Friday, February 08, 2002

Judge Pickering on Miscegenation

I transcribed Judge Pickering's student article on how Mississippi's miscegenation statute could be amended to make it functional. Apparently, the good folks in the Mississippi Legislature managed to amend the statute so it would only affect couples where a White person hooked up with a Black person or a Mongolian person who was also a close relative. (Of course, the fact that they had such trouble with their incest laws not only belies the myth of white supremacy, it reinforces the stereotypes we Northerners share about our Southern friends.)

Young Mr. Pickering implied that the court was a bit nit-picky in its literal reading of the statute (what would Justice Scalia say?) and then prescribed language to amend the statute. It's interesting that he acknowledges his proposal is of dubious constitutionality in the long run, but he seems more than willing to suggest a way to prevent miscegenation for as long as possible.

Of course, the utility of studying a student note is questionable. He wrote this a long time ago, while he was still young. Mississippi was obviously very conservative, and my experience has been that law schools are not the most liberal of academic institutions. Still, he proposed a method of criminalizing interracial relationships! And even though he wrote in a very academic tone, the fact remains that he was willing to write an article that facilitated discrimination at the most personal level. The most sympathetic reading, I think, is that he was extremely naive or--like many law students--utterly mercenary when it came to advancing his career.

I'm not writing outside of my experiences. I was a law student; I chose to write on a controversial subject (the application of Megan's Law statutes to juvenile sex offenders); and when my note was published, I knew that it could be used to justify repressive laws or to judge my political and legal opinions. I believe it was either Jesus or Yosemite Sam who said, "You pays your money, you takes your chances."

Stephon Marbury charged with "Extreme DUI"

My first-ever attempt at writing for SportsCenter: "Phoenix Suns point guard Stephon Marbury was charged with Extreme DUI after being arrested last night in Scottsdale Arizona. While Extreme DUI may sound like an X-Games event, it actually consists of driving with a blood alcohol level in excess of .15. Marbury, who was also doing 75 mph in a 50 mph zone while weaving in and out of traffic, managed to shake off his hangover to release the following run-on sentence: 'I must accept responsibility for my actions and I apologize to my teammates, the organization and the community for whatever embarrassment I have caused.'"

Discussion of Kelly on Slashdot

There's a discussion of the Kelly case on slashdot. I love slashdot--well, alterslash anyway--but (like any legal discussion) the conclusion draws a lot more attention than the analysis. Here are my comments:

I think the discussion may have missed both a novel aspect of the case [] (PDF) and a significant factor in the court's analysis:

First, the infringement didn't occur because copied the work, but because they violated Kelly's right to publicly display [] his work. A run-of-the-mill infringement claim is going to involve copying or creating a derivative work, which makes the analysis in this case relatively interesting.

Second, the question of whether infringed on Kelly's right to display his work still came down to a question of fair use []:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

In this case, the infringement of the right to display came, essentially, because Kelly was trying to sell copies of his photographs and displayed the images in a way that made it less likely that people would ever visit his site (why bother? they could right-click the images displayed on's site) and buy copies of his works.

In other words, the analysis could be different if the copyright holder isn't trying to sell copies of their work. It could also be different, I think, if one of the other factors tilted more strongly in favor of the defendant: for example, a not-for-profit use of a work in a context of political or artistic discussion.

Mike "Still Bitter About Submitting This Story Yesterday Morning and Having it Rejected" Skoglund

Thursday, February 07, 2002

Harry Potter Fans Warn Against Dangerous Effects of Bible

From the Australian site The Chaser: Harry Potter Fans Warn Against Dangerous Effects of Bible:

OXFORD, Tuesday: A number of concerned British Harry Potter fans have spoken out against the Bible, claiming that the holy text of the Christian Church can cause serious damage to children. “Reading the Bible teaches children to believe in the supernatural,” said one English Literature academic from Oxford University, Lewis Williams. “The tales of Jesus turning water into wine are fairly harmless, but there is a serious risk of children drowning if they try to walk on water,” he said. “And the chance of serious bodily harm isn’t exactly minimised by that whole ‘resurrection-from-the-dead’ story either.”

Two new riffs: First, The War on Drugs + The War on Terrorism = The War on Credibility, addressing the argument that users of illicit drugs are supporting terrorism. Second, A Riff on the "Digital Divide" in 2002, which begins to address how the National Telecommunications and Information Administration addressed the "digital divide" under the Clinton and Bush administrations--and what that means.

Is the Right to Display Works Implicated by Embedding Images?

A panel of the 9th Circuit Court of Appeals has released its decision in Kelly v. Arriba Soft Corp. (PDF). Arriba runs the search engine, which crawls for images and creates thumbnails that were, at one point, linked to the original image rather than the page on which the image appeared. Kelly, a professional photographer, sued for copyright infringement. This panel held that the use of thumbnail images linking users to copyrighted works is protected by fair use. But it also held that if those links display the original image in a different context, it can violate the copyright holder's exclusive right to publicly display his or her work. In this case, embedding Kelly's images on was not protected by fair use primarily because the images were displayed in a way that made it more difficult for Kelly to sell his works. This not only affects search engines (e.g., google, which will allow users to display decontextualized images), it could create liability for any site (e.g., Drudge) that embeds someone else's copyrighted works.

Wednesday, February 06, 2002


The most horrifying vision: Justice O'Connor, promoting a new book last month, told NBC's "Dateline" that she and Chief Justice William Rehnquist had dated when they were both attending Stanford law school in the 1950s. Luckily, this was pre-sexual-revolution; still, I may not be able to eat today.

Tuesday, February 05, 2002

Yesterday I came up with a couple of comments about Israel, and today it's nothing but media updates:

I was reading the Velvet Rope and I found a discussion of a bizarre interview of Kiss's Gene Simmons by "Fresh Air"'s Terry Gross:

TG : Now, clothes that you've worn on stage. You wear fishnets
GS : No, fire your research person, no fish nets
TG : I was sure I'd seen you in them, but I trust you
GS : Don't ever do that, I'm a man
TG : Let's get to the studded codpiece -- Do you have a sense of humor about that
GS : No it holds in my manhood, otherwise it would be too much for you to take. You'd have to put the book down and confront life. The notion is if you're going to welcome me with open arms you also have to welcome me with open legs
TG : That's a really obnoxious thing to say
GS : No it's not, why should I say something behind your back that I can't tell you to your face
TG : Has it come to this? Is this the only way you can talk to a woman, with that schtick
GS : Let me ask you something, why is it schtick when all women have ever wanted since we crawled out of caves is, "why can't a man just tell me the truth and speak to me plainly". So if I do that, you can't have it both ways.
TG : So you really have no sense of humor about this do you
GS : I'm laughing all the way
TG : Yea to the bank
GS : Of course, don't I sound like a happy guy
TG : Not really to be honest with you
GS : I was going to suggest you get outside of the musty place where you can count the dust particles falling around you and get out into the world and see what everybody else is doing.
TG : Having sex with you?
GS : Well if you chose but you'd have to stand in line
TG : Ok well we might as well get to this since you keep bringing this up
GS : I didn't, you did
TG : You write that you've had 4600 sexual liasions
GS : You're supposed to say so far
TG : So far. To you this will be asking the obvious but why have you wanted so many encounters
GS : M-a-n, the notion is plain
TG : I'd like to think the personality you presented on our show today is a persona that you've affected as a member of Kiss, but that you're not nearly as obnoxious when you're at home or with friends
GS : Fair enough, and I'd like to think that the boring lady who's talking to me now is a lot sexier and interesting than the one's who's doing NPR, studious and reserved.

The interview sort of speaks (or slurs) for itself; I can't help but wonder why Mr. Simmons thought he was going to sell product by appearing on "Fresh Air."

Update: An MP3 of the interview has been posted here.

CSPAN: Hitchens & Sullivan

my favorite Minnesota Blog (well, the only one I read daily) pointed out that C-SPAN has a Christopher Hitchens-Andrew Sullivan discussion available for downloading.

Monday, February 04, 2002

One problem with being a liberal supporter of Israel is that many outspoken "progressives" absolutely despise that nation, while more "conservatives" tend to be dogged in their defense of Israel. It's shocking to see leftism blur with anti-semitism as it does on the indymedia channels and, locally, in the pages of Pulse.

Twice today, I was amazed by articles about the Mid-East in the National Review. First below, and then this on article by Victor Davis Hanson. He explains why Americans feel an affinity toward the people of Israel rather than other Mid-Eastern states, and then explains how the situation can change for the better:

Instead of railing at America, Palestinians should instead see in our policy toward Israel their future hope, rather than present despair — since it is based on disinterested values that can evolve, rather than on race, religion, or language that often cannot. If the Palestinians really wished to even the score with the Israelis in American eyes, then regular elections, a free press, an open and honest economy, and religious tolerance alone would do what suicide bombers and a duplicitous terrorist leader could not.

It doesn't essentialize or demonize the Palestinian people or Muslims in general, and it is essentially optimistic that things can change. It is truly unfortunate that more progressives don't share this vision and sense of opportunity.

Bush Teaches Sharon About Fighting Terrorism?

Jay Nordlinger is unusually blunt about recent press coverage of President Bush and his foreign policy. In today's column, he responds to a paragraph in the Washington Post series "Ten Days to Remember." Dan Balz and Bob Woodward wrote:

Bush then called Sharon in an effort to prod the Israeli leader to take steps to try to reduce the violence that threatened to destroy any hopes of peace in the Middle East. Bush believed that Israel ultimately could be one of the principal beneficiaries of a global war on terrorism and wanted Sharon to see that as well. It was not clear that Sharon understood Bush’s message.

Nordlinger's response is devastating not only because it's completely true, but because it emphasizes how lazy the American press has become in its canonization of this administration's foreign policy:

Oh, really? Ariel Sharon a little cloudy about a war on terrorism and what it might mean for Israel? Right. Look: Arik Sharon was fighting terrorists — shooting at them and being shot at by them — when the current president was in school. When he was puking his guts out. When he was failing, then succeeding, in business. And when he was thinking about running for governor of the Lone Star State. Sharon has forgotten more about terrorism and the dimensions of fighting it than Bush will ever know. The continual American condescension to Israel on this issue is astounding to me.

Frankly, I was surprised that Nordlinger so vividly contrasted Bush with Sharon. Prime Minister Sharon clearly carries some baggage about his role in Israel's fifty-year war against terrorism, but it's equally apparent that he was acting on behalf of his nation while our current president was making "more money than [he] ever dreamed" off of sketchy investments and nepotism. You just don't expect to see the contrast in the National Review.