Author: Bill Cash

Lighting out for the territory

Gentle reader, my summer of relaxation has come to an end. From August ’04 to May ’07, I was in school and working full time continually. Over this summer, I’ve been lucky enough to just have to work, and that felt like a vacation. But all things come to an end, and school starts up again this month.

I’m taking one last trip before the final push. I’ve decided to drive out to Denver to visit my friend Amy, then come back via Chicago visiting my friend Dave. Along the way I’ll get to add a few new states to my list and see just how big this big country really is.

God willing, you’ll hear from me a little bit each day, as I post my adventures here. People tell me the drive across Kansas is a killer, and I guess we’ll find out. Since I’ve gotta stay overnight there and in Nebraska, there should be plenty of time to read and write. I’m looking forward to it.

Captchas

Hello for the month of June 2007.  To those who complain about the paucity of material: I remind you, this is a free service!  Send me on assignment to another country, I’ll post once a day.

There was a good article in the paper today about CAPTCHAs.  These are the dumb little visual puzzles you have to solve when you want to do something online to prove you’re not a spam robot.  (I sometimes have one on my site, but all you have to do there is check that box.  Big woop.)  Usually the puzzles are some screwed-up word with lines going through it or funky colors.  The paper was pointing at that the spammers are catching on and getting smarter all the time, so these puzzles are now to the point where it might be too hard to solve them.

So the first interesting link is to a site where spammers brag about beating the puzzles.  It includes visual examples and humorously bad commentary about how weak the puzzles are.  Example: “Work for one hour if work not too fast.”

The other interesting idea was, why not put people to work and have them solve these puzzles as a way to help deal with the problems of digitizing books?  (We all know how everyone feels about stealing books.)  Since scanning technology can’t read everything perfectly, and people solve these millions of times a day, the idea is a good use of otherwise wasted labor.

Reckless op.

I’ve always enjoyed hearing Justice Stevens’ laconic, flat, Chicago-y accent on the bench and his dry sense of humor at public appearances. But at the ripe old age of four hundred, he is growing ever-crotchetier, and it’s enjoyable to watch. In my mind’s eye, I picture the “Stop it! Stop this jibber-jabber!” judge from Boston Legal. (In sincerity, my affinity for Justice Stevens is real.)

Granholm v. Heald, 544 U.S. 460 (2005), was a case involving the validity of States’ restrictions on wine shipments direct to the consumers in those States, usually over the Internet. Those who wanted the Court to permit out-of-state shipments direct to the consumer argued that the restrictions were an impermissible interference with interstate commerce, and they won the day.

Justice Stevens was among the dissenters. His argument was that section two of the Twenty-First Amendment, which repealed Prohibition in this country, “should be ‘broadly and colloquially interpreted,'” so that States may retain the power to restrict alcohol shipments if they want to. What I remembered about this case was that he referred to “those members of the younger generations,” and pointed out that his position on the amendment was based on his “understanding (and recollection) of the historical context.” In other words, Don’t try to tell me what the Amendment means — I’m the only one here old enough to remember it happening!

But I think yesterday’s high-speed car chase case offered Stevens the chance to write an even crankier dissent. In that case, Scott v. Harris, ___ U.S. ___ (2007), Georgia police clocked a driver doing 73 in a 55, and they tried to pull him over. Rather than just pulling over, the driver led the police on a dangerous, nearly ten-mile chase through intersections and a strip mall parking lot at speeds of over 85 mph. When the lead police car finally rammed the driver’s car in an effort to stop him, the 19-year-old driver’s car pitched over an embankment, rendering him paralyzed. He sued the police, claiming that they violated his Fourth Amendment rights against unreasonable seizure.

The decision, which was 8-1, held that the District Court and the Court of Appeals both incorrectly denied the police’s motion for summary judgment, which had the effect of permitting the driver’s case to go to a jury for a determination whether the police actions were “reasonable.” The Supremes, all except Stevens, said that on a motion for summary judgment, the court is supposed to construe the facts in the light most favorable to the non-movant — except when no reasonable jury could believe the non-movant’s version of the facts. Because the lower courts shouldn’t have believed the driver’s explanation of his own conduct, the majority (in an equally amusing opinion by Justice Scalia) held that the lower courts got it wrong. The majority noted that there was a videotape in the record that disputed the driver’s version of the facts. “[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test[]. . . . The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.” Because the tape depicted a “Hollywood-style car chase of the most frightening sort,” it totally contradicted the facts the driver alleged, and the lower courts should not have adopted them. The Court took the unusual step of posting the video on its web siteand citing the URL in a footnote. You hear the police giving the orders to “take him out.” (Is nothing not on YouTube? Don’t bother with the Court’s link, go here and here.)

Justice Stevens, writing only for himself, dissented. The reason: the tape wasn’t as terrible as the rest of the justices believed, so the reasonableness of the police actions should have gone to a jury. What’s the big deal, he asked, writing that the “13 cars that respondent passed on his side of the road[,] … and both of the cars that he passed on the right[,] … no doubt had already pulled to the side of the road … because they heard the police sirens or saw the flashing lights” before the reckless driver got there. The rest of his opinion is also full of other descriptions that serve to minimize the danger created by the driver who was fleeing the police at 85+ mph. He also gets in a few good slams at the other justices, referring to them as “eight of the jurors on this Court” and “my colleagues on the jury.” But the best part of the opinion has to be footnote 1:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways — when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine — they might well have reacted to the videotape more dispassionately.

I do love a good dissent.

Some of my favorite things: debauchery, sterility, and Utahns

I’ve thoroughly enjoyed riling up my friends on the left, Marcus Banks and Venezuelan Army Maj. Marty Stroodler, over the issue of D.C. voting rights.  To Justme, I would retort that holding a sign reading “Will Make Political Commentary for Money,” and actually eating because of it, is a wonderful dream.

Washington, D.C., which the Supreme Court relegated to mere and literal footnote status last week, is clearly a banana republic that should be squelched until it learns its lesson.

Well, I’m kidding somewhat.  In all this debate, I have been disappointed that no one took up for Washington as a normal American city.  When I criticized the city for having no industry to speak of, I was sure I would hear “XM Radio!”  (In truth, I just tried to think of another employer to include here that wasn’t 1) out on I-66 or I-270, 2) government, 3) quasi-government, 4) education, or 5) food, and I couldn’t do it.  Sorry, Lady Columbia.)  The city does have parks, rivers, boats, schools, etc.  It deserves dignity as a regular place to grow up in, that just happens to have the capital.  Tragically, its transient residential status caused the thousands of readers and commenters of our web logs collectively to bypass this aspect of Washington life.

Retrocession,” or as I call it, “digestion by Maryland,” would degrade this unique character.  I oppose it.  Those who say it would free Washington of certain burdens, such as having to run a DMV, miss the point.  This would strip Washington of its dignity as a special city.  Further, it is impossible.  The point of creating a “non-residential ‘federal quarter’” is to solve the voting problem by putting its population into a jurisdiction that has Congressional votes (Maryland) while leaving the part of the city that belongs to all America under federal control.  The problem is that such a zone, at the minimum, would have to be a triangle containing the Jefferson Memorial, the White House, and the Supreme Court, and there are a lot of people living within that triangle.  Either there would have to be forced evacuations for the purpose of creating a sterile zone, or those people would have to be left out of the plan to give voting rights to all citizens.  Moreover, a sterile non-residential zone goes against principles of good city planning (Jacobs) and further debauches a grand old lady.

It seems unlikely that Washington will ever have the population to support two representatives.  The city is atrophying and has lost about 40% of its population in the last fifty years; at the same time, the number of people supporting a single House seat grows ever higher.  In 2010, the number of people needed for a State to claim two seats will exceed one million — five hundred thousand more than Washington has.  Washington’s House delegation, if awarded proportionally to the other States, would never exceed one.

Senate representation is a great question.  Logically, if the basis for granting a House seat is that people deserve an equal voice in Congress, then there is no reason not to grant a “full” two seats’ Senate representation.  Otherwise, we’ll still have the “second-class status” argument hanging out there.  (It was amusing to see Stroodler willing to bargain down to a single seat.  Washington been down so long, it don’t know what up is.)  But while the great constitutional compromise between the large and small States was to create two bodies, the House for the people and the Senate for the States, it does not justify granting Washington two Senate seats for the simple reason that Washington is not a State.  (And we all agreed to leave at least part of Washington a “local government” rather than a State.)

I also find it interesting that in all this, nobody advanced the legal argument that the “District Clause” of the Constitution, art. I, cl. 17 (go here and search for “District”; also read interesting annotations), which provides that the Congress has broad powers to control affairs relating to the District, gives Congress the power to add a seat without a constitutional amendment.  But I think this is a bad argument; it’s clear that the clause provides the power to control land use, building restrictions, police authority, and those kinds of things; it doesn’t let Congress restructure the Congress by changing its membership.  I think it’s sad that some, including the Utahns colluding with the Democrats to add the seat, want to justify the change on this weak ground, rather than embarking on the lengthy moral crusade of amendment.  By granting D.C. electoral votes, the American people have already demonstrated that if the cause is just, they will amend the Constitution even at the expense of their own interests.  That is the surest route to solving this problem, whatever the solution may be.

The unbearable unnaturalness of being

The organization DC Vote has put up a documentary movie on its web site called “Un-Natural State.”  It’s worth the eight minutes.  (You can also get a teacher’s worksheet because the video apparently complies with Washington ninth grade history and government class standards.)

If you watch this video, you’re going to learn two shocking things.

First, that DC Vote thinks we should rewrite our Constitution so our government can be more like Venezuela’s.

Secondly, that there is a guy who is the United States Senator for the District.  I think it is so cute that Washington has a Senator!  And, he’s a white former New Yorker!

If you do watch it, let me know what you think.  The best part is when 35 seconds in, the narrator asks, “Are things really as they seem?”  It’s quite ominous; the shot of birds flying over the head is pure Hitchcock.

Congressional skullduggery

I’ve been watching the battle over giving Washington, D.C. representation in the United States House of Representatives with some amusement.  If you don’t know about this, and you like political arcana, catch up.

As you might know, D.C. license plates proclaim it’s the land of “Taxation Without Representation.”  (That’s a great automotive statement easily surpassing New York City’s “Don’t Even Think of Parking Here” signs.)  People in Washington think they’re being cheated out of having a Congressman and two Senators, even though they’re free to move to a real State at any time.  They do have a non-voting representative, whose sole job seems to be House jester.

People in Utah also feel cheated out of a House seat, too, and they’ve been feeling that way ever since the 2000 census.  Why?  Because Utah, which has only three representatives, missed the cutoff for a fourth seat by about eight hundred people.  They claimed that the Census failed to count Mormon missionaries who were out of the country at the time; they also took issue with a statistical method the Census uses.  This bothered them enough to take their case to the Supreme Court, where they lost.  (North Carolina has the seat Utah wanted.)  This part of the story seems to be missing from the current coverage, and it explains why the Beehive State’s so into this idea.

Fast forward to today.  Somebody in Washington (or maybe it was Utah — I’m not sure) got the admittedly savvy idea that if we added one seat for D.C., which would probably go Democrat, we could add one seat for Utah, which would probably go Republican, and keep the balance we have.  Everybody wins — Utah’s pacified and Washington’s seat is still as worthless as it is today since it’ll always get canceled out!  What a great compromise.  (Never mind that it is unconstitutional to add seats for D.C. — more on that later.)

I read in the Post, however, that yesterday House Republicans attached an amendment to this bill.  Now, if the bill passes, the amendment repeals D.C.’s very strict gun laws.  This is an even more savvy political move than the original idea, in my view.  If liberal Democrats vote for it, hoping to give D.C. its representation, they repeal its gun control laws.  Some liberals will now vote against the bill because they’d rather keep the gun control.  Realizing this, the Democratic leadership stalled the bill.  Now Republicans can say they refused to support the constitutional right to arms.

All this manuevering puts me in the mind of my law review article (which I certainly hope can be described as “forthcoming” someday).  I wrote on legislative silliness, and one case in point was LBJ’s 1956 manuevering to get senators from the Pacific Northwest to support an amendment that weakened the civil rights bill so that the South would accept the bill.  In exchange for that support, he promised the Northwest his support for a series of federal dams — which actually passed the Senate.  The cunning part of this plan was, Johnson’s dam support was worthless because the House never passed the dam bill.  The President would probably have vetoed it anyway.  It cost nothing to keep his end of the deal, and in exchange, the Northwest gave LBJ his greatest legislative victory.

Republicans have the opportunity to pull the same trick here.  Suppose the combined D.C. voting and gun-rights actually passes.  It will immediately be challenged by some Republican somewhere, and one of two things will happen.  One possibility is the courts will strike down the part of the bill giving D.C. the vote, because D.C.’s not a State and the Constitution gives representation only to States; Utah, however, will probably keep its representative because Congress can change the number of seats at any time.  The other possibility is the whole voting part of the bill will go out the window, leaving the gun control repeal on the books.  Either way, Republicans win.

I can’t believe Democrats are falling into this trap, except that they are giddy with the intoxication of their big November wins.

The most interesting part of this is why it’s such a big deal for Utah right now.  There is another census coming up in three years.  At that point, the whole Congressional deck is reshuffled.  It would be impossible to predict at this time which State will be in Utah’s position — being the very next in line for a seat, if only the House had room for one more.  The thing is, though, there will always be that one State that just didn’t make it.  And because of the way the math works, it’s essentially random (but it is always most likely to be California).  All this work now, just to get a short-term gain that Utah, with its high growth rate, will almost certainly have outright after 2010 anyway, seems a little late.  Where was this idea in 2000?

My dad was right

A lot of people have asked why I haven’t been writing lately. It’s because I’ve had a good deal going on. Along with the usual classes and my third moot court competition, I’ve been conducting a job search. Tomorrow (Monday morning) I’ll be handing in my resignation at Nationwide.

It’s been a long ride there. I started as a college intern in 1999 and got the chance to be promoted from that lowly title three times. Along the way I’ve gotten to work with some really smart people, some really dumb people, and some people in the middle. I was sent to California on business trips three times (none of which, I’ll admit now, involved very much business, but did include nude beaches) and to see the wreckage of Hurricane Katrina just a couple weeks after it hit. I also had to go to Des Moines. Other than that, they treated me very well, and I’m sorry to go.

It was a good job — at parties, I had the perfect response to that face and the question, “So, like, what are you doing with your… geography degree?” Answer: “I’m a geographer.”

I was also a systems architect, programmer, documenter, intra-company salesman, and general know-it-all (“SME” — subject matter expert). Mostly, I realize now, what I learned was about people; how they’re all motivated differently, learn differently, and care in differing degrees about their jobs and the way they’re perceived to be doing them. I didn’t always do the best with the knowledge I had, but I’ve had a million chances to try getting along with people I didn’t always agree with, understand, or like. You really don’t have a choice in who you get, and that makes life interesting. The chance to get to know hundreds in a professional capacity was the best part about the job.

I also got to know bureaucracy. Gosh, do I hate it. At NW, rules are meant to be broken, but only if you apply in advance, generate a requirements document, and have a valid disbursement code. I am looking forward to never hearing the words “deliverable,” “mentee,” or “SLA” again. I used to joke about Nationwide being “the Evil Empire,” but I now think we’re just so big we can’t help but blunder things by accident, like a giant dog kicking and running in its sleep. As Douglas Adams wrote about the Earth, “Mostly harmless.”

My new jobs are exciting. For the spring semester, I’ll be working for a federal judge, assisting with research and the judicial process where I can. I’ll also be working in a law firm clerkship. I am very excited about both jobs because they’re a chance to finally get my hands into some real cases and start working instead of just learning. Obviously, though, I know both jobs are going to be a learning experience, and I can’t wait to get started and see what I can do.

There will be more time to write about those when they happen — I am planning to start in the middle of January. For now, I’m thinking about the end of my eight years with The ‘Wide. When I was a kid, my dad the insurance agent would drive us past Nationwide and say, “Don’t work for Nationwide!” Why not, I’d ask. “They’re not even price competitive in their home market. Besides, you’ll get married, you’ll get a mortgage, and you’ll be sucked in and never be able to leave. Nah, you should get out and see the world first.” I was three or four at the time, but it was good advice, and it almost happened to me. Tomorrow is the beginning of leaving that orbit for an unknown trajectory in the law. I’m thrilled to find out what happens next.

“Your rent is 78 months overdue”

I’ve decided that when food rots in the fridge, it’s very psychically damaging. When food goes bad, for me it’s more like a betrayal. I look in there, I see a never-touched bag of salad greens or box of strawberries that one time held such promise — I feel such disappointment, like my children, they desert me. It hurts. It also doesn’t help that we continue to buy these items, thusly compounding my sorrow and anguish. There are two walleye filets in there. The walleye lie there, stillborn, markers of what never would be.

Fortunately we are seeing “eye” to “eye” on other issues — take the Pet Shop Boys, for example. So I happen to think Fundamental (and remix album Fundamentalism!) are some of the best CDs ever released in the last hundred years. I purchased about $100 of import singles through the mail — some new stuff, some old stuff. Arnie liked Flamboyant so much he had to hear it twice! Fundamental is quite the album. The first single was I’m With Stupid, about the love relationship between G. W. Bush and Tony Blair; “No one understands me / where I’m coming from / why would I be with someone who’s obviously so dumb?” The other great lines are “fly across the ocean / just to let you get your way” and “Do we really have a relationship so special in your heart?” Everything on the album is good. Buy it.

In other news, I guess I realize what a computer dork I still am, and I like it. Just today I ran into somebody in the hallway who wanted to know if I still liked IT as much as law, and I wound up teaching her AJAX in a nutshell, and actually got all excited! I also ran across an old 3.2 GB drive and thought I’d put it into my ancient Pentium II Linux beater box, Passaic. (All my hardware is named after Jersey places.) Well it turned out to be the hard drive I used in college, and I found all this awesome Win98 stuff on it. “You last defragmented this drive 2,528 day(s) ago.” It has the NeoPlanet browser installed and I’ve got the horrible “Active Desktop” running now. I’m using the old “baseball” theme with the swinging bat instead of the hourglass. After I upgraded it to IE 6 I was able to run Windows Update. I need to run 25 critical updates and there are 40 more patches!

This is nothing. Last week I also decided to drag the old beloved TRS-80 Model III out of the basement and I found some of the old programs — Android Nim, computer bridge, and even CompuServe, that you had to use with the 300 baud external modem (in ANS or ORIG mode, please). Even ORCH-90 is there. It is so awesome.

Television

Those jerks at HBO have turned down my latest idea for a TV show, which would compete with a certain Sunday night megahit.  My show would be called Disparate Housewives.  Each woman character would be totally unique.

Two endings

OK, so I’ve been away for a while… but I have good reasons not for writing! I was preoccupied last month with the ABA’s National Appellate Advocacy Competition, which was a competition my partner and I started dealing with back on December 2nd and ended (for us) last weekend with absolutely fine results on March 4th, last Saturday. As part of the problem, we had to write a brief for the governor and elections commissioner of the fictional state of Calisota, and then in March we went to Washington to argue both sides of this state against other law schools.

I have to say we both hated writing the brief and we put its completion off until the last hours. I printed all the important cases and put them into a 4-inch binder, then lugged them around with me on my New York City trip before Christmas… you know, just in time for the transit strike. I didn’t read many then. Our brief had to be filed in the middle of January, and these awful cases weighed heavily on my mind. They had to be read before the writing could start, but who wants to plod full of hundreds of contradictory pages. (Of course, looking back on it, I like it. This always happens.)

So as I say, last month we went to Washington to compete. If we won all the rounds in D.C., we would have made it to Chicago to compete in April.

Our first round was against two students I dubbed John Edwards and Tape Recorder Girl. John Edwards looked and spoke exactly like the failed vice-presidential candidate (except this one confessed to being from Tennessee). He was impassioned but a little over-eager for my money. Tape Recorder Girl had perfectly scripted responses to judges’ questions, which drove me crazy. They beat us by only 1.777 points out of a possible 100. We were crushed and spent the entire next day moping around and blaming ourselves, wondering why we had gotten into this and considering throwing the rest of the competition. (Everyone was guaranteed to participate in three rounds, but your performance in those rounds qualified you for more.)

So the next day, as I say, we practiced and practiced for the second round, which was not until 6.15pm. I have never beaten myself up so much in my life, and for what? All day, my stomach was flooded with angst and a pervasive sense of foreboding. (Yes, I’m being a drama queen, but that’s how I felt.) Either we would fail again and be further humiliated, or we would succeed, and have to go on further in the competition and be humiliated there. Either way, it was a nice day in D.C. and I’d rather be doing something else!

The second round featured opponents we eventually decided reminded us of characters from Doogie Howser, M.D., particularly Vinnie. This guy could not keep his hands still, but he was so short the judges could not see them gyrating behind the podium. We were confident that we had him beat. Both of us felt very good about our performance. So you can imagine our shock to hear we had lost again, but this time by only 0.444 point out of 100.

At this point, we were ready to drown our sorrows in the comforting embrace of alcohol and fitful sleep. What could be done? We clearly were going home humiliated. Then I learned the other team from Capital lost their second round by 13 points, and the clouds parted a bit. :-)

The preparations for the third round were even more farcical. The rules of the competition provided only 16 slots for the fourth round, and your performance in rounds 1, 2, and 3 qualified you for round 4. Since our record was 0-2, we didn’t think we would qualify for round 4 and would therefore be permitted to escape our suits and ties and go outside to play. Unfortunately… Since we had lost rounds 1 and 2 by the tiniest of margins, we were ranked as the very best 0-2 team. And that meant we had to play the very worst 0-2 team in round 3. As I put it, the best of the worst had to play the worst of the worst (North Carolina State, and they actually were the nicest people at the competition!), which was the team that had lost by a cumulative 32 points. This was going to be a painful round, I thought. People who don’t like arcane math things can skip the rest of this paragraph.  The problem with this whole setup was that if we beat our hapless opponents in round 3, our record would then be 1-2. So if some other 1-1 team lost its third round, it would also be ranked 1-2.  And if our margin of victory was higher than theirs — and it would have to be, since we were going into this thing with a -2.222 score — we were going to leapfrog some other teams, qualify for the fourth round, and we would then face the strongest team at the competition.  And of course, we were to face certain defeat, agony, and have to sit around in our suits for another four hours! Why wouldn’t the ABA just let us go have a nice lunch and forget about all this madness?!

And that’s exactly what happened. Round 3 was a real drubbing for the other side, even though I tried to help them as much as possible by stuttering, flubbing, and even waving my arms and saying (about the avoidance canon of statutory construction), “But that’s what we fought an entire Civil War over!” We won by some 13 points anyway and had to play Southern Methodist University in round 4, a team that was comprised of two judicial cyborgs whose smooth-tongued orations had been programmed by Daniel Webster himself. We lost (but only by four and a half points!) and were finally permitted to go home.

All in all, it was a fun experience, even though I probably spent two hundred hours reading cases, writing stuff, and practicing three times at week at the law school. Moot court is hard work. I wound up wondering why I was doing it, though… unless we were the absolute #1 team in the country, the road to victory was certain to end before I wanted it to. Of course, it’s fabulous experience to read, think, write, and talk, and I did get to sit on the bench of the Federal Circuit during a break, but my God, the strain it can put on a person is a lot to bear. I’m glad to have it over with, at least until the fall when we do it again!

Happy Greek again!

Just thought I would inform everyone that The Happy Greek, Columbus’ 2nd-best hummus provider, has again taken the prize for slowest possible hummus sale.  A phone call to that jocular Mediterranean to order the famous food yielded no clue that the order was going to take a record 26 minutes to be prepared.  Allegedly, the hummus is made while you wait.  Oddly, though, when you order it at the dinner table it comes almost immediately.  Why does this restaurant hate its loyal call-ahead customers, who don’t tie up the limited table space or bother the help?

Take the hummus challenge

As you may know, I recently had a few people around for a party and decided it would be a good idea to settle the question: who makes the best hummus in Columbus?  Over twenty people voted and I tabulated the results.  There’s something for everyone.  Go to my Columbus hummus challenge page and see the results.

Lying authors and the readers who love them

Much ado has been made lately over the case of Winfrey v. Frey, the public tiff between the Queen of Pages and the author who fabricated large parts of his criminal history so as to arouse the sympathy of his readers. While I thought the whole affair was a carnival sideshow to begin with, I am pleased that The O had a change of mind and brought James Frey back to justice. While her sheep are hers to command, I’m glad she is herding them back to an appreciation of the truth. It will be interesting to see whose stock rises faster now, hers or his.

Predictably, the evil publishing industry and its media minstrels have been falling over themselves to “debate” the issue of whether nonfiction should be true. I find the whole thing rather distressing, because I believe that books are sacred and not to be trifled with. Call me naive, but the idea of an author, editor, or publisher knowingly permitting outright lies to go into a book offends me deeply.

On the other hand, it is amusing for bookwatchers to act as though this kind of thing has never happened before, and that’s the main reason for this post. I was reminded by some of the Frey coverage that John Berendt was similarly involved in a controversy over his book, Midnight In the Garden of Good and Evil. Not only did I buy this book, it inspired me to take a trip to Savannah so I could see it for myself. Only after I got back did I learn just how much had been made up in his story. This Columbia Journalism Review article from 1998 lists some of Berendt’s sins (not all, I should note, are admitted by him). The most egregious in my mind is the allegation that he did not really start hanging around Savannah until 1985, four years after the murder that is the central event of the story, but there are several other slips and misstatements. Several of these problems, I researched, made it into national newspapers.

I think it is interesting to compare this historical book “flap” (pun couldn’t have been avoided) with today’s. Both authors were embarrassed in the national press. Both prompted a nominal “debate” over the fate of nonfiction. And both sold like a jillion copies. Nothing much changes, it seems.

More on Google Book Search

I couldn’t help writing a rejoinder to those defenders of Google Book Search and, of course, good old Banks.  Because everyone should have the right to own their own content, however, I’ve posted it here on Before.  Why should World get all the good material?  For those who haven’t been following this storyline, start at Marcus’ original post on Google Book Search, then read my comment, followed by his “redux” second posting.

I’m still troubled by some of the arguments advanced in Google’s favor.  However nice or wonderful it would be to have every book in the world instantly searchable on the Internet, we cannot ignore the steady policy and laws of all the world’s democratic governments just because somebody would like to have that index.

Marcus claims that because some of the books have “absolutely no commercial significance to the publishers” somehow immunizes Google from abridging the copyright of the publisher or author.  Unfortunately, our laws don’t permit an infringer to make their own assessment of a work’s commercial significance and, if they find it to be zero, to use with impunity.  Further, I think the fact that the books are scanned shows they do have some commercial significance to Google.  And perhaps many of these titles have been out of print for years: as Google clearly plans to demonstrate, these old books have a value that can be unlocked by the technologies of scanning and indexing.

And, since each book does have indisputable value, why should Google be the one to profit from the unlocking of that value?  They’re not the author who wrote the book.  They’re not the publishers who took a chance and made an investment in the book.  They’re not even the libraries who shelled out a few bucks to buy the book.  They have no stake in the business of writing books at all.  So why should they benefit to the exclusion of the authors and publishers who do?  It’s argued that our copyright laws are out of date, so there should be some special exception for the Googles of the world.  But inventing a new technology is not some magic wand or shield that, when produced, defeats all claims held by the original creator and owner of a work.  The MP3 pirates learned that the hard way.

And I have to disagree that the appropriation of property with no monetary value can’t be “theft” or even just plain wrong.  I myself have been a victim of copyright infringement, so I know what it’s like.  I posted a rather ridiculous video of myself on my web site scaling down the face of an artificial climbing wall.  Months later, I went to the City Center mall and found it was showing on a fifteen-foot-high screen in a continuous loop!  This was part of a video advertising all the fun things that might be found in a great downtown (for the record, the rock-climbing happened at Easton).  Did my video have any monetary value?  No.  Did the company that stole my work and aired it thousands of times in a very public forum derive a commercial benefit?  Yes — else why do it.  Did they have, at the very minimum, the courteous obligation to ask whether they could use it?  I think the answer to that is clear.

Google argues it would be impractical for them to ask the author or publisher of each book for the rights to scan the book before including it in their permanent digital archive.  Therefore, they’re just going to do them all, copyright be damned.  A simple analogy to the physical world points up the absurdity in this logic.  Google’s stance is like my saying I can drive my car across the backyard of every house in the neighborhood, because it would just take too long to get permission from each homeowner.

Our system of copyright could not be more liberal.  In order to claim the copyright on an original work, all the author has to do is put the word “Copyright” and the year on it.  Unlike with patents, there is no central registry that authors have to apply to for permission: we just want to encourage creative endeavors by giving them reassurance that they’ll earn the fruits of their labors without interference.  No high-flying tech company should be permitted to swoop in and take that away.

Google Book Search

Marcus has written on the legality of the Google Print program, now renamed to Google Book Search.  He cites a six-page Congressional Research Service report that looks at the issue from a lightweight legal perspective.  Partly because of my membership in the Young Conservatives Union, partly because I enjoy taunting the techno-establishment whom I’m supposed to be digitally brainwashed by based on my age and occupation, and partly because I think I’m right, I’ve written a comment digesting the issue and generally opposing the project.  If you’re interested, read all three writings and comment over at Marcus’ World (or here).