What’s New with Wu

After (alas) losing my iPhone recently, I got myself a new one and sat down to unlock it.

Phew!  Its not easy any more.  Apple has managed to mess enough with its newer iPhones that unlocking once again requires opening up the phone, which isn’t exactly something for everyone.
It is hard to believe how the image of this company I once worshiped has changed. A few months ago I was in Apple HQ, and they had a 70′ tall banner in the lobby announcing the iPhone - it made the iPhone look like a giant Mao Zedong.
Meanwhile, the new Apple stores just seem scarier every time I go there.  I still like and use Apple’s products, but the company is starting to scare me.

In support of my upcoming piece on Sundance piracy, here’s the films I tried to find — mostly on Pirate’s Bay and MiniNova, but occasionally on YouTorrent.
2007
Manda Bala
Padre Nuestro
Hear and Now
Grace is Gone
Teeth
Once
Two By the River
Chasing Ghosts
Copenhagen Cycles
Austism Every Day

2008
A Complete History of Sexual Failure
Diary of Death
Hamlet 2
Phoebe in Wonderland
Hell Ride
Absurdistan
American Teen
Secrecy
Choke

Saw lots of films this year at Sundance. While I saw a few good films, lots of decent films and a couple stinkers, only one film truly stayed in my head as great. And that was “A Complete History of My Sexual Failures,” the funniest movie I have seen this year bar none.

At Sundance I saw the Donnas perform in very small space, and completely fell for this band and in particular lead singer Brett Anderson.

I may give up this whole teaching gig to become a groupie. In fact for the first time I understand what would make someone into one.

PS If you are reading this and you are Brett Anderson, please email.

So I did alot of writing that I failed to write about here. For the NY Times Bits blog, I did a debate with Rick Cotton at NBC. There was a last segment that for some reason hasn’t posted.
I also wrote another Slate piece on the oddness of AT&T’s filtering plans.

Here’s my Slate piece on the great Harry Potter Lexicon debate.

Slate is a great publication but there’s not always room for a full legal analysis in the relatively short format.  So here are a few additions  to my comments in that piece, mainly meant for lawyers.

First, in my writing I suggest that the right way to think about the Lexicon is not as fair use, but rather as not a derivative work of Potter at all.

I think that’s right for the text of the guide, particularly the description and comment sections.  However, the fan-drawn pictures in the guide are a harder case.

As I say in my copyright class, character copyrights are powerful  and are often what decide cases.  The question is whether the fan-drawn pictures are copies or adaptations of the characters in the book.  The copy question is debatable, but is probably the case that the fan-art is technically an 106(2) adaptation of the characters from text into art.

That being the case, the question is whether the fan-pictures are far use, which is a somewhat lengthy question.  This is one area where there would be a difference between the book and the web-site, if we accept that the book has a more commercial purpose.  On the other hand there does seem something dumb about allowing there to be a guide but then forcing the guide to consist of nothing but pictures of things like Hogwarts.

The second point I left out of the Slate piece is the relevance of the Seinfeld trivia case Castle Rock v. Carol.   This case found a Seinfeld trivia game to be an infringing derivative work of the show.   Its relevance is obvious, as it is an example of a court finding a product that is quite different from the original to nonetheless be a copy.

The simple answer is that Castle Rock is just wrongly decided.  The case wierdly finds that a trivia game is “substantially similar” to the show and therefore a violation of the reproduction right (occasionally, to back itself up, the decision does refer to the derivative work doctrine).

The basic test of infringement of the reproduction right is, in part, whether you have misappropriated the market; whether the product you have produced would be a substitute for the original.  Only in the most contrived way can a trivia game be a market substitute for a TV show - and the opinion, while it cites some of the right opinions (like Peter Pan) just goes on to ignore what they say.

The harder question is what happens if we ask if the trivia game was a derivative work of the TV show.  My answer, as I said in the Lexicon piece, is that it doesn’t fit into the statutory definition of “adaptation”; either the examples or the space created by the words “adapted, recast, or transformed.”  As I read the statute, to be under 106(2) a work must in some way share the purpose of the original work but in a different medium or form.

By this analysis the Seinfeld Trivia game is not an adaptation of the TV show, and therefore is not infringing to begin with; hence there’s no need to discuss fair use.
I accept that Seinfeld has not been overruled in the 2d circuit; though the 7th Circuit in Beanie Babies obviously views the case as erroneous without overruling it.

I’m in Iowa, working as a front-line volunteer.  It feels like “Private Wu reporting for duty–”  in the sense of simply following orders as opposed to trying to decide anything.  Its humbling and very cold.
I’m surely not the first to say this but this is the most interesting election in years and its a thrill to get a first hand look.  Today I went to a Huckabee event - I am fascinated by the man.  He proceeded to give a speech that was almost exactly 50% left-wing and 50% right-wing by conventional terms, switching back and forth so quickly it was like watching a magician.

On the left-wing side, speaking of a poor 7-year old he had met while Governor, Huckabee, explained that we need to measure the progress of America by how the least well-off are doing.

“That boy,” he explained, “needs better roads, better schools, and better health care…  If he’s doing okay then we can know the rest of us are doing fine.”

I can’t remember the last time I heard a Republican discuss the idea that we measure our progress by how we treat the worst off among us; despite the obvious fact that Christians are supposed to approach the world this way (seculars can rely on John Rawls for the same point).

But a minute later he was off on the sanctity of marriage, and the need to abolish the IRS. It was strange to watch.
The appeal of Huckabee comes from the idea that has a set of beliefs that dictate his political views, as opposed to having political views that dictate his beliefs.  That’s also the appeal of Barack Obama and John McCain.  And after 8 years during which supposed principles have been manipulated to achieve the grossest of political ends, its no surprise that these are the candidates that are flourishing, as opposed to the phonies.