The original poster was unfortunately clueless about sexism, and writing from a position of utterly unexamined privilege. Many, many gajillions of postings have pointed out the numerous ways the proposal is bad:
* it makes people (“women”) feel unsafe
* it makes people (“women”) feel pressured to participate
* since cons are also meetings for people in the SF trades and professions, it may pressure people (“women”) to participate to advance their careers, in the fine old school tradition of sexual harassment

… I could go on, but instead I’ll just point to the feminist SF blog and FSFwiki and Feministing for summaries and links. Particularly noteworthy responses include:
* open source swift kick to the balls by misia
* open source african hair project from plastic sturgeon
* The Open Source Women Back Each Other Up Project! by vito_excalibur
* Open Source Male Assholes by springheel jack, excellent for its libertarian fallacies analysis. My only complaint is I wish that the author had used the capital L Libertarian, since there is, in fact, a large thread of libertarian thinking that specifically recognizes social inequalities: anarchism, the original and still the best “libertarian” philosophy/analysis/action plan.

The thing that caused me to post about this over here, as well as interacting with the general blog furor, is the appropriation of the term “open source”. This also did not go over well. But isn’t it interesting the way “openness” and “open source” has become some sort of synonym for permissiveness? Despite the massive way this is a completely wack analogy? (see inhammer, below)

Links discussing the open source aspect include:

• matthew garrett
• inhammer: failure of metaphor
• rivkat: “a category mistake of the ugliest kind”
• In a comment on the Rivkat thread, Ithiliana picked up Rivkat’s phrase “Bodies are rivalrous” and made an awesome LJ icon: Later…: I keep coming back to this image and staring at it. Honestly, I just love this so much that I want it plastered all over my blog, my shirts, my bumper stickers, and maybe my household windows.
• designated sidekick at girl-wonder.org extends the metaphor to “closed source misogyny” and suggests “Let’s put our male entitled view of women’s bodies as our property to use, modify, open source and otherwise interact with into a neatly closed source wrapper, bundle it in DRM, load it on an iPod and repeatedly strike our narrow minded selves in the face until the bleeding starts, and continue until the ability to stand upright stops.” Hear, hear.

Here are links to the PDFs of the
* complaint , and
* the statement of interested parties.
And may I just note that PACER is a pain in the ass?

Also via that same post @ pharyngula, Sarah S @ ERV reports that they copied not just the XVIVO video but other sources as well. Quel surprise.

Previous posts:
* Copyright claims against Expelled
* “Expelled” music licensed or not?

Thoughts on reading the complaint below the fold:

DRAFT DRAFT DRAFT
I am writing this NOW so anything you read while this message is here is particularly, even more than usual, DRAFT-y and should be considered as such.

On standing:
On standing and whether XVIVO has threatened litigation: Yep, looks like. The complaint says that XVIVO did send a letter, dated 4/9, and it mentions copyright, DMCA, and VARA.

(Earlier comments with helpful links for the non-lawyers: Just a note: To have standing to ask for a declaratory judgment, you have to have a live threat of litigation. (more at wikipedia on DJs) It is my understanding that, although XVIVO circulated a draft C&D, other sources have said they are not suing. If XVIVO has said they’re not suing, the judge should toss this out on standing. (Standing is a fun area of the law that basically says no harm, no foul, no lawsuit. more at wikipedia) … Whups, never mind: The complaint says that XVIVO did send a letter, dated 4/9, and it mentions copyright, DMCA, and VARA (the claims I discussed in my earlier post). “XVIVO, has sent a demand letter…” (p.1, #1) )

Jurisdiction

Noting that the case was brought in Texas, in the 5th Circuit. Premise is out of Texas but XVIVO is out of Delaware. The court has jurisdiction over XVIVO because of live clients (discussed later), but the complaint takes me back to the good old days when Internet jurisdiction was still sexy. Premise spends a goodly amount of time asserting reasons why personal jurisdiction over XVIVO is appropriate, trying to hit all the interactivity points made by the various Internet jurisdiction cases, the better to demonstrate that the court has general personal JDX over XVIVO:

[A]n Internet user in Texas and in this district can interact with XVIVO over the Internet in the following ways, among others:
   a. view XVIVO promotions, offers for services, and solicitations; [LQ: certainly not enough]
   b. hyperlink and download various items of sample work product including but not necessarily limited to the Inner Life Video; [LQ: certainly not enough. These are both basic website functions and non-interactive.]
   c. provide information to, and otherwise communicate with XVIVO; [LQ: not enough. IIRC, only the farthest outside cases held that this degree of interactivity constituted sufficient contacts for personal JDX.]
   d. ask questions and receive answers about XVIVO’s products and services, including ongoing projects; [LQ: Isn't this the same thing as c.?]
   e. log into a private client section, which according to XVIVO’s own statements on its web site allows confidential communications, allows clients to participate in “review sessions” from Texas, allows clients to monitor from Texas over the Internet, the progress of “every element” of projects “24/7″; [LQ: this is the only interesting part. Looks like standard live support and discussion forum, plus access to some kind of in-progress database? Interesting, but since it's available only to clients, it's completely redundant since if they have clients in Texas they've already got jurisdiction.]
   f. complete a transaction over the Internet [LQ: again, early cases considered this sufficiently interactive; later cases backed off. IIRC.]

They repeat these and similar assertions in a few other places. For instance in 15. Premise alleges that XVIVO’s website states, “Feel free to call us or fill out this project assessment form and we will provide you with an estimate” and that XVIVO offers film clips that are “interactively accessible by clicking ‘View Original Article.’” plus additional bolding and italics and then they add “The form appears as if it can be filled out and submitted over the Internet through the XVIVO website.” Good golly, let it go already; this isn’t sufficiently interactive, and anyway you’ve already got jurisdiction because of the live clients previously mentioned. Are you billing by the hour, or what?

Still the mind lovingly considers interesting questions I haven’t researched or, really, thought about in a while: What the heck are the Internet jurisdiction cases in the 5th Circuit? Does the 5th follow Zippo.com? (Momentary misremembering of Zippo as Zappo — ha ha.) Does maintenance of this sort of generic interactivity actually constitute purposeful availment in Texas? Revell v. Lidov sort of suggests XVIVO’s web contacts (a generally available website with interactivity) are not substantial enough, I believe, but has there been anything since? How do courts handle things like support forums or live support chats? That would have seemed plenty interactive back in the early days but now — not so much. If you just have a few sales over the Internet to this JDX and available tech support or customer sales — eh.

But all this jurisdictional pondering is beside the point, because XVIVO apparently has actual live honest-to-god clients in Texas. Also, I would have thought that threatening to sue a party HQ’d in a jurisdiction would be enough to get personal JDX — certainly the DJ claim arises out of the threat to sue.

Premise’s description of itself:

Oh so disingenuous:

28. In promoting the ideas and questions raised in the Documentary Film, Mr. Stein and the Expelled producers have also been supporting Academic Freedom bills that would ensure the freedom of teachers, professors and scientists to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of theories of biological and chemical evolution.

(italics in the original; I added the link per my post of 4/14)
A real champion of liberty, that Mr. Stein. /sarcasm

Premise & the animation in Expelled:

Premise describes the segment as “one brief segment” that “portrays life at the cellular level to be extremely complex and asks viewers to consider the possibility that such complexity may have design implications in the origin of life.” (32)

A hit at the copyrightability / originality argument: “The concepts, principles and discoveries relating to the complexity of life viewed at the cellular level are widely known and available in the public domain and elsewhere.” (33)

Premise claims that it “commissioned computer animation of some of the natural processes inside a living cell.” (37)

Premise states that the XVIVO clip was in the promotional materials but not in the final film:

38. Some time ago, as part of the pre-release activity relating to the Documentary Film, Premise Media commissioned a DVD highlighting some parts of the Documentary Film as then planned. The DVD was designed as an educational resource highlighting the theme of the Documentary Film and was distributed free of charge in all cases. The resource DVD included a short clip of an animation of the inside of a cell. The short clip showing the cell interior was independently created early in the production process, and was used in the resource DVD. At the time the short resource DVD was made, the Documentary Film was not complete. The final version of the film does not contain the segment from the DVD on which XVIVO appears to base its claims in its April 9 letter. [emphasis added by me]

Oh this is a little gross: Premise claims that “Defendant evidently obtained access to the resource DVD or its contents … because … at the time it sent that letter, XVIVO could not have seen the Documentary Film (it had not been released).” They’re trying to hint at bad behavior on XVIVO’s part, but of course it’s well-known that the documentary was widely prescreened and reservations for the screenings could be made openly on the web. Also that Premise was sending out this DVD, probably widely. (Do we have any numbers on that or other information I wonder?)

And, BTW, copyright infringement applies to promotional materials as much as it does to the final documentary. I guess XVIVO didn’t discuss it so Premise is ignoring it.

#40 – Premise makes a bizarre point and ignores a later point.

XVIVO claims it ‘holds the copyright’ and asserts intellectual property rights to the Inner Life video, as well as ‘all the models, processes, and depictions’ therein, even though the video lacks any copyright notification identifying XVIVO as the copyright owner.

Lack of notification is irrelevant (see the 1976 Copyright Act). It’s definitely unclear to me who owns the copyright to the video, but it has nothing to do with notification. I guess this feeds into their implied license theory (addressed below.) (I see a different problem in the original letter: processes are not copyrightable, and natural processes are certainly not copyrightable. Depictions of processes, of course, can be copyrighted; I discussed the copyright of the natural process at greater length last week.)

#42 quotes from XVIVO’s demand letter; Premise states again that their animation was independently created and is not in the final version of the film.

#49 and #50 are confusingly worded but here’s where they raise the originality / ideas argument: The Inner Life video is a “scenes a faire” which can only be expressed in a limited number of ways. #50 hits the merger doctrine. I think that the email from David Bolinsky well explains the numerous creative choices that went into the animation, so again, although I think this is a very plausible and logical argument to make, I think it will ultimately be unavailing.

#51 Again with the independent creation. Dude, you can still infringe someone’s copyright even if you independently create your own thing — if you copied the copyrightable elements. I know why they’re banging on this drum, but it annoys me — there’s no parsing out of the potential claims in a logical fashion. I guess that would only hurt them.

#52 They toss in a fair use defense, but don’t explain how in any way; literally, they just assert that their use is a fair use.

#53 They hit de minimis. I pause to note that they are throwing basically every remotely plausible copyright defense in this complaint and in no particular order. This is really not the way I would have ordered my complaint. For instance, you would probably want to say that “we hardly took any, so it’s de minimis; however, if you happen to find that we took more it’s fair use”. Maybe they think their de minimis argument is so weak they just dropped it in at the last? Or maybe they just didn’t strategize at all.

#54 Implied nonexclusive license from the “available online for educational use.” That theory won’t get them far.

#55 First Amendment. Nice try; see Eldred, and, oh, also Art. I, Sec. 8, cl.8. As much as I might like to see the First Amendment be a good defense in a copyright case, it just won’t work — you can still speak even if you’re required to license (or create a non-infringing version) of the content.

What they didn’t address
Interestingly they didn’t address the VARA or DMCA claims at all. And they didn’t address the copyright infringement of the promotional video (other than to say that their copy was independently created). And they didn’t actually touch on the substance of the “substantial similarity” test.

How will it fare?

I think that substantively this is a pretty weak DJ action. (Which lends some credence to the general “this is all a press maneuver” theories. And if they ultimately get “Twelve Monkeys”-ed, it will only work out the better for them.)

Premise is asking the court to rule that their movie does not infringe XVIVO’s copyright. I don’t think the court can possibly make that determination based on the very sketchy explanations that Premise provided, unless XVIVO absolutely fails to respond to this motion.

Some other random observations

You know what else is interesting? In PACER, this case was filed under “Antitrust” as well as “Copyright”. Some kind of weird misfiling by the clerks, I guess.

Also I can’t help but notice that this case, a weak declaratory judgment motion being filed in a rush, presumably to pick their own forum (the godly state of Texas) and to get heightened pre-film-release publicity — this case is happening in the same state that, just a few hours away by car, fellow Christians and co-religionists have raped, molested, and virtually enslaved hundreds of children.

By all accounts this has put a massive burden on the state’s legal and social services infrastructure. Attorneys from around the state have been stepping in to offer their pro bono services, and some Christians have done some fundraising to help out. I’m just curious if Premise — producer of this fine Christian film — has done anything to help the victims of Christianity? What about A. Terry and Roy W. Hardin, of Locke Lord Bissell & Liddell in Dallas, and David R. Childress of Whitaker Chalk Swindle & Sawyer in Fort Worth, attorneys for XVIVO? Anybody?

Well, I’m sure those poor poor people are in their prayers. That‘ll be helpful.

In fact, one wonders why the Premise folks didn’t simply pray to the great Intelligent Designer in the Sky to save them from copyright infringement or perhaps issue a giant Declaratory Judgment in the Sky: “My minions have not infringed the copyright of the godless or if they have it’s okay because these are my scenes a faire that I have intelligently designed and on which I own the copyright.”

When I copy and they tell me “desist”,
Gonna go to the place that’s the best
When I get caught in a lie,
Goin’ up to designers in the sky
Goin’ up to designers in the sky
That’s where I’m gonna go when I lie
When I lie and they tell me desist
Gonna go to the place that’s the best

DJ actions might come a bust
Gotta have a friend in Jesus
So you know that when you lie
He’s gonna recommend you
To designers in the sky
Gonna recommend you
To designers in the sky
That’s where you’re gonna go when you lie
Steal in God’s name but they tell you desist
You’re gonna go to the place that’s the best

I sorta copied and I maybe infringed
I got a friend in Jesus
So you know that when I lie
He’s gonna set me up with
Designers in the sky
Oh set me up with designers in the sky
They’ll protect me when I lie
Texas judges might not let me rest
But Designers will protect me the best
Gonna go to the place that’s the best.

Parody of original lyrics by Norman Greenbaum set to melody by Norman Greenbaum.

Now that’s a fair use.

If you can stomach it, watch the video at Crooks and Liars. It’s funny but only if you can laugh at the really fucked up things that infuriate you and make you despair of the world.

Relevant transcript below the fold.

Bill Maher / New Rule:

And, finally, New Rule: Whenever you combine a secretive compound, religion, and weirdos in pioneer outfits — there’s gonna be some child-fucking going on. [laughter]

In fact, whenever a cult leader sets himself up as God’s infallible wingman here on earth, lock away the kids.

Which is why I’d like to tip off law enforcement to an even larger child-abusing religious cult. Its leader also has a compound. And this guy not only operates outside the bounds of the law, but he used to be a Nazi and he wears funny hats. [woo, applause, woo]

That’s right: the Pope is coming to America this week, and ladies, he’s single. [applause]

Now I know what you’re thinking: Bill, you can’t be saying that the Catholic Church is no better than this creepy Texas cult. For one thing, altar boys can’t even get pregnant. [ooh laughter]

But really, what tripped up the little cult on the prairie was that they only abused hundreds of kids — not thousands all over the world. Cults get raided. Religions get parades. How does the Catholic Church get away with all of their buggery? Volume, volume, volume. [laughter & applause]

If you have a few hundred followers and you let some of them molest children, they call you a cult leader. If you have a billion, they call you Pope. [laughter]

It’s like, if you can’t pay your mortgage, you’re a deadbeat; but if you can’t pay a MILLION mortgages, you’re Bear Stearns and we bail you out. [big laughter/applause]

And that’s who the Catholic Church is: the Bear Stearns of organized pedophilia: [laughter] too big to fail. [laughter]

When the — When the current Pope was in his previous Vatican job as John Paul’s Dick Cheney, [laughter] he wrote a letter instructing every Catholic bishop to keep the sex abuse of minors secret, until the statute of limitations ran out. And that’s the Church’s attitude: We’re here, we’re queer, get used to it. [whoo, applause]

Which is fine. Far be it from me to criticize religion. [laughter]

But just remember one thing, if the Pope was, instead of a religious figure, merely the CEO of a nationwide chain of daycare centers, where thousands of employees had been caught molesting kids and then covering it up, he’d be arrested faster than you can say, “Who wants to touch Mr. Wiggle.” [laughter]

Thank you very much ladies and gentlemen. That’s our show …

Bill Maher, “New Rules”, 2008/4/11, posted at Crooks & Liars 2008/4/12 by Nicole Belle.

LawPundit “ha[s] an opinion” on my wish for a penumbra that covers “no stupid laws”; I thought it was pretty amusing & worth checking out.

LawPundit also annotated my use of the word “penumbra” with a link to google:define:penumbra. Unfortunately, I don’t think that quite captures the legal nuance. Legal scholar/lawyer-types know the reference, of course, but for those non-lawyers, “penumbra” is famous in Constitutional law as a reference to Griswold v. Connecticut. In Griswold, the Supreme Court overturned a Connecticut statute that made it a crime to buy contraceptives. Justice William O. Douglas, looking at the Constitutional guarantees of individual liberties as a whole, wrote that the statute violated the individual right to privacy, which could be found looking at the “penumbras” and “emanations” of Constitutional protections. The language is a little funny, but standing alone, or with Eisenstadt (which extended to unmarried people the right to buy contraception), this case, and the words “penumbra” and “emanations”, would provide simply a pleasant diversion to while away the afternoons in contemplation of rarely-used words in legal opinions. The concept of “penumbras” of a set of enumerated rights is not that bizarre, especially in light of the Ninth Amendment (which notes that “the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people”) and the Tenth Amendment (which states clearly that powers not delegated to the US, nor prohibited to the States, “are reserved to the States respectively, or to the people”). These Amendments practically beg for penumbral analysis, and “privacy” (a concept theoretically defined and refined only in the last 125 years, but whose spirit animates much of the Constitutional protections) and “autonomy” (not considered one of the Constitutional “rights”, per se, but I keep wishing) are ripe concepts for that sort of analysis.

But conservatives have freaked out when the penumbras that protect privacy were extended to abortion in Roe v. Wade and to other matters of sexual privacy since then, and and now excoriate the very notion of penumbras. And emanations. (One could argue that the very essence of conservatism is a certain distaste for emanations.) So, “penumbras” the concept has acquired a certain air of disrepute in many legal circles, because even scholars who find it perfectly reasonable to examine the Constitution as a whole as well as in its discrete little parts, tend to back off a bit from Douglas’ sweeping penumbras and emanations, so successfully have right-wingers trashed those ideas. A damn shame, because the concept is perfectly reasonable, and it’s only the rabid dog opposition to abortion that has cast the shadow over Griswold and its penumbral emanations.

“Just as the believer knows himself to be constantly threatened by unbelief, which he must experience as a constant temptation, so for the unbeliever, faith remains a temptation and a threat to his apparently permanently closed world,” he wrote. “In short, there is no escape from the dilemma of being a man.”

Unless you’re a woman, I guess, which is maybe why I escaped the temptations of faith.

More recently, as now-exalted-and-infallible Pope Benedict, he wrote:

While the biblical narrative does not speak of punishment, the idea is certainly present that man is somehow incomplete, driven by nature to seek in another the part that can make him whole, the idea that only in communion with the opposite sex can he become ‘complete.’

Fish without a bicycle, that’s me.

[nyt 1/29]

“I wish with all my heart that you will be able to publish a new translation.”

— Simone de Beauvoir, 1982.

Another example of copyright being used by the copyright owner to control or restrict dissemination of a copyrighted work — regardless of the likely desires of the creator. Ampersand at Alas, a Blog writes about publisher Knopf’s control over Simone de Beauvoir’s The Second Sex, citing Sarah Glazer’s editorial, “Lost in Translation”, NYT Aug. 22, 2004. Apparently, Knopf refuses to allow a new French-to-English translation to fix the (apparently) glaring problems with the first translation. This editorial is over a year old, so I just checked amazon.com as a quick & dirty proxy for a Books in Print search. All the English versions I found still cite to the Knopf translation (copyright renewed in 1980).

Ann Bartow’s commentary on Sivacracy includes this very pointed observation:

Once again copyright law is preventing rather than incentivizing the creation and distribution of important ideas and expression.

When the government brings the force of law to bear to prevent a person from using particular words or images to communicate, and/or to prevent her from distributing or reading certain words, to some of us that seems a lot like censorship. Copyright laws are a restraint on speech, but one that is tolerated by the First Amendment because the copyright system is supposed to incentivize the creation and distribution of useful, creative works. That’s not what is happening here.

Like most authors, Simone de Beauvoir probably had to capitulate to every demand made by her publisher just to see her book in print. Copyright laws could be re-written to at least slightly improve the balance of power between authors and publishers, but don’t hold your breath waiting for that to happen.

update 12/21: Alas, a Blog has heard a rumor that Knopf may have agreed to a new translation, and links to another article on the issue.

But today (12/6), trying to wrap up a similarly long-hanging draft post about Google commentary, I came across a two-post discussion in comments on Larry Lessig’s blog entry about the NYPL debate. First, Ann Bartow briefly noted the absence of women on the NYPL panel:

With little effort I can think of 50 or more women who could have been part of this debate without diminishing the quality of the discourse in the least; in fact quite the contrary. The majority of librarians, and library patrons, in this country are female, as are the majority of book purchasers. Yet not a single woman gets a voice in this debate.

To which unfortunately “David” cluelessly responded:

Correct me if I’m wrong, but women read as men do, as far as I know. By this I mean that the process is structurally equivalent, they look at the page, decode the glyphs or higher-order primitives (such as words) and convert this information into symbolic representations of the writing. Same can be said for search. Is there some peculiarity in women’s reading that would make it imperative to have them represented? Do they do something differently that needs addressing by itself? Because if they do not, as I would hold, it is a disservice to claim they should be represented. Women are first and foremost people, and just as 53-year-olds need not be represented in a debate, because their is no functional difference that requires it, neither do, in most debates, women.

So, whether there are women in the debate or not is entirely irrelevant, and subtracts no legitimacy whatsoever. It could be argued that women could participate just as the men who did, and this is true. Maybe there was a bias against women in the choice of debaters. Whether that was the case or not, though, doesn’t make it imperative to purposefully choose women as debaters on this and most other topics.

David wanted to be corrected if he was wrong, so here goes. He got one thing right: “Maybe there was a bias against women in the choice of debaters.” But alas he completely obfuscated this point with his off-point and non-responsive paragraph about whether men and women have special ways of reading. Or perhaps he simply confused himself. So let me shed a little light:

Professor Bartow said nothing about men’s special ways of reading. She did not “claim” that women “should be represented” because of something they bring to the debate. Rather, she made one simple point: The panel was not gender-representative of any relevant population: IP/law experts, book people, librarians, etc., who are qualified to speak on Google Print issues.

She was concerned about special ways of selecting speakers. That’s a problem of sexism, not cognitive processing. Correct me if I’m wrong, but both men and women spell sexism S-E-X-I-S-M.

…

David’s response reflects a broader problem in responses to critical engagements with sexism, racism, and other biases, which is, when racism or sexism is called out, to engage in one or more knee-jerk denials: “There’s no sexism here!” or, classically, “I’m not racist!” or “I’m not sexist!” as if it were a personal insult. One can observe three kinds of major knee-jerk responses: One, to become so politically correct that one becomes a caricature of one’s own politics. Two, to deny the critiques, and censor the critics by calling them politically correct. Three, to do the crazy white panic (“I’m not a racist! You don’t think I’m racist, do you? But I’m so not racist!”), so beautifully dissected by Alas, a Blog.

Hey, I’m not immune from any of these responses. It’s pretty natural to do this kind of thing when you’re dealing with a conflict between how you think you ought to be, and how you are being perceived. But that makes these responses all the more important to understand.

And understanding these kinds of natural responses helps us understand what David did, and didn’t do, and could have done more helpfully instead, in his response to Ann Bartow’s simple pointing out of a gender disparity.

When a critic points out a possible problem, the ideal response would be for people to hear and evaluate the critic’s comments, and respond appropriately (and not disproportionately or personally; go back and read Alas, a blog again.)

The first step: Is the criticism accurate on the facts? In the case of the NYPL panel, manifestly, yes: the panel was disproportionately — all — male.

The second step: Is the criticism accurate in its analysis? Well, here is a problem, because Professor Bartow just pointed out the facts, leaving the analysis mostly to the reader. Not entirely; she did try to subtly deflect content-oriented rejoinders by pointing out that the inclusion of women could have been quality-neutral, and that tended to lead the reader to the analysis that this wasn’t a content issue. But for the most part, she made a neutral observation about gender representation and left the rest of the rather obvious analysis to the reader.

Apparently, though, any suggestion of sexism can trigger knee-jerk responses: “There’s no sexism here! No sexism! Gender is irrelevant to books! Linguistic processing of higher-order mammals blah blah blah!”

David failed to analyze Professor Bartow’s critique of implied sexism in a rational way. Instead he hand-waved and obscured the criticism with a non-response. (<annoyed Sarcasm> While missing the point entirely, he did manage to sound very brainy by couching his non-response in big words and impressive phrases like “structurally equivalent” or “higher-order primitives.” It reminds me of the literary debate between William Faulkner & Ernest Hemingway: Faulkner on Hemingway: “He has never been known to use a word that might send a reader to the dictionary.” Hemingway on Faulkner: “Poor Faulkner. Does he really think big emotions come from big words?” Lots of fancy words don’t necessarily mean you’re on point. </annoyed Sarcasm>)

Rather than analyzing Ann Bartow’s implied critique of sexism, David instead shifted the debate. He didn’t deny the observation, and he didn’t even really deny the implied critique — he actually admitted it: “Maybe there was a bias against women in the choice of debaters.” But the locus of his response is something completely different — the value of diversity — and he then steers away from the point of original observation even further by questioning whether women and men are cognitively different. Bajillions of gallons of ink are being spilled on that question, by the way, so it’s hardly an open-and-shut question, but the point is that David chose to deny & distract rather than to engage the question. And my sense, from watching oh-so-many stupid arguments about sexism & racism, is that David’s response thus falls into exactly the same category as so many other pointless responses to criticism these days. The pattern goes like this: A: “That’s racist!” B: <radiating outraged indignation !> “How dare you call me racist?”

So let me just state what I would have liked to have seen David or other commentators on the Lessig blog, or other readers of the Lessig blog do: Read Ann Bartow’s observation. Note to themselves, Huh. By golly, she’s right: there were no women on the NYPL panel, and there certainly could have been. That’s suggestive of sexism. When I do this kind of work I’m going to make sure that I don’t fall prey even to unconscious sexism or other bias. And I’m going to help other people avoid it too.

Don’t freak out. Don’t go all sarcastic or blah blah blah about the Western canon or higher order verbs or mammals or whatever weird issue you have. Everybody falls prey to internalized, subconscious sexism, racism, and other biases sometimes. Just try to be more self-aware about it and don’t freak out when someone calls your attention to it. It’s not an attack on you or on your livelihood or on western civilization. (Well, maybe western civilization ….) Unconscious bias is remedied, in part, by having your consciousness raised and beoming more aware of unconscious bias.

…

And I had a much longer response detailing why this kind of response is so silly, so irrational, so pointless, and so not helpful, but instead, I’m going to just point, once again, to my new favorite post of the year: How Not To Be Insane When Accused Of Racism (A Guide For White People) at Alas, a Blog.

Oh, and by the way. Thanks, Ann, for doing this work. It’s appreciated.

These stickers are being introduced to increase awareness and appreciation of Charles Darwin. His theory of natural selection provided a simple, non-supernatural explanation for how life on earth had evolved and continues to evolve. Although scientists worldwide view evolution and natural selection as completely uncontroversial, popular support in the United States is waning, especially with respect to the origin of humans. Without more public displays of affection for the theories of natural selection and evolution, it is likely that more and more schools will allow or even promote the teaching of evolution “alternatives” that invoke dabbling by supernatural entities. To provide some of the needed visible support for science and reason, please consider stickering something with his image. Sure, these efforts are probably completely futile, but wouldn’t you sleep better tonight knowing that you’ve done your part to delay our slip into Dark Ages II? Instructions and tips can be found below. Thanks!

http://www.swarthmore.edu/NatSci/cpurrin1/evolk12/posse/chazhasaposse.htm

… And in keeping with my passion for noting cultural begats, I note that designer Colin Purrington says of the image that

The overall design shamelessly emulates the “Andre The Giant Has A Posse” art project that I got to witness when I was a youth in Providence.

“André the Giant Has a Posse” was conceived by Frank Shepard Fairey and “at least one other unidentified person”. The WWE [World Wrestling Entertainment] threatened a lawsuit (presumably right of publicity?) and the image mutated into a more iconic image with the words “OBEY” or “DISOBEY”. More info at obeygiant.com and Wikipedia.

So I went online to figure out whether it was in fact Pollock or Pollack, which I did simply by Googling “Jackson Pollack”. Not easy to resolve since of the first 6 entries that Google returned 2 of them list “Pollock” and 4 list “Pollack.” And the first entry listed “Pollock” and then said “Var: Jackson Pollack.”

But in looking at the very first entry, for Jackson Pollock Online, www.artcyclopedia.com/artists/pollock_jackson.html, I noticed that the text that Google excerpted was this copyright notice:

Note that the listings on this site are a unique compilation of information and are protected by copyright worldwide.

Curious, I went to the website. The actual page has this text down at the very bottom of the page, in small type, in the usual credit/disclaimer portion of a webpage. Why did Google choose to highlight this text? A mystery of the Google display algorithm that I’m not motivated to follow up on. Maybe because the text is bold. The copyright portion of the notice reads in full:

All images and text on this Jackson Pollock page are copyright 1999-2004 by John Malyon/Artcyclopedia, unless otherwise noted. Note that the listings on this site are a unique compilation of information and are protected by copyright worldwide.

The notice has 5 small thumbnail images of JP [problem solved] paintings. And otherwise the text is a list of paintings, organized alphabetically by collection (museums first followed by public art galleries). It’s unclear whether they actually employed any particular selectivity in listing the JP works or if they just listed those available and known to them in publicly accessible collections.

… Just one more example of copyright insanity. What are they protecting, their exceedingly thin or (IMO) nonexistent compilation copyright? The copyright in the thumbnail images? No, there’s basically very little here for them to actually copyright. But they are being reflexively protectionist. I’d be interested to know more social psychology so I could better understand what’s behind the flood of copyright notices around the world. … I do believe the effect of these notices is ultimately negative. A random person sees this notice and now may believe that there could be a copyright in this work. Now they’re afraid to copy the list of works, or do so only with a feeling of guilt. Geez. What a waste of everyone’s time and energy.

Reminds of the Simpson’s episode when Homer was inventing many things, and when he would make presentations of his drawings to his family, he protectively said, “Patent pending, patent pending, patent pending,” pointing his pointer in each family member’s face for emphasis. [Google sent me to the usabilityworks blog which lists this as Simpsons episode CABF05, airdate 2001-01-14.]

No Sharing

Ever notice the Waffle House menu’s insistence that Double Waffle is for “dine-in only, no sharing”? A common prohibition at low-end restaurants, it’s also a small-print reminder of what capitalism is all about.

From enclosure to enforcement of intellectual property rights, capital’s message is always No Sharing.

Products of intellectual labor, unlike land and waffles, can be shared by all without diminishing their use value for anyone, however. “Copies” are as perfect as “originals” for the most profitable products — such as drugs and software — in the age of mechanical production, withering the aura of private property and making the revolutionary act of sharing and sharing alike irresistible. Capital, of course, tries to stop it, but, in doing so, it makes visible the “invisible hand” of the market, demonstrating that it is not scarcity but state power at capital’s disposal that prevents us from having what we want — even what we need to save our lives.