Who or what qualifies as an “author” under copyright law? Recent events on opposite sides of the world shed light on the question.
Last April, the Ninth Circuit Court of Appeals confronted the issue of whether animals qualify as authors. The case arose when Naruto, a 7-year old crested macaque, noticed a camera lying unattended on the jungle floor of his neighborhood on the island of Sulawesi in Indonesia. For reasons known only to himself (but which may have involved the same egocentrism harbored by humans), Naruto paused in his travels to use the camera to take several photographs of himself. These pictures, dubbed the “Monkey Selfies” by the court, went viral.
While the Monkey Selfies case unfolded, a team in Holland — once the colonial master of Naruto’s homeland – were hard at work studying the facial features and proportions of the 346 known works of the Dutch Master, Rembrandt van Rijn. The team designed an Artificial Intelligence (AI) software program, incorporating a deep-learning algorithm, which analyzed Rembrandt’s use of geometry, composition, and painting materials. Utilizing a 3D printer, the program replicated the paint and brushstrokes Rembrandt might have used, applying 13 layers of ink. It generated a new work of art, consisting of more than 148 million pixels based on 168,263 painting fragments from Rembrandt’s body of works. The portrait, known as the Next Rembrandt, was put on display in 2016, and won two Grand Prix for cyber and creative data at the Cannes Lions Festival.
The Monkey Selfies and the Next Rembrandt would seem to have little in common. But for students of copyright law, they stand together, cheek by hairy jowl, forcing reconsideration of the nature of authorship. Continue reading
As widely reported in the press (see here, here, and here), Angela Davis has decided to donate her papers to Harvard University’s Schlesinger Library. Well, not exactly “donate.” The long-time Communist Party member has overcome her distaste for free market forces and sold her papers for an undisclosed sum of money. Harvard alumni might well ask: Is this how we want our contributions spent?
Let us begin with the indisputable. Larry Nassar is a monster. So it’s not surprising that Judge Rosemarie Aquilina, who sentenced him to 40 to 175 years in prison, has been universally cheered. On the right, Fox News’ Andrew Napolitano has called her style of administering justice “nothing short of heroic.” On the left, feminist fans have proposed her for Person of the Year, or even for the Supreme Court.
But while Larry Nassar is a monster, our legal system is designed to protect the procedural rights of monsters. For without such protection, there is no guarantee that the same rights will be available to help the innocent.
For that reason, anyone concerned with due process must view with deep unease the manner in which Judge Aquilina handled the sentencing of Larry Nassar following his guilty plea for molesting seven girls. Continue reading
The President of the United States confronted a difficult decision concerning recognition in the volatile Middle East. He was personally sympathetic to the Israeli side. Many of his closest friends and confidantes were Jews, including some with whom he had participated in business ventures. But now his Secretary of State argued forcefully against recognition. The Secretary’s opposition was shared by almost the entire foreign policy establishment, as well as by the New York Times and the Washington Post. He was warned that if he proceeded with recognition, violence would erupt throughout the Middle East, America’s position at the United Nations would be weakened, and he himself would be accused of pandering for the Jewish vote.
Bucking the advice of his Secretary of State, the President decided in favor of recognition. The Prime Minister of Israel thanked him, and told him that his decision would earn him an immortal place in Jewish history.
These events, as recounted by Clark Clifford, occurred 70 years ago, when the President was Harry Truman, not Donald Trump; the Secretary of State was George Marshall, not Rex Tillerson; the Prime Minister was David Ben Gurion, not Benjamin Netanyahu; and the issue was recognition of the State of Israel, not recognition of its capital. With the benefit of hindsight, most would agree that Truman made the right decision in May of 1948. Donald Trump’s decision to recognize Jerusalem as the capital of the State of Israel — though almost universally condemned by the supposed experts on the region today — ultimately will also be seen as the right move. Continue reading
Sometimes social change arrives slowly.
Slavery was abolished and equal protection enshrined in the Constitution in the 1860s. Yet nearly a century would pass before segregation was outlawed in public facilities, and racial equality would begin to emerge as a fact.
Sometimes social change travels fast. Thirty years ago, 57% of American adults did not approve of sexual relations, let alone marriage, between gays and lesbians. Gallup did not begin to ask respondents about same sex marriage until twenty years ago. Before then, the issue was not considered controversial enough to warrant polling. In 1996, the Defense of Marriage Act went before Congress. Section 3 of the Act declared: “The word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It passed with overwhelming bipartisan support. Two thirds of the Democratic senators and representatives voted in favor, along with nearly all Republican members. The Act became law when President Clinton signed it. At the time, Bill Clinton opposed same-sex marriage. So did his wife. So did every notable figure in both major parties.
In 2008, when Barack Obama ran for President, he too opposed same-sex marriage, stating: “I believe marriage is between a man and a woman. I am not in favor of gay marriage.” He continued to oppose same-sex marriage until 2012. Hillary Clinton continued to oppose it until 2013.
That same year, 2013, the Supreme Court, in United States v. Windsor, declared Section 3 of the Defense of Marriage Act unconstitutional, effectively ending federal bars to same-sex marriage. Two years later, in 2015, the Supreme Court ruled in Obergefell v. Hodges that state laws banning same sex marriage were also unconstitutional. Continue reading
“There are some ideas so absurd that only an intellectual could believe them,” George Orwell famously said. We can add to that long list of lunacies a theory on freedom of speech and violence articulated by Professor Lisa Feldman Barrett, author of “How Emotions are Made: The Secret Life of the Brain” in last Sunday’s New York Times.
Visiting the troublesome trend on college campuses today to protest, disinvite, and even violently remove controversial speakers, Professor Feldman maintains that the speech-suppressors have a point. Children may believe that “sticks and stones may break my bones, but words will never hurt me.” But Professor Feldman knows better.
…[S]cientifically speaking, it’s not that simple. Words can have a powerful effect on your nervous system. Certain types of adversity, even those involving no physical contact, can make you sick, alter your brain – even kill neurons – and shorten your life.
Speech can shorten your life? How? Professor Feldman explains:
Your body contains little packets of genetic materials that sit on the ends of your chromosomes. They’re called telomeres. Each time your cells divide, their telomeres get a little shorter, and when they become too short, you die. This is normal aging. But guess what else shrinks your telomeres? Chronic stress.
Words that stress you out can rub you out, she maintains. Under her theory, the Middlebury mob that attacked Charles Murray and injured Allison Stanger (causing her a concussion) were not engaged in acts of unlawful violence. They were engaged in legitimate self-defense. Continue reading
In light of President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia, partisans on both sides of the political aisle are shocked – shocked – to discover that the other side is playing politics. But there is an important difference. The Democrats are playing smart. The Republicans are playing dumb.
That should not come as a surprise. After all, this is the year the Republicans have shown themselves hell-bent on ensuring that they lose the presidential election. While the Democrats proceed to nominate Hillary Clinton — a figure so shady that she is widely viewed by her own Party as untrustworthy — the Republicans are en route to nominate Donald Trump, their one candidate who consistently lags well behind Clinton in the polls. And for good measure, he lags even farther behind Bernie Sanders.
That is dumb politics. But the Republican Party position on the nomination of Judge Garland is, if possible, even dumber. Continue reading