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This brief from a Colorado public defender argues that calling a school administrator a ‘fucking fag’ was not interference with the administrator’s duties, partially because that phrase was not so inappropriate as to cause much offense. And for his etymology of ‘fuck,’ he cites fucking Wikipedia, which anyone in the world can edit. Including him. Or opposing counsel.

I love Wikipedia. I think it’s a great project, and it’s incredibly useful for informal research to find out, say, who wrote Our American Cousin or what the rest of the “able baker” military phonetic alphabet is. (Yeah, I wrote those articles, so I won’t be looking that stuff up. But you get the idea.) Citing Wikipedia in a brief before a court, though, seems to be asking for trouble.

I’ve just received the invitation for Minneapolis Mob #2:

You are invited to take part in a MOB, the project that creates an inexplicable mob of people in Twin Cities Area for 10 minutes or less. Please forward this to other people you know who might like to join. If you don’t participate, please forward it to a friend anyways!

MOB #2 - “Going uptown, going downtown”

Locations: TBA (To be announced)
Start time: Wednesday, July 30th, 7:18 pm
Duration: 10 minutes

(1) At some point during the day on July 30th, synchronize your watch at http://www.time.gov/timezone.cgi?Central/d/-6/java

(2) The day of the event, you can get a detailed script for the event by meeting at the following locations at 7:00 PM based on the month of your birthday.

NOTE: if you are attending the MOB with friends, you may all meet in the same bar, so long as at least one of you has the correct birth month for that location.

Jan. Feb. Mar. Apr.: Uptown Bar & Cafe, 3018 Hennepin Ave (Bar)

May Jun. Jul. Aug.: William’s Pub, 2911 Hennepin Ave (Lower level)

Sep. Oct. Nov. Dec.: Famous Dave’s – Calhoun Square (Bar)

(3) Then or soon thereafter, a MOB representative will appear and provide event details. Look for an individual in a “PRADA” shirt or a “MOB” button. He or she will provide you a slip of paper, on which two important pieces of information will be printed: (a) the MOB site, and (b) secret event details.

Commit these details to memory and put the slip in your pocket. ONCE YOU ARE AT THE MOB SITE, NONE OF THESE SLIPS OF PAPER SHOULD BE VISIBLE.

(4) Leave the bar and walk to the MOB site. If you arrive near the final MOB destination before 7:18, stall nearby. NO ONE SHOULD ARRIVE AT THE FINAL MOB DESTINATION UNTIL 7:16

(5) Find the site and begin the objective. Be animated and follow the intended script.

(6) At 7:28 you should disperse. NO ONE SHOULD REMAIN AT THE MOB SITE AFTER 7:30.

(7) Return to what you would otherwise have been doing.

To the press: Please do not report on the event to the public prior to the actual event time of 7:18pm CST on the day of the event. If you wish to report on the event please save your interviews until after the event activities are completed and the mob has begins to leave. If you would like to verify this script, email the auto-responder at minneapolismob@hushmail.com. This is an unmanaged account and only responses after validating an account. No email will be read at this account.

Bob Cringely proposes a new method of music sharing and ownership. The basic idea is this. We create a corporation, and that corporation buys a bunch of CDs. Since we own the corporation, we own the CDs. Since the owner of a CD can listen to it and make a copy, we can listen to and copy the CDs owned by our corporation.

Clever. Trouble is, I don’t think it would work.

In his scheme, we don’t really own the CDs at all. We own shares in a corporation which owns the CDs. I own stock in GE. This does not mean that I own any piece of GE property. If I went to GE Headquarters and took a chair or something, that would be stealing; it’s not my chair, it’s the corporation’s chair. The corporation is a legal person, separate from its shareholders. Until the corporation declares bankruptcy and gets rid of its assets, none of those assets are mine, so I can’t make copies. If Cringely’s legal assumptions were correct, owning one share of AOL/Time Warner right now would give you the right to listen to the music on any CD they owned. That’s not one of the rights that comes with being a shareholder.

Here’s what I thought he’d say. This is also a dubious proposition, but it’s not facially wrong. I buy multiple copies of every CD out there. I charge you $10 a month for access to my collection. When you want to listen to a song, we enter into a contract, very fast. I transfer my ownership in that track of the CD to you, and you promise to transfer it back when the song is over. While you’re listening to the song, you own that portion of my physical CD. It operates like a very efficient CD rental shop, but transferring ownership instead, so that the owner’s right to time- and space-shift attach. Problems? Several. At best, this gets us a streaming service. If you burn it on a CD and take it in the car with you, after transfering ownership back to me, you’re an infringer; you had to destroy that copy when you gave up ownership of the original CD. Also, only one person could stream the song any any one time, for each physical copy of the CD I have. This would still be more cost-efficient than buying a CD, since we can all share that one copy, but it’s not great. In fact, it might be cheaper just to enter into a streaming license agreement with the record labels. This model could be useful, however, for those artists who sell CDs but refuse to license online distribution, like the Beatles. Listen.com, in addition to its current agreements with the labels, could buy a truckload of Beatles CDs and add them to the service, implementing my temporary transfer of ownership scheme, without infringing anyone’s copyrights.

More problems? A court is fairly likely to find either that (1) you can’t sell tracks on a CD you own separately or (2) this transfer of ownership is so fake that the owner’s right to listen and copy does not attach. But, it might work.

Welcome to the modern law school classroom. Instant messaging in the classroom can be a terrible distraction, but if one has some self-control it can really help to be able to ask a classmate what the professor just said or ask a quick question about a concept.

During my haircut today, my barber and I were talking about his previous career as a Baptist minister.¹ Something about me must have suggested to him that I was suggestible. Perhaps it was the fact that I kept a straight face when he referred the judge in his child custody proceedings as “one of those Jew-boys,” as difficult as that was. Perhaps it was my positive reaction when he told me how the Lord had provided a cure for his stage fright. Whatever it was, something led him to hand me a tract he “thought I’d enjoy” on my way out of the shop.

It’s an anti-evolution tract titled “Foolish Professors,”² presenting the old “ex nihil, nihil fit” (”nothing comes from nothing”) argument from Aquinas’ Five Proofs, in new clothing.³ The author invokes the first and second laws of thermodynamics, arguing that:

• “The universe could not have come from nothing naturally, because neither matter nor energy can be created or destroyed, according to the first law of thermodynamics”; and,
• “The universe could not be eternal, for it would have devolved into a cold, dark, dead mass long ago, according to the second law of thermodynamics, which states that entropy always increases in a closed system.”

Of course, the Laws of Thermodynamics only apply to closed systems, and the author recognizes the counterargument that the Universe is an open system. However, he demands experimental data proving that the universe is an open system: “The poor, insane, unregenerate scientist, so-called, pontificates ex cathedra⁴ that the universe is an open system when is is physically impossible for him to verify such an hypothesis.” So if the universe isn’t an open system, what surrounds it? The author has an answer ready here as well. “[T]he Bible indicates that the universe is surrounded and enclosed by a body of water whose surface is frozen!”

What? Frozen? I’ve never heard that before. That would be sort of cool.

Let’s look at the sources he cites. These are the two that talk about waters:

• Genesis 1:6. “And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters.” OK, there were waters. No word on the phase of the waters.
• Job 38:30. In the King James Version,⁵ it reads, “The waters are hid as with a stone, and the face of the deep is frozen.”

There we go. “The face of the deep is frozen.” If all of this came out of the deep, and the face of the deep is frozen, then he’s got to be right. Right? Well, look at the context and at some other translations. We’re pretty clearly talking about the majestic power of weather here, not of First Things. This sort of points up the silliness of taking one English translation as the revealed word of God, as Ruckman does.

I think the cite checking I’ve been doing for Constitutional Commentary is affecting the way I read things, don’t you?

¹ He went from ministering to his flock to shearing it, I suppose. But I digress.
² The tract does not indicate its authorship or source, but this page indicates that it was written by Dr. Peter S. Ruckman, who appears to be disliked by some for his insistence on using the King James Version, and who has published all manner of amusing-cum-scary kookery at his web site. If you’re amused by this sort of thing and want to read more, you can access his newsletters here; to get past the password protection, just press Escape when it asks for username and password.
³ The author doesn’t credit Aquinas, of course. Noting that the genesis of his argument lies in Summa Theologica would really irk the author, since he lists the Catholic Church as one of the “instruments of propaganda serving to spread the lie of EVOLUTION and drive the world to madness”, to wit, “textbooks, National Geographic, Smithsonian Institution, Roman Catholic Church, news media, ad infinitum.”
⁴ From my observations, professors have often been known to pontificate while standing up as well as ex cathedra.
⁵ And, boy, does Ruckman hate anything that’s not the King James Version.

I just got back from Minneapolis Mob #1 (invitation here). My friend Stacia and I arrived at the bar corresponding to my birth month, Gator’s. When we arrived, the place was nearly empty. There was one table of tourists in the back and two identical tight-white-tee-short-black-skirt-lower-back-tattoo waitresses … and two people sitting on opposite sides of the bar, checking their watches rather frequently. We sat down at the bar, between the lone patrons. The woman was reading Warrior Woman by Maxine Hong Kingston; the man was smoking American Spirits.

These were our people.

“Someplace to be at 6:30?,” the woman asked me. I smiled. Apparently, it’s easy to pick out who’s a pretentious hipster and who’s a regular in this place. We talked for a bit. Turns out three of the four of us were in the middle of books by Lemony Snicket. These events, apparently, attract a rather specific crowd.

At the appointed hour, a man in a leather jacket sidled in, smiling broadly. As the invitation prophesied, he took a beaten, wide-brimmed hat out of his coat pocket, tipped it on his head, and ordered a beer. A tall man, probably about 25, walked up to him.

“Not exactly a mob scene in here, eh?”

The man in the hat slipped him a small piece of paper. He palmed it and walked off.

We passed the slips around, under the bar, among the four of us who had gathered. They looked like this:

Slowly, people started coming out of the woodwork, walking up to the man in the hat, and getting handed their slips. As the appointed hour approached, we paid up and left.

It took a while to get to the court outside Sears. We hung back until 6:25 exactly, having a look at the New York Review of Books and the Onion anthologies at the nearby Barnes and Noble. Then, at 6:30, about 40 people walked to the middle of the court and started acting like robots. A small crowd gathered. We were under an atrium, so tourists peered over the railings at us. One man walked up to a participant and asked what was going on, and who we were. The robotic man turned his back, Animatronics-style.

Exactly five minutes later, we all walked off in various directions, as if nothing had happened.

At the Bose store, we filled the front viewing rooms to capacity. The Lord of The Rings was playing. The bemused salesman refused our requests for popcorn and Junior Mints, but complied when someone asked him to turn up the movie. A small crowd gathered outside the Bose store’s windows, wondering what had drawn the rapt attention of the packed-in twentysomethings inside.

Exactly five minutes later, we all walked off in various directions, as if nothing had happened.

I never caught the names of the two other Gator’s loiterers, but I’m sure I’ll see them next Tuesday in Uptown.

UPDATE: Photos are now available, as is coverage from the Star Tribune and the Pioneer Press. Quote from a Bose store employee, in the Pioneer Press article: “This is the weirdest and most random thing that ever happened in my life.” Two responses: (1) Yes, that would be the point; (2) If this is the strangest, most random thing that has ever happened in your life, you need more strange randomness in your life. Also: Yes, that’s my ass on the front page of the Star Trib Metro Section today.

The first Minneapolis Flash Mob will take place on Tuesday.

So, Howard Dean was guest blogger on Larry Lessig’s blog this past week. A lot of people read Larry’s blog, many of whom are just the kind of people who would love to be won over by a vaguely lefty presidential candidate clued in enough to run a campaign blog and arrange rallies on meetup.com.

And what did we get? Five measly posts, making noncommittal statements about the digital divide and media deregulation. While I realize that Dean is a busy man with little time to blog, and I appreciate that the posts were written by the Dean himself, I’m rather disappointed. He still has my vote in the primaries, but I fear he may have squandered an opportunity to garner many more.

The winner of the 2003 Bulwer-Lytton Fiction Contest has been announced. It reads:

They had but one last remaining night together, so they embraced each other as tightly as that two-flavor entwined string cheese that is orange and yellowish-white, the orange probably being a bland Cheddar and the white . . . Mozzarella, although it could possibly be Provolone or just plain American, as it really doesn’t taste distinctly dissimilar from the orange, yet they would have you believe it does by coloring it differently.

As for me, I prefer the runner-up:

The flock of geese flew overhead in a “V” formation - not in an old-fashioned-looking Times New Roman kind of a “V”, branched out slightly at the two opposite arms at the top of the “V”, nor in a more modern-looking, straight and crisp, linear Arial sort of “V” (although since they were flying, Arial might have been appropriate), but in a slightly asymmetric, tilting off-to-one-side sort of italicized Courier New-like “V” - and LaFonte knew that he was just the type of man to know the difference.

My inner typography geek making himself known, I suppose.

Recently, a friend asked me for my advice and some resources on how to decide whether or not to consider going to law school. He thought I should post my answers someplace, in hopes that someone else would find it useful; I agreed. So, what follows is a slightly edited version of my email to him.

After all these years, One-L by Scott Turow is still, I think, pretty accurate as a picture of what law school culture is like. The professors are not as mean as the book indicates, and the people are not quite as crazy as the book indicates, but I think it’s a reasonably accurate picture. Definitely read it. Law School Confidential by Robert Miller has been recommended to me repeatedly, though I’ve never read it. Definitely, without fail, sit in on a first-year class or two to see what it’s like. There’s no substitute for watching the give-and-take in the classroom; the intellectual stimulation of ideas zinging back and forth from professor to student when a good class and a good professor really get going was one of the things that made me excited about law school.

As for what the material’s like, it’s sort of hard to communicate without being there. Maybe pick up “Contracts in a Nutshell” or “Torts in a Nutshell” from the local library. Just read selected bits. If you find them fascinating, this is a very good sign. If you don’t, though, this is far from fatal.

This site seems pretty good.

This site goes through some of the grim financial realities of law school and legal practice. Don’t let it get you down, but keep them in mind. Also, keep these things in mind (based on my current view of law school and legal practice, as experienced by me or told to me by people I trust):

• People are competitive. Even nice law students are competitive. Slackerdom is not an option. The good news is, if you’re the kind of person who only slacks off for lack of intellectual stimulation, you may find you don’t slack off anymore. You may find, in fact, that’ you’ve suddenly turned into a self-motivated, driven, somewhat competitive individual.
• You will probably go sufficiently deep into debt that you will probably not be able to take a low-paying job with a nonprofit right away, even if you want one and can get one.
• Some of this stuff isn’t honestly all that interesting. If you’re good at finding ways to make boring things interesting to you, or if things that are boring to most people actually interest you, you have a big head start on most people.
• If you think of law not as a set of moral rules, but as a game structured such that the right thing happens as much of the time as possible with as few transaction costs as possible, good. (If you even find this idea sort of appealing, good.) If you think seeing how the game is put together would be cool, this is a very good sign. If you will be driven crazy by the fact that the system could be more efficient but isn’t, that’s bad.
• If you HATE history, stop now. If you merely find history mildly distasteful, as I do, that’s OK.
• If you have a science degree, you will be pidgeonholed as a patent guy. If this is not OK, you may have to work to overcome it. On the other hand, patent firms will descend on you like {insert not-overly-disgusting simile here}. Which could be rather nice. I’m interested in the intersection of law and technology, but don’t have a science degree. I’m having to work hard to overcome that, since I cannot do certain kinds of patent work (writing and prosecuting patents) without one, and that work is the bread and butter of a lot of intellectual property practices.
• $125,000 a year to start sounds very nice. They only pay this much money to very, very smart corporate whores attorneys. If the idea of working for corporate America makes you sort of ill, consider making about half that. I find most corporate whoredom practice ethically neutral; a good deal of litigation seems to be two corporations fighting over one pile of cash. I see no reason not to help them. One is reminded of a rather cynical T-shirt slogan I once saw, which read, “Once one understands that all of society is merely an elaborate mechanism for the movement of money from other people to lawyers, many matters which were once obscure become clear.”
• Lawyering, and to a much smaller extent law school, is about shmoozing to an extent that’s sort of alarming.

Law school is an awful amount of work and stress, and it makes stable people unstable. However, for intellectual challenge, it can’t be beat.

There’s a great article by John Pareles in today’s New York Times all about bricolage — the process of filtering and reproducing existing culture that takes place as artists create. It makes an extremely important point: Strengthened copyright laws can stifle creativity by cutting off artists’ ability to reproduce culture through their art.

It focuses on the recent “controversy” over Bob Dylan’s uncredited use of images and phrases from a book in the lyrics of his latest album, Love and Theft. The album is all about bricolage, the mix of love and theft that makes art.

(In fact, one of the tracks on the album, “By and By,” has the same melody and changes as “Having Myself a Time” by Leo Robin and Ralph Rainger. My score for The House I Call Love was built around the intro to that track on Love and Theft, which the playwright, Steve Feffer, pointed to as the sonic image of ‘porch music’ that he had in mind while writing the play. So, I stole it from Dylan, who stole it from Robin and Rainger. Long live love and theft.)

Here’s a good editorial about copyright term extension. It makes a good point — The League of Extraordinary Gentlemen is made up of characters in the public domain. Works like the original LXG comics won’t be as likely in the future, since the public domain has ceased to expand, and won’t do so again until 2013.

Listen up, parents! You think trademark infringement is all fun and games? You think those unlicensed toys you win at fairs are harmless? Well, just wait till somebody loses an eye.

Eugene Volokh lists a few of the teachings of Zen Judaism found here, from this book. My favorites:

• Let your mind be as a floating cloud. Let your stillness be as the wooded glen. And sit up straight. You’ll never meet the Buddha with posture like that.
• Those who know do not kibbitz. Those who kibbitz do not know.
• There is no escaping karma. In a previous life, you never called, you never wrote, you never visited. And whose fault was that?
• The Tao has no expectations. The Tao demands nothing of others. The Tao does not speak. The Tao does not blame. The Tao does not take sides. The Tao is not Jewish.
• Drink tea and nourish life. With the first sip, joy. With the second, satisfaction. With the third, Danish.
• To Find the Buddha, look within. Deep inside you are ten thousand flowers. Each flower blossoms ten thousand times. Each blossom has ten thousand petals. You might want to see a specialist.
• The Buddha taught that one should practice loving kindness to all sentient beings. Still, would it kill you to find a nice sentient being who happens to be Jewish?
• Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkes.

Larry links to “Public Domain,” a 1937 Columbia Workshop radio play, in which various literary characters try to escape “Copyright Lane” for the Public Domain. The best part is the song at the end, even though one can only make out a little more than half of it:

Oh, the copyright law is a horrible bane
To all who are born of a novelist’s brain
And now that we’re gathered at five-o’-clock tea,
We’ll cast off our parents and set ourselves free.
… largely unintelligible chorus ending with “ale” …
Put authors and agents and lawyers in jail!

Here’s a 100K MP3 of just the song; can anybody decipher the missing bits?

I just got back from the New Pornographers concert at First Ave. It was great. There was a very good crowd, and the band was relaxed and tight. Chris and I were both really excited, and it definitely lived up to our expectations.

The Organ opened for them. I liked them a lot. Imagine a Smiths cover band made up entirely of black-clad, stone-faced Canadian indie-rock girls, except with original material. That would be The Organ. Cool.

UPDATE: Chris blogged about it too.

Then-Attorney General (later Justice) Robert Jackson’s 4th of July address, 1941.

But there is at home and abroad an anti-democratic influence, even more cynical and sinister and dangerous than Hitler, Mussolini, and Stalin combined. I refer to those who think democracy is a fair weather ideal — to guide us in soft times — but that when the going is tough we cannot save it without losing it. This doctrine has every base quality of fascism without either its candor or courage. Let us in America never forget that liberties trampled by conquest may be regained, but liberties abandoned by an indifferent people are never recovered. Nor are they deserved.