Little Legal Recourse For Artists’ Rage Against Musical Torture

One of the obvious questions from the announcement of the musicians Rage Against Musical Torture, and one that several people have been asking, is what avenues of legal recourse do the musicians have? It turns out remarkably few, if any.

A look at the recent case of Jackson Browne v. John McCain demonstrates why. Here is a link to the complaint in Browne v. McCain; as you can tell, Plaintiff Browne pled four causes of action for the wrongful use of his music. The four counts are copyright infringement, vicarious copyright infringement, violation of the Lanham Act and violation of state law (California) right to publicity. (You can see the court’s rulings upholding the viability of these counts at the links provided here).

The lead count of copyright infringement is based upon 17 USC 501 et seq. The specific triggering conduct is delineated in 17 USC 106-122. Unlike in Browne, there really is no provision of the applicable law that comes into play. In Browne, there was an appropriation for use in a campaign commercial, that was broadcast on television and the internet, and the conduct happened in the United States; none of that is the case, unfortunately, for the musicians here. There was no “commercial use”, there was no “secondary broadcast”, and the putative conduct did not occur within the United States.

The key here is the nature of the use. As horrid as the conduct of using the artists’ music for torture is, there is no evidence that the governmental actors, whether soldiers, CIA or contractors, obtained the music illegally. Furthermore, there is no evidence that they used the music for a “commercial purpose”. It was not broadcast, nor was it played in a public setting; there is legally little to nothing to distinguish what was done from a person playing his boom box or stereo too loud in his apartment building. In short, there does not seem to be a “copyright infringement”. The same rationale explains why there is no apparent RIAA violation. Also, since there was no cognizable copyright violation, there was no “vicarious copyright infringement” as was present in Browne.

The next common count to proceed in these situations is via the “Lanham Act“. Here, again, the facts simply do not truly reach the scope of the claim. There is no legal basis for asserting that the restricted use made of the artists’ music would create confusion or imply that the artists approved of the torture; and, again, the conduct was not done in a public setting or Read more

Get The Lead Out: Crime Reduction In America

I saw this via Kevin Drum about a week ago and meant to put a post up because it is both stunning and fascinating. Mark Kleiman has a book out on criminal justice and punishment by the name of When Brute Force Fails. The reviews have been fantastic, but it is the discussion of the effects of reduction in lead exposure on the crime rate that caught my eye:

Given the decrease in lead exposure among children since the 1980s and the estimated effects of lead on crime, reduced lead exposure could easily explain a very large proportion — certainly more than half — of the crime decrease of the 1994-2004 period. A careful statistical study relating local changes in lead exposure to local crime rates estimates the fraction of the crime decline due to lead reduction as greater than 90%.

Jeebus; that is pretty eye opening. Granted, there are a lot of nits that could be picked as to whether this is a direct or correlative relationship and, even if it is direct, to what extent it is so; however, it is a hell of a discussion point.

A 2007 Washington Post article described one of the studies behind Kleiman’s assertion:

The theory offered by the economist, Rick Nevin, is that lead poisoning accounts for much of the variation in violent crime in the United States. It offers a unifying new neurochemical theory for fluctuations in the crime rate, and it is based on studies linking children’s exposure to lead with violent behavior later in their lives.

What makes Nevin’s work persuasive is that he has shown an identical, decades-long association between lead poisoning and crime rates in nine countries.

“It is stunning how strong the association is,” Nevin said in an interview. “Sixty-five to ninety percent or more of the substantial variation in violent crime in all these countries was explained by lead.”

Through much of the 20th century, lead in U.S. paint and gasoline fumes poisoned toddlers as they put contaminated hands in their mouths. The consequences on crime, Nevin found, occurred when poisoning victims became adolescents. Nevin does not say that lead is the only factor behind crime, but he says it is the biggest factor.

As an added bonus, the Post article uses Nevin’s study to mock Rudy Giuliani’s constant claim that he is Read more

Treachery At The Red Rocks Sweat Lodge

Red Rocks sunsetYou may have seen the story of the deaths at an Arizona retreat sweat lodge in the news over the last week. It is not necessarily our normal fare, but I am oddly captivated by it on several levels.

A self help, wealth and awareness “guru” by the name of James Arthur Ray, who runs an enterprise by the crafty name of James Ray International, rented out the facilities and grounds of a Sedona Arizona retreat by the name of the Angel Valley Retreat Center for the purpose of conducting a group program. Ray appears to run several different types of “programs” and this particular one he calls “Spiritual Warrior” and is a five day event that culminates in a group sweat lodge ceremony.

Ray describes his Spiritual Warrior program as follows:

In Spiritual Warrior, you’ll build upon what you started in Practical Mysticism. You’ll become privy to techniques (many kept secret for dozens of generations) that I searched out in the mountains of Peru, the jungles of the Amazon (and a few other places I don’t care to recall).

For the low, low price of $9,695.00 per person:

You’ll accelerate the releasing of your limitations and push yourself past your self-imposed and conditioned borders (no more coloring inside the lines)…

You’ll carve out your own destiny and quickly develop the strength and determination to live it…

You’ll learn (and apply) the awesome power of “integrity of action”…

You will (perhaps for the first time in your life), have a gut level understanding of “The Four Enemies of Power.” You’ll learn to recognize them at a glance, and instantly defeat them when they arise…

You’ll define and enforce your own boundaries—without someone else telling you what they should be…

You’ll experience a new technologically-enhanced form of meditation that creates new neurological pathways, allowing you to experience powerful whole-brain thinking (this one’s gonna knock your socks off)…

You’ll experience, at the spiritual level, the ancient methodologies of Samurai Warriors; and gain a true understanding of the authority and strength that come from a life of honor…

“Look, you’ve most probably spent your whole life staying within the lines to get what you’ve got (or at least a major portion of it). Join me outside the lines in this heroic quest for higher consciousness…”

And, of course, a sparkling pony. At last week’s “program”, Ray had Read more

More NDCA Goodness: Judge Walker Denies Prop 8 Proponents’ Motion

As most of you know, Proposition 8 in California is the anti gay marriage provision. Supporters of the basic right to gay marriage sued the State of California after passage of Proposition 8 as a ballot initiative in last falls elections. Today were oral arguments on a motion for summary judgment filed by a group of intervenors against gay marriage and supporting the validity of the law. The case is set in front of the one and only Chief Judge Vaughn Walker of NDCA.

Here is the report from the San Jose Mercury News:

A federal judge on Wednesday refused to dismiss a legal challenge to Proposition 8, concluding that the ongoing courtroom battle over California’s voter-approved ban on gay marriage must be resolved in a full-blown trial.

After two hours of legal sparring, Chief U.S. District Judge Vaughn Walker rejected the arguments of Prop. 8 supporters, who maintained that U.S. Supreme Court precedent and a lack of proof of constitutional violations should sidetrack a lawsuit designed to overturn the ballot measure. Instead, Walker, sensing the challenge to Prop. 8 ultimately could wind up before the Supreme Court, wants a trial to develop a full factual record, including forcing Prop. 8 supporters to justify the reasons behind a state ban on allowing gay couples to wed.

One by one, the judge shot down the legal reasons Prop. 8 lawyers presented to resolve the case now and allow the same-sex marriage ban to remain in force. In particular, the judge seemed particularly unpersuaded by Prop. 8 attorney Charles Cooper’s chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting “traditional” marriage because of its importance to procreation in society.

“Procreation doesn’t require marriage,” Walker noted, citing statistics showing that a large percentage of children are born out of wedlock.

A representative from Law Dork was on hand and related this analysis:

Questions about whether animus animated Proposition 8 and the relevance of that claimed animus, Walker ruled, would benefit from a more complete record to be developed at trial because both issues remain in dispute.

Finally, the Proposition 8 proponents had asked the Court to rule against the Plaintiffs based on the U.S. Supreme Court decision in Baker v. Nelson. The Baker decision is a 1972 opinion by the Court dismissing a marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). The Plaintiffs were represented today in court by Ted Olson.

The proponents of Proposition 8, represented today in court by Charles Cooper, argued that the brief Supreme Court dismissal in 1972 meant that no federal judge could hear a similar case because the only the Supreme Court could reverse its Baker opinion. This was considered a very weak argument by many lawyers to consider the matter, particularly in light of Romer and Lawrence, and Judge Walker agreed.

This is an extremely notable ruling as Judge Walker appears to have made it from the bench at the conclusion of oral argument; he did not even bother to take it under advisement and save it for his written opinion. That is a judge totally convinced of the decision.

This is a very good, if not great, ruling and sets the stage for trial on the matter, which is already set for January of next year. Civil libertarians have to take their victories where they find them. This is another striking one coming out of the hallowed ground of the Northern District of California. My hat is off, there is something special going on up there.

Dog Day Afternoon: The Militarization Of American Police

I took great exception to President Obama’s conduct in the Henry Louis Gates false arrest case in Cambridge Massachusetts. See here and here. The reason I objected so strenuously is that there is a long growing problem in this country with the militarization of, and militancy by, police officers and the way Obama interjected himself into the matter prevented a valuable chance to publicly address the issue.

Courtesy of a chilling opinion piece slated for Sunday’s Washington Post authored by Cheye M. Calvo, mayor of Berwyn Heights Maryland, we have another poignant reminder:

I remember thinking, as I kneeled at gunpoint with my hands bound on my living room floor, that there had been a terrible, terrible mistake.

An errant Prince George’s County SWAT team had just forced its way into our home, shot dead our two black Labradors, Payton and Chase, and started ransacking our belongings as part of what would become a four-hour ordeal.

The police found nothing, of course, to connect my family and me to a box of drugs that they had been tracking and had delivered to our front door. The community — of which I am mayor — rallied to our side. A FedEx driver and accomplice were arrested in a drug trafficking scheme. Ultimately, we were cleared of any wrongdoing, but not before the incident drew international outrage.

You may remember this incident from the summer of 2008. It was, and is, a brutal reminder of the awesome power the police exercise, and the casual belligerence and impunity with which they all too often abuse it. Mayor Calvo hits the problem on the head:

Yet, I remain captured by the broader implications of the incident. Namely, that my initial take was wrong: It was no accident but rather business as usual that brought the police to — and through — our front door.

In the words of Prince George’s County Sheriff Michael Jackson, whose deputies carried out the assault, "the guys did what they were supposed to do" — acknowledging, almost as an afterthought, that terrorizing innocent citizens in Prince George’s is standard fare. The only difference this time seems to be that the victim was a clean-cut white mayor with community support, resources and a story to tell the media.

What confounds me is the unmitigated refusal of county leaders to challenge law enforcement and to demand better — as if civil rights are somehow rendered secondary by the war on drugs.

Calvo goes on to explain how not only did the police abuse Read more

The Wind Takes The Lion: RIP Senator Edward M. Kennedy

images1.thumbnail.jpegIt was only a few days ago we learned Teddy Kennedy was thinking about his succession for his long held Senate seat from Massachusetts. The day has come too soon.

Senator Edward M. Kennedy has passed. "Teddy" was the senior Senator from Massachusetts and has so served in office since November 1962. Kennedy was in his eighth full (and ninth overall) term in the Senate and was the second most senior member of the Senate and the third-longest-serving senator of all time.

Senator Kennedy was born on February 22, 1932 and passed on August 25, 2009 at age 77 at his family home at Hyannis Port Masachusetts.

From Reuters:

One of the most influential and longest-serving senators in U.S. history — a liberal standard-bearer who was also known as a consummate congressional dealmaker — Kennedy had been battling brain cancer, which was diagnosed in May 2008.

Known as "Teddy," he was the brother of President John Kennedy, assassinated in 1963, Senator Robert Kennedy, fatally shot while campaigning for the 1968 Democratic presidential nomination, and Joe Kennedy, a pilot killed in World War Two.

UPDATE: Boston Globe: Statement from the Kennedy Family

"Edward M. Kennedy — the husband, father, grandfather, brother and uncle we loved so deeply — died late Tuesday night at home in Hyannis Port.

"We’ve lost the irreplaceable center of our family and joyous light in our lives, but the inspiration of his faith, optimism, and perseverance will live on in our hearts forever.

"We thank everyone who gave him care and support over this last year, and everyone who stood with him for so many years in his tireless march for progress toward justice, fairness and opportunity for all.

"He loved this country and devoted his life to serving it.

"He always believed that our best days were still ahead, but it’s hard to imagine any of them without him."

UPDATE #2: Here is the full New York Times obituary, and it is very thorough.

A Chebby In The National Driveway & Lesson In Healthcare Messaging

24365333-d0ce332479a4cfa5f9580b59294330344a8c6481-scaled.thumbnail.jpgBarack Obama is bad and he’s nationwide. And he’s got a brand new ride. Check out the sled he has rolled up in the driveway of the South Portico of the White House (image by Mark Knoller). I guess when you own GM it ain’t that hard to get a Chevrolet.

Say what you will about NASCAR, they are the absolute masters of brilliant product placement, fan involvement and brand messaging. They never miss an opportunity, and always have the discipline, to be on message, be consistent, sell their ideology and run a forceful and effective PR ship. Today, that ruthless efficiency was brought to the White House and Barack Obama. From the LA Times:

Wednesday afternoon President Obama appeared live on the ESPN2 show "NASCAR Now." The show originated from the White House because three-time NASCAR Sprint Cup champion Jimmie Johnson was being honored for, well, being a NASCAR champion, on the South Lawn of the White House.

"NASCAR Now" host Nicole Manske and talented analyst Brad Daugherty grilled our president about who might win the Sprint Cup championship this year and what he thought about Johnson. We were rewarded with a penetrating answer to that question that included the quote: "He looks like a pretty young guy."

Like I said, brilliant. NASCAR got their champion driver, Jimmy Johnson, in the White House, rolled his #48 Rick Hendrick Lowe’s/Kobalt Tools Chevrolet Impala up for some glamor shots and prime video footage and they managed to get it all covered by ESPN for their proprietary NASCAR show, NASCAR Now.

Now that, folks, is how you sell your product. Were it only that the Barack Obama White House had a fraction of these skills in selling their national healthcare policy. Not so much. In fact, it has been an astoundingly flimsy and ill conceived pitch almost from the start, and we still don’t know what in the world Obama and the White House really stand for on the topic. As Adam Green at Open Left put it:

One could parse, and say Rahm’s quote could still include the possibility of bipartisanship, but still: there’s something called message discipline. The last four days have seen: statement, backtrack, statement, backtrack.

Seriously. Can someone describe for me some master plan that might be at play here? If not, White House communications team — WTF?

No kidding. As Adam noted, Jon Stewart sums it up beautifully:

Mr. Read more

The Poetry Of Detroit Auto

Danny Heitman has a quirkily fascinating op-ed up in the New York Times on the attempt in the mid to late 50s by Ford Motor Company to enlist a poet laureate to help sell its products:

The question is brought to mind by the story of Marianne Moore, the famous American writer, who served for a brief season as the Ford Motor Company’s unofficial poet laureate.

A Ford executive wrote that the company was launching “a rather important new series of cars,” but his team was stumped to think of a name for the latest product line. Could Moore, an icon of American letters, help them out?

Moore embraced the assignment with relish, not surprising for a poet who enjoyed — and whose writing was frequently inspired by — popular culture, whether it be baseball, boxing or bric-a-brac. The correspondence became a cultural fixture of its own after it was published in The New Yorker two years later.

These days, poetry and commerce are rarely on such good speaking terms. Poetry doesn’t sell well, and poets almost never attain the celebrity that touched Moore, Robert Frost and Carl Sandburg half a century ago. If some Detroit executive got the bright idea to consult a poet for marketing advice today, one rather doubts he’d know whom to call.

It’s nice to think that the two groups — poets and carmakers — might find new relevance through collaboration, but history is not encouraging.

I share Heitman’s conclusion that such a collaboration is probably not in the offing in today’s society and marketplace. I think, however, Detroit is going to rebound with a different kind of poetry.

Poetry in motion.

If Detroit is to rebound, it will not be from fancy words or catchy phrases to hawk their products; it will be from engineering excellence, desirable design and competitive, if not superlative, production values. They are much further along this path than many people give them credit for being though.

The Ford Fusion and Fusion Hybrid, Ford Focus, Ford Escape and Escape Hybrid, and the new Ford Taurus are all absolutely killer vehicles, both on their own and compared with foreign competitors. These cars are all world class in their segments. Add them to the always top of the segment Ford Truck line, especially the F-150, and you have a company that is here to stay and ready to take on all comers.

Financially, Ford had the jump on the old GM; Ford leveraged Read more

The Cost Of Obama’s Beer Fest Failure Is More Tasered Moms

I wrote a series of posts about the incident surrounding Harvard Professor Henry Louis Gates. First, it was an illegal and unconstitutional arrest because of the abuse of police power and discretion. Second, irrespective of whether it was a racially motivated moment, it was one from which serious discussion could, and should, ensue. Third, that it was a teaching moment being given short shrift by the clumsy way Barack Obama inserted himself into it and then tried to extricate himself through the bogus "beer summit".

The thing that got me up in arms, from the start, is the undeniable fact that Gates’ arrest was illegal and an abuse of police power. As I described, take Gates’ conduct at its worst as described by the Cambridge police report, and the conduct simply does not meet the elements of disorderly conduct as arrested and charged on under the Massachusetts statute. There was no probable cause or legal basis for the arrest; it was simply a case of contempt of cop, and Sergeant Crowley decided to use the time honored police way of dealing with citizens in such situations, he abused his authority and badge by arresting the citizen.

The only thing unique about the Gates case is that it ended without serious harm to the citizen and it pierced the national conscience. The same base conduct plays out every minute of every day somewhere in the US. But the Gates/Crowley moment appears to have been lost without any intelligent discussion of the rampant abuse of police power and authority. Save for the opinions of Jonathan Turley and Jeff Toobin, which were minimized by MSNBC and CNN television coverage, there was precious little recognition by major media outlets of the root point of police power abuse.

Well, the scene in the video attached hereto is what happens in a society that refuses to address overreaching authoritarianism and unrestrained police projection. Moms with kids in minivans get Tasered and roughed up. In front of their children. Why? Because the cops can with relative impunity. The "Blue Line" circles the wagons around their fellow officers, prosecutors need their cooperation for prosecution and trials in actual major cases, and politicians are too cravenly worried about their next election to care. As Digby says:

If this is what they do when they have a video camera rolling Read more

Woodstock: 40 Years Down The Road And A Nation Lost

Well, I came upon a child of God
He was walking along the road
And I asked him, Tell me, where are you going?
This he told me

Said, I’m going down to Yasgur’s Farm,
Gonna join in a rock and roll band.
Got to get back to the land and set my soul free.

As you may have heard, we are on the precipice of the 40th anniversary of Woodstock. The famous, and infamous, cultural milestone took place down on Max Yasgur’s dairy farm outside of Bethel New York between August 15 and August 18, 1969. Thirty-two acts performed, during a sometimes rainy weekend, in front of nearly half a million concertgoers. The history and lore of Woodstock began immediately, it was clear to both those who loved it, and those who hated it, that it was a uniquely seminal moment.

Well, then can I roam beside you?
I have come to lose the smog,
And I feel myself a cog in somethin’ turning.
And maybe it’s the time of year,
Yes and maybe it’s the time of man.
And I don’t know who I am,
But life is for learning.

We are stardust, we are golden,
We are billion year old carbon,
And we got to get ourselves back to the garden.

Something had happened. Something big and transformational. But what? The prevailing view seems to be that it was a symbol of the discord and unrest of the 60’s, the antiwar movement and the counterculture generation. It is also viewed as the ultimate example of the peace and love motif of "the hippies". I wonder about all that; in fact, I am more inclined to the view expressed by Jon Pareles in a great article in the New York Times:

Yet for all the benign memories, Woodstock also set in motion other, more crass impulses. While its immediate aftermath was amazement and relief, the festival’s full legacy had as much to do with excess as with idealism. As the decades roll by, the festival seems more than ever like a fluke: a moment of muddy, disheveled, incredulous grace. It was as much an endpoint as a beginning, a holiday of naïveté and dumb luck before the realities of capitalism resumed. Woodstock’s young, left-of-center crowd — nice kids, including students, artists, workers and politicos, as well as full-fledged L.S.D.-popping hippies — was quickly recognized as a potential army of consumers that mainstream merchants would not underestimate Read more

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