. 823 (a) (3) (B).

While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because "they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void."

Also, I dispute the second bolded statement in the Flast quote at the top of the post, i.e., "the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." I fail to see the big difference between (1) being "generally beyond" Congress's taxing and spending powers enumerated in Art 1, Sec. 8 and (2) exceeding "specific constitutional limitations imposed upon the exercise of" those powers. Is the list of congressional taxing and spending powers in Art. 1 section 8 just a list of suggestions, or is it also a limitation on the powers of Congress? And how is the Establishment Clause the only "specific constitutional limitation upon . . . the exercise of those powers" that is grounds for taxpayer standing to sue? In his dissent in Hein, Justice Scalia -- joined by Justice Thomas -- said, as described in the syllabus --

The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned.

And Justice Harlan said in his dissenting opinion in Flast, (392 U.S. 83, 130),

I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

Judges spend more time and effort trying to duck real questions than they spend trying to answer them.

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Saturday, May 17, 2008

Establishment clause suit against UC Berkeley evolution website

"So I'm the bad guy. How did that happen?"

-- D-Fens in movie "Falling Down"

Background --
Federal courts have ruled that taxpayer status alone generally does not give standing to sue on an allegation that a government expenditure violates the Constitution. In Flast v. Cohen, 392 U. S. 83 (1968), the Supreme Court made an exception by saying that taxpayer standing is available in establishment clause lawsuits in particular. Then in Hein v. Freedom from Religion Foundation (2007), a three-justice plurality of the nine-justice Supreme Court held that taxpayer standing in establishment clause lawsuits should be available only for Congressional allocations of tax funds and not for executive branch allocations of tax funds -- even Fatheaded Ed Brayton called this arbitrary and nitpicking distinction between Congressional and executive-branch funding allocation "silly." These three justices, in combination with two more justices who held that the establishment-clause taxpayer standing granted by Flast should be eliminated completely (Justice Scalia, joined by Justice Thomas, wrote, "Flast should be overruled"), formed a court majority that ruled against granting standing to sue in the case. Hein is discussed here, here, and here on this blog.

In his concurring opinion in Hein, Justice Scalia wrote,

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring *stare decisis* requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel.

Fast-forward: The website of the Pacific Justice Institute says,

May 12, 2008 - Pacific Justice Institute will present arguments this week to the Ninth Circuit Court of Appeals in a case challenging a federally-funded UC Berkeley website which promotes selected religious denominations that support evolution.

The lawsuit, filed by PJI in 2005, centers around a website designed by UC Berkeley to help teachers combat so-called misconceptions about evolution. The website tackles the "misconception" that religion and evolution are incompatible by claiming that "most" religious groups have no problem with evolution, and by directing visitors to statements from selected religious groups that support evolution. Meanwhile, the website derides religious beliefs that "contradict science" by teaching six-day creation. The site also warns teachers that student questions which expose the weaknesses of evolution "may be designed to disrupt the learning process" and should not be given the same respect as "legitimate" questions.

PJI is arguing that the taxpayer-funded UC Berkeley website unconstitutionally promotes certain religious groups at the expense of others. PJI Chief Counsel Kevin Snider, who will be presenting oral arguments to the Ninth Circuit on Wednesday, commented, "Whatever one's views on the origin of life or the theory of evolution, it is completely inappropriate for the government to declare that some religious denominations are better than others. The Supreme Court has long held that government must not decree what is orthodox in religion, and we are seeking to hold UC Berkeley to that standard."

Brad Dacus, president of Pacific Justice Institute, stated, 'Government actions that demean a group's faith clearly express state hostility toward religion and must be contested."

The title of the lawsuit is Caldwell v. Caldwell -- plaintiff Caldwell and defendant Caldwell are not related. The district-court opinion dismissing the suit is discussed in an article on Fatheaded Ed Brayton's blog. Fatheaded Ed does not allow me to leave any comments on his blog, so I can only make my comments here.

I assert that because of the following reasons, including reasons why Hein does not apply to Caldwell, the Caldwell decision is wrong:

(1) In Hein, the federal government was sued (Hein was the director of the White House Office of Faith-based and Community Initiatives) whereas Caldwell is just a suit against a state entity.

(2) In Hein, the plaintiffs challenged the expenditure of tax funds. However, the plaintiffs in Caldwell are not challenging the National Science Foundation funding of the UC Berkeley website but are challenging how the NSF funds -- and state funds -- are used by the UC Berkeley website. Hence, taxpayer standing in Caldwell is irrelevant because a ruling against UC Berkeley could not result in any tax reduction or refund for the plaintiffs (a favorite argument against taxpayer standing is that any tax reduction or refund that could result from a favorable ruling would be insignificant). Not every establishment clause suit needs to be a taxpayer suit. In lawsuits against a religious symbol on public property, it makes no difference -- or should make no difference -- whether the symbol is privately-funded or taxpayer-funded. Ironically, according to the topsy-turvy Hein ruling, there should be standing to sue when the symbol is privately-funded but not when the symbol is taxpayer-funded!

(3) The lawsuit in Hein challenged government officials' speeches, which the courts have no control over, whereas Caldwell challenges a website's fixed material, which the courts do have control over.

(4) The Caldwell plaintiffs did not assert taxpayer standing -- it was the defendants who raised the issue of taxpayer standing (see page 7 of the district court opinion).

(5) The district-court Caldwell decision was issued in March 2006, whereas the Supreme Court's Hein decision was issued later, in June 2007. Hence, the controlling precedent in the district-court Caldwell decision is Flast and not Hein, and even assuming arguendo that federal taxpayer status is the only basis of standing in Caldwell, Flast as commonly interpreted gave standing to sue in Caldwell (contrary to the arguments in the Caldwell opinion). The district court judge who decided Caldwell is not entitled to any Brownie points for a Supreme Court decision -- Hein -- issued after the Caldwell decision.

(6) Congress and the courts are not consistent about the "injured in fact" requirement -- the "citizen suit" provisions of environmental laws give all citizens standing to sue without any allegation that there is any actual or potential injury to anyone or anything, let alone actual or potential injury to the plaintiff(s) ! The plaintiff only has to allege that a government environmental agency failed to perform a non-discretionary duty.

(7) The Supremacy Clause says that the Constitution is the "supreme law of the land." To follow a "standing" requirement at the expense of the Constitution is like straining at a gnat and swallowing a camel.

(8)Flast v. Cohen is itself badly flawed. The Flast statement cited by Caldwell is " . . . . a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." (392 U.S. 83, 102 -- emphasis added). However, though the Supreme Court granted standing to the taxpayers in Flast, those taxpayers did not satisfy the preceding requirement. Also, I thought that the ruling in bold was established by Hein and not by Flast. I may comment more about Flast later.

(9) The "injury-in-fact" requirement is a misinterpretation of the "cases and controversies" clause of Article III of the Constitution. Anything can be a "controversy," including moot and hypothetical questions.

The appeals court decision in Caldwell won't be binding if that decision is not published (though FRAP Rule 32.1 says that the decision can be cited even if it is not published), so if that decision unfortunately upholds the district court decision but is not published, then another suit against the UC Berkeley website may be filed by another party.

I am now expecting an inevitable flood of invective from various trolls -- e.g. , Voice in the Urbanness, Kevin Vicklund, various Anonymous's -- saying that I know nothing about the law while they make no challenges to my above arguments.

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Thursday, May 15, 2008

Fatheaded Ed misinterprets Epperson v. Arkansas

It would be so much easier if I could just post a comment on Ed's blog saying that I disagree with him, instead of posting a whole new article here.

An article on Fatheaded Ed's blog says,
Back to the Future on Evolution

This time in Maine, where at least one resident wants to party like it's 1967:

The decades-old controversy over the teaching of evolution in public schools is resurfacing in Somerset County.

A director of SAD 59 in the Madison area is urging the board to drop evolution from high school science curriculums on grounds that it's an unprovable theory that shouldn't be taught as fact.

Matthew Linkletter of Athens says neither evolution nor creationism belongs in a science curriculum.

Sorry, Matthew, the courts already ruled on this. Look up Epperson v Arkansas.

In a response to a comment, Ed says,
a lurker wrote:

What does Epperson v Arkansas have anything to do with this.

In that case involved a law that made it illegal for a teacher to teach evolution and that a teacher could be charged with a crime if he did.

The court in Epperson did not rule that the law was unconstitutional because of the potential punishment, they ruled that it was unconstitutional because it was not religiously neutral. The court recognized that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views.

For crying out loud, Ed, (his trademark expressions are "for crying out loud" and "batshit wingnuttery") the news article did not say that the SAD 59 director in Maine proposed prohibiting the teaching of evolution -- the article only said that he proposed dropping it from the curriculum.

Also, Ed misrepresented the Epperson decision. Of course the court's ruling was partly based on the potential punishment -- if the statute had been merely an advisory resolution with no potential punishment, then the statute would never have been challenged in the first place. And the court did not "[recognize] that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views" -- the court only said that there was no "suggestion" of any other reason:

No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. (page 107)

This is another example of Fatheaded Ed either misinterpreting the facts or not checking the facts. Furthermore, he censors comments that try to correct him about the facts or his interpretations of the facts. Yet he acts very offended when people don't consider him to be equal to a professional reporter, if not better. Fatheaded Ed is the poster child of unscrupulous BVD-clad bloggers.

BTW, Justice Black said in a concurring opinion in Epperson,

Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process . . . .

The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment . . . .

A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion . . . . .

Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible . . . .

I would either strike down the Arkansas Act as too vague to enforce or remand to the State Supreme Court for clarification of its holding and opinion.

Dissenting and concurring opinions are often ignored because those opinions are not binding precedents, but those opinions often make more sense than the majority opinions.

IMO evolution should be taught because it is something people should know and because it is useful in biology even if it is a hokey idea. The use of evolution in cladistic taxonomy has increased since Justice Black wrote the above words in his concurring opinion published in 1968. However, I also believe that the weaknesses of evolution as well as the strengths should be taught or that there should at least be evolution disclaimer statements to reduce offense to those who for various reasons are opposed to the teaching of evolution. Also, IMO the courts should declare the evolution controversy to be non-justiciable. [1] [2] [3]

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Is Yoko v. Expelled judge incompetent?

I think so. I took a closer look at the TRO's schedule for delivery of answering and reply papers:

IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel, Shukat Arrow Hafer Weber & Herbsman LLP, 111 West 57th Street, New York, New York 10019 on or before May _14_, 2008 at 5:00 p.m.; and

IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants (sic) by hand delivering copies thereof to be retrieved by Defendants’ counsel, on or before May _16_, 2008 at 5:00 p.m..

Because the court rules allow electronic transmission of papers if the receiving party consents, I previously expressed surprise that the judge required hand delivery. Now looking at the deadlines for delivery, I see that the plaintiffs' attorneys, when receiving the final answering papers, have as little as 48 hours to have reply papers hand-delivered to the defense attorneys at the other end of the country. That's ridiculous. This judge is off his rocker.



Wednesday, May 14, 2008

Longevities of patents and copyrights

Can anyone justify the enormous disparity between the longevities of patents and copyrights? Anyone? Anyone? Bueller? A patent is granted for just one non-extendable period of 20 years following the date of filing of the application, but a copyright may be in effect for up to 95 years -- or maybe even longer -- after first going into effect. As if copyright longevity was not long enough already, the Mickey Mouse (Sonny Bono) Copyright Term Extension Act extended it. Copyright-holders must have a lot of clout to have been able to push through that Act. This disparity between patents and copyrights is especially surprising considering that some patents may be highly commercially valuable forever whereas many copyrights are highly commercially valuable for just a few weeks, a few months, or a few years. Things invented over a century ago are still top sellers -- but how many, say, top-selling books and songs are more than a few months or a few years old?

Right now Yoko Ono is suing the producers of the movie "Expelled" for using just 15 seconds of John Lennon's song "Imagine" without permission. If "Imagine" had been patented instead of copyrighted, the patent would have expired a long time ago. I hope Loco Bozo Oh-No-No loses the suit. It's past time to cut copyright-holders down to size.

Also, Yoko gets a fortune's worth of free advertising from the 2½-acre Strawberry Fields section of Central Park on land donated by the city (including advertising for "Imagine," whose name is at the center of the Strawberry Fields Memorial) but she is too chintzy to allow a few seconds of fair use of "Imagine" in a movie.



Fatheaded Ed's shameless demagoguery

In a post titled "Dover and the ACLU slur," unscrupulous BVD-clad blogger Fatheaded Ed Brayton said,

I just finished reading The Devil in Dover by Lauri Lebo (if you only read one book about the Dover trial, this is the one to read -- it's absolutely brilliant in every respect) and she discusses the background of Vic Walczak.

As for the demagogic The Devil in Dover being the only book about the Kitzmiller v. Dover case that is a "must read," they were saying the same thing about Monkey Girl last year, and Monkey Girl has completely fizzled on Amazon.com -- there has been very little discussion of the book there in the customer review section.

Fatheaded Ed continues,
Vic is the legal director of the ACLU of Pittsburgh and was one of the attorneys for the plaintiffs in the Dover trial. And his entire life puts the lie to this idiotic slur that the ACLU are communists.

In all the criticisms I have read of the Dover decision, not one charged that the ACLU, the plaintiffs, the plaintiffs' attorneys, Judge Jones, and other supporters of the plaintiffs are a bunch of godless commies. The title of your post is "Dover and the ACLU slur." So what connection does this ACLU slur have to the Dover case?

Before going to law school, Walczak went to Poland to give aid Lech Walesa and the Solidarity movement. He documented police brutality, wiretapping and other human rights violations as he dodged the secret police. . . . When he returned to the US, he knew that he had to become a human rights attorney.

The communist slur was idiotic from the start, of course. What, after all, is the (entirely accurate) critique of communist governments? That they operate in secret, invade their citizens' lives with spying and wiretapping, practice arbitrary imprisonment, make dissent illegal, destroy due process and generally terrorize the people with a brutal law enforcement system . . . ..

What are the very things that the ACLU spends nearly all their time and effort fighting against? Each and every one of those practices.

Wrong, Ed. The ACLU spends a lot of time fighting things like (1) the teaching or even the mere mention of criticisms of the badly flawed theory of evolution in the public schools and (2) a tiny cross in the Los Angeles County seal.

OK, Ed, let's see if I understand this correctly. After seeing gross human rights abuses in Poland, Walczak knew when he returned to the US that he wanted to be a human rights attorney. And since he chose to give pro bono representation to the Dover plaintiffs, then the Dover school board was like those communist thugs who spied and wiretapped, arbitrarily imprisoned people, practiced police brutality, etc.. Right? Got it.



Tuesday, May 13, 2008

Expert attacks Yoko v. Expelled suit

Peter Friedman, who teaches at the Case Western Reserve University's School of Law, says on the "What is Fair use?" blog,

My understanding is that 15 seconds of the song are used in the film. Quite plainly, Ono does not agree with the filmmakers' point of view. Simply to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable. That certainly seems to be the conclusion of the Stanford Fair Use Project, which has taken on the filmmakers' defense in Ono's lawsuit. Their description of the use of the song in the film seems to confirm my own suspicions regarding the legitimacy of the fair use defense in this case:

The clip of “Imagine,” which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film’s narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.”

The movie makes both verbal and symbolic (the visual scenes in the movie) commentaries about the song.
Meanwhile, many Darwinists mistakenly think that Yoko's suit is a slam-dunk shoo-in and have vilified the producers of "Expelled" in the worst terms. Josh Rosenau, who is on the staff of the National Center for Science Education, said, "Expelled steals from the dead." Another Darwinist said of the temporary restraining order, which might be routine in such lawsuits, "Justice is swift, for some of us anyway." The TRO is in effect only until the hearing on a motion for a preliminary injunction, now scheduled for May 19, and the TRO allows theatres currently showing the movie to continue showing it. However, the comments in a comment thread on Sleazy PZ's Pharyngula blog show that even many people who dislike "Expelled" think that Yoko Ono's lawsuit is wrong.

As I said before, IMO Footnote 14 of Campbell v. Acuff-Rose Music, Inc., 510 US 569, is a key precedent here:

Footnote 14:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)

My other articles about the Yoko suit may be found by clicking on the "Yoko Ono lawsuit" post label below (this post label is also in the sidebar).