In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court distinguished between “parody” and “satire” as follows:
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v.Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.
(Footnotes omitted.) So: a parody comments on the work itself; a satire uses the work to comment on something else. The ruling in last year’s Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley’s songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore’s argument that the use of Henley’s songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn’t exactly say, “If it’s a parody, it’s fair use; if it’s a satire, it isn’t.” But that’s how such cases usually play out.)
As much as the natural gas industry complains about the costs of environmental compliance, it spends a great deal of time and money fighting to keep hydraulic fracking unregulated, and its claims of safety and economic prosperity unquestioned. Their campaign to put a happy face on this harmful technology is designed to stifle the growing movement to ban fracking across the country: to date, at least 76 local and state governments have passed laws banning the practice within their borders.
As Wenonah Hauter over at Huff Post observed, the industry spent over $145 million lobbying Washington in 2010, making it one of the top five industries spending big money to buy influence — and it seems to be working: In January 2011, bipartisan congressional members of the Natural Gas Caucus opposed proposed U.S. Department of Interior rules to disclose fracking chemicals used on public lands; this caucus’ 83 members received a combined $1,742,572 in campaign contributions from the oil and gas industry between 2009 and 2010, according to a Propublica investigation.
By now, you may have seen an industry ad like this, talking up gas as a means of American energy independence and prosperity, but what they don’t say is that there are plans to export it to China and India — and profits too, as these companies are increasingly multinational or even foreign-owned.
Their hired PR guns also come out blazing when unfavorable coverage of the industry erupts, as it did in the New York Times, when reporter Ian Urbina exposed industry insider emails questioning the favorable forecasts the industry has put out on fracking — one insider going so far as calling drilling leases “Ponzi schemes.” As Politico reports, John Hanger, once secretary of the Pennsylvania Department of Environmental Protection and now an environmental consultant, compared Urbina to Judith Miller and Jayson Blair, saying “This is not their [the Times‘] first rogue reporter.”
The Marcellus Shale Coalition (whose members have a financial stake in fracking the Marcellus shale) spent a total of $1.8 million on its PR initiatives in 2009, while the Independent Petroleum Association of America (IPAA) has an $8 million budget, according to the Pittsburgh Tribune-Review. One of IPAA’s initiatives is Energy in Depth, a web site devoted to debunking the documentaryGasland.
Now, the American Petroleum Institute (API) is poised to spend $20 million on an “advocacy campaign”. We don’t know for sure, but given the industry’s difficulties in defending fracking over recent months, we bet this money will go towards a campaign that will continue to spin fracking as a safe means of achieving prosperity and energy security.
How does the industry keep contamination under wraps? It pays settlement fees to families whose water has been contaminated by shale gas drilling — fees that hinge on the landowner signing a confidentiality agreement to keep details about the case from government agencies, the media and the public.
As highlighted in a recent New York Times article, the industry pays to keep details of the public safety problems associated with gas drilling hidden from government agencies that could do something to regulate it. This has been happening for decades, and it allows the industry to continue using one of its most disingenuous talking points: that there have been no documented cases of contamination from gas drilling.
In May, New York Attorney General Eric T. Schneiderman sued federal agencies to provide a full environmental review of fracking in the Delaware River Basin since it could affect the drinking water of nine million New Yorkers.
API, IPAA and the US Oil & Gas Association intervened in the case, arguing that its members would be adversely affected. But two of the 10 federal agencies sued by Schneiderman have actually supported further review of fracking — the National Park Service and the U.S. Fish and Wildlife Service.
Recently, Wellsburg, West Virginia rescinded a ban on shale gas drilling. It appears that one reason for this might be that Chesapeake Energy recently rescinded its funding for the community’s school music program in direct response to the ban. $30,000 might not seem like a lot, but for a struggling rural school system, it certainly is no small potatoes.
A more straightforward example of how the industry buys influence beyond Washington is in New York State, where the oil and gas industry spent $1,204,567 lobbying against fracking moratorium bills in 2010, outspending groups supporting the bills 4 to 1.
Spending big money to influence policy in New York paid off for the industry. The New York Department of Environmental Conservation released a report early last month suggesting that 85 percent of the Marcellus Shale be opened up to fracking, and Governor Andrew Cuomo appears to be on board.
The industry hires academic shills who prepare reports that shine a rosy light on the industry — while glossing over serious concerns. In June, an MIT report titled, “The Future of Natural Gas” was funded by the oil and gas industry. As they write on their site:
In FY 2010, MIT’s industry-sponsored research totaled $111 million. More than 800 firms now work with MIT, both in Institute-wide programs such as the Industrial Liaison Program and the MIT Energy Initiative and in smaller collaborations… More than 180 companies partner with the program to improve their access to MIT and advance their research agendas [emphasis added].
Penn State also recently released a pro-fracking report funded by the Marcellus Shale Coalition. Media Matters for America recently took the New York Post to task for citing the report in an editorial supporting fracking, without mentioning the industry group that actually paid for it.
This happens all too often, and is a way for the industry to launder credibility for its position through third-party academic institutions.
At a June hearing in Washington, Pennsylvania, numerous landowners who had leased their land to gas drillers appeared at a hearing to talk about the benefits of fracking. But it’s what got them there that’s the interesting story: they were offered Pirates tickets, in addition to hotel rooms and travel expenses. That was one way the industry assured that the spaces at the hearing would be filled with pro-drilling voices.
It’s not much better in Washington, D.C. At the July 13 meeting of the Natural Gas Subcommittee of the Secretary of Energy, Advisory Board Safety on Shale Gas Development, the industry overwhelmed the proceedings (click here to see testimony.)
In a new phase of the decades-long feud over the degradation of the Great Lakes, Michigan has sued Illinois again, this time over Michigan’s worries about “the threatened invasion of the Great Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Reclamation District of Greater Chicago] District, and the [U.S. Army] Corps [of Engineers].” As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to allow it.
A fact sheet describing the background of the new fish controversy is here. A news release from the Michigan attorney general’s office is here. The text of a motion for a preliminary injunction is here. The lawsuit itself — technically, a motion to reopen a 1967 Supreme Court decree (amended in 1980) and to issue a new ruling on the fish migration question – can be found here. A 142-page appendix is here.
Michigan is one of several upper Midwest states that have returned to the Court several times to challenge the state of Illinois’ and Chicago’s dealings with sewage problems in waterways in and around the city. Michigan’s lawsuit in 1922 was designated No. 2 Original. It has kept that number through reopenings in later years. Whether it retains that number with its new challenge has not yet been determined by the Court. (The Court has a new numbering system now for Original cases, with the numbers running serially rather than by Term.)
Beginning with the construction in the 1890s of a diversion canal, designed to keep Chicago’s sewage from flowing into Lake Michigan and contaminating the city’s water supply, the controversy over water flows in the upper Midwest has led to decrees by the Supreme Court in 1930, 1933, 1956, 1967 and 1980. Illinois’ neighbors have complained that the diversion efforts have reduced their own water supplies, and have led to pollution of their waterways.
After the Court restricted the amounts of diverted water, it has allowed Illinois’ neighboring states to return if they had new or additional complaints. Michigan is relying upon that continuing jurisdiction as a basis for its new lawsuit. That is why its case is styled a plea for reopening an existing decree, with supplemental relief focused entirely on creating temporary and longer-term barriers to the migration of Asian carp species into Lake Michigan through connecting waterways.
The state’s basic new plea is that the Court declare Illinois and its partners in the diversion project to be creating a “public nuisance” by raising the risk that bighead and silver carp will make their way into the Great Lakes. The state wants a permanent Court order requiring Illinois, Chicago’s sanitary district, and the Corps of Engineers to modify control facilities to ensure that the carp do not migrate into Lake Michigan, in particular.
Michigan’s lawsuit notes that federal wildlife officials have concluded that Asian carp, imported in the 1960s to control plant growth in fish farms along the Mississippi River, reproduce rapidly and have huge appetites that consume aquatic food that would normally be eaten by local species of fish. They thus pose a significant risk, according to Michigan, to its fishing industry and to sport fishing.
Under the Court’s Rules, Illinois, the Chicago sanitary district, and the Corps of Engineers have 60 days to file opposition to the new challenge.
Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? and David Post explains why the answer must be yes. Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:
Nice bokeh. Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service.” Raising the odd but critical question: who assigned the copyright to the News Service? Slater? Maybe, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.
That leaves the monkey.
The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions about the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). Post’s friend and colleague Annemarie Bridy recently completed a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).
Chest bump to the Tenth Circuit, chest bump to the 2001 roadless rule. The biggest remaining swath of unprotected wild America is now, finally, protected.
The appeals court reinstated the rule, which blocks logging and road construction on 49 million acres of public forests. In a mammoth 120 page opinion, the court overturned a Wyoming federal court’s decision in 2008 that the rule illegally usurped congressional power to designate wilderness.The decision resolves a federal court split, but raises questions about Colorado’s proposed state-specific approach to managing national forests.
Clinton famously passed the rule in final hours of his administration, and the Bush administration spent eight years trying to unpass it. Hundreds of communities around the country get their water from roadless areas. Roadless forests are a source of clean water. They are often where our imperiled wildlife clings for survival. And, they are where millions of people go to recreate and experience wild country.
Colorado officials, you can be sure, are reviewing the decision carefully. Nothing in the decision appears to prohibit state-specific rules for protecting national forests. And Colorado natural resources officials have developed their own, nuanced, tiered-protection plan for protecting 4.2 million acres of roadless national forest in the state.
It would protect only about 13 percent of the 4.4 million acres of national forest in Colorado protected by the national rule. The Colorado proposal would make exceptions for mining, logging and ski-area expansion.
Today’s federal appeals court decision “does not preclude further litigation, which could continue to create uncertainty,” King said.
State officials, he said, will keep working to finalize the state-specific rule.
If the Tenth Circuit Court of Appeals had backed the 2008 Wyoming federal court’s ruling, federal land managers’ power to prevent logging and road-building would have been limited.
Attorneys for Wyoming and Colorado Mining Association argued that the Forest Service was trying to create de facto wilderness areas. The Wyoming court agreed with them, saying the roadless rule violated the 1964 Wilderness Act that requires congressional actions to create wilderness.
But the federal appeals judges reversed that, finding that the Wyoming court abused judicial discretion.
Colorado Mining Association President Stuart Sanderson said the industry is “disappointed with the ruling” and is “carefully evaluating next steps.” The decision “does not reflect a practical understanding of the impact that the Clinton Rule will have upon mining jobs in Colorado and the United States,” Sanderson said.
Practically speaking, without the roadless rule, protection of these national forests would be left to a patchwork management system that in the past resulted in millions of acres lost to logging, drilling and other industrial development. When Clinton officials in 2001 issued the Roadless Area Conservation Rule, it was designed to protect nearly 60 million acres, or about a third of the undeveloped U.S. Forest Service lands.
Bush administration officials in 2005 tried to replace that rule with a state-based approach to managing forests.
In 2009, the Ninth Circuit Court of Appeals in California upheld a lower court decision to reinstate the roadless rule for the majority of roadless areas. Obama administration officials then expressed support for a national rule and asked the Tenth Circuit Court of Appeals to uphold the national rule.
On Friday, the First Circuit upheld the $1.5 million damages award in Carlos Osorio table saw case. Osorio, a carpenter untrained in the table saw, lost his hand to a Ryobi table saw after removing all of the saw’s safety features. The decision was made because Ryobi had neglected to incorporate flesh-sensing brake technology into the saw. In light of the ruling, the Consumer Product Safety Commission voted to propose a tablesaw safety standard that would mandate that saws all sense fingers and retract their blades instantly.
Problem is, only one man has flesh-sensing brake technology. His patent is so broadly worded that no one else has been able to develop a comparable technology, and his licensing terms have made it impossible for competitors to adopt his invention without pricing their saws out of the market,. The implications of this ruling for the industry are massive.
In 2004, SawStop’s first cabinet saw hit the market, it offered an amazing and unprecedented safety feature: a blade that instantly senses contact with flesh and snaps out of sight before any real damage can be done. The inventor, Dr. Steve Gass, had tamed carpentry’s most dangerous tool, an amazing feat in itself. On top of that, unlike thousands of other inventors, Gass actually brought his product to market–himself. Since then, Gass has introduced smaller models of the saw, and sold over 28,000 machines in all.
Osorio suffered a hand injury while he operated a Ryobi Model BTS 15 benchtop table saw (BTS 15). Osorio sued Ryobi, the manufacturer, claiming negligence and breach of the implied warranty of merchantability. At trial, Osorio argued that the BTS 15 was unacceptably dangerous due to defective design. The jury found for Osorio, and Ryobi appealed.
Among its appellate claims, Ryobi argued that Osorio did not present sufficient evidence to prove a design defect. Ryobi argued that Osorio failed to meet a prima facie obligation to present a reasonable alternative design that accounted for the weight, cost, and other features particular to the BTS 15.
Osorio’s defective design theory largely relied on the testimony of his expert witness, Dr. Gass himself. Dr. Gass testified that he had offered to license SawStop’s flesh-detection technology to Ryobi, but the company was not interested. Osorio offered a second expert, Robert Holt, to support Dr. Gass’ testimony. Holt accepted Dr. Gass’ claim that SawStop Technology would add about $150 to the price of the table saw. (For saw-pricing context, Osorio’s employer purchased the BTS 15 for $179.)
Ryobi insisted that Osorio’s design, with SawStop, falls short of being a viable alternative.
The First Circuit disagreed with Ryobi, finding that neither the added cost nor the increased weight of Osorio’s proposed alternative design were fatal to his case as a matter of law. Ultimately, the First Circuit determined that it was the jury’s job to determine whether the relevant factors suggest defective design.
It is surprising that Ryobi appealed on the sufficiency of Osorio’s defective design evidence, but didn’t challenge Dr. Gass’ expert classification. While jurors determine how much weight to afford to testimony, it seems unusual that a court would permit expert classification for someone who clearly has a stake in the outcome of the case.
A Norfolk U.S. District Court reverses a criminal conviction for “unauthorized removal” of personal property, for a woman who cut a length of rope from a beached fishing vessel at Chincoteague National Wildlife Refuge, and took a life preserver from the boat, the Freda Marie, that was floating nearby.
Tait v. U.S. (VLW 011-3-037) (31 pp.)
Does a particular green policy create more jobs than it destroys?
A policy is green if it lowers our use of resources and/or environmental impact. If a green policy is also a net creator of jobs, everyone should agree that it is a good policy. It should be implemented. End of story. Green policies which destroy jobs, on the other hand, will require further analysis as to whether the environmental and health benefits outweigh the economic losses. That’s a question which requires putting relative value on various benefits, and cannot be resolved purely by economic reasoning. But the first point bears repeating: if a green policy is also net job creator, everyone should agree that it is a good policy and should be implemented. Identifying those policies is simple.
Which Policies are Net Job Creators?
There are two ways a policy can increase or decrease economic activity and hence number of jobs.
Substituting Labor for Energy or Capital
Image Source: Wikipedia
A basic tenet of microeconomics is that there is a tradeoff between capital, labor and natural resources such as energy in the production function. In particular, you can substitute capital for labor (by mechanization) or labor for capital (by using shovels and picks instead of bulldozers.) Now add energy into the mix: you can substitute fossil energy for either capital or labor to attain the same production.
For example, a hybrid car. It substitutes capital and resources (in the form of an electric motor and batteries) for energy (less fuel consumed to do the same work.) A bus substitutes labor (the bus driver) for capital, resources and energy (lots of cars and fuel consumed.) A green building substitutes labor (better architecture/construction) and some resources (extra insulation) for energy.
From this perspective, any policy that promotes the substitution of labor for energy will create green jobs, since you get more work and less energy consumed. Shifting people out of their cars and onto mass transit will create jobs because there will have to be drivers and people managing the transit system, where before no one was paid to drive. To the extent that the transit system can be paid for out of the reduced fuel costs and car ownership costs of the former drivers turned riders, the number of jobs created will be a pure economic gain.
Which brings us to the other major potential source of jobs from green policies: economic multiplier effects.
To the extent that green policies improve economic efficiency by overcoming the barriers to cost effective green solutions, these policies will result in greater economic activity, and hence more jobs. The strongest critique of “green jobs” initiatives is that they simply shift economic activity from out-of-favor “brown” sectors to more politically correct green ones. Yet when a policy improves economic efficiency, it does not just shift jobs and capital around in the economy: it creates economic activity and jobs.
Not all green policies improve economic efficiency. For example, subsidies for not-yet-economic types of renewable energy like wave power and solar installations may be justifiable on the grounds that they are helping to promote needed future technologies, but they probably come at a net cost to near-term jobs (even if they may create more jobs in the long term by allowing the creation of new types of businesses.)
On the other hand, policies to promote energy efficiency will be strong net creators of jobs, because the cost of energy efficiency is typically only a fraction of the cost of the energy saved. The very existence of opportunities to save significantly on energy bills at modest cost is proof that the energy market is inefficient. In an efficient market, all such opportunities would have already been taken.
After the energy efficiency measure has been installed, the cost savings can be used for useful economic activity, rather than wasted on unneeded fuel. This money will then spur additional activity and stimulate jobs.
Using Fossil Resources to Stimulate Growth is Like Stimulating Growth With Debt
Short term jobs (green or otherwise) should not be the only consideration when forming policy. A short term focus on jobs today can end up doing long term economic harm. For instance, if we spend too much borrowed money to create jobs today, the long term drag on the economy caused by paying back the debt will leave everyone worse off.
Economic growth fueled by the extraction of non-renewable resources — natural gas, oil, coal — is no different from economic growth fueled by debt. When we extract these resources and use them, we increase economic activity today, but their non-renewable nature means that we lose the opportunity to extract and use them tomorrow. Hence, the economic stimulus today comes at the cost of a recession tomorrow, and the future recession will generally be larger than today’s stimulus, since improving technology should allow us to get more benefit from each unit of resource in the future.
Using renewable resources to stimulate growth does not have this problem: Tapping the wind or the sun for energy today does nothing to diminish the wind or sun tomorrow. Hence, to the extent a green job relies on renewable resources and a brown job relies on fossil resources, the green job should be preferred every time, even before taking the environmental benefits into account.
If we only consider job creation, the focus on policy should be on creating jobs and economic activity, with a preference for green jobs, since those impose less of a cost on future economic activity than jobs based on extractive industries.
Green jobs can be created either by substituting labor for energy and capital, or by reducing energy waste so that the money previously wasted on energy can be put to more productive uses. For policy makers who wish to create green jobs, the implications are clear.
Green job programs should focus on two types of opportunities:
The converse is also true: if the goal is to create jobs and stimulate economic activity, subsidies and other policies which encourage the substitution of capital and energy for labor should be ended, especially those subsidies which encourage the extraction of non-renewable resources which only create jobs today at the cost of future jobs.
The most cost effective policies for creating jobs will be those that break down the barriers to the adoption of cost-effective green technologies, especially energy efficiency. Ironically, most energy subsidies have gone into capital intensive sectors such as nuclear and extractive sectors such as oil and gas.
A very cost effective way to produce jobs would then simply be to remove subsidies from fossil fuels and nuclear energy and redirect them towards the most cost effective clean technologies.
Increased support for and promotion of public transit could do much more to reduce our dependence on imported oil than support for domestic natural gas drilling (which will only make us more dependent on imported oil in the future by using up domestic resources sooner) while also creating jobs.
Meanwhile, energy efficiency programs such as cash for caulkers can cost-effectively reduce energy bills and free up money for other sorts of consumption while also creating jobs in the depressed housing sector.
Musicians! Check out this survey from the Future of Music Coalition. The study tracks artist revenue streams in the post-Napster era, and captures the ways in which US musicians generate income from songs, recordings, or performances.
Obviously, this is not your grandpa’s music industry. The past ten years transformed the ways in which music created and distributed. The advent of streaming services and webcasting stations eliminated the cost barriers to the distribution and sale of music, and loads of new platforms and technologies — from Bandcamp to blogs to Twitter feeds — now help musicians connect with fans.
The press is quick to categorize these structural changes as positive improvements for musicians, particularly when compared with the music industry of the past — remember FM radio? While it’s true that these changes improved musicians’ access to the marketplace, they have not necessarily improved musicians ability to generate revenue from their work. Almost all analyses of the effects of these changes rest purely on assumptions that they have improved musicians’ bottom lines, or on top-level assessments of the music industry writ large, based on traditional metrics: number of albums sold, number of spins on radio, even stock price valuations.
The results provide some insight into complex nature of being a musician in the 21st century, particularly the financial realities of copyrights, licensing, and royalties.