There's a concept in the law known as the "reasonable man." It's used as a benchmark to compare the behavior in question with the behavior a reasonable person similarly situated would be reasonably expected to exhibit. It's often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time, which isn't itself necessarily unreasonable. Furthermore, reasonable behavior often derives its inherent reasonableness from context. Lighting a match may be reasonable in a dark cave; not so in a dynamite factory. Yet judging a behavior according to the reasonable man standard may not always capture contextual nuance so well.
Still, it can provide some guidance when courts are trying to decide if a person acted in a way unique to himself, or in a manner that other people might have reasonably behaved. In torts cases this test is extremely important, particularly in cases of negligence. Is it reasonable, for instance, to presume that a person who knew there were vicious, hungry dogs in the yard would have double-checked that the gate was locked? If yes, then why didn't this one?
The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In this case the State conceded that the police hadn't had probable cause, a high level of suspicion he was guilty of a crime, to justify arresting the man when they first came upon him and asked him his name. They only had "reasonable suspicion." The Court was asked to decide whether this was enough to entitle them to ask him his name, with him being required to answer under penalty of law.
Ultimately this case could turn, at least in part, on how plausible a suspicion of an actual crime the police needed to justify the demand for a name. But what caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, "I would think any reasonable citizen would answer."
]]> Scalia's comment parallels the frequent unenlightened argument that doesn't understand why people refuse to testify "if they've got nothing to hide." One's right to be free from government intrusion doesn't hinge on what they are trying to conceal. On the contrary, the government's right to intrude depends on how good its excuse is to know it. The government does not and should not have the right to know who someone is, where they are, or what they are doing without a very good reason, one that would qualify as probable cause to believe the person was guilty of a crime that this information was necessary to prove.Scalia's comment also seems abjectly incorrect. There is no text in the Constitution granting the State the authority to be able to identify and locate its citizens at any time it demands. If anything there is text, such as the Fifth Amendment, which could be read to outright prohibit it. Innocent or guilty, a person should have the right to refuse to identify himself if he wishes, no matter how capriciously he decides to refuse the request.
For the innocent this right is important because it's a fallacy to believe that criminal justice metes itself out perfectly. Innocent people can easily be railroaded into unjust convictions. Fifth Amendment protections against self-incrimination at least give people some protection against the criminal justice system running roughshod over them erroneously. No statement they may utter is too innocuous that, when uttered at the behest of the State, it couldn't precipitate a jurisprudence trainwreck. Even simply one's name. With the name the State gets a toehold in surveillance and scrutiny, which it may now feasibly pursue even without justification. Whereas without the name the State would have a harder time poking its proverbial nose into the private business of its citizens.
And even guilty people have the Constitutional right against self-incrimination as well. In a judicial economy where confessions have become bargaining chips against extreme punishments, the accused need to be able to retain their testimonial currency as long as they can so as to preserve their right to due process. Furthermore, their statements can easily be taken out of context. A seeming admission to a crime might not constitute an actual confession to the presumptive crime. For instance, "I crossed the street against the light," might seem to be an admission of jaywalking, but if the unstated fact was that it was "because a viscious dog was chasing me," it would preclude criminal liability. Though a trial might exonerate the accused, if they'd never opened their mouth to say anything then they might have been able to have avoided the ordeal of the prosecution in the first place.
So while the preceding example deals with testimony, self-identification requires the same analysis because divulging it can easily compromise similar self-interests as other testimonial comments that constitutionally can not be demanded.
It also goes to show how Scalia is mistaken. There are plenty of reasons why a reasonable person would not want to answer a question on their identity. Prudent, pragmatic reasons. And maybe even some silly reasons. But perhaps the most important reason of all: because the Fifth Amendment says he doesn't have to.
Unfortunately, the Supreme Court majority ultimately didn't see it this way. (The dissent, however, did.)
]]>It also might not be quite so hypothetical. No, I don't mean that the dead will rise from their graves and walk the streets looking for a fresh living brain to dine on. But in very real terms, the dead have an awful lot of dominion over the brains of the living, and that is plenty nightmarish too.
]]> This realization occurred to me in a recent twitter conversation with a trademark lawyer about the Steve Jobs figurine a Chinese company wantd to sell. Apple deployed its lawyers to stop it, claiming the doll violates its rights in his persona.But the interest in controlling one's likeness is extinguished once the person is gone. While they were alive it made sense to preserve their right to control their self-image in order to protect their own personal rights of expression. However once they are dead, there's no such interest to be vindicated. Some would argue that the formerly living might have an interest in passing on whatever legacy value there might be in their personality to their descendants, and that interest may indeed be valid (or perhaps not -- some might say that value is not created by the person as much as it is bestowed by the public), but at this point the rights of personality are nothing but a quasi-property right, and those property rights do not weigh nearly so favorably against others' speech rights. Not even when others may wish to profit from such speech -- the right to free speech does not incorporate the requirement that all speech be made for free. If, as in the case of the figurine maker, a company wishes to comment on the previous existence and notoriety of Steve Jobs by selling models that memorialize him, such speech should be permissible. For it not to be gives Steve Jobs, though no longer among the living himself, the censorious power to control the speech rights of the living who remain. Surely that's not a power we'd want the dead to have.
But that's not the only instance where the dead wield power over the living. We also see it in copyright, with terms lasting multiple decades -- practically second lifetimes -- beyond the life of the author. In fact, we key copyright terms to "life of the author plus 70 years." In other words, we purposefully key copyright duration to the death of the author, and deliberately extend its reach well beyond it.
Which is completely absurd. Copyright exists to incentivize people to create so that other people can benefit
from their work. There's always tension between those interests because the incentive for some people to do their creating comes at the expense of other people's ability to freely use, including in their own expressive way, what's created. It makes no sense to compromise the latter's interests to those of the former when there is no longer any chance for further creativity. Once a creator has left this mortal coil, as with the rights of personality, the law is useless to them: copyright simply cannot incentivize the dead to create anything. Yet it continues to affect (by design!) those who remain alive by restricting their rights long after the original author is gone.
The argument for why copyright should operate like this is similar to the arguments for why rights of personality should survive beyond the lifetime: just as the once-living person may have created value in their likeness (or not...), the once-living may have created value in their works and that value should be transferable after death as a quasi-property right. But it's questionable whether the author, while alive, truly needed the prospect of such a lengthy property right in order to be inspired to create. Especially when endowing them with such rights gives them so much posthumous control over the speech rights of the living.
But that's what these laws, as currently written, do. The dead don't need to be rotting corpses roaming the streets looking for people's brains to eat in order to pose a threat to them. They just need laws that let them sue.
]]>The following is an adaptation of what I'd posted on the Huey Lewis and the News fan board. Had my blog been working at the time I also would have liked to have posted about it here then. But better late than never? Especially since I'm starting to think about doing another ride this year...
It started with a throwaway comment:
Saratoga on a Wednesday??? How am I supposed to bike there then? Or am I expected to bike to Reno this year instead?
At the time I wrote it, I was just being silly. I had been fully expecting to bike to Saratoga again (after all, after having ridden to it three times I wasn't sure I was even ALLOWED to drive to it...) and was truly disappointed to see that last year's Saratoga stint was but a single date on a Wednesday. Somehow that immediately disqualified it for biking purposes. But, hey! The Reno concert was on a SATURDAY. Surely that would be better, right?
Ha ha, who are we kidding? On what planet is a three-day bike trip to Reno an improvement over a one-day trip to Saratoga? And yet...
]]> I'm not one to follow pipe dreams. I only allow myself to daydream about things that are plausible. So if, in the next minute, I'd looked at the map and seen that Reno was clearly out of bike range that would have been the end up it. Instead, upon my quick googling, I saw that it actually looked quite possible. It was a lot of miles, but there would be places to stay along the way. It would be a lot of hills, but I immediately found posts around the Internet of people talking about the various routes they'd chosen to get across the Sierras. I knew this sort of thing was actually done by cyclists. But by much better cyclists than me.You can see in these old posts the wheels turning (so to speak) as I looked into it further. I pretty quickly settled on the Kirkwood route, but I still was unwilling to fully commit to doing it. It was so far beyond anything I'd ever done (in distance, duration, altitude...) it seemed just a matter of time before I'd realize the folly of the idea and abandon it. And yet, in the intervening months I found the idea inspiring enough to get me out on my bike much more than I ever usually bothered to. I started doing routes I'd long thought about but had never gotten around to riding. New routes. Long routes... Whether I ended up doing the ride to Reno or not, just having ever considered it was already having a noticeably positive impact on my life.
Before I could make a proper decision about it, though, a few things needed to happen. One, I needed to at least see the route. It's one thing to look on a squiggle on a map and think you can ride it; it's another thing to see an actual road and draw the same conclusion. In June though I had the opportunity to go to the Sierras for a friend's wedding (a fellow HLN-fan friend, as it happens), and on the way home I decided to check out the Mormon Emigrant Trail part of the route. Which was disastrous. The MET is an unplowed road, and even though the heat of summer had set in, the heavy snows this winter had yet to completely melt away. My attempts to drive my low-flung Sentra through one such pile on the road failed completely and utterly: I was totally stuck. Were it not for the kindness of strangers, with a powerful truck and strong tow-rope, I'd still be there...
You'd think getting my car stuck on the road I intended to ride my bike on would be a pretty strong signal to give up on the idea. On the contrary: it simply made me determined to beat it...
But a few more pieces still needed to fall into place. One, because I'm essentially just a casual rider, my bike doesn't usually see much in the way of service. I think it's had maybe one tune-up in the 10+ years I've owned it. This spring I did have to replace the front tire as a result of a sudden rare flat though. I was hoping I could have salvaged the tire and just patched or replaced the inner tube, but given its age the bike store encouraged me to replace it all. (At which point it then similarly seemed prudent to replace the back tire too.) The bike store then made the pitch that I get my bike completely serviced as well, especially once I told them I was thinking about this ride, but loathe to spend any more money I hemmed and hawed and put it off. But after coming back from some Huey Lewis and the News shows on the East Coast I decided I didn't want the lack of maintenance to be the reason I didn't end up attempting this. So I got it done. And immediately was glad: not only did my bike's new shininess inspire me to ride, but because the mechanic had replaced the old crud-filled bottom bracket with a brand new one it was now MUCH easier.
So obstacles began to drop by the wayside, but some remained. There were still a lot of logistics to coordinate. Like, how was I to get to Sacramento (the kicking off spot)? How was I to get home?
And more importantly, how could I do this completely alone?
I don't mean the ride, per se. Riding solo is harder than riding in a group, because a group of riders (a peloton) working together travels more efficiently than a single rider on its own (think wind resistance; it saves energy to be able to ride behind others who are knocking it down). But with a solo ride you can set your own pace and be accountable only to your own rhythms, which I think I prefer. At minimum I'm simply not a fast enough rider to keep up with a group.
What I mean is that, as with anything, in order to succeed, you must be able to fail. I don't mean that you focus on failure. But you need to make it so any failure will not be catastrophic. For me this meant that I could not ride off into the wilderness with no back-up plan for if my bike or body broke down.
Fortunately a fellow fan friend volunteered to be my SAG wagon. This meant that I could carry less stuff on my bike every day, since she could meet me at the hotels to bring me what I hadn't needed out on the road, and it meant that if I got stuck she had a car we could load me and my bike into.
Her help was a big piece of the puzzle, but I still had a few more to fill in. I needed the hotel rooms, which I'd held off booking because of poor cancellation policies. I ended up booking them at almost the last minute, and while on retrospect it probably wouldn't have been a problem to have booked them even later, as time grew tight and I recognized how I'd nearly jeopardized the ride by not securing the housing it made me realize just how much I wanted to do it!
As it got closer I had also started talking about it more to people. Casually -- I wanted to be able to bail on the idea without losing face -- but increasingly. I didn't know if I could finish it, but I did know I could at least attempt it. And if I didn't try it now, then when? When would I find myself in better shape, with more time, with more logistical ducks in a row than here in 2010 when I'd been thinking about it and planning on doing it for six months? If I ever wanted to say that I was someone who could bike across the Sierras, it seemed it was now or never to go for it.
I'd pretty much decided on the basic route the day I first looked into it: Sacramento to Placerville, Placerville to Kirkwood, and Kirkwood to Reno. I couldn't have started any further west than Sacramento because with the concert in Saratoga on Wednesday I just didn't have time to start any further away. Sacramento also held the appeal of being at a convenient junction where I-80 and US-50 met, meaning I could peddle out along the southern route and then hopefully find a ride heading back on the more direct northern I-80 route to where I would have parked my car.
But then I couldn't figure out where to park my car for several days safely in Sacramento that wouldn't be far away from my intended route, so I started thinking about other options. Fortunately I have a friend who lives across the street from a BART station, a friend who had expressed willing interest in trying out this "Huey Lewis and the News" thing I kept talking about and come with me to the show in Saratoga. In a notable bit of early kismet we managed to get her a seat RIGHT NEXT TO MINE, despite hers being bought an hour before the show and mine having been bought in April... Then afterward I drove her home, parked at her house, and the next morning took BART to the Richmond Amtrak station, from where it was an easy trip to Sacramento.
At 10 am on Thursday I disembarked the train, mounted the bike, and I was off.
The first part was extremely easy, about 25 miles along the American River Bike Trail, pretty much at sea level. Like so many spots I was to encounter later it could have been better marked, but it was either flat or gently graded and I zipped along at a pretty good pace until Folsom. Folsom, unfortunately, was extremely confusing and under construction. But fortunately, for the first of many times, I encountered lots of helpful strangers who helped me out with directions. (See, it pays to ask for them!) Someone got me onto Folsom Boulevard, from where I turned onto Blue Ravine, which then turned into Green Valley Road. And that's where the climbing really began.
Most of the climbing was ok. Slow and steady basically did the trick. But it was hot, and my granny gear (the easiest one) was not really as granny as I needed it to be. As I approached Placerville, the road got narrower, steeper, and more heavily trafficked. And I was tired. With five miles to go I'd nearly had it and seriously wondered if this trip was doomed. Fifty miles in and I was already broken by a foothill.
So I walked a little bit (which was tough because my bike shoes kept slipping on the pavement), then remounted and did a little bit of climbing at a time. Green Valley to Ray Lawyer Drive to Forni, where after one final little uphill it was a long coast into town. The wrong end of town from the hotel, of course, which itself was at the wrong end from all the restaurants. But the grocery store next door sold frozen dinners, there was a microwave in the room, soon my friend arrived with my fresh clothes, and, 56.2 miles/8 hours after it began (by bike), that was it for the day.
On my way into Placerville (~2000 ft) I'd stopped into a bike shop just before closing and the clerk helpfully stayed late to pump up my tires and provide me with directions for the next day. In my research I'd come up with a lot of competing routes for how to get out of town, and I didn't know which was best. My hunch was to take Carson Road to Pony Express Trail to Sly Park Road to MET, but I didn't know the best way to get to Carson Road that wouldn't involve extraneous climbing. Today was "Crossing the Sierras" Day and I didn't want to needlessly burn energy doing any more climbing than I had to.
So I fumbled around Schnell-School Road until I found the bike path (bike paths that used to be train tracks are great because they can never be graded too steeply). But there were no signs for where to turn off of it, so once again I had to rely on the kindness of strangers to point out that I'd just gone past the road I'd wanted to connect me to Carson Road. Which was much steeper than I remembered. First thing in the morning my legs were burning. If this is what I was in for all day I didn't see how I could possibly make it to the end.
Fortunately it got a little easier once I hit Pony Express, and at the turn-off for Sly Park Road in Pollock Pines I stopped off for a proper breakfast. I can't eat first thing in the morning, but I can't burn all that energy without eating at all. The trick for this ride was to eat before I needed it so I'd never be in a deficit situation, but without eating so much it would slow me down.
After breakfast I did the relatively quick five miles (a few up, the rest down) or so to the general store near the beginning of the MET (~3500ft.). I stayed there for a bit to psych myself up for the 37 miles to come. I had with me a printout of the hill profile for the rest of the day so I knew the hills would be particularly sucky right at the beginning. But I was reasonably fresh and recharged by that point, so somehow I got myself on my bike and got going. As expected, those hills did suck. For a long time. (But for maybe a smidge less than expected.) I don't mind a gentle, steady climb. I get cranky though when the climbs are 4-6%, and I seriously object to ones steeper than that. I started bribing myself with drink stops every half mile or so on the really nasty parts, and luckily there were many non-horrific miles in between them as well. Near the apex of the MET I had to walk my bike again, but soon I was at the top and rewarded with a great view. I ate some carrots and took a picture.
I thought the worst was over, and perhaps that was true, but by now I was tired and at altitude (somewhere between 6000-7000 feet) so even small climbs were arduous. And annoying, because for every up there tended to also be a down. Downs can be fun to ride, but when they come before an inevitable climb they are just depressing. I hate losing hard-won altitude I'm just going to have to earn back again.
My friend had been going back and forth on the MET in case I needed her, and at the junction of CA-88 she topped me off with more Gatorade and drove off further down the road. I crossed 8000 feet and then got a big downhill to Silver Lake from where it was time for the final climb. Some of the directions I'd seen said Kirkwood was just over the next "small hill." Small hill! It was a MOUNTAIN. By now I was bribing myself with drinks and the Sweetarts I suddenly remembered I was carrying. But eventually I crested again, and 56.2 miles/12 hours after I started I coasted into Kirkwood, where my friend had helpfully gotten me checked in to save me extra riding around. Then she drove me around to get dinner, left me the things I needed for the next day, and headed off to Reno.
Which should have been no big deal -- the next day I only had one significant climb, a HUGE downhill, and then a lot of long, flat miles mostly in civilization. Surely I could do all that on my own.
I got an early start in hopes of beating the heat in Nevada -- and promptly rode right over a nail. My nightmare: a flat tire. I hate flat tires. I barely know how to change flat tires. I barely can. So I never do. But with 2.5 hours before the local bike shop opened and nobody around, it was up to me. So I did it. I kept my composure (in spite of a huge temptation to panic), found a seat, and got to work. Remember that flat I mentioned from earlier this year? I didn't change that one -- I paid the bike shop to do it because I find it so hard to get the tires on and off the wheels (my fingers aren't strong enough). But because I'd had to get a new tire just a few months ago (which I was NOT happy about at the time), the new one was still nice and stretchy and so, when there was no one to turn to but myself, it turned out I could do it.
An hour later I was off again, climbing the last significant climb, a few miles up to Carson Pass. At 8574 feet, I'd conquered the Sierras.
It's all downhill from there, right? Er, well, not as much as you'd think... True, there was a lot of descending until about Woodfords, but after that I had a few sets of somewhat ambiguous and conflicting instructions suggesting more circuitous routes than I thought I needed, although I couldn't be sure without asking for more directions. I get the sense that some of those instructions had been written by people almost pathologically averse to sharing the road with cars and who would gladly take on longer, hillier routes in order to avoid them. I, however, am lazy and therefore all about efficiency, but I'm hesitant to trust the typically more direct Google bike routing algorithm without some sort of local confirmation that it bears any relation to reality. So I stopped for directions a few times. I was also running short on Gatorade (I basically drank my weight in it on this trip) and had to stop off when I could, since I didn't know when I'd see another store again and it was hot out in the desert.
The ride was pretty fast up until Indian Hills, where I was confronted with an unwelcome uphill. And Carson City was even worse. For expediency I had decided to stay on Highway 88, which then turned into US 395, but in Carson City 395 turned into a freeway. To avoid it I had to fumble my way west into the hills using nothing but crummy Google directions, which meant I kept having to stop to check them ON ROADS WITH NO SHADE. Then, even worse, I had to CLIMB ANOTHER HILL, also in the sun. I had no idea how long I needed to climb. I had no idea how long I had left on my journey at all. I had no idea when the next time was that I'd see a store, or even a tree. I had no idea how I'd even gotten myself into this situation. It suddenly seemed the stupidest, riskiest thing I'd ever done.
But I did have enough (increasingly tepid) water and Gatorade. And the uphill did end. Then it was a coast down to the relatively flat (although seemingly interminable) Old US 395, from where I dashed across four lanes of traffic back to the real 395N in Washoe City. There I was informed that it was but seven miles to the border of Reno, but an indeterminate number more to downtown. Fortunately the first seven were largely downhill. Then, dodging traffic merging onto the freeway version of 395, I stayed on local 395 and worked my way down the infinitely long Virginia Street.
At 4:45pm I finally saw downtown. At 5:15 I reached it. And at 5:30, after 82.5 miles for the day, I was there. My long ride was over; I did it!
I am amazed I did it. I've never done anything like it. It was a huge stretch for my cycling ability, and more significantly, it was a huge stretch for me in every other way. I know I'm good at being stubborn, but this required a stubbornness at a level I rarely need to deploy.
To a large extent I do think I got lucky. I got lucky that my friends, old and new, were able to support me on this. I got lucky the weather wasn't worse. I got lucky I didn't flat again, or crash, or have any other ill fate befall me. I'm not particularly superstitious, but I couldn't help noticing I did a portion of this on a Friday the 13th. Most Friday the 13ths pass unremarkably. But guess what day it was on the one occasion when I got hit by a car while riding a bike?
On the other hand, I did do a good job at this. It wasn't just a physical project but a mental one as well. I planned it well (although I do wish I'd brought with me a few more maps), and I took good care of myself, eating and drinking (and sleeping) really well. Even when I did the single-day rides to Saratoga I always arrived feeling wrecked. This trip was farther, longer, and hotter, yet I felt ok.
It's deceptive: now that it's done, it seems so doable. But up until I reached the end, it wasn't entirely clear I would. I need to remind myself that just because I achieved a goal doesn't mean it wasn't an achievement.
In any case, I am really, really glad I got the opportunity to find out I could do this. After all, if I can do this, what else can I do? I suppose if circumstances were right I would do these kinds of rides for other reasons, but I pretty much never do. There's something about having a Huey Lewis and the News concert at the other end that inspires me the way nothing else does. For that I am immensely grateful.
]]>The game was won or lost based on when and how people spent their money. Buy high and hope to collect quick, high rents? Or try to wait for bargains and hope all the good properties haven't been snatched up?
It was a fun game, and an educational one. Not only because it necessarily taught how to spend money effectively, but because it taught that everything was cyclical. This was the most important lesson, that one should never presume the good times would last forever and, just as importantly, that one could be sure that after the bad times, better days would be ahead.
It's an important lesson, and one more people should heed. It would restrain the irrational exuberance that can have devastating economic consequences for both individuals and society, and it would restore needed faith that even in the darkest economic hour, someday the sun will shine again.
With this thought in mind I read with some appalled bemusement Dan Harris's post marveling about all the people denying there is a China real estate "bubble." I put it in quotes, because according to his post, a considerable number of people seem to think we're not currently seeing one, despite the unflagging stream of construction in China's urban centers. Sure there's a lot of vacant apartments right now, the thinking of many apparently goes, but China is sure to have massive urban migration who will need it. Whether that assumption is true, and whether the cost of the massive investment in building housing is rationally proportional to the population's ability to afford it are fair questions, but they're ones which many seem not to be asking. Everything is fine, they say. It will all work out. There is no bubble; things really are supposed to be this good.
To which I posted something that I think applies to any situation where people seem equally oblivious to economic reality, beyond just the China real estate one:
I think it's axiomatic that the more people deny there's a bubble, the more there is one. Everything is cyclical, even in China, and it's the denial of this reality that causes the biggest and most painful pops. This doesn't mean that arguments can't be made that China is in a good position to absorb the ebbs and flows of supply and demand, but, as with anything else, the more people protest that it is IMMUNE to these ebbs and flows the more likely it will be devastated by them, as nothing will have been done to try to minimize their inevitable consequences.
Those who don't remember history are doomed to repeat it, they say. History tells us that the game always changes. And as a result there can be an awful lot of losers.
]]>I was reading this article about free speech on college campuses, and in the section about Berkeley they discussed hate speech. From the article:
At the University of California at Berkeley, the birthplace of the Free Speech Movement during the 1960s, administrators replaced the school's broad ban on "fighting words" a year ago with a more narrow policy that prohibits harassing speech toward a specific person. Generally, hate speech is allowed against a group, but not an individual, said university counsel Maria Shanle....
It reminded me of a conversation I recently had with a German friend of mine. I would consider him (from what I know) to be of what's generally referred to as "liberal" in terms of believing in personal freedoms, sane and rational socially-progressive policies, yet eschewing any sort of extremism, be it on the right or the left. In other words, our general attitudes toward public policy were similar.
We got to talking, though, and we realized that our respective cultural backgrounds affected our oppositional viewpoints on the subject of hate speech. My friend expressed appalled amazement that in the US hate mongers (the KKK, neo-nazis, etc.) could be legally allowed to spew their venom. "But these are lies!" he said. How could lies be protected speech?
For me, I see it less as an issue of permitting lies. In fact it has little to do with the contents of the speech at all. The problem with forbidding lies is deciding who gets to be the arbiter of what is a lie and what is the truth. Truth is often relative under the most innocent of circumstances, and history has shown that over-reaching governments frequently designate what is truth only to serve their own power-grabbing ends.
What my friend couldn't fathom was the legal tradition which understands that equation, which understands that there are bigger issues at stake than simply being exposed to lying. It's a belief that no idea is too dangerous to be expressed; that the true danger comes from putting someone in power over deciding which ideas can be expressed at all.
]]>Unfortunately Terminal 7 is in the hinterlands of the airport. Nothing is nearby, and inside there were no signs of ice-vending retail establishments. The check-in counter also had nothing. My only option was to go to the gates' area where there was a food court. Fortunately there was no line to show the TSA my ID. And no line to send my bags through the x-ray machine. And no line to pass through the metal detector. It would only be a few moments before I could get my ice.
But it wasn't. Because as soon as I started to step forward to the metal detector a TSA agent informed me I'd been selected to pass through the x-ray machine. You know, the x-ray machines that bombard you with radiation and expose naked pictures of you to others. There's no way in hell I will subject myself to those -- there's no way in hell ANYONE should -- but this means that my only alternative is to subject myself to the sexual assault of the "enhanced pat down."
Perhaps I am lucky, but I had never been the victim of a sexual assault. At least not until last November when I was assaulted by a TSA agent at LAX. I could have lived my entire life without knowing what it feels like to be violated, to have a complete stranger touch my crotch, and to be so completely powerless to stop it. But instead of never knowing what that might feel like, now I can never forget how it does.
My heart sank as I realized I was yet again going to be molested in order to fly. But the dismay quickly gave way to panic. For as bad as the "enhanced pat down" was going to be, it presented a new problem: delay. I needed ice, I needed it right now, and enduring this assault was going to take time my swelling eye could not afford to wait.
"If you're going to do this to me, I need ice first," I said, pointing to my brow. "I need ice, I need it now, and if you aren't going to let me get it, you need to give it to me."
The agent refused. "We need to do this first."
"No," I said, increasingly panicked. "I need medical care. And if you aren't going to let me get it, you need to provide it."
He still refused.
"Your detainment of me is negatively affecting my health!" Fury, panic, fear, desperation began to flood over me, unstoppably. I started shaking and crying. "I said you could do this to me!" alluding to the molestation, for which my consent was meaningless, since extracting it as a condition of flying is the very definition of extracting consent by duress. "All I asked for was an ice pack first!"
I was sure they had one -- what workplace doesn't have a first aid kit nearby? And sure enough, eventually another agent provided one. But it was over 5 minutes later (I had looked at my watch), and it took an argument to get it. From a different agent - one whose sense of humanity had not been completely overwritten by the police powers she'd been granted.
In the TSA's defense, as I mentioned above, it might not have expected someone with an acute injury to appear before them. Presumably few people, if any, nearly blind themselves with their luggage upon arrival at the airport. But even if I am the only person who ever had, or ever will have, that problem it does not change the equation: I was a free person being detained, without probable cause, by the government. If the government was going to deprive me of my right to preserve my health and well-being, then it needed to. In preventing my free movement it had taken on that duty, and it was failing to fulfill it.
And that failure runs completely counter to the TSA's purported mission. Supposedly this whole exercise is to preserve the public from POTENTIAL harm. Here was a member of the public with ACTUAL harm, and the TSA only made it worse.
After the one agent finally gave me an ice pack I sat there outside the security gates for several minutes, a quivering, crying mess until I calmed down. Perhaps I should be ashamed at crying in public, but I'm not. At all. It was an honest emotion. I'd had a long, hard week, emotionally and physically fatiguing, which had now been punctuated with a possibly severe eye injury worsening by the moment by this wrongful detainment, and on top of all that I now had a sexual assault to look forward to. "We know why you fly," one airline advertises. Well, the TSA should know that sometimes people fly in a good mood and sometimes a really bad one. They stand in the way of everyone, no matter how fragile, and they can't expect to do so without consequence.
But I think they do. I think the TSA expects to get away with whatever it wants and desperately hopes that no one ever start to question their abuse. They need happy, willing, compliant travelers. Having people sobbing publicly at the checkpoints is bad for PR. Which is why I wasn't ashamed to do so then, and why I'm not ashamed to proudly talk about my moment of "weakness" now. The TSA's invasive procedures impose a huge burden on people; they should not have to bear that burden of private pain themselves. If it brings them to tears, then cry, and let the world see what our nation has become.
The TSA clearly doesn't like it. As I sat there a man in a regular suit, the manager of the whole TSA area there, came out to talk to me. He tried to tell me that the x-ray machine was perfectly safe. "If it wasn't I wouldn't let my family use it." Nice rhetorical tactic, I thought to myself, but I'm not buying that garbage. It made me angry that he'd even use it on those less informed about the risks of those machines, to try to wrongly assure them they posed no harm. "You've been drinking the kool aid," I told him. He said nothing, but the look on his face told me he knew I was right.
The conversation kept coming back to the underlying policy argument of whether this entire farce of the x-ray machines and "enhanced pat downs" is really justified but I cut him off. "We're not going to agree on that," I said, and switched the focus back to the ice pack problem. "If you were going to keep me from getting medical care, then you needed to provide it." That problem was much more simple, and much more solvable. When I told them I needed an ice pack -- with a clearly swollen, discolored face, no less -- it should have been given without debate.
And maybe in the future, at that particular checkpoint, it will. It is a solvable problem, and there's no reason not to solve it. But it doesn't solve the real problem, which is that the actual harm caused by these unreasonable TSA screening procedures is demonstrably greater than the potential harm the TSA is alleged to mitigate. This equation would be true no matter what the terrorist threat. The x-ray machines are ineffectual, dangerous, and an expensive diversion of money away from more effective anti-terrorist measures. Meanwhile, the "enhanced pat downs" are actual, violent assaults on innocent people.
Is this what America has become? It is perhaps worth noting that Terminal 7 is where British Airways and other international carriers fly out from. We aren't just assaulting our own citizens; we're attacking people from all over the world. And so I cried. I am surely not the first, and surely I won't be the last, as long as these assaults continue.
Because I wasn't just crying because of my own personal pain from my long week and bruising brow. At some point I blurted out to the man in the suit that I was a lawyer, and I could feel my heart break as I said it. If what the TSA is doing is right, then everything I learned in law school is wrong. I read the Constitution; I've sworn multiple times to uphold it. The people have the right to be secure in their person and effects, it says, clearly and explicitly. And yet, against the TSA, the people are not.
I recognized that feeling. It's the feeling one has at a funeral, that sense of despair, grief, and unquenchable longing for what has been lost. "Death to America," the terrorists say. But if the TSA is allowed to continue to get away with its abuse of innocent travelers, then the freedom America supposedly stands for has already died.
]]>It began by accident: at some point last year what had been a perfectly stable Movable Type 4 installation suddenly stopped working. ("Stopped working" means scripts stopped executing, which degraded the user experience and made it impossible to maintain.) Initial troubleshooting got me nowhere; it was clearly going to take more time -- and patience -- than I could muster right then.
Or in the months that ensued. My time (and especially patience) mustering skills are clearly lacking when it comes to frustrating technical troubleshooting. But thanks to Twitter, that was ok; my communicating-to-the-world itch got satisfied that way. (It also probably caused the further atrophying of my time-patience-mustering skills... hmm.) But Twitter is limited; it can't replace everything that the long-form style of a blog enables, and eventually I came to miss that faculty so much I had no choice to bite the bullet and try to troubleshoot it again.
Which is what I finally did this weekend. I'm still -- for the moment, at least -- on Movable Type, even though it is the most cryptic blog platform to maintain, maybe, ever. Now that its contents are stored in a database it's actually a teensy bit easier to install than it was when I first started using it way back at version 2, but the way layout is controlled has become extremely opaque. After staring at it long enough it starts to make some sense, but the whole enterprise really taxes dusty HTML and UNIX skills that usually lie dormant.
Nonetheless, success! My blog is now live, and upgraded to the latest version, with only minimal loss of content and styling. Note: I have only resurrected my more recent "Statements of Interest" blog. I am not sure I will ever revive my old "Great Change" one. I remember a time when I would have thought killing my blog a horrible prospect, but after nearly a year of it being essentially lost to the world I find myself a lot less panicked by the idea of it staying broken. In some ways I'm finding myself feeling grateful that the Great Blog Breakdown is forcing some simplicity -- it's something of a relief not to have to keep it alive too. My current thinking is to clean up and repost some of my favorite posts from it here and then let the rest fade away. I'm finding myself feeling surprisingly at peace with that idea.
In the meantime I do expect more tweaking will need to occur, and I will do my best not to have it destroy the blog that's left in the process. The biggest project will be to try to get a grip on the comment situation. One of the reasons I stuck with MT, instead of fleeing for the greener pastures promised by WordPress, is that the world's best anti-spam plugin exists only for MT. However, that may only be MT 4.x, and I'm on 5.x, so until I figure out if I can port it over, or find another solution, comments are off until I can deal with spam attacks. I do welcome feedback, though, so please feel free to email me and I can post updates to my posts if necessary. And if MT doesn't break again...
]]>Which is why there are problems with attempts to impose English-only rules, because to ban a language is to ban entire ideas. Certain concepts will simply be inexpressible in the mandated language. For these bans don't just constrain specific terms that stand for concepts; even when the mandated language contains reasonable translations these bans also constrain how these concepts are conveyed. There is more to a language than just its literal semantic function: a language has a feel, an aesthetic, just as connected to its meanings as its words are. This is why, "I love you," is no real substitute for, "Je t'aime." The two phrases may share the same base meaning, but they are hardly romantic synonyms. French has that certain phonetically subtle je ne sais quoi. I don't know what English might offer that's truly equivalent.
Thus a language is more than just an interchangeable set of linguistic functions; a language is a medium, and the medium itself can be the message. Just as the choice of a spoken language can transcend the basic gist of its words, the choice of a programming language is about more than the basic functionality of the resulting program. Which is why a ban on Flash is as equally problematic as a ban on spoken languages. It may be true that much of the basic functionality offered by Flash can also be offered by HTML5, which Apple is pushing as a substitute. It may even be that for many purposes HTML5 is even better. But to the extent that these development mediums are not the same (e.g., their outputs are different, their development environments are different, their programmers have varying fluency in each…) the consequence of suppressing one is that the kinds of expressions uniquely suited to it will also be suppressed.
The irony is that Apple's argument about why it should ban the supposedly closed Flash replicates, if not exceeds, the professed harm that would come from using it. The argument behind the value of an open language is that it affords the ability to express oneself freely, without being dependent on an authority dictating what memes, concepts, or vocabulary can be part of one's expression. But here, in limiting an entire programming medium on its devices, Apple itself is exerting itself as the authority dictating what memes, concepts, or vocabulary can be used on its system, which hardly preserves whatever freedom of expression the more open HTML5 would supposedly provide.
]]>"to further promote the awareness of intellectual property protection, expand the influence of intellectual property protection across the world, urge countries to publicize and popularize intellectual property protection laws and regulations, enhance the public legal awareness of intellectual property rights, encourage invention-innovation activities in various countries and strengthen international exchange in the intellectual property field."
But all that was really a cover for WIPO's true intention to make the world celebrate one of the finest intellectual property lawyers ever to walk the Earth: me. Really, why else would they have chosen my birthday as the perfect occasion for their so-called "IP celebration"?
Of course, as long as WIPO continues to be coy about its true intentions, we might as well celebrate some intellectual property today. Thus a perfect host for this week's Blawg Review was Jeremy Phillips at his IP-focused IPKat blog. Not all the posts he reviews this week are necessarily IP-related ones, but he did kindly include a link to my Blawg Review covering the 300th birthday of the Statute of Anne.
Clearly WIPO's not the only one who recognizes my awesome IP skillz…
]]>Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we've come to know it. Prior to the Statute of Anne, the privilege to publish was invested by the monarch in just a handful of companies who had an exclusive monopoly on all publication. Nothing could be printed that the Stationers’ Company and its select few brethren did not deign to print, and they were endowed with police powers to enforce their total control of the market for printed works.
Clearly such total power over the creation and dissemination of written works would cause a politically restless populace to bristle, and Parliament eventually acted to wrest the Royal Privilege to publish from this cabal and restore it to the population at large. It is thus bitterly ironic that today, almost exactly 300 years later, the English Parliament stands ready to do the exact opposite and restore total control over the creation and dissemination of work to a new generation of monopolists.
What makes it so ironic is, of course, what has long been forgotten: that the Statute of Anne was passed as “An Act for the Encouragement of Learning.” The intent of the copy right it created was always to stimulate the dissemination of knowledge. Now, three hundred years later, we have the ultimate disseminator of knowledge: the Internet, yet in England -- as well as countless other countries -- copyright law is evolving to stop the spread of information -- the exact opposite effect.
But its project has not yet succeeded, and the Internet is so far still able to provide a wealth of information, a small portion of which this Blawg Review will highlight as I explore the premise, promise and problems of the Statute of Anne and its legacy.
]]> The Digital Economy BillThe point of this Blawg Review is not to take pot shots at England, but it would be remiss not to call attention to the Digital Economy Bill working its way, appallingly rapidly, through Parliament. Ostensibly a bill designed to advance the Internet in England, it has clearly been drafted by people with little to no understanding of how the technology works, or how and why people use it. By failing to understand its value the government is about to destroy it, and with a casualness almost more egregious than any deliberate intent to destroy it might be, for the government is (so far?) affording only the most scant debate to the most titanic shifts in English Internet law.
Blawg Review: Lilian Edwards offers commentary at her panGloss blog about some of the more egregious clauses.Blawg Review: England is also currently wrestling with reforming its libel law. CharonQC relates on his blog why MP Tom Watson chose not to support the latest proposal on that front, as well as commented on some other current legal absurdities in today's England, as did Ken at Popehat .
ACTA
Meanwhile it's not as if the United States can escape similar criticism. It has been embroiled, along with many other countries, in secret negotiations to develop yet another treaty regarding intellectual property that, despite protests to the contrary, would change domestic U.S. copyright law (as well as the law of other countries party to the agreement). The U.S. is already party to plenty of other intellectual property treaties, including a variety of trade agreements it's forced other countries to accede to. But ACTA would go even farther than those in affecting national law. Putting aside the particulars of how it would change copyright law, especially with respect to the Internet, ACTA presents two significant problems right out of the gate:
Firstly, that it amounts to "policy laundering." In the U.S., copyright law is in the domain of Congress to legislate. In theory, if the People preferred copyright law to be different than it is, the People are perfectly capable of electing representatives who would change it. But with treaties, the executive branch can bind the country into an agreement that requires national law to be changed in order for the country not to be faced with the sanctions of breaching it. What makes it "policy laundering" is that particular interests who are unable to get a majority in Congress to change the law as they would like can simply lobby the single Executive to do their bidding instead.
Secondly, the much larger concern is that even if every term of ACTA being negotiated were agreeable… well, there's no real way to even know that, because it's being negotiated in secret! The bits that have leaked have not inspired confidence, however, yet the most significant problem remains that the people who will be affected by this treaty have no ability to review, object to, or even support its provisions.
Blawg Review: Walter Olson at Overlawyered has a post rounding up several posts on ACTA. See also David Post at the Volokh Conspiracy, Margot Kaminski at Balkinization, and Andrew Moshirnia at Citizen Media Law Blog. On the upside, Susan Crawford notes that the EU has voted to oppose the ACTA negotiations.
Three-strikes
There are several regulatory features that make proposals like the Digital Economy Bill and ACTA so onerous. One is the notion of "three strikes." The idea behind "three strikes" is that infringing recidivists should risk losing their ability to further infringe. That's right: download a song without authorization three times and you lose your connection to the Internet.
Again, putting aside for the moment the abhorrent policy value this type of rule represents, "three strikes" policies generally also suffer the fatal infirmities of privacy loss (how is it that anyone would be able to know whether someone was filesharing?) and due process violations (once accused, how practical, plausible, or affordable is it for someone to defend themselves against the charge?). It also represents a massively disproportionate response to whatever harm filesharing might cause anyone, to be able to cut people off from the Internet, making no account to the injury such termination would cause to their lives and livelihoods -- and even their families lives and livelihoods, since if one person on a network gets accused of filesharing, then everyone gets cut off.
Blawg Review: On the subject of Internet privacy, this week the New Jersey Supreme Court reaffirmed employees' right to privacy in their emails sent from work computers. Evan Brown blogged about the ruling at Internet Cases. Meanwhile the EFF posted about an important judicial victory repudiating the U.S. government's warrantless wiretapping, and James Grimmelmann reminds us how dangerous GoogleBuzz was to people's privacy. On her blog Clarinette further explores how privacy issues will cause more people to encrypt their communications.Blawg Review: On the subject of due process, this week also brought news of a new legal onslaught against Internet users. A coalition of independent movie producers has decided to base their revenue streams on mass litigation against presumed filesharers of their movies. Eriq Gardner at THR, Esq. has the story, as does Ray Beckerman at Recording Industry v. the People.
Vicarious liability
Another defective feature of these types of proposals is their imposition of liability, or at least duties to fulfill in order to avoid liability, on any party whose tool or service happens to facilitate infringement. The inherent danger to these types of rules is that they chill innovation. Great technologies that enhance our lives could not be developed if, by their nature, they in any way allowed someone to make an unauthorized copy of copyrighted content. So should the notion of vicarious liability be strengthened, there goes the hard drive. There goes Google. There goes the ISP. There goes virtually every technology or service that makes the Internet work or be useful, since every bit of content on the Internet ultimately requires copying somehow in order to be consumed.
Blawg Review: Jeremy Phillips at IPKat chronicles this week's decision by the Chancery Division of the High Court for England and Wales to hold Newzbin liable for infringement for informing people where on Usenet they could find the content they were looking for, as does Peter Groves at Ipso Jure and Andres Guadamuz at Technollama. Meanwhile Cynthia Foster reports on a similar conclusion by a federal judge in California, and William Patry wrote about another secondary liability case in Singapore.Blawg Review: There are those who propose immunizing from infringement liability intermediaries who install filters to catch users impermissibly transferring files. Assuming that it is possible for a filter to constructively identify whether or not a downloader (or uploader, for that matter) had the right to do so (it's not), and ignoring the privacy violations involved in examining Internet users' communications, the filters themselves are too imperfect to be useful, as Venkat Balasubramani reminds us at SpamNotes.
DRM, DMCA, damages, derivatives and other detritus
The list of modern complications arising out of copyright law is too long to go into much further here. But a few significant ones are worth touching on, such as DRM. "DRM," for those unfamiliar, stands for Digital Rights Management, a technological measure that attempts to control how a digital work is accessed. It's intended to prevent people from sharing digital content; in reality, it frequently prevents legitimate users from accessing content too.
The DMCA, for its part, is a poorly-conceptualized U.S. amendment to its copyright law. Two of its most significant features are its prohibition on circumventing DRM, and its notice-and-takedown requirements. In order to immunize ISPs and web hosts from liability for potentially infringing material its users may post, the DMCA establishes a series of rules for hosts to follow in responding to allegations of infringement. However, even if a notice-and-takedown system were a good way to keep Internet providers from getting into trouble as a result of their users' behavior, the current incarnation of the DMCA means that content can be deleted against users' will simply on the basis of an accusation of infringement, whether or not it be deserved, and without any sort of equivalent recourse for the user if the accusation were false.
Blawg Review: Allegations of infringement happen all the time, way more often than they are warranted. At Scrivener's Error C.E. Petit discusses what hopefully will be the final chapter in SCO's failing litigation efforts to prove it owns copyrights in Linux software.Blawg Review: Damages are a significant component of copyright law, designed to be both a remedy and a deterrent. But periodically the types of damages the law calls for ends up disproportionate to the problem they are supposed to address. Jonathan Turley writes at Res Ipsa Loquitor about a woman ordered to pay $40,000 for 37 songs she downloaded when she was 14. On the other hand, sometimes the damages the law calls for are too low to be any sort of effective deterrent against copyright infringement. Aurelia J. Schultz writes on the Afro-IP blog about Swaziland's updating of its law to address that problem.
Derivative works also require attention. These are works built upon other works. To some extent they are protected by the notion of fair use (at least in the U.S. where the doctrine of fair use exists, to the extent that it still does; other jurisdictions may have somewhat similar analogs). But in many instances the copyright holder of the original work can enjoin or sue anyone who uses it to create something else, no matter how worthwhile that something else is.
Blawg Review: Pamela Chestek writes about a lawsuit against M&Ms, nominally about trade dress but with a copyright component, and Mike Masnick points us to an article about figuring out whether posting one's vacation pictures at Disney World would amount to copyright infringement. Meanwhile Kembrew Mcleod writes about a filmmaker with nightmares about being sued for having used small samples of music in a documentary about people who create with samples of music.
Bottom Line
How on earth did we get this mess out of the Statute of Anne? How is the Statute of Anne even recognizable in any of it?
The Statute of Anne did establish one critical conceptual piece of copyright that is still with us today: the notion of the author's right. It was a significant change from the previous paradigm, when the printers assumed all moral authority for the work. The idea that one's creation somehow belonged to the creator was revolutionary, at least in England, and consistent with some of the espoused local philosophy of the time. In and of itself, there's also not necessarily anything wrong with it. Rewarding authors with limited, yet exclusive, copy rights for limited terms to protect against unfair competition was a reasonable bargain to strike in the advancement of the overall goal of the Statute: the promotion of learning.
Blawg Review: At the Creative Commons blog Mike Linksvayer discusses the economics of open courseware. John Willinsky discusses similar issues with respect to Canada at Slaw.ca.
This right, however, was not to congratulate the author for having written but rather to enable the commercial exploitation of the work. Parliament wanted more books to be written, and granting authors this monopoly of limited duration was seen as the solution for fulfilling that goal.
And yet now we see vastly expanded terms. Vastly expanded protections. On vastly expanded categories of works. With a vastly smaller public domain, and vastly more severe consequences for those who would, no matter how reasonably or inadvertently, infringe.
Maybe the Statute of Anne tried to do too much, too soon. Never mind the public, from the outset there was tension between authors, printers, and booksellers, which the Statute of Anne may never have quite resolved. Then there was tension between Parliament and the Courts, as the latter struggled to figure out the intended boundary of this newly-defined "copyright," which left behind some confused precedent. There was also tension between those creators who had copyright in their medium and those who did not, and so over time copyright law was extended to cover these additional types of works too.
Blawg Review: Some additional posts contemplating the history of the Statute of Anne include two discussions about "piracy," by Richard Padley and Ray Dowd. Gabriella Coleman reads the purpose of the statute as being for the public, and Mary L. Dudziak cites a paper by Tomas Gomez-Arostegui on the first lawsuit under the Statute of Anne on her Legal History blog.
And then there was tension between copyright in England, and copyright everywhere else. Not knowing where protection began and ended led to efforts to harmonize the copyright law among different countries, even countries that approached the concept of copyright entirely differently. What the Statute of Anne teaches us, if nothing else, is that copyright law is not an inevitability -- even in England it is but 300 years old -- and other countries and cultures historically have found their own solutions to the same problems copyright supposedly solves.
Blawg Review: The pressure of one legal system on another to change the latter's copyright law has certainly not let up. Michael Geist writes about the EU's efforts to change Canada's law, and Kevin Smith about the harmonization efforts of the treaty process. Over at IP Dragon Danny Friedmann discusses copyright self-regulation in China.
But the end result of this 300-year "evolution" is a law full of absurdities that in no way delivers on the intended goal of the Statute of Anne. The quid pro quo of giving creators a little monopoly so the public could get access to their creations has given way to total domination by the creators over nearly all exploitation of their works, essentially indefinitely, at the expense of the public, and in nearly every country there is. This author-centric copyright law found around the world may be able to trace its lineage back to the Statute of Anne, but like a clone that's been copied too many times, its DNA has been degraded to the point that it is unrecognizable compared with its ancestor.
These changes have happened incrementally over the centuries, but with the arrival of the Internet the pace has increased. Like the Stationers' Company panicked at the coming of a new political age, today's incumbents fear the challenges to their power the digital age may herald.
But like we saw 300 years ago, change need not be unwelcome. Change provides opportunity to enhance society. Just as the Statute of Anne led to an explosion of public discourse, now liberated from heavy government control, the Internet presents the universe of nearly unlimited content to learn from, enjoy, experience -- and build upon. (Don't forget: even authors are regular users sometimes.) A tool like the Internet that can so enhance the public sphere needs law focused on enhancing the public sphere too, just like the Statute of Anne once did.
So maybe on this 300th anniversary of the enactment of this statute its time to think about reviving it. The Statute of Anne may be dead, but perhaps its promise is not.
See here for a follow-up to Lance Godard's Blawg Review #257 at 22 Tweets, and tune in next week when Blawg Review #259 will be hosted at Legal Blog Watch. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
]]>"Born in the USSR" was but one such example. So is what some have called the best Russian rock song of all time, "Родина" ("Rodina," or "Motherland"). (See one of my favorite live performances here; a version with translated lyrics is here). He's also got a song telling the story of a drinking session at the home of a corrupt FSB general, and more recently he wrote a song "When the Oil Runs Out" ("Когда Закончится Нефть") about the government's unsustainable economic policies. Shevchuk definitely seems a patriot, but a patriot who thoughtfully questions the forces that would steer his country down unfortunate paths. And who will speak out about it in ways other than through his songs as well: in 2008 he joined protests against the election of Medvedev, he attended the trial of Khodorkovsky and Lebedev ("Россия-матушка не дает нам расслабиться." "Mother Russia does not allow us to relax."), and just a few weeks ago interrupted his own concert to berate the corruption and brutality in Russian politics (interestingly, right before singing his song, "Mama, This is Rock and Roll").
"The system that has been built in our country is brutal, cruel, and inhumane. People are suffering, not only in prisons and camps, but in orphanages and hospitals as well. So many bastards are feeding themselves on power. With epaulettes on their shoulders and with flashing lights in their heads, they are robbing us, running us over on the road, and shooting us in stores. And nobody is being held accountable."
Not being able to read Russian it is hard for me to further sketch the contours of his views, of course. I suppose it's possible he harbors some I might not like. But he seems to stand for peaceful principles. (One of his earliest songs, "Не Стреляй" ("Nyeh Stryelyai," or "Don't Shoot," was originally written regarding the Soviet invasion of Afghanistan and more recently has been repurposed for Chechnya. This isn't an official video, so just listen.)
It's also clear that he approaches his subjects with a unique poetic style (which may in part be why it is so difficult to get clear translations of his words out of GoogleTranslate). Even his political motifs are heavily laden with imagery (from "Rodina": "From under black shirts bursts a red rooster / From under kind czars marmalade pours into mouths / Never has this world had room for both / Father was our god, and our devil"). He also has songs called "Rain" (" Дождь") and "Wind" ("Betep"), another wondering "What is Autumn?" and still another one with the essentially untranslatable title and lyric, "Просвистела" ("Prosveestyela") (Translators have struggled with how best to convey it; I think its refrain may best be reflected, "She whizzed past.")
But really, there's no need to even catch all the words. Every song comes with sufficient musical tentacles to crawl into your brain and permanently attach there. With DDT his style ranges from acid rock with rap influences, to country and American rock, to more gentle acoustic and orchestral arrangements. Even those songs I don't really like, I end up liking anyway. There's a tremendous charm to his music and his performance that's hard to resist.
Now in his 50s he exudes the paternal calmness of an elder statesman as he serenades audiences with his voice and acoustic guitar. At the same time, he's still also the kinetic frontman of a stadium-filling electrified rock band. Thoughtful, articulate, creative, intelligent, exuberant (all of which is entirely apparent despite the language barrier) he fills his audiences with music and meaning as effortlessly as any musician better known in the English-speaking world. Maybe even more so -- is there even any analogue of any English-speaking musician who has been anywhere near as varied, as prolific, as good?
It's actually sort of strange that he's not better known beyond his country's borders. Not only is he enormously huge in Russia, but he's been to the U.S. many times before, having performed on MTV as early as 1988 and on tour as recently as 2008. But as long as he is regarded solely as an inhabitant of the Russian-language rock world other audiences will be deprived the pleasure of his distinctive voice. Which would be a shame, just as it's a shame that even though I'd been captivated by his music as early as 1992, it's only just now that I'm becoming aware of his fuller career.
And maybe I'm helped by the little Russian I do know -- there's certainly a dearth of other information about him in English -- but it is simply not necessary to know any to enjoy his music. Just listen to this song, "Это всё" ("Eto Vsyo"), or "This is all."
This is all you'll need to hear to agree.
(Chorus: "Это всё, что останется после меня / Это всё, что возьму я с собой" - "This is all that will remain after me / This is all I will take with me").
]]>Hearing a Seal song the other day reminded me of my visit to Russia way back in 1992. It was part of a high school exchange, and my host student and I got along great. So well, in fact, that it was incomprehensible that our worlds had been so closed off from each other. Now that they were open it was so nice to be free to connect with someone so much like me.
One of the ways we connected was through music. As I wrote a few years ago:
Although [my friend's] English was good enough that we were able to converse, she wasn't able to pick up the lyrics to songs she liked. One of them was [Seal's] "Kissed by a Rose." She had a sense that it was deeply poetic and asked me to transcribe the lyrics for her. The exercise forced me to listen to it closely and I realized she was right.
So I shared with her that music. She, for her part, gave me Yuri Shevchuk, whose lyrics were much the same.
]]> It was April 1992. The Soviet Union had just yielded to the Commonwealth of Independent States. Russian life still bore the hallmarks of communism, but it had suddenly become unmoored from it. In April 1992 Russia was tasting freedom and openness, and I mean "tasting" in something of a literal sense, as Russians tentatively began to experience the kind of un-stifled life previously found only on the western side of the Iron Curtain. It was going to take some time for them to come to terms with this enormous change.Yuri Shevchuk (and his band DDT) had already been playing music since 1980, with some success, if that's what you can call it. It took two years before they could fund any recordings, which then won a contest. But under Soviet rule, becoming known wasn't all that it was cracked up to be, because it also meant you became known to the KGB… Some bands were forced to go underground entirely, as venues were made off-limits to them by the powers that didn't approve of their art. Shevchuk and DDT managed to eke out a quasi-underground existence, at some times able to perform openly but otherwise generally dependent on the surreptitious circulation of bootleg cassettes in order to be heard.
By April 1992, though, they were in full view, and I remember Olga showing me a video of theirs, which immediately enthralled me with its anthemic chorus, "Рожденный в СССР" ("Born in the USSR"). While a surely conscious reference to Springsteen's American version, it was hardly derivative. The lyrics, my friend explained to me, dealt with the momentous change consuming Russia. Basically he was singing, "I was born in the USSR. But now that it's not, now what?" Everything everyone had been taught about their country was suddenly moot.
Although I often think of my friend, back here in the U.S. I've hardly had occasion over the last 18 years to think about Yuri Shevchuk. For some reason, though, the other day when the ancient memory of his song popped into my head, the curiosity overtook me, and, on a whim, I decided to see if I could find it on YouTube.
This is EXACTLY why we need the Internet, because not only did I find that song, but I found a seemingly endless supply of other songs, interviews, performances… Diving into this fabulously deep library of material is like opening an endless supply of Christmas presents. I'm getting to know him and his music, and loving every bit of it. It turns out Yuri Shevchuk is like the Bruce Springsteen of Russia, but without the Internet to facilitate the connection, transcending geography, language, and foreign policy, his music would have remained all but locked away from me. As it is, I can't believe I've missed so much of it.
Fortunately, as long as we have a free and open Internet, I won't need to miss any more.
]]>I have always thought it good form to acknowledge the hosts who have acknowledged me. Unfortunately, I have often failed to live up to that ideal. Checking my records I see I've missed recognizing some hosts and would therefore like to use this opportunity to make amends.
]]> One that I missed was Carolyn Elefant's inclusion of my post about a Welsh school's ban on swim goggles in Blawg Review #215 for World Oceans Day at her MyShingle blog. I have a sinking feeling (no pun intended… ok, maybe it's a little intended) that I may have missed another Blawg Review reference from another occasion as well, but Google is being of no help in figuring out when that might have been.It may have been Sheryl Sisk Schelin's Blawg Review #227 on the Inspired Solo blog I am confusing it with. Sometimes one of the reasons I miss posting about the Blawg Reviews is because I'd like to say something of substance with respect to the overall Blawg Review, and sometimes time slips away before I have that chance. But I suppose her linking to my post on the Lockerbie bomber's release will have to suffice for right now in the substance department.
Ron Coleman kindly thought to include me in yet another of his Hannukah-themed Blawg Reviews, this time in edition #242. He linked to my post on the privacy consequences to Facebook friendship, but perhaps next year I should write a post about the possible spelling variants of "Hannukah."
Finally, and I don't see how I could have previously avoided mentioning it, there's CharonQC's Blawg Review #245 tour de force, which, as you will see if you follow the link, should always be with you. Charon (aka Mike Semple Piggot) and I have an unofficial competition going on to see who can write the longest Blawg Reviews. I think he wins, but given that he, too, used his Blawg Review to link to my epic Huey Lewis and the News Blawg Review, you can easily see for yourself.
]]>I am both glad and horrified by the news. Glad that it's at least something, including some very necessary restraints on the private health insurance business. But horrified that (a) it really ONLY amounts to some regulation of private health insurance, (b) those reforms, without a public option or any concerted overhaul of how health care is provided in the United States, are likely to make healthcare even more expensive for many (including myself), and (c) the political posturing, even from both sides of the aisle, was so dysfunctionally entrenched, and just as frequently paranoid and obtuse, as to prevent a better solution from emerging.
I will be quite candid: I am no fan of Nancy Pelosi. Yes, the political values she represents are my values as well. But I thought both she and Rahm Emanuel were both so politically aggressive and obnoxious as to prevent good policy from emerging. On the other hand, maybe the heavy-handed strategy was necessary to get at least *something* done. The pushback by so many conservatives, and even some Democrats, against the notion of a public solution to health care provision was frightening, bewildering, and counter-productive to any of their stated agendas, and that's what I write about here.
]]> To be clear, I don't think government should play a role in everything. I do not like when government interferes with private behavior that affects no one. I do not like it when it steamrolls over civil liberties. I want government to have to get a warrant when it wants to come into my house, and I don't want it to micromanage people's lives and livelihoods to the point of suppressing them. That said, what is government but an extension of society? Every society wants to persist and thrive, and whether it can do so depends on the well-being of its members. Sickly, unproductive people bring down the community they belong to. Therefore it's in the community's interest to ensure that its members avoid being so through the use of its governing functions.That's how health care should work in theory, anyway. And in my experience, having dealt with both the French and English public health system, it can in fact be the practice.
Critics of public health insurance point to France's high social security tax rates. But the upside to those tax rates is that the money people do take home is theirs to do with as they like, as they do not need to devote ever-increasing amounts of their personal budgets towards healthcare, as people must do in the US. It may be that the French system is over-generous -- perhaps there should be higher co-payments or user fee to discourage overuse -- but these details don't indict the whole system. The fact that no one in France needs to worry about needlessly dying, going broke, or both -- as they do in the US -- speaks to the French system's value.
My encounter with the British NHS system was equally positive. On my recent travels I sustained an injury that required treatment before I returned home. I was referred by a pharmacist (in both France and England pharmacists are front-line providers of medical care) to an NHS clinic, which treated me, no questions asked, capably, comprehensively, and for free.
Contrast that with the follow-up care I received in the United States, where I was bumped from doctor to doctor, each time incurring a $140-180 charge. I do have insurance, but all my insurance got me was these relatively lower charges, as opposed to a full-retail price of the office visits. The nature of my insurance plan, and what manages to keep it even remotely affordable, is that it doesn't kick in to provide for affordable co-pays until I've already paid out-of-pocket an unaffordable amount for the year -- on top of unaffordable premiums.
It is unclear to me, even with the insurance reform passing through Congress, whether my insurance will get much cheaper. I fear not, so long as there's not a public plan pulling out higher-risk people and forcing private insurance plans to be more competitively priced. Although I do applaud the new law in how it limits the portion of an insurance company's revenue that can be diverted to profit (as well as the guarantee that everyone be able to find some sort of coverage and not be dropped, no matter where in the US they live), I do fear my rates will be increased to cover the increased payouts to the less healthy. I do not mind paying for such a safety net as part of my taxes contributing to the health and well-being of my community, but I do worry that without a public plan the safety net these reforms are supposed to herald will be illusory.
Which I suppose is what some conservatives have been arguing, but instead of arguing for a policy that better provides a safety net than this current bill, they collectively railed against the whole notion that one was needed at all. I do understand some of their concerns: I do value how in America entrepreneurialism is prized and protected more than it may be in some of these European countries. I am empathetic to the arguments that European societies are often over-regulated to the point that they dampen some of their own potential for growth. I accept the arguments made by those who want to ensure that what sets America apart on these fronts remains, and I agree with the calls to temper regulation when its perceived benefits come at too great a cost to these priorities.
But surely there are middle grounds. The abject refusal to recognize that there are times when we need to work together as a society for our mutual benefit, by and through our government -- a government by the people, for the people -- is impossible to fathom. Valuing what makes America unique does not preclude the American government ensuring its people's health. On the contrary, it must be recognized that NOT doing so is antithetical to those policy goals. For the sake of our economy, and indeed our American way of life, we must shoulder the burden of health care together. America cannot be healthy when the American people are not.
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