A federal district judge in Colorado has ruled that the company "Clean Flicks" violated the copyright laws by making and renting "family-friendly" versions of movies with sex, profanity, and violence edited out. (Clear Flicks v. Soderbergh, 2006 WL 1876624 -- can't find it online yet.) The decision is probably right as a matter of copyright law, although the question seems to me somewhat closer than the judge allowed under the statute's fair-use defense (section 107). The judge placed heavy emphasis on the fact that Clean Flicks did not add any of its own commentary to the movie -- what courts refer to as "transformational use" -- the way, for example, someone doing a review makes comments after showing a movie clip or quoting a book passage. As I've argued here, a general problem with making the addition of commentary such a decisive factor is that it excludes from the fair-use defense an activity such as education -- say, the reproduction of part of a text simply to study it -- that has long been thought to be a quintessential fair use. The judge also found irrelevant any argument that Clean Flicks might not cost the movie producers much economic loss (and might even give them a net gain) since the producers weren't exploiting the market for sanitized versions of their works as it was. The judge's argument on this score continues a trend of giving copyright holders more and more control over markets for their works even if they can't show economic harm -- a trend that I think is in tension with basic premises of copyright law.
Nevertheless, what Clean Flicks did was probably not a fair use, because the copying of virtually an entire work for commercial use is strongly presumed unfair; because there might have been various kinds of economic loss and reputational harm; and because Congress in 2005 created a specific exemption that allows software helping private viewers to filter objectionable content from an original DVD, but refused to extend the exemption to cover making copies of an altered, sanitized form.
Those are some of the legal issues. A movie critic at Christianity Today considers the moral issues and also criticizes what Clean Flicks did:
I'd never consider showing my sons "sanitized" versions of [many] films. If you remove the violence and bloodiness of The Passion, what's the point of watching it? The scourging and crucifixion were the very definition of "graphic violence," so why pretend it was anything less?
Moreover, even if parents rent the mature movie and fast forward through the objectionable stuff, there are still differences between that and "having a company do that editing for you" (in other words, the line that Congress drew makes some moral sense):
First is this: I know my sons, and they don't. My wife and I want to be the ones deciding what they can, and can't, watch. If we decide they're ready for exploding heads but not to hear the Lord's name in vain (or vice versa), that's our call, and nobody else's.
Also, if an outside company edits that stuff out, it robs us of a potential "teaching moment." After a couple of years [of watching Raiders of the Lost Ark], we decided to let our boys [h]ear Marion use God's name in vain. And at that moment, I hit "pause" and we talked: "Did you hear what Marion said? How did that make you feel? Did that make the movie any better? Why or why not? Do you ever hear other kids say that at school? What's wrong with saying those words? What does God say about it?" And so forth. It made for a great time of teaching and discussion—arguably more powerful than simply sitting down and reading them the Third Commandment.
I can't imagine having such a teaching moment with an edited version of Raiders of the Lost Ark: "Hey guys, at this point in the original version, Marion uses God's name in vain. If you heard her say that, how would that have made you feel?" Uhh, it just doesn't work nearly as effectively.
A few weeks ago, David Dow -- a law professor who is expert on death-penalty matters -- had a provocative opinion piece in the New York Times, "The End of Innocence," in which he suggested, among other things, that "innocence is a distraction" in the capital-punishment debate:
For too many years now, though, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America.
Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.
Focusing on innocence forces abolitionists into silence when a cause célèbre turns out to be guilty. When the DNA testing ordered by Gov. Mark Warner of Virginia proved that Mr. Coleman was a murderer, and a good liar besides, abolitionists wrung their hands about how to respond. They seemed sorry that he had been guilty after all.
I, too, am a death penalty opponent, but I was happy to learn that Mr. Coleman was a murderer. I was happy that the prosecutors would not have to live with the guilt of knowing that they sent an innocent man to death row. . . .
As Justice Scalia has said elsewhere, of course we are going to execute innocent people if we have the death penalty. The criminal justice system is made up of human beings, and fallible beings make mistakes.
But perhaps that is a price society is willing to pay. If the death penalty is worth having, it might still be worth having, despite the occasional loss of innocent life. . .
[We] ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.
Dow makes a good point, I think. (I would probably not characterize the "machinery of death" in America as "lawless"; but, certainly, even putting aside moral objections to capital punishment, it is badly flawed.) To be sure, any decent people will and must care about the accuracy of the results of its criminal-justice process. At the same time, a decent people will and must accept the possibility -- indeed, the reality -- of error even in the context of a criminal-justice process that is morally justifiable. It seems to me that the heart of the matter is whether it is wrong for the political authority to kill a human being, lawfully convicted of murder, as punishment for that matter. And, as I have argued elsewhere --
[W]hat the public square needs from engaged Christians is a counter-cultural argument about the dignity and destiny of the human person. Such an argument could help our fellow citizens reach the right conclusion about what to do with convicted murderers not so much by dusting the usual arguments with God-talk as by challenging our culture to understand who and what these condemned persons are, and why it should make a difference.
Anthony Sacramone resists the call to embrace the great outdoors and simple, country living:
Christians are again becoming suckers for this type of plea. All right, it’s not the apogee of spirituality to log on and buy the latest iteration of an iPod or an iMac or an eyesore of a Hummer. And yes, it’s probably wise to limit your daily consumption of pesticides to roughly half your bodyweight. I’ll grant you that kids are probably spending ’way too much time wide-eyed in front of the flat panel ogling yet another edition of Grand Theft Auto or the director’s cut of Girls Gone Wild 13—Logical Positivists Stripped Bare. It also couldn’t hurt to be able to distinguish between one type of tree and another type of tree, if just to make a more detailed report for the police when you drive into one while talking on your cell.
But surely the Scriptures teach that the New Jerusalem will be a city—not a town, a village, or a set of mud huts. And, meanwhile, the City of Man is not Hicksville. It’s the Big Apple, where a “piebald Parliament, an Anarchasis Cloots congress of all kinds of that multiform pilgrim species, man” (to quote Melville) congregates, to buy and sell, to breed and forego breeding, to invent a new mouse trap and spit in the street. The city is where natural law, lawlessness, and the Sword of the Spirit do battle on their Broadways; where multiple cultures jostle for breathing room in the same cathedrals; and where cultural barbarities do us all the favor of advertising the Fall without our having to read about all those “begats” once again.
This may not enter the pantheon of new urbanist thought, but it is quite funny. Read the rest here.
Rob
UPDATE: For a different (but not necessarily conflicting) view, you may want to check out this interview with neo-agrarian David Goetz and a review of his new book, Death By Suburb:
Because suburban life so privileges the self—its instant gratification, its desire for greener pastures always over the next fence, its search for ease and comfort—the Christian life aimed at crucifying the old man of sin is handicapped, perhaps fatally. Goetz recognizes that the principle of self-love at work in suburbia manipulates Christian desires and offers the illusion of spirituality and religion as just one more product to be acquired.
Stuart Buck explores the relationship between teaching and scholarship:
You occasionally come across the argument that academia rewards scholarship too much, to the possible detriment of students. That is, academia fails to reward good teaching to the extent that it rewards brilliant scholarship. The response is usually something like this: Scholarship and teaching are not at odds with each other. Instead, if professors are deeply involved in producing the most current scholarship, they will be all the better at teaching their students. . . .
I suspect that the more important relationship between teaching and scholarship is the other way around. That is, what's really going on is that the act of preparing for and teaching a class improves a professor's ability to produce thoughtful scholarship.
To a certain extent, I agree with Buck. (Larry Solum responds to Buck here.) Producing a high-quality article on causation requirements in mass toxic exposure cases will tend to enhance noticeably only my teaching of that particular topic in the Torts course, but teaching the entire Torts course will give me the necessary background to understand mass toxic exposure cases in light of the function and purposes of Tort law in general.
However, for those of us engaged in the scholarly exploration of Catholic legal theory, the dynamic may be different. Most of us don't even teach a course on Catholic social thought (much less Catholic legal theory), so there would seem to be a complete disconnect between our scholarship and teaching on this front. But the Catholic legal theory project, as I understand it, is devoted to articulating a just vision of modern society in light of the authentic nature of the human person. This impacts every course in the law school curriculum. So while I do not devote a particular class session of Torts to the topic of subsidiarity, my work on subsidiarity informs my understanding of a just society, which will come across in my teaching of Torts. (E.g., charitable immunity, parental liability, principles of agency, etc.) And it's a two-way street: if my work on subsidiarity is based only on papal encyclicals, it will lack the breadth and depth made possible by integrating my knowledge of the legal order acquired through teaching a foundational course like Torts.
So given our focus on the ultimate questions of existence (and law), perhaps the Catholic legal theorists can embody an ideal symbiosis between teaching and scholarship?
In May, William Galston spoke at a Pew Forum on Religion, Moral Values, and the Democratic Party (Hat Tip: MOJ friend Bob Cochran). Among the many things Galston said was this: "there was a significant swing among traditionalist Catholics - 17 points toward Bush - and there was also a large increase in their turnout - 12 percent. In my judgment - and I'm going to come back to this in the penultimate section of my remarks - the real story of the 2004 election was much more about Catholics than it was about Protestants. And I think the real story of American politics in the next 10 years will be written as much around the behavior of Catholics, persuadable Catholics, as it is around the mobilization of traditionalist evangelical Protestants." Galston also discussed the campaign of Virginia governor Kaine as an example of the way Democrats can woo back Catholic voters.
Yale law prof Stephen Carter opines on student free speech rights and government efforts to "draw fine distinctions between who can bear offense and who cannot."
Justice Kennedy has acted in his capacity as Circuit Justice to stay, pending decision by the Ninth Circuit, a District Court order that the City of San Diego remove a Latin cross from a city-owned veterans' memorial at Mount Soledad. The Ninth Circuit earlier refused to grant a stay pending the appeal, which is due to be heard on an expedited basis in October. Especially interesting in Justice Kennedy's written intervention is the suggestion that, if things don't go as hoped, the Court might now grant cert. in litigation it has shied away from before. A friend reminds me that the California constitutional law at issue in the litigation doesn't favor those who would keep a cross standing on Mt. Soledad.
The point I was trying to make is that the principles of non-violence and human inviolability require us as a community to reject all killing (I would include euthanasia and the death penalty though the topic of my blog entry was abortion) not just to make it less common. Ordinarily, this is done but making killing criminal, although one can imagine unusual situations where this need not be so (e.g. in a community committed to anarchism).
I'm open to proposals other than criminalization, but I'm not sure they work. Germany, for example, has experimented with excluding abortion from public health insurance, as an "unconstitutional act of killing", and even requiring the media not to defame the humanity of the unborn, i.e. leaving abortion in some sense nominally illegal but yet not punished as long as prior pro-life counseling has occurred. But my German relatives tell me that these measures have little effect.
I think I'm making the same point that the 1975 German Constitutional decision made (which was reversed in 1993 in this regard): That even if counseling could prevent more abortions than criminal prohibitions, respect for life applies to each individual life, not to life in the aggregate. That is, one cannot withdraw legal protection from some human beings even if the result (getting women to come in for counseling) saves more lives. One cannot say "Just go in for counseling first and then your abortion will be legal", because that would withdraw respect and protection for unborn children as soon as their mothers have gone through counseling.
It's not just preventing deaths by abortion that's the issue. It's the idea that some people get less respect and protection. For example (though thank goodness this is NOT a proposal by DFLA) suppose that we could prevent ALL abortions by pushing true contraception. It would still be wrong to leave abortion legal, because we would still be saying that some of do not get equal respect and protection. (To reduce abortion by means of contraception is like reducing the number of acts of anti-Mexican racism by sealing our borders. Even if it works, it misses the main point.)
I worry that DFLA might let politicians off the hook as long as they commit themselves effectively to minimizing abortions. I want them to come out effectively AGAINST abortion, which at least means coming out against it as a constitutional right under Roe, before they receive any pro-life votes.
Thanks to Rob for posting the Seventh Circuit decision in Christian Legal Society v. Southern Illinois University. It's a great win for the ability of religious (and other) groups to participate in the public square and government-created fora without giving up their essential beliefs. In addition to recognizing the obvious fact that forcing CLS to accept actively gay members would destroy its ability to express and its maintain its biblical beliefs, the court also correctly rejected SIU's claim that CLS was not burdened because it could meet off campus and was merely being denied benefits as opposed to being forced to associate. The "mere benefits" that CLS was denied included the ability to meet privately in law school classrooms like other groups (CLS would have to let other students walk through the room during the meeting), to use law school bulletin boards, to appear on the school website and in publications, and to call itself the "SIU chapter" of CLS. The rule would effectively drive CLS off campus and out of the eye of SIU students. The Court had rejected the very same defense in Healy v. James (1972) when universities tried to bar Students for a Democratic Society from campuses.
On this and other holdings, the Seventh Circuit ruling disagrees with a recent district court decision concerning CLS and UC-Hastings School of Law (linked to here and on Westlaw at 2006 WL 997217). Hopefully the Seventh Circuit's arguments will affect the Hastings appeal, but if the Hastings decision is affirmed in the Ninth Circuit, that case may be prime for Supreme Court review. (Although the Hastings case involves a final judgment as opposed to a preliminary injunction "likelihood of success" question, the Seventh Circuit's analysis in the SIU case virtually says that CLS should win on the merits.)
Minnesota law prof Dale Carpenter offers interesting commentary on last week's ruling by the New York Court of Appeals on same-sex marriage. In its rational basis review, the court ruled that "the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.” Carpenter explains:
Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, “are all too often casual or temporary.” Homosexual couples do not become parents by “accident or impulse”; they must plan ahead and obtain children through adoption, artificial insemination, or some other “technological marvels.” Unstable relationships among heterosexuals therefore “present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”
Note the irony of this argument. For decades, homosexual life has been medicalized and pathologized by doctors, sexologists, psychiatrists, and politicians. Only 33 years ago, homosexual orientation was still officially a “disorder.” Gays, especially gay men, were denounced as hopelessly promiscuous, unstable, histrionic, and self-absorbed. Above all, this medico-political consensus held, homosexuals were dangerous to children and should be kept away from them. From the outset of the gay-marriage movement, a vocal opposition argued that the supposedly innate instability of homosexual relationships disqualified them from marriage.
Now, in the most important judicial decision yet rejecting a claim for gay marriage, we are told that gay couples may be kept from marriage not because they are unstable, but because heterosexual couples are unstable.
