Dearest A,
Perhaps the Republican vice-presidential candidate has been reading some crit theory in her spare time, but isn't she echoing some left-wing thoughts about the First Amendment here:
"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations," Palin told host Chris Plante, "then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."
Legal realists have a similar theory, arguing that the "marketplace of ideas" is actually a sham because the megaphones wielded by powerful interests -- like the media -- are able to shout down everyone else.
Maybe Georgetown Law should hire her.
Love,
Sammy
Friday, October 31, 2008
Wednesday, October 29, 2008
Why Lawyers Blog
Dearest A,
Andrew Sullivan wrote a very fine essay in The Atlantic the other day -- Why I Blog. It's a paean of sorts to the immediacy of blog-writing: "more free-form, more accident-prone, less formal, more alive. It is, in many ways, writing out loud."
I love this idea. I also wonder if it could possibly apply to lawyers who blog.
Lawyers are diligent and careful creatures, not given to such moments of whim as "writing out loud." To be a very good lawyer, you must read cases over and over to ensure you're interpreting them correctly. You must write over and over to ensure that you're not overstating or misstating or understating concepts. You must think over and over to ensure you've considered every possible consequence of a decision.
This is not easy work. And I wonder if any lawyer can blog effectively without doing all of this reading and writing and thinking. And all this reading and writing and thinking takes time.
So how do we reconcile the nature of lawyers with the nature of blogs?
Much love,
Sammy
Andrew Sullivan wrote a very fine essay in The Atlantic the other day -- Why I Blog. It's a paean of sorts to the immediacy of blog-writing: "more free-form, more accident-prone, less formal, more alive. It is, in many ways, writing out loud."
I love this idea. I also wonder if it could possibly apply to lawyers who blog.
Lawyers are diligent and careful creatures, not given to such moments of whim as "writing out loud." To be a very good lawyer, you must read cases over and over to ensure you're interpreting them correctly. You must write over and over to ensure that you're not overstating or misstating or understating concepts. You must think over and over to ensure you've considered every possible consequence of a decision.
This is not easy work. And I wonder if any lawyer can blog effectively without doing all of this reading and writing and thinking. And all this reading and writing and thinking takes time.
So how do we reconcile the nature of lawyers with the nature of blogs?
Much love,
Sammy
Thursday, October 9, 2008
The Politics of Copyright
Dearest A,
Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.
Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.
This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?
They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.
The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.
All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.
Love,
Sammy
Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.
Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.
This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?
They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.
The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.
All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.
Love,
Sammy
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