I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”
In the movie, it appears that MSNBC believes this to be some sort of scandal.
Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:
You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.
Is this right? Paging our very own Eugene Kontorovich, a leading authority on piracy law! Over at Opinio Juris, Julian Ku and Kevin Jon Heller discuss the opinion. Myself, I plan to re-watch South Park.
Tags: piracy
The Obama White House knew, of course, that creating a web-based system for ordinary citizens to call on the government to do something, and promising a response if 25,000 people or more sign an online petition within 30 days, would inevitably produce some silliness. There’s a reason we’re not a direct democracy, no matter how dysfunctional Congress has become. There have been some serious matters raised, such as MPAA Chris Dodd’s (shocking, shocking) insinuations that the Obama campaign owed taxpayer goodies to Hollywood. And anything genuinely offensive can simply be ignored. We live in a knowing and ironic age, and what might once have seemed beneath the dignity of the White House can be an opportunity for some light-hearted national and, dare one say it, decently unpartisan fun.
Hence the official White House reaction to the petition calling upon the Obama administration to “secure resources and funding, and begin construction of a Death Star by 2016,” which garnered some 35,000 signatures. As reported by Entertainment Weekly (the only truly canonical outlets for this kind of news would have to be EW or Wired, Hollywood or Silicon Valley), here is the official administration response, from Paul Shawcross, Chief of the Science and Space Branch of OMB (we must assume this went through the interagency clearance process and perhaps even constitutes the opinio juris of the United States for purposes of international, nay interstellar, law):
“The Administration shares your desire for job creation and a strong national defense,” begins Shawcross, “but a Death Star isn’t on the horizon.” He cites a Lehigh University study that calculated that a Death Star would cost a deficit-exploding $852,000,000,000,000,000 (that’s $852 quadrillion), notes that ”the Administration does not support blowing up planets,” and rightly points out that it would be foolhardy to build a space station “with a fundamental flaw that can be exploited by a one-man starship.”
Shawcross then goes on to tout the many space endeavors, both public and private, that are currently underway. (“Even though the United States doesn’t have anything that can do the Kessel Run in less than 12 parsecs, we’ve got two spacecraft leaving the Solar System and we’re building a probe that will fly to the exterior layers of the Sun.”) He concludes by encouraging the diligent soul(s) who created the petition to pursue a career in a science, technology, or math-related field, declaring that anyone who does so embraces the power of the Force: “Remember, the Death Star’s power to destroy a planet, or even a whole star system, is insignificant next to the power of the Force.”
Yesterday we introduced some of the big themes of The Knockoff Economy, and briefly explained why the fashion industry remains so creative despite having its central product—clothing designs—freely copied by any firm that thinks it can turn it a profit by aping an original design. In the book we look at several other examples of creative fields in which copying is common. One of the most interesting and fun is the culinary world.
In this post, we thought we’d present a brief excerpt from the chapter on food to give a flavor (so to speak) of the book. In this excerpt, we discuss the incredibly creative culinary scene that now exists, and how copyright applies (or doesn’t) to cuisine:
“The apotheosis of this trend toward extreme culinary innovation is what is often termed the “modernist cuisine” movement. Practitioners, such as Ferran Adria of the recently closed El Bulli restaurant in Spain and Homaro Cantu of Moto in Chicago, use complex and highly inventive processes to create flavored foams, liquid “olives,” edible inks, and various other savory special effects. Many of these dishes push the envelope of good taste; a few are bizarre and arguably inedible. But they are unequivocally novel, and people pay dearly to experience them.
Even outside this rarified world, however, creativity in cuisine is prized in a way that contrasts sharply with the past. Chefs frequently seek to charge jaded palates through novel combinations of flavors, produce, and technique. The Wall Street Journal, for example, noted in 2006 “a big shift in high-end restaurant culture. . . . The past decade has seen the focus shift to innovation” and away from the apprentice-driven reproduction of classic dishes that anchored cuisine (especially French cuisine) for many decades…
This tremendous output of creativity in contemporary kitchens has been accompanied by substantial copying, or more charitably, borrowing, among chefs. Now-ubiquitous dishes, such as molten chocolate cake or miso-glazed black cod, did not just pop up like mushrooms after a storm. Each debuted in a specific restaurant but soon migrated outward in slightly altered form. The putative inventors (Jean-Georges Vongerichten in the case of molten chocolate cake, Nobu Matsuhisa for miso black cod) can claim no royalties on their creations. Nor can they effectively halt the interpretation of their creations by others. Indeed, today a molten chocolate cake is even on the menu at a mass-market chain such as Chili’s. (In fact, a recipe claiming to be for Chili’s Molten Chocolate Cake is readily available on the Internet).
Why are dishes like molten chocolate cake not protected against copying? In the United States, copyright law protects only “original works of authorship fixed in any tangible medium of expression.” In principle, there is no obvious reason why a culinary creation is not a work of authorship. It has an author (the chef), and it is certainly fixed in a tangible, albeit edible, medium of expression—the recipe is “fixed” in the food itself.A painting of a molten chocolate cake would clearly receive copyright protection; so too would a sculpture of one. But as we will explain, under current law the molten cake itself would not be protected.
At the outset it is important to distinguish between the recipe for a given dish and what we referred to as the “built food.” The recipe is the ingredients and instructions: what a reader might clip out of the newspaper or pull up on Cooks.com. The built food is the actual, edible version that appears on a plate. This distinction is in many respects no different from that of the sheet music for a song versus the sound recording of that same song, or the architectural plans of a building versus the actual building that you can enter and live in.
As it happens, both sheet music and performed songs are protected by copyright. The same is true for architectural drawings and actual buildings. (In the case of buildings, this was the result of a specific amendment of American copyright law, the Architectural Works Copyright Protection Act, enacted in 1990). But despite the similarities to music and architecture, neither recipes nor built food are currently protected by copyright. And there has been no serious push to promulgate a “Culinary Works Copyright Protection Act” equivalent to the Architectural Works act.”
As we explain later in the chapter, the doctrinal distinction between sheet music and recipes is not especially compelling. Both are instructions on how to render a work. But regardless, that is the state of the law today. And we find that despite this legal lacuna, there is little reason to believe that copying is a major drag on creativity in food.
In fact, the opposite is more likely to be true. Many great chefs, including Ferran Adria himself, have argued that an open, shared model of innovation is what works best in the culinary world. These chefs—though not all—are very skeptical that copyright protection for recipes or built food would promote more innovation—quite the opposite. We also look at the role of social norms in constraining the depth of copying, drawing on the work of some economists who have studied Michelin-starred chefs in Paris.
The bottom line is that in cuisine copying coexists comfortably with creativity. Now, as readers will surely notice, cuisine and fashion do not lend themselves fully to digitization, and so copying a dish is different than copying an Mp3 file. Of course, copying a recipe digitally is very similar to an Mp3, and in this comparison lies a few of the major points of the book. Let us just mention two.
One, creative fields differ in many respects, ranging from cost of production to susceptibility to digital copying. Our IP system, by contrast, does not draw many distinctions, and to the degree it does, it distinguishes crudely. Two, copying can be blunted when a good is analog rather than digital. Recipes and songs can be digitized and copied very easily using current technology. But built food and its musical analogue, live performance, cannot. So one significant lesson from the world of cuisine (and high end bars, which we also discuss) is that creative industries can prosper even in the face of widespread copying by shifting revenue models toward hard to replicate goods, like restaurants (hard to copy) versus recipes (easier) in cuisine, or live rock shows (hard to copy) versus recordings (easy) in music. In these instances we’ve just provided, restaurants and rock concerts are both a sort of live performance, in which consumers look for and hopefully get an experience which is hard to copy. In the case of recipes and music recordings, these are more easily replicable products – especially recordings, which can be copied perfectly.
We’ll end with one last interesting tidbit. Cookbooks, full of recipes that can be readily found (copied) on the internet, would seem to be a great candidate for a music industry-style economic implosion. But in fact, the cookbook industry is booming. Can you guess why?
Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).
We are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6.
Mercedes-Benz’s latest marketing ploy is to associate itself with Che Guevera. Over at the Huffington Post, Michael Gonzalez (Heritage Foundation) supplies the details.
It’s not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams’ “The Straight Dope”:
Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.
UPDATE: Regarding Eugene’s post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute “David Kopel” is today very different from the collection that constituted “David Kopel” 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That’s one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even though the Yale faculty is now entirely different. (Yes, to be precise, Yale Law School is just a unit within the larger corporation of Yale University.) None of the original personnel at National Review magazine are still there, but one can find many similarities between the corporate culture and mission of NR in 1955 and 2011. That the various corporations of the Ivy League schools discriminated against Jews in the 1920s is, in my view, of some relevance in understanding their current discrimination against Asians. That Mercedes-Benz was, compared to other German corporations, unusually supportive to Hitler then, and is similarly unusual (compared to other German corporations) in its attitude towards Che today, suggests that the corporation may lack an internal self-regulator which recognizes the wrongfulness of extolling totalitarian thugs.
I’m sure many people have been discouraged from seeing Atlas Shrugged Part I because of its terrible reviews.
I saw the movie with my wife yesterday at the Arlington Cinema & Drafthouse (where it is showing once a day through Thursday). I thought I was dragging her to a disaster I was only going to see because of my interest in libertarianism but, much to my surprise, she loved it. Note that my wife has never read Atlas Shrugged, is generally apolitical (with some vague libertarian tendencies), and doesn’t know Ayn Rand from Rand McNally. She’s also typically a pretty tough movie critic. Yet, she insisted that we see the movie again.
My take was somewhat less enthusiastic. I think the movie overall was okay, hampered largely by its decision to set the movie in the near future. I also thought the acting was much better than the reviews would have it–especially Taylor Schilling as Dagny Taggart.
AP writer Beth Harpaz worries that we are raising “a generation of nincompoops” because modern technology has obviated the need for kids to learn basic mechanical skills:
Are we raising a generation of nincompoops? And do we have only ourselves to blame? Or are some of these things simply the result of kids growing up with push-button technology in an era when mechanical devices are gradually being replaced by electronics?
Susan Maushart, a mother of three, says her teenage daughter “literally does not know how to use a can opener. Most cans come with pull-tops these days. I see her reaching for a can that requires a can opener, and her shoulders slump and she goes for something else.”
Teenagers are so accustomed to either throwing their clothes on the floor or hanging them on hooks that Maushart says her “kids actually struggle with the mechanics of a clothes hanger.”
Many kids never learn to do ordinary household tasks. They have no chores. Take-out and drive-through meals have replaced home cooking. And busy families who can afford it often outsource house-cleaning and lawn care....
The issue hit home for me when a visiting 12-year-old took an ice-cube tray out of my freezer, then stared at it helplessly. Raised in a world where refrigerators have push-button ice-makers, he’d never had to get cubes out of a tray — in the same way that kids growing up with pull-tab cans don’t understand can openers.
But his passivity was what bothered me most. Come on, kid! If your life depended on it, couldn’t you wrestle that ice-cube tray to the ground? It’s not that complicated!
Mark Bauerlein, author of the best-selling book “The Dumbest Generation,” which contends that cyberculture is turning young people into know-nothings, says “the absence of technology” confuses kids faced with simple mechanical tasks.
But Bauerlein says there’s a second factor: “a loss of independence and a loss of initiative.” He says that growing up with cell phones and Google means kids don’t have to figure things out or solve problems any more. They can look up what they need online or call mom or dad for step-by-step instructions.
I worry a lot about ignorance, including political ignorance, economic ignorance, and to a lesser extent ignorance about religion. But the kind of ignorance Harpaz emphasizes strikes me as a nonissue.
Most of it consists of ignorance of mechanical skills that have either been rendered obsolete by modern technology or are rapidly on the way there (as in the case of using old-fashioned ice-cube trays and cutting open tin cans). In every generation, there are some mechanical skills that were essential in earlier times that are no longer useful because technology has created machines that perform the same functions more efficiently. When I was in high school in the 1980s, I learned how to use a typewriter. Very few teenagers have that skill today because word processors are both simpler to operate and more efficient. In the generation before me, many if not most schoolchildren knew how to use abacuses and slide rules. By my day, we were using the much simpler and more efficient calculators. Does that mean that we were “nincompoops” compared to those who grew up in the 1950s and 60s?
Harpaz and Mark Bauerlein worry that kids who can look up instructions on the internet or their cell phones won’t learn how to “figure things out or solve problems.” To my mind, learning how to access the knowledge of others is itself a very important ability, one that those skilled at using the internet have an important advantage in. As great social theorists such as F.A. Hayek and Edmund Burke pointed out, even the smartest and most capable individuals can benefit a lot from the vastly greater store of knowledge compiled by the rest of society. If Bauerlein is right, than 19th century Americans should have been concerned about the spread of mass literacy and the declining price of books caused by improved printing technology. After all, kids who can look up instructions in books where their parents had to use their own know-how couldn’t possibly learn how to “figure things out” on their own!
Moreover, using technology or knowledge compiled by others to perform simple mechanical tasks frees up time and energy for more important types of learning. I’d rather that kids spend time learning history, economics, science, and foreign languages than spend time learning how to open cans and use ice-cube trays. I’d also rather that they spend more time surfing the internet (which improves research skills) or even talking to their friends on their cell-phones (which develops useful social skills) than practicing simple mechanical tasks. If that means they learn to tie their shoe laces at a slightly older age, I think Western civilization will still survive and even benefit from the tradeoff.
There is much to lament about the state of public ignorance and children’s education. But we should focus on ensuring that kids acquire the kind of knowledge that can’t easily be replaced by technology, not petty mechanical skills that will soon become obsolete, if they haven’t already.
Hooray for the Volokhs! I hesitate to move from the sublime to the ridiculous, but heck ... here’s my question. Do the bad guys on TV or in the movies ever use Apple? Macs? Over the last month, watching movies on my new FIOS connection, I realized that I have yet to see the bad guys use Macs. The good guys do all the time – 24, for example – but not the bad guys. Are there counterexamples? Is it possible that Apple only agrees to product placement to the good guys?
The NRA’s annual members meeting was held last weekend, in Charlotte, North Carolina. Since I’ve been going to these events for the last two decades, I’d like to offer a report on how the Convention has changed over the years, and some thoughts about the NRA’s past and present. Continue reading ‘NRA Convention report’ »
Tags: NRA Annual Meeting
And like me, did you “learn” the meaning from the Vulcan mind-meld? (Continuing a discussion with Michelle from comments to an earlier post.) I have to say, I did “learn” the word by hearing its repeated use on Star Trek. To meld, so far as I’ve ever been concerned, means ... whatever it is that Spock did with his mind. Feel free, Oh Ye Prescriptivists, to correct me in the comments.
I saw this ad during the Super Bowl–sorry, I mean “The Big Game”–yesterday, and originally thought it was some sort of political issue ad. Although it is funny, in a creepy way, it is not clear to me what the ad agency and Audi are saying here about The Green Police (besides buy an Audi diesel).
There are more clips on YouTube of other Green Police spots, so this looks like the start of an ongoing campaign. I suspect the visceral reaction of many Americans will not be what Audi intended or desired, but maybe these folks are not the Audi market. Is Audi the new Volvo? How is Volvo doing these days anyway?
[youtube]http://www.youtube.com/watch?v=yo7HiQRM7BA[/youtube]I’m at an academic conference at Stanford Law School this weekend and have had my attention drawn to the latest internet sensation: The “Demon Sheep” Video. The video was produced for Carly Fiorina’s Republican Senate campaign. It is a 3 and 1/2 minute “attack ad” against Tom Campbell, a respected former Stanford law professor and congressman.
To dramatize its claim that Campbell is a big-spending wolf in fiscal-conservative sheep’s clothing, the video contains, well, a demon sheep — a sheep with glowing red devilish eyes.
The ad apparently has more than 375,000 views is something of an eye-opener, leading Mary Ham to write at the Weekly Standard: “Someday, when your children are grown and the election of 2010 has long past, people will ask where you were when the demon sheep first came to American politics.” (Read the whole thing here.)
The ad is being widely lampooned across the internet (example here). To mock the ad, another opponent of Fiorina in the Republic primary (Chck DeVore) has website that is the “home” of SFTEODSFOPD, or Society for the Eradication of Demon Sheep from our Political Discourse.
The ad seems a bit over the top to me. While the ad’s defenders say it is attracting lots of attention to the Fiorina campaign, the kind of buzz it is attracting will test the old saw that there’s no such thing as bad publicity. I close with [insert your favorite sheep pun here ...]
Update: A reader suggests I should have closed with any of the following:
1. The ad’s creator should take it on the lamb.
2. Ewe can fool all the voters some of the time, and some of the voters all of the time, but ewe. . . .
3. Fame is fleecing.
4. Baaaa humbug.
5. Where there’s a wool there’s a way.
6. I must be a mutton for punishment.
7. Cogito ergo ram. (I think; therefore, I ram.)
Peggy Noonan notes in her weekend column that President Obama’s SOTU address worked in a name for the new program – in the tradition of the “New Deal” or Kennedy’s “New Frontier. For the Obama administration, it is the New Foundation. She is skeptical:
They’ve chosen a phrase for the president’s program. They call it the “New Foundation.” They sneaked it in rather tentatively, probably not sure it would take off. It won’t. Such labels work when they clearly capture something that is already clear. “The New Deal” captured FDR’s historic shift to an increased governmental presence in individual American lives. It was a new deal. “The New Frontier”—we are a young and vibrant nation still, and adventures await us in space and elsewhere. It was a mood, not a program, but a mood well captured.
“The New Foundation” is solid and workmanlike, but it attempts to put form and order to a governing philosophy that is still too herky-jerky to be summed up.
I am equally skeptical, but my interest here is a different one. We here at Volokh Conspiracy tend to be well aware of the Foundation novels – only too aware, possibly. But I recall reading here or somewhere that Paul Krugman and several other leading economic and legal academic-policymakers had come to their professions wanting to be ... Hari Seldon. Deeply attracted to the idea of a mathematically-based psychohistory. Certainly includes me. I am the son of a physical scientist; I spent my early years playing with dangerous chemicals in my father’s lab. But from the time I read the Foundation books, I was lost to physical sciences – I wanted the vision of a science of mass behavior.
This is not a liberal versus conservative thing although, it bears noting, nothing about Asimov’s Foundation vision suggested anything very liberal or libertarian. It was all galactic social engineering. At least so far as I could ever tell. However, it does lead me to wonder whether any obscure, deeply buried, unconscious Jungian archtype of the Foundation entered somehow into this New Foundation framing. This is an administration of academics, in love with design and social engineering, not so much the execution and carry-through part. Yeah, yeah, the social engineering is supposed to be all nudgy and liberal paternalism, not coercive and bad. It’s an administration of New Class elites especially in love with its peculiar combination of disinterested technocracy married to the most aggressive ideological remake of, well, the foundations of American society in a long time, and almost entirely from the top down. But in that case, who is the Hari Seldon of this New Foundation? (Alert commenter says, more important ... “Who is the Mule?”)
Well, at least the SOTU catchphrase was not ... Second Foundation! Although, for all we know, it might have started out, before the rewrite as ... Foundation and Empire. I don’t have one of those clever poll apps, so let me just ask our readers:
If you had to pick a catch phrase among the following that most accurately described the administration and its program, which of the following would it be?
Update: An alert commenter observes that although the term New Foundation appeared in 2009 in the administration’s issue framing, sufficient to spark a NYT article on it, the term doesn’t seem to actually appear in SOTU, at least on my quick scan. Let me know in the comments if I’m wrong Presumably this is why Noonan phrases it slightly carefully, so as to not say that it did. Anyway, my basic point is the same.
Update 2: Thanks, Glenn, for the Instalanche! It’s a pretty long list of folks in important positions, at least of a certain generation, who are Foundation fans – and some, including my daughter, of the next. Glenn says ... ”I’ll note that both Newt Gingrich and Osama bin Laden are supposed to be Foundation fans, for whatever that’s worth . . . .”
That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.
Here’s the abstract for my Cardozo article:
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.
When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.
In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.
As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.
From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
For discussion of Judge Benjamin Cardozo’s viewpoint on self-defense, see pages 15-17 of the California and Nevada district attorneys’ amicus brief in McDonald.
