The Spontaneous Huddle

The legal tabloid blog Above the Law posed the question on Friday whether a video posted on YouTube of a group of young men playing on a beach and lipsyncing to Miley Cyrus’s song “Party in the USA” was a fair use.

As a reminder, fair use is a copyright doctrine by which someone who has infringed a copyright can avoid liability.  The doctrine began as common law, but was codified by Congress in 17 U.S.C. § 107.  As codified, the doctrine consists of four factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or the value of the copyrighted work.  If a court (or jury) finds that the factors balance in favor of the user of the copyrighted work, the use is not considered an infringement.

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Joshua L. Simmons Main Intellectual Property, Media

Obama’s speech at ASU made the perfect statement about the controversy surrounding this honorary degree crap. He noted that we should not become complacent with our previous achievements, but instead keep pushing to work harder in your life.

Most importantly, Obama stressed the importance of thankless work that often goes underappreciated. A label such as an honorary degree is an example of something that should not be valued as much as the spirit and drive of a person truly making an effort to improve our world.

Watch his speech here. It was fantastic.

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Shayna Skelley Main Education, Government

In this post I address Braden Cox’s argument that the EU missed the boat in its fining Intel today, because it didn’t focus a sufficient amount of attention on consumer welfare, choosing instead to look at the competition between Intel and AMD. What Mr. Cox fails to realize is that, even in the United States, our antitrust laws do not focus on whether consumers are better off when compared to where they were before the competition began. Instead, we focus on market power and anticompetitive conduct, because even if consumers are better off, there is no way to know if we could have been benefited even more had there been no anticompetitive behavior.

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Joshua L. Simmons Main Litigation, Media, Technology

In case you haven’t heard, Obama’s giving the commencement speech at ASU TODAY… in the 101 degree heat… and he’s NOT getting an honorary degree.

What’s up with that? There was a great vignette on the Daily Show about it. It also does a great job making fun of our undergrads. I agree that not every commencement speaker should be given a degree, but ASU has been so patchy about this in the past that it only makes us look ungrateful. Well, I suppose that reflects ASU’s high level of selectivity in their admission process….oh wait. (Except for our graduate programs, which are highly acclaimed, despite the pathetic undergraduate record)

p.s. I have a ticket to commencement! I’ll be sure to post photos. They’ll probably be of the crowd of literally tens of thousands of people filling the stadium. I hope I don’t melt.

Shayna Skelley Main Education

Back in February, I mentioned that before Russia physically invaded Georgia, they launched Internet-based attacks against the Georgian infrastructure. Well, it seems that I wasn’t the only one paying attention. Various United States military organizations—including the Navy, Air Force, Coast Guard, Merchant Marines, the Naval Postgraduate Academy, the Air Force Institute of Technology, and the National Security Agency—are training their members in cyber warfare.

After the jump, see more of the New York Times’ coverage.

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Joshua L. Simmons Main Cyber Warfare, New York Times

Britannia, rule the waves: Britons never will be slaves.

I don’t know what it is about British television, but I adore it. Perhaps it’s that the news is balanced and takes a world view. Perhaps it’s that the entertainment programs are less about being sensationalist and more about entertaining people. Or perhaps it’s just that the shows are smarter. Like they say in “Shakespeare in Love,” “I don’t know; it’s a mystery.” (Of course, they were talking about theatre).

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Joshua L. Simmons Main Media, News Organizations

A few days ago, David Post wrote about how the controversy surrounding the Google Books settlement could be heating up soon. I agree with him that as we near the fairness hearing (although it was moved back to October), things will get interesting, but I think he misses a crucial point.

Post’s post was responding to complaints by copyright holders about the unfairness of the settlement. His response focused on how amazing Google Books would be and the fundamental reasoning for having copyright and how, if it is no longer making “society better off,” it shouldn’t be upheld in this situation.

Post ignores the fact that the settlement was an agreement. The copyright holders could have taken the case to trial instead of settling, but they didn’t do that because they knew that a determination that what Google had done was fair use would have been disastrous for the future of book publishing (and at least the economic incentives for authorship). True not all copyright holders were part of the discussion, but class counsel was, and they had copyright holders in mind in reaching the agreement. It seems odd under these circumstances for commenters (read: IP lawyers) to argue that their clients aren’t going to get a fair shake, and somehow we should punish Google beyond the payments Google is making in the settlement.

At the end of the day, I agree with much of what Post says, but I think far too often we miss the forest for the trees. Google isn’t getting away for free, and copyright holders might see avenues of economic return that were impossible before the settlement was reached.

Joshua L. Simmons Main Intellectual Property, Internet, Litigation

What is wrong with CNN? Everyone is trying to calm the American public’s worries about this Swine Flu Epidemic, and what does CNN do? They throw gas on the fire. Today they announced the “first U.S. death” associated with the outbreak. However, they don’t know anything about the child other than his or her age (they didn’t even know the gender) and that s/he came from Mexico. Well let me ask you something, CNN. If the child came from Mexico and was being treated in the United States, is that really a U.S. death? The fact that we haven’t had any deaths is not really because America is super rad and the flu knows to stay on the other side of the border. We have medicine here, and a higher standard of living. Americans are more likely to withstand a flu epidemic than Mexico just generally. The fact that this was a young child made it even less likely that even getting proper medical care it was going to survive.

I grieve for this child’s family and all the families who have been affected by this major health crisis, but making people paranoid and ratcheting up the panic level is not going to help anyone. Obviously, this is what CNN and any other news organization that cares about advertising dollars does, but that is a discussion for another time. For the moment, calm the heck down.

Joshua L. Simmons Main Health, News Organizations

I found this t-shirt while prepping to give a lecture on Autism Spectrum disorders… Is this an attempt at Asperger’s awareness or an excuse for bad behavior? Students in my class thought it might explain the reasons why more parents want their odd child to be diagnosed…

Shayna Skelley Main

Drawing's more fun than Xanax.

Like most people, I’ve always had at least one regular hobby. It didn’t really matter what it was, but it usually ended up being some creative outlet, like ice skating, drawing, singing, or dancing. I would spend my free time enjoying that hobby whenever I wasn’t doing other, more important things.

Since beginning graduate school, though, I haven’t felt like I had the luxury to continue my hobbies. For most grad students, there’s an end goal in sight in all your work. Everything you’re doing is propelling you closer and closer to being the successful professional you’ve dreamed of. Why would we want to waste time drawing a picture or going to take a dance class?

As I’ve discovered, I can’t deal with the stress of my program without my hobbies. For a while, I thought I was just being weak, and that if I worked harder, longer days I would get used to it. While I’m sure (I know, in fact) that some people have unlimited energy and work ethic, I personally can’t keep going at such an intense pace. At least not without breaks to enjoy myself in other, less intellectual ways.

We often forget about the health benefits of the arts, although art therapy is a widely-used strategy in mental health settings. At a 2003 seminar of the Institute for Public Policy Research, Mike White discussed the importance of the arts. He noted some important related findings:

An arts in health questionnaire survey carried out by the Health Education Authority
in 1998 produced 90 responses from arts organisations, an ‘overwhelming’ number of
which identified improvement of mental health. There was observational evidence of
participants achieving stress reduction (53% of projects), therapeutic benefit (57%),
improved sociability (59%), and skills development (70%).

~From White, Mike (2003). ARTS IN MENTAL HEALTH FOR SOCIAL INCLUSION– A Discussion Paper. Mental Health and the Arts IPPR Seminar, London.

After some deep thought about my own mental health, I have realized that I won’t become an effective Psychologist without taking care of myself first. While at first it seemed trivial, I bought a sketchbook and some colored pencils, and started to spend time in the evenings drawing. I’m going to yoga or the gym a couple times a week too. Nothing too crazy, but it’s making all the difference. In the end, it makes my hours devoted to work more efficient and reminds me that there’s more to life than schoolwork.

For most students and young professionals with so many responsibilities weighing us down, it’s difficult to remember to prioritize our own well-being, but vital to our success in life. Ultimately, we can either be exhausted and too stressed to function effectively in our careers, or instead sacrifice a few hours a week to partake in some creative outlet. The latter option will make us physically and mentally healthier and more content overall.

If you, like me, are getting sucked into the American workaholic frenzy, I suggest you give some hobbies a try. They might improve more than just your drawing skills.

Shayna Skelley Main Career Development, Employment, Mental Health

If you make the decision to tough life out as a working writer, it’s pretty much a given that at some point or other, you’ll have to supplement your income. And that means part-time jobs, thankless jobs, mindless jobs, labor-intensive jobs. But you take your lumps, because hey, it’s all just fodder for your future novel/memoir.

Yours truly has worked her fair share of side gigs–waitress, office assistant, PR rep, lab study participant, etc.–for the sake of some extra income. And I’m planning to dive into the exciting world of food service again, very soon.

But apparently–and I’m totally stoked about this–there’s a universe out there where professional writers don’t have to do any jobs but writing. They’ve never had to lift a finger in their lives to do anything more strenuous than clack away on their laptops.

And if they do, well–well gosh, it’s just quaint, isn’t it?

Take it from this New York Times piece by Caitlin Kelly, a freelance writer who decided to pick up a part-time job (part-time as in once a freakin’ week) working as a salesperson at a clothing boutique–for funsies!

Sometimes I feel like Alice slipping through the looking glass, toggling between worlds. In one world, I interview C.E.O.’s, write articles for national publications and promote my nonfiction book. In the other, I clock in, sweep floors, endlessly fold sweaters and sort rows of jackets into size order. . .

The contrasts between my former full-time job and my current part-time one have been striking. I slip from a life of shared intellectual references and friends with Ivy graduate degrees into a land of workers who are often invisible and deemed low-status.

Congratulations, Caitlin. You just discovered that there are other people in the universe! People who aren’t journalists. And have crazy things like diversity and no college degrees. OMG! Read more…

Jenna Scherer Main Boston Globe, Employment, Journalism, New York Times, Second Job, Writing

Previous live blogs from the event:  Part 1; Part 2; and Part 3.  Please remember that these are not transcriptions, and therefore should not be relied on or ascribed to those whose statements they are based on.

4:00 pm The Public Interest
Moderator: Mary Rasenberger, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP
Panelists: Jeffrey Cunard, Managing Partner, Washington, D.C. office, Debevoise & Plimpton LLP;
Robert Darnton, Carl H. Pforzheimer University Professor and Director of the Harvard University Library;
James Grimmelmann, Professor, New York Law School;
Alexander Macgillivray, Associate General Counsel for Products and Intellectual Property, Google Inc.;
Carol A. Mandel, Dean, Division of Libraries, New York University

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Joshua L. Simmons Google Books, Main Intellectual Property, Internet, Litigation