Monthly Archives: October 2005


The London Guardian published an article on Wikipedia, with ‘experts’ evaluating articles within their expertise. The takehome is that some entries suck, and some entries are pretty good. Well, that’s sort of obvious. I think it’s more interesting that this article, and many others like it, are being published at all. When was the last time an encyclopedia occasioned any review outside the library collection development press?

As for the varying quality of Wikipedia, it’s not really surprising. It reflects the state of the world. What’s surprising, in a popularly-created encyclopedia, is not that there are less-accurate and less-informative articles; what’s surprising is the really large number of accurate and informative articles on onpopular topics. The entries on Samuel Pepys and Steve Reich are, respectively, ‘fairly substantial’ and ‘factually accurate’. Wow. There are probably tens of thousands of people who could qualify as ‘experts’ on Bob Dylan’s biography and discography. I suspect many fewer—dozens?—qualify as experts on Samuel Pepys and Steve Reich. And yet, somehow, a couple of good entries on these subjects.

For a project only four years old, that’s pretty damn good. The Encyclopedié took, what, 20 years to publish? If Encyclopedia Britannica scrapped every single one of its old articles and started from scratch, how long would it take them to create EB? It would have to be several years, and that’s even paying full-time editors and fact-checkers and writers. By contrast, Wikipedia generates 750,000 articles in four years, in English alone, and another 850,000 articles in other languages. For free. With no fulltime editors. Am I surprised that some significant percentage of them qualify as “drafts”? Hell, no. Am I happy to have access to draft encyclopedia articles, for free? Hell, yeah. An encyclopedia — even the venerable Encyclopedia Britannica — is only ever supposed to be a source for a quick answer or a place to get started for more serious research. As far as I’m concerned, Wikipedia serves admirably.

Google Print: whither goest this debate …

Oy. The Google Print discussion just keeps going on, and on …

  1. Karl-Friedrich Lenz makes the point that Yahoo!’s opt-in only venture, and older search databases that licensed content, weaken Google’s case. Yep. As a copyfighter, though, I resist the idea that copyright-holders already legally possess that level of control over copyrighted works, and can force an indexer to the bargaining table to index the content. Yahoo! claims that they didn’t do it this way to screw Google, but I can’t help but think that they did; or at least there was a serious sense of two-dead-birds in their choice of the opt-in model.

  2. Derek Slater made the point that supporting Google Print does not mean not supporting libraries, and he did it very well. If I had seen his post, I could have saved myself the trouble of writing mine. The video store / library example is quite right (although, Derek, video stores are not necessarily superior to library rentals; library rentals are in most instances free. And that must be good, since the music industry has told us nothing can compete with free….)

  3. Farber’s IP list has had debate over Google Print, too, summarized on an o’reilly blog.

  4. copyfight rounded up the coverage in the Oct. 24-ish period.

  5. I’m enjoying gnuosphere’s blog, which I recently discovered. gnuosphere asks:

    Of what use will the freedom to exercise “fair use” in the creation of an electronic database be if the deliverance of that database is controlled by software idea patents?

    A lot, because the freedom to exercise ‘fair use’ is much, much broader than its single application in the Google Print project.

    This is why my original call was to resist conflating the problems and critiques of Google: If we’re concerned that Google Print isn’t fair use, then that’s a copyright concern and has some implications. If we’re concerned that Google Inc. is anticompetitive, that has other implications. Google’s privacy policy is yet another issue. The issues could interrelate, as in Google’s exclusivity clauses in its contracts with the libraries. But the privacy, DRM, and patent over scanning and search algorithms — none of that particularly relates to the question of fair use, as far as I can tell. Separate problems and worthy of attention in their own right, to be sure. But it almost seems as though there is a piling on effect happening: People are suddenly nervous about Google and suddenly the spotlight is on Google Print. But the main distinctive points about Google Print, from everything I’ve read so far, are (a) the copyright fair use questions, and (b) the exclusive licensing agreements with libraries. So … at this point I think it’s more helpful to keep the issues separate.

  6. Siva rightly points out that there is a risk, maybe a very good one, maybe a certainty (“they will…”) that Google will use its market power to maintain its market power. That’s surely true, as I suspect it is and will be true of almost every other private for-profit enterprise in the world.

    I guess I’m not sure where that point takes us, in terms of thinking about Google Print. Ought we be fighting DRM, closed algorithms, privacy invasions, abuses of monopolistic power, and the like? Yes. Does that mean we ought to fight the very creation of Google Print? No. So I am, honestly, puzzled at this critique.

    Siva wonders “Why would Google allow competition? I am afraid ‘more speech’ is wishful thinking here.” But again, I’m not sure where that leaves us. If “more speech” is wishful thinking in a Google Print world, then what will we get in a no-Google Print world? Less speech and fewer indexes.

    If we don’t like Google Print, and we want the law to take a hand, then we have to think of legal grounds on which to stop it. The only available grounds, as far as I can see, are copyright. Antitrust violations still seem to be only in Google’s future as far as I can tell, and wouldn’t in any case stop the database; even in the years of much stronger antitrust enforcement, we didn’t shut down technologies, just dispersed them or restricted their contractual terms. Privacy? DRM? Tort law? I don’t see any colorable claims but copyright.

    Lots of virtual ink has already been spilled on that discussion, but for the record, I think Google Print ought to be fair use, and I think there’s a good chance that a court will find so. And to make an argument that fair use does not permit full-text indexing will only hurt libraries and the library digitizing projects of the future. Yes, it will also hurt for-profit value-added indexing companies like Google, Microsoft, and Yahoo!, because under such an argument, those entities will have to reach licensing agreements with copyright holders. They will do so, because they actually do, when it comes down to it, have the money to reach a licensing accord. Such a situation will not help libraries and non-profit digitizing projects.

    Libraries and non-profit digitizing projects do not have the money to reach licensing accords. That will leave them with two choices: (1) Rely instead on Google, Microsoft, Yahoo!; Dialog, Lexis/Nexis, Westlaw, Ebsco, Elsevier, and other kind-hearted private companies to treat them fairly. (2) Go it on their own and push open access, full-text indexing. The kind the library community has been lobbying for, unsuccessfully, for years. Beyond lobbying, will libraries push the envelope that has been created by, Google, Yahoo!, Microsoft, and every other major content indexer? They absolutely will not. Fair use is determined on a case-by-case basis, by folks willing and able to litigate. Google is (maybe). Libraries aren’t.

    In fact, I can state with 99.8% certainty that if fair use is abridged for the private sector, libraries will not risk litigation, and instead they will heed the advice of their conservative, cautious University general counsels and municipal legal departments — and follow in the footsteps of private entities’ approach to copyright and digitization. Because no library can afford to take on the litigation, even if ALA backs them and even if libraries are more attractive defendants than Google (or Napster).

    And this has been the case for the past twenty years. Libraries (and museums, let’s not leave them out) have not led the way in digitizing copyrighted content, much as I would wish it to have been so. Librarians and their lawyers have been, reasonably, scared to death of the really crazy expansions of copyright in the last 30 years. And those expansions have stifled what librarians would have liked to have done with technology. Three examples: InterLibrary Loan (ILL); digital reserves; TV archives.

  7. Siva also pointed out that publishers have been selling the full-text. It’s true, that in the past few years they have entered this market. Hardly full-force, by what I can see, but I have appreciated that they’ve been doing it. But Siva also says that this renders Google’s fair use claims flimsy, because they are choking off the market before it matures. I beg to disagree, for two reasons.

    First, it certainly may “undermine” a market for someone to come in with a new approach; that’s called innovation. Merely undermining a market, whether developing or extant, is not a problem. It’s how you undermine it: are you taking advantage of a monopolistic position? or doing some other illegal or immoral method of undermining a market? You can argue that Google is taking advantage of a monopoly in the Gigantic Search Engine market, but Yahoo!’s efforts and the efforts of the European libraries suggest otherwise.

    Second, I disagree that the market is being choked off before it matures. This market is mature. It is so mature, it is practically ancient and wizened. At least, if by “mature” you mean having willing customers. I know that University Presses have been trying to figure out how to capitalize on electronic distribution, as have other book publishers. But they’ve been having this discussion since the nineties. It’s 2005. The technology to offer text has been around since the seventies. Library catalogs, and Dialog, and others, have been buying full-text as soon as it became available. Book publishers, like music publishers in the nineties, have been too shortsighted and/or confounded by fear, anxiety and loathing to actually get the texts out there. Instead, they’ve been “experimenting” with DRM-restricted, unusable electronic books since the nineties; and in the last five years dipping their toes into very limited fulltext database sales to libraries.

    Come on. Technologically speaking, how crazy is it that music has an iTunes before text? The recording industry was notoriously slow and retrograde on this issue — and they still beat the book publishers. How long do we have to wait for this market to “mature”?

    Consider the ‘search inside the book’ example. Siva mentions in another post that “[P]ublishers fear that a market that Amazon created for them: ‘search inside the book’ licensing, will evaporate.” This isn’t how I remember the search-inside-the-book issue. I remember publishers complaining and freaking out, and the Authors Guild complaining about copyright infringement. Amazon didn’t “create a market for publishers”: Amazon forced publishers to come to the bargaining table, by threatening to do what Google is now doing wholesale. And publishers did come to the bargaining table, and did so in such a way that they and Amazon were able to come to an accord. Amazon, in the business of selling books, had an real incentive to work with publishers on this. Google, in the business of selling ads to people using a search engine, needs the publishers less, but I bet could still do business with them if the terms were right.

    And the market isn’t dead even if Google rips apart each & every available title & scans it in. Because other competitors will want to come into the market, and will need to get the text themselves. Publishers have unique services they can offer as middle-agents between authors and aggregators: Publishers offer editorial and enhancement services to authors, and they can offer digitizing, formatting, and text-enhancing services to aggregators. So Yahoo!, European libraries, and other conceivable aggregators are all possible customers for publishers, even if Google takes itself out of the market. Scanning isn’t free or even cheap, and publishers already have the goods, so …

some off-the-cuff remarks on the Bush Admin’s nominations

  1. I know other folks have observed this, but, really, isn’t it completely clear that Bush has implemented a religious test for office? Isn’t his pattern of practice completely obvious? Not just in his three Supreme Court nominees, but lower court nominees and executive appointments have all been filled with conservative Christians. Seriously, I challenge anyone to find me an avowed atheist, agnostic, or US minority faith member who has been appointed to any office that might draw the personal attention of the Bush Administration, Karl Rove, et al. Mormons don’t count as “minority faith members” (Buddhists and Hindus in the US will count as will pagans.) I’ll make a bet that every single one is not just Christian but identifiably “conservative”, “fundamentalist”, “evangelical”, or some variant thereof. Any Jews and Muslims will come up in specialty seats: liaisons to the Israel or Muslim countries, or councils on which interfaith dialog is necessary.

  2. The right-wing were fools to knock Harriet Meiers out on the abortion thing. I’m sure some few conservatives really believed that she was not sufficiently pro-life based on her stint with Girls, Inc. and her presentation in a debate of the various positions on abortion in their own terms. But surely most of them understood that she would have been a reliable anti-abortion vote. I personally suspect it would be very difficult to find any successful woman who has not been involved in women’s and girl’s organizations to some extent — women’s bar associations, Girl Scouts, whatever.

    My sense of the reactions to Meiers’ nomination was that only Concerned Women for America or similar overtly right-wing women’s organizations would have been acceptable to the right-wingers who were upset with her about the Girls Inc. activity. Which means, as far as I can tell, that they were unhappy with any organization that generally promotes women’s interests — even if it’s nonpolitical. The understated concern with Meiers’ marital status fits with my general sense that professional women are okay with the right, so long as they are very traditional and very overtly conservative in every respect. So I must conclude that sexism played a large role in the rightwing reaction to Meiers’ nomination. What a surprise … No, really, I’m a little surprised.

    Knocking Meiers out didn’t hurt the right-wing any, though, because there was no way Bush was going to appoint anybody who wasn’t anti-abortion. So I guess maybe the right-wingers weren’t fools so much as just really cocky. In every sense of the word.

  3. Sexism was also apparent in the over-the-top critiques about Meiers’ qualifications. Can anyone really imagine that a male practitioner would have been similarly disrespectfully critiqued? There would have been at least some praise for Bush thinking “outside the box”, bringing in real world perspectives, whatever. But not with Meiers who was roundly abused — and from both the left and the right, I’ll point out.

  4. Barring a big scandal (he’s gay! or he had an abortion!), Alito is in; he’s manifestly qualified and as I read it, he already has the votes. Democrats grandstanding for future political office, or with secure seats and points to pick up from the left, will vote no. But Republicans will all fall in line and so will the conservative Democrats and the ‘we just like qualified nominees’ Democrats. So he’s in.

    I annoyed some of my friends by holding that the left-wing fight against Roberts was a waste of recruiting time and energy and money. I’m not going to say it again with Alito, even though I still sort of think it, because a number of my friends have argued that there’s a lot of merit in fighting even a fight you know you’re going to lose. It’s on the record, it energizes the forces, etc. I grant the ‘on the record’ point. I’m less convinced about ‘energizing the team’. But infighting & criticizing your ideological allies’ tactics has always struck me as particularly unproductive. So if lefties, liberals, civil libertarians, etc. want to go all out and fight Alito, well, go for it. I’ll cheer a win.

  5. What is up with Bush’s nominations?

    For Roberts he went with Mr. Intelligentsia, the snarky conservative everyone hates in law school. A good solid pick, obviously made with a lot of advice from the Bush team.

    For Meiers he went with — well, someone he knew, and someone who was obviously conservative.

    The Meiers nomination showed me something scary: that Bush is actually personally involved in at least some aspects of the Bush Admin. Because who would have thought of her except for Bush himself? For years I haven’t known, and have largely resisted the temptation to ponder, what role George W. Bush plays in the Bush Administration: Is he merely a figurehead? or does he have some sort of actual decisionmaking role? These are the kinds of questions to which we mere subjects would rarely be privileged enough to learn answers, and since I peg him as morally culpable for his Administration’s actions in either case, I didn’t really care that much …. But Harriet Meiers? Qualifications aside, it’s obvious that Bush himself played some role in selecting and nominating his own attorney. This makes it harder for me to resist the speculations. Now I find myself wondering: Is Bush largely a hands-off figurehead who believes in his own authority but rarely puts it to the test because of his “delegation style”? If so, then when he chooses to exercise the authority, is it slightly shocking, and people don’t know what to do? Because he’s The President, and so we have to obey? A little flummoxed, they look around for someone else with authority who can speak up to him and tell him it’s a Very Bad Idea to tell that particular joke, give that official that nickname, or agree to have a press conference ….

    Can’t you imagine Cheney & Rice & other advisors in a meeting with Bush on the nomination:

    Bush: “Well, what about Harriet?”

    Confusion. “Harriet–?”

    Bush: “Harriet! Harriet Meiers, my attorney. She’s smart, she’s a woman, we know she’ll be solid on abortion.”

    Cheney, Rice, et al nod circumspectly. “Oh. … That’s an interesting idea, George. Umm … there might be some concern about cronyism, or …” (glancing at one another) “—Inexperience. You know, because she hasn’t got judicial experience.”

    Bush: “Well, that’s okay — it’ll liven that bunch up anyhow to have a bit of real-life experience. Heh-heh-heh.”

    And so on. Kinda scary, and now I just can’t help but go there.

    But Meiers’ nomination is torpedoed, and so Bush in frustration is like:

    “Well, what the fuck, we just can’t make anyone happy. Who else is on the list. They’re not happy with the lack of experience, so by god, let’s give them someone with experience. Who’s next on the list with a big judicial record that’s obviously pro-life. Okay, Alito. Is he any good? He’s the one we liked on Roe, right?” Nods. “Let’s get ‘im on the phone & talk to him, check him out.”

    And boom, the Admin pops in a new nominee. The new guy is smart and has a long record, obviously conservative.

    What do these three nominees have in common? Basically nothing, except their ideology. Since we already knew that Bush was going to nominate ideologically sympatico folks, one might wonder what his other criteria are. And the answer is … nothing. There are no other criteria. The whole process is completely, obviously, driven by political calculations (pleasing the right-wing Christians with more of their kind) and — shudder — Bush’s gut. Not good political calculations, necessarily, because of — shudder — Bush’s gut. But clearly not close reviews of, well, anything, and clearly, no particular standard. (Except for the religious test.)

    Doesn’t this obviously slap-dash process put paid to the notion that Bush is a good manager & delegator? That even if he doesn’t know how to do it himself, he’s a good MBA, and he can hire the right people? Especially in combination with the FEMA/Katrina fiasco? And especially if you look at how the attempts in the first administration to put in some qualified non-idealogues — Christie Todd Whitman @ EPA, Colin Powell at State, etc. — ended up with a lot of embarrassment and bad feeling all around? “Better to just have our people in,” you can just see them thinking. “Americans elected us, so, so what if we don’t reach out to every corner of the party? They’ll fall in line.”

    In fact if you look at Bush’s Legacy, what will it be? Conservative, without a doubt. Corrupt/Cronies. Incompetent. These are the three threads that run through so much of Bush’s White House management gig.

alito on copyright, first amendment, cyberlaw

DRAFT: a work in progress; will be updated as I review more cases (or find typos)

Well, according to NPR, Judge Sam Alito from the Third Circuit is nominated. I’m sure that everyone will be all over his record on every conceivable issue in no time at all, but I’m looking at his copyright etc. for a few minutes just to see what’s out there.

copyrightprivacyfirst amendment & speechconsumer rights in telecomm, clickwrap, EULAs, antitrust, etc.other cyberlawalso interesting


I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright. So far, I’ve found:

Four opinions signed or written by Alito relate to originality: Alito wrote one opinion (Southco) and signed two (Southco en banc and R&B v. Needa (unpublished)) finding that part numbers lack sufficient originality for copyright protection. Alito also signed the troll doll opinion (Dam Things) which basically said that a derivative work needed to be carefully parsed for originality.

Two opinions on copyright registration technicalities. Alito signed a per curiam in Gallup v. Kenexa, and dissented in Raquel; the Raquel majority opinion was specifically criticized by the Copyright Office and then reversed by Supreme Court. In both instances Alito was critical of technical readings of registration requirements that stripped registrants of their copyright protections.

Two opinions on copyright preemption in Orson v. Miramax: Alito dissented in Orson I, and then signed the 3rd Cir en banc opinion, reversing Orson I, and holding that the a Pennsylvania film distribution statute was preempted by the Copyright Act.

Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but at a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. As Seth Finkelstein pointed out on copyfight, business-to-business licensing cases don’t give a good sense of a judge’s opinion of consumer issues in contracting. But, Ideoblog looked at Alito’s contract cases, and said that

Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.

That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.

copyright cases with brief cites & descriptions:

  • Alito wrote the first 3d Circuit opinion in Southco v. Kanebridge, 258 F.3d 148 (3rd Cir. 2001) holding that part numbers are not copyrightable. He also signed the en banc opinion that also held part numbers are not copyrightable. [I discussed Southco; William Patry did a detailed analysis; and promises analysis later today]

  • Gallup v. Kenexa Corp, 2005 WL 2271271 (3rd Cir. 2005) – A very recent per curiam opinion from Sept. 19, 2005. Reversing summary judgment to defendant Kenexa on a copyright infringement claim, because the District Court erred in declaring Gallup’s copyright registration invalid on a technical reading of the registration requirements.

  • Orson v. Miramax, 189 F.3d 377 (3rd Cir. 1999) – Alito joined the majority en banc holding that a Pennsylvania statute was preempted by Copyright Act. The statute (Pennsylvania Feature Motion Picture Fair Business Practices Law) restricted movie distributors use of exclusive first run licensing contracts. Alito dissented in the reversed 3rd Cir. ruling, 174 F.3d 377 (3rd Cir. 1999), which held that the Pennsylvania statute was not preempted.

  • Raquel v. Education Management Corp., 196 F.3d 171 (3rd Cir. 1999). Alito dissented in another copyright registration case. Taken with Gallup, Alito really doesn’t like technicalities getting in the way of copyrights (at 182):

    I believe that the majority’s decision elevates form over substance and works a forfeiture of a valid copyright because of a misstatement that the trial court had already labeled inadvertent.

    This is another instance in which Alito has a good record with the Supremes: Cert. was granted & judgment was vacated by 531 US 952 (2000) which simply said:

    Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States, as amicus curiae, filed September 20, 2000, and the Copyright Office’s July 5, 2000, Statement of Policy, 65 Fed.Reg. 41,508.

    Basically the Copyright Office wrote that the 3rd Cir had gotten it wrong (65 FR 41508-01):

    [T]he court appears to have misunderstood the Copyright Office’s longstanding published practices relating to the “nature-of-work” space.

  • Alito was on a (the?) troll doll court! Dam Things from Denmark a/k/a Troll Company ApSm v. Russ Berrie & Company, Inc., 290 F.3d 548 (3rd Cir. 2002). The troll dolls from the 60s fad had copyright restored by 104A. The court held that the copyright qualified for restoration and was not abandoned, but that the District court had not properly considered the 104A safe harbor for derivative works, or properly done the infringement analysis. After spanking the District Court for its “somewhat conclusory treatment of the issues” and for not carefully distinguishing which troll was which, the 3rd Cir. remanded “for further consideration in light of this opinion.” (at 552) The 3rd Cir. went on to strongly suggest there was infringement, then said that the District Court needed to closely evaluate each work for infringement AND for originality to see if the minor differences noted between the various trolls constituted sufficient originality to qualify for the derivative works exception to 104A.

  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

  • R&B, Inc. v. Needa Parts Mfg., Inc., 50 Fed.Appx. 519 (3rd Cir. 2002) (not published). Per curiam. Another parts number copyright case affirming District Court finding that part numbers not copyrightable and plaintiffs not likely to succeed on trademark infringement claim.

consumer rights & public interest in telecomm, shrinkwrap, etc.

The picture that emerges from looking broadly at consumer rights and interests is not a good one. Alito appears to be quite concerned with enforcing the letter of contracts and working through the nuances of textual interpretation. However, consumer interests are protected in contract law through broad policies that inform the interpretation of clauses and doctrines. If Alito is, as he appears to be, very concerned with the trees, he may miss the forests. [The NYT 11/5 had a good review of his business opinions, including antitrust law; also covering arbitration decisions, employee discrimination, environmental law and investor claims.]

  • Ooh, TCPA. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (1998). Alito dissented from a holding that the TCPA (Telephone Consumer Protection Act) did not create right to bring action in federal court. A close reading of a negative implication case.

  • Ethical Esquire pulls together some of the antitrust commentary & suggests that Alito is not a fan of private enforcement of antitrust.
  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Analysis copied from above: Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

first amendment (speech clause)

Alito seems to be involved in a lot of First Amendment caselaw, both speech and establishment/free exercise. I imagine this will be reviewed closely elsewhere but I started going through some of decisions. [New World Man looked at Alito’s First Amendment speech clause jurisprudence, as did the First Amendment Center. The FAC says

A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.

which seems about right to me. Prisoners’ 1A rights are not significantly protected; that fits in with a general conservative law-and-order perspective.

  • Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001). First Amendment; struck down school anti-harassment policy.

  • Tucker v. Fischbein, 237 F.3d 275 (3rd Cir. 2001) – a defamation case. Alito wrote opinion that “held that: (1) statements were capable of a defamatory meaning under Pennsylvania law; (2) fact issue existed as to whether attorney acted with actual malice with respect to statements made after he was served with amended complaint naming him as party in prior action; and (3) fact issue existed as to whether statements made by attorney to reporters, and published in articles, were false; but (4) magazines and reporters did not act with actual malice sufficient to support recovery.”

  • Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004) – First Amendment

  • White v. Communication Workers of America, AFL-CIO Local 1300, 370 F.3d 346 (3rd Cir. 2004) – labor / First Amendment

  • Edwards v. California Univ of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998) – Alito wrote court’s opinion in an academic freedom case. Professor challenged public university’s restrictions on curriculum & teaching material. This one should make the “academic bill of rights” people happy: the professor was teaching instructional methods and included as examples information about religion, censorship, etc. The university restricted his teaching methods, and he claimed retaliation; Alito held that the university “the University can make content-based decisions when shaping its curriculum” (at 492). This is interesting (at 493):

    In sum, we conclude: (1) that Professor Edwards does not have a First Amendment right to choose classroom materials and subjects in contravention of the University’s dictates; (2) that Edwards failed to state a procedural due process liberty claim because he did not allege a deprivation of employment; and (3) that the district court properly dismissed Edwards’s equal protection claim after Edwards’s own counsel conceded that the complaint failed to adequately state such a claim. We find Edwards’s remaining arguments on appeal to be without merit. Accordingly, we affirm. We emphasize that we only pass on the narrow legal issues presented to us. Nothing in our opinion should be read to mean that we condone all of the conduct of the University officials that was revealed at trial.

privacy, 4th amendment

Robert Gordon wrote a good piece for Slate laying out Alito’s conservative jurisprudence with respect to Fourth Amendment search and seizure cases, and individual liberties cases generally. He found:

At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn’t really an individual-rights case at all; it was the states’ rights case in which Alito would have vacated the conviction for owning a machine gun. So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. … In each of those cases, Alito adopted the view most supportive of the government’s position. Of course, caveats apply. All of the cases are more complicated than short summaries can capture. In any given case, Alito’s position often seems reasonable; it is the accumulation of consistent results that surprises.

Alito prepared a report on privacy for a 1972 conference. [posted by EPIC; link from MT Law Blog 11/3]

  • US v. Williams, 124 F.3d 411 (3rd Cir. 1997) – Federal Wiretapping Statute, video surveillance

  • The corker is the Doe v. Groody case in which Alito thought it okay for a 10-year-old and her mother to be strip-searched. That will be well covered elsewhere, I suspect.

Other CyberLaw


  • Toys’R’Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003). Alito signed opinion reversing District Court’s refusal to grant limited jurisdictional discovery and granting dismissal for lack of personal jurisdiction. Question was whether Step Two’s websites were cybersquatting, trademark infringement, unfair competition, etc. Step Two is a Spanish company with web presence in the US. the court looked to Zippo‘s purposeful availment test; also cited ALS Scan (4th Cir) and Cybersell (9th Cir). The court noted that the evidence thus far didn’t look like it met the Zippo purposeful availment test but said the District Court had erred in not granting jurisdictional discovery, by focusing solely on the website and ignoring other Internet and non-Internet contacts. The court dismissed the contention that Step Two met New Jersey’s ‘express aiming’ test.

other IP & cyberlaw issues: trademark & unfair competition

  • Marshak v. Treadwell, 240 F.3d 184 (3rd Cir. 2001). Alito wrote opinion. Trademark & common law mark case.

  • Times Mirror v. Las Vegas Sports News, 212 F.3d 157 (3rd Cir. 2000)

  • A&H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3rd Cir. 1999) – en banc trademark.

  • Iberia Foods Corp. v. Romeo, 150 F.3d 298 (3rd Cir. 1998) – trademark

other links & areas of interest

The individual liberties versus institutional rights (business, government) framework, laid out by Robert Gordon in Slate, appears to be a helpful one in examining Alito’s jurisprudence.

Ideoblog looks at Alito’s contract cases; New World Man provides an Alito primer which sums up and links to a variety of other analyses. New World Man also looked at First Amendment speech clause and religion. ThinkProgress does a press-release style rundown of some of Alito’s hot-button civil liberty cases.

SCotUS blog links to a lot of other blog commentary and also to the wikipedia entry which is unsurprisingly very current & detailed.

SCOTUSblog has some other notable cases, including a dissent on the abortion husband-consent statute from Casey. We’ll all be verrrry familiar with that one before long. The quick read I gave it said that Pennsylvania legislators could have reasonably thought that forcing a woman to discuss her medical options with her spouse was permissible because she might be mistaken about whether they could afford the baby or not … Paraphrased for heightened sarcasm. reviews some of the tech decisions & has some commentary from attorneys on copyright and electronic surveillance. On the electronic surveillance, the only discussion seems to support the notion that Alito is a law-and-order kind of guy; no surprise there. My take is that he is law & order, and will support police technologies generally. Purely private surveillance will be more interesting. On employment, I would bet he finds employer surveillance of employees permissible.

IPTA Blog Blawg Review nicely wraps up a lot of coverage of Alito.

Kurt Opsahl @ EFF Deep Links summarizes the cyberlaw / 1st Amendment / 4th Amendment privacy caselaw, and links to other coverage.


  • Child Evangelism Fellowship of NJ v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004) – an establishment clause case.
  • Blackhawk v. Pennsylvania, 381 F.3d 202 (3rd Cir. 2004) – a free exercise clause
  • ACLU-NJ v. Township of Wall, 246 F.3d 258 (3rd Cir. 2001) – establishment (public display) case
  • ACLU-NJ ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir. 1999) – establishment (public display) case
  • FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir 1999) – Alito wrote court’s opinion holding that refusal to grant religious exception to no-beard policy violated Sunni Muslim employees’ free exercise rights.

prisoners’ rights:

  • Reynolds v. Wagner, 128 F.3d 166 (3rd Cir. 1997) – charging inmates for medical care does not violate the 8th Amendment; failure to translate it into Spanish does not violate Spanish-speaking inmates’ rights

sunday morning reading

  • Forbes apparently publishes an annual list of the top-earning dead celebrities and creators. They note that Shakespeare would be way up there:

    [Forbes] calculated what the Bard’s heirs might collect each year if he were still under copyright and estimated it at $15 million with over 5,000 performances of his plays and hundreds of thousands of books sold in the last year.

  • the medium lobster has the highest respect for slate columnist michael kinsey, who can’t understand the plame scandal, because it’s very confusing:

    True, the Plame scandal is simple enough to be summarized in one sentence,[1] but the devil is in the details.

    footnote 1. “White House staffers leaked a covert CIA agent’s name to the press in an attempt to discredit a critic of the flawed intelligence used to support the Iraq War.”

    The problem really boils down to the fact that the plame scandal is very confusing and Not Very Sexy:

    Outing CIA agents, silencing war critics, covering for the false pretext of a false war – it’s all too cerebral to have the kind of mass entertainment value that is the raison d’être of the American criminal justice system. Where’s the heart, the soul, the semen-stained dress?


    Mr. Kinsley is also troubled by the impossible paradox of press freedom the Plame scandal presents. Should reporter-source privelege be an implied contract in which a journalist protects her source’s identity in exchange for reliable information, or should it be an absolutist right wantonly abused by state officials to disinform the populace, crush their critics, and commit crimes from beyond the veil of a shield law? Mr. Kinsley can’t quite decide.

morning tea round-up

  • Yahoo!’s historically less-than-stellar track record of protecting user privacy is made much, much worse by this news: Yahoo! turned over a user’s identity information to the Chinese government, and now journalist Shi Tao has been sentenced to ten years for “e-mailing a government’s plan to restrict media coverage around the 15th anniversary of the Tiananmen Square massacre”. [SJ Merc 10/2 editorial; see also Xeni Jardin in the LAT 10/9; and Open Letter to Jerry Yang, Yahoo!, from Liu Xiaobo, 2005 Oct. 7. ] The Merc thinks it’s “hard to blame Yahoo!” for this but wants them to more aggressively lobby on behalf of human rights. Me, I don’t find it hard to “blame” Yahoo! for what they did. The individuals at Yahoo! who made the decision to hand over accurate information made a choice: company profits and business model over the freedom of a journalist. I guess they were just doing what they were told. [link from ping]

  • The Bush Admin. has never really had a sense of humor about parodies. The latest brouhaha is about The Onion’s use of the presidential seal. [cnn 10/26] White House spokesperson Trent Duffy:

    “When any official sign or seal is being used inappropriately the party is notified. … You cannot pick and choose where to enforce that rule. It’s important that the seal or any White House insignia not be used inappropriately.”

    The Onion editor-in-chief, Scott Dikkers:

    “I’ve been seeing the presidential seal used in comedy programs most of my life and to my knowledge none of them have been asked not to use it by the White House. … I would advise them to look for that other guy Osama … rather than comedians. I don’t think we pose much of a threat.”

  • George Takei - Live Queer and Prosper

    George Takei (“Mr.
    Sulu”) vamps it up.

    Mr. Sulu George Takei is gay! His new role in “Equus” apparently “inspire[d] him” to come out. I have to say, I am deeply gratified to finally have some queer representation on Star Trek. Although looking at this picture, it seems like the official coming out was, well, redundant. [Jason Schultz has a nice photo for Sulu fans, and SFGate 11/10 has a lot more details.]

    Between Mr. Sulu Takei and WNBA triple-MVP winner Sheryl Swoopes, National Coming Out Day came out a little late, but strong. [Women’s Hoops blog links to lots of Swoopes coverage.]

  • Research about five years ago showed that even as women athletes were setting records and breaking into new fields, sports photographers were increasingly minimizing and downplaying women’s athleticism. (Also at Women’s eNews. See also Womens Sports Foundation. That was in 2000, and a flurry of scholarship around that time evaluated that phenomena. A year or so later, the Smithsonian launched a traveling tour of sports photography of female athletes, Game Face (which I caught in DC at the time). Women’s ascendance in sports in the last five years has continued apace, and I wonder if there have been follow-up studies….

  • Chinese women bloggers are doing the sex blog thing. (This is at least the second or third such similar article on Asian women bloggers and sexuality that I’ve seen in the last year or so. News coverage about the Chinese government frowning or cracking down on this or that is fairly routine, I know. But I can’t help but wonder how much of the coverage is due to the starting! shocking! news that Asian women bloggers are blogging about sex, and how much of it is because white Western journalists are surprised to see such goings-on. Hey, I’m told that even in Boston, beans do it.)

  • Speaking of blogging, the NYT is trying to get “hip” to this newfangled “blogging” thing, and you can really see the results. In one article recently, the Times “jazzed up” their content with “hyperlinks”: the article included one link on the name of a state to NYT coverage about that state. And yesterday & today the coverage of the Scooter Libby resignation made me snigger with this bullet point: “Reactions: Bush. Cheney. Bloggers.” But I shouldn’t make fun, because the NYT also gave me a happy moment with its briefly-posted blurb for the Scooter Libby thing, which went something like this: “Scooter Libby indicted; steps down; Bush-Cheney no comment; Karl Rove not indicted.” The mere fact that Karl Rove’s non-indictment is news sends a warm glow all the way down to my toes, and I thank the NYT for that little moment of joy.

  • National science standards groups are registering their disapproval of Kansas’ new “science plus! religion” standards. Unfortunately, they’re using copyright to do so. [nyt 10/28]

  • The Washington Post trashes the E-Rate, the telecomm. tax-funded grant to schools & libraries for Internet access. [WPost 10/27]

lost licensing revenue & Google Print

I just got around to reading the weekend’s Washington Post Google Print editorials, pro (Mary Sue Coleman, UMich Pres) & con (Nick Taylor, Authors’ Guild). Short editorials, and I suppose the format limits their ability to go beyond rhetoric (“access to vast libraries of content” … “this is a socialist plot!”) into any actual legal or policy nuances. But I was particularly disappointed with Nick Taylor’s editorial, in a few ways. Taylor wisely doesn’t actually make any legal arguments. Instead, his editorial boils down to the complaint that Google Print is lost licensing revenue for publishers. It’s okay, that he makes that point, because that’s actually the publishers and Authors’ Guild’s real (and only) point. I just resent the rhetorical slurs that are used to pad the actual argument.

  1. Red-baiting? “It’s been tradition in this country to believe in property rights. When did we decide that socialism was the way to run the Internet?” Man. Best response: Peter Suber, at Open Access News, who said:

    Nick Taylor’s piece shows that he’s as clueless as I feared. First, he doesn’t understand what socialism is. Second and more important, he complains that the Google project will deprive him of revenue but doesn’t offer a single reason to think so.

  2. Taylor uses socialism as a slur in one breath, and in the next apparently would like to see — what? a government panel passing over each and every use of a copyrighted work?

    Google contends that the portions of books it will make available to searchers amount to “fair use,” the provision under copyright that allows limited use of protected works without seeking permission. That makes a private company, which is profiting from the access it provides, the arbiter of a legal concept it has no right to interpret.

    <shaking my head in disbelief> What? A user has no “right to interpret” fair use? Okay, but I think that government bureaucracy’s gonna be pretty large when every teacher, every forwarded email, every reviewer, every parodist, every sampler, every quoter, and so on, and so on, has to file permission slips with the “arbiters” of “fair use”.

    Once again, if Google Print goes forward, that doesn’t mean that Google Print will be the only big database, and it doesn’t mean that Google is now the arbiter of, well, anything other than its own sweat-of-the-brow compilation of data (the words used in books and the order in which they are used).1

As for the actual argument, yeah, there’s lost licensing revenue. Every use of a work, including every fair use, involves potential licensing revenue.2 That, alone, won’t win their case. But I suppose they think red-baiting and appeals to public sympathy for starving artists (not exactly a coherent set of positions) can only help.

Footnote Meanderings

1. The total number of words, the presence of particular words, and the arrangement of those words in a work are, among other things, facts about the work. So are the author, the title, chapter titles, publication date, etc. Creation of an index to a work or multiple works includes gathering facts about the works. Conceptually, it’s quite distinct from the activities the Copyright Act is aimed at: copying and distributing works are clearly aimed at competitive copying, what used to be termed “piracy”. The copy(ies) that Google makes in the course of its scanning and indexing are technical copies, like RAM copies, and that would be an unpleasant route for courts to try to follow. (Although they have in the past; see, e.g.,, 92 F.Supp.2d 349 (SDNY 2000).)

The Google Print distributions are small pieces of the text, not easily framed with all the other pieces of that text, but instead contextualized with small pieces of other texts that match the search terms. Again, this isn’t the sort of competitive distribution which leaps easily to mind when one thinks of the exclusive right to distribute a work. [Note: this is true for Google Google Print Library program for copyrighted books, not the Google Print Publishers program, or Google Print for public domain works. I’ve seen several articles, like this one, that conflate or obfuscate the different programs.]

The derivative works right is aimed at translations, movie scripts, and the like. Again, not quite the right fit. I know some people will argue that an index is a derivative work, but treating derivative works in this way skirts too close to any and all fair uses. The caselaw shows this kind of interpretation, which is why the derivative works right is the most troubling of the exclusive rights, but I’m going to steer clear of that morass of a discussion for purposes of this footnote.

Performance and display are also aimed, obviously, at specific actions. Oddly, I think performance might be the best fit for Google’s use, in some kind of wierd philosophical way. A performance enacts a work, simultaneously interpreting it and creating the possibility of interaction with the audience. Interpretative performance necessarily demands recourse to information about the work, as well as the work itself. An index is also centrally about user interactivity, in a way that mere consumption of the text work is not. An index, then, performs the work, interpreting it by recourse to information beyond the text itself (for instance, bibliographic data; retail or location data; or the meta-structures of the work’s organization, in paragraphs, sections, chapters, parts, pages) and opening it to dialog with the audience.

Ahem. Or not. I confess to some recent exposure to critical continental literary queer performative prepoststructuralist theory stuff.

2. Hell, you could sell a copy of a book with a separate shrinkwrapped license that charges a new fee for each and every individual use. (I think Adobe may already have a patent for that method of doing business, though.)

morning tea reading

  • The Rude Pundit tears it up on comparisons between the Clinton Whitewater-MonicaGate scandal, and the Bush-Cheney Fraudulently-Induced-Then-Bungled-Iraq-War-PlameGate scandal. [link from sideshow]

  • debate over intelligent design: the abstract factory points out that intelligent design advocates, like pretty much every other human being, work within a science-based framework when it really matters to them personally. [link from sideshow]

  • Fafblog: damn you grover norquist, for accepting money from the gays:

    Yes, as all right-thinking Gibletsians know, gays are not merely plotting to destroy the family. They are plotting to corrupt the global economy with mass monetary queerosity! Even now they are introducing creeping fruitism into our proudly heterosexual stock market and pansying up our once-butch interest rate! They even handle the same money we do, getting microscopic particles of gay all over our precious national currency! Did Abraham Lincoln just wink at Giblets from the five dollar bill? Get away from me, Honest Abe! Giblets doesn’t need your mincey forfathery leering and your log cabin jokes!

google print: google’s evilness is beside the point (Bonus Rant Included)

I’m pleased to see the Google Print issue spurring discussion of the role of corporations in controlling access to information. See, e.g., today’s post @ Gnuosphere [link from sivacracy]

Gnuosphere, Siva, and others point out that Google isn’t doing Google Print out of the goodness of its heart; the company is scanning, indexing, and providing access to information for lots and lots of money. These warnings are a helpful antidote to Google worship.

But the problem with this complaint can be seen in the gnuosphere post:

Personally, I’m not against having an institution be granted the right to create such a database. But I’m wary about handing over such privilege and control to a body that is not working for the people. Should a corporation control what could potentially become the world’s first digital library? What is the purpose of a library? Why do libraries exist? For who do libraries exist? If this project is to become a globally accessible library, should there be someone controlling your right to read?

As the database of books increases in size and therefore scientific and cultural value, is an unregulated for-profit corporation the best choice to manage and control that database?

I think not.

The impulses guiding this post are clearly pro-public access and use, and pro-library, and I wholeheartedly support that. But the issue is couched as “handing over … control” of this information to a corporation. “[G]rant[ing] the right to create such a database.” Making a “choice” of entities to “manage and control” that database.

No, no, no.

The point of people’s support for Google Print is not that we support Google, love Google, or want Google to control our access to information. The point is that Google, and any other entity who wants to do it, should be able to add value to information. Google should not be THE ONE; Google should be ONE OF MANY. Picking and choosing a single entity presupposes that the information is already controlled, and this new use, this new added value, is to be carefully metered as a scarce resource.

We should be concerned about Google Print’s contractual restrictions on holders of its scanned works. But we should not fear Google simply for being the first entrant into the market. Google turns out to be evil? Implementing DRM, gathering and exploiting private personal data, indexing our DNA, imposing restrictive licensing agreements on its source material holders? Fine, criticize the evil practices (and Google too). Some other entity turns out to be evil, and wants to restrict copyright such that only Google’s database is valid? Criticize them, too. But I want to recommend that we resist the conflation of evils. If we’re concerned that Google is going to control a big huge really valuable database, and possibly to the detriment of those who want to use the database, then the answer is, in First Amendment terms, more speech. More databases, more indexers, more more more.

Bonus: Free Rant!

And by the way, you publishers, authors, and copyright-holders. You want to cash in on this market? Why don’t you consider selling the electronic texts to the aggregators and indexers for cheaper than they can scan them in and with reasonable licensing terms? There’s your market, right there. In fact, technology has made that market available to you for MORE THAN THIRTY YEARS. Dialog, Lexis, WestLaw, and other database vendors could have been using the full text of books for a really long time. Libraries would have killed to have full-text access to books.

As it happens, ignoring obvious markets is not new to the publishing industry. Book publishers ignored the market for enriched information content for years before they began ignoring the market for searchable full-text. Libraries and indexers could have used, at any time in the 20th century, a flourishing market for bibliographic and enriched descriptive information about books. Instead, with no such market, librarians CREATED, from scratch, and at very great expense, indexes and catalogs of information about books — with virtually no assistance from publishers. All those major research databases like MedLine, Agricola, and the like? Laboriously created by individual librarians, basically indexing and cataloging research journals by hand. Compare book publishers to research journal publishers. After some time research journal publishers figured out there was a market in enhanced information content, and began figuring out how to take advantage of that market. They facilitated the indexing process by including keywords and abstracts. They began selling tables of contents and journal indexes to the literature indexes. Ultimately they began selling full-text to databases and aggregators. In fact, once they figured it out, research publishers have been incredibly successful at capturing monetary value from information that the authors mostly want to give away for free. (So successful, in fact, that academic authors are having to fight their own publishers to get that valuable research information out of the market — another very interesting topic for another time.)

Could book publishers have done something similar? Sure. But for decades, literally, book publishers ignored this opportunity. As with research journals, individual librarians created the catalogs and indexes of books, hand-examining each book, figuring out what the book is about and how to describe it, etc. Libraries organized consortia and union catalogs to share this information and reduce the expense of creating it. For most of the time that cataloging took place, book publishers weren’t much help. Only in the very last few years have book publishers even begun to scratch the surface of providing enriched content to libraries and information vendors, by providing tables of contents to library systems vendors, and dipping their toes into very limited full-text databases that are scarcely available to anyone.

So the book publishing industry quaked in its boots and sat on its ass and ignored the market for searchable full-text, focusing solely on the market for information packaged as a physical artifact. And now the industry wants to complain that Google is jumping into the market? And doing it, not by licensing the full texts from the publishers, but in the most expedient fashion possible, by scanning? Please. Cry me a river, and while you’re at it, shed a few tears for the recording industry’s failure to jump online in the mid-90s.

Carlos Cortez

Viva La Huelga - print by Carlos Cortez

¡Viva La Huelga! Carlos Cortez
1993 Linocut, 89×58.5 cm

“When you do a painting that’s it, it’s one of a kind. But when you do a graphic the amount of prints you can make from it is infinite. I made a provision in my estate, for whoever will take care of my blocks, that if any of my graphic works are selling for high prices immediate copies should be made to keep the price down.”

— Carlos Cortez, 1923-2005

Doing research, I found that Carlos Cortez passed away in January. I first saw Carlos Cortez exhibited in Chicago in the mid-1990s, and had the honor of meeting him and his partner, Mariana. A real loss but he is well-remembered.

More info:
biography at March Abrazo Press
Carlos Koyokuikatl Cortez: A Printed Legacy (1923-2005) by Jesus Macarena-Avila []
An Interview with Carlos Cortez by Christine Flores-Cozza, at Drawing
– IWW Obituary
– Many of his works illustrate Charles H. Kerr press books

authors vs. copyright owners

Meghann Marco, a new author, would like to have her book indexed by Google, but her publisher says no, they’d rather sue. [link from]

As a person who spends a large part of her day trying to get people to read her book, I asked my publisher to include me in Google Print.

They said no.

I think the majority of authors would benefit from something like Google Print.

no play for fan play

San Francisco’s counterPULSE Theater got a cease-and-desist from Fox TV demanding they cancel their sold-out live action performance of “Once More, With Feeling” (the Buffy musical).

According to SFist, Buffy creator Joss Whedon said he had no objection to the staging of the show.

[link from whedonesque]

divine licensing: god and the gang of four

Two great tastes that taste great together.

Many “Daily Show” fans (well, okay, me) have been concerned about the future of “This Week in God” now that Stephen Colbert is leaving “The Daily Show” for his own spinoff. Today’s NYT (10/12) explains that the segment is going to stay, but with a new correspondent — apparently, because of divine licensing:

“God has an exclusive licensing agreement with ‘The Daily Show,’ ” Mr. Colbert said. “We’re trying to get the Devil for our show.”

In completely unrelated entertainment news, Slate informs us (10/5) that the Gang of Four is covering their own songs on what is effectively a tribute album by the Gang of Four, in tribute to the Gang of Four. (Hey, I think they’re worth it.) Go4 was a little less happy with their licensing arrangement than God, apparently:

A sraightforward repackaging of the old recordings, such as a compilation or box set, would only serve to enrich EMI, their original record company in the United Kingdom. And that’s something Gang of Four didn’t want to happen. “We have never made any money at all from record sales with EMI and still have unrecouped advances,” King wrote in an e-mail. “So we didn’t want them to benefit as they did nothing to support us.” As for their original American record company, Warner Bros., King claims that they deleted Entertainment!—easily one of the 50 most powerful and influential rock albums of all time—in 1993 and only rereleased it in 2005 in response to Gang of Four’s having become a fashionable reference point. Rerecording the songs—something that contracts typically allow artists to do after 20 years—puts Gang of Four in a strong bargaining position for negotiating a new deal with superior royalty rates. “It is our way of reasserting ownership of our own material,” says King.