Seventy Years Ago Today

November 26, 2011

Pearl Harbor, October 1941

As you’ve noticed, we’ve been gone for longer than ever before. but, we are back today with this reminder: Seventy years ago today, the Japanese fleet with six aircraft carriers sailed from Japan, on its way to attack Pearl Harbor. We’ll have more in the coming days about those eventful days, including speculation about the only ship that actually sighted the Japanese fleet in the Northern Pacific. A Russian ship sailing from San Francisco to Vladivostok which was not on the usual – and shorter – great circle route.


Copyright v. Facebook

August 9, 2011





Westercreek, Circuit Judge, writing for the court:

Marjorie Thoroughgood is the daughter and personal representative of the estate of her mother, Mildred, who sued the three defendant corporations and one individual for copyright infringement. The district court threw the case out, granting summary judgment to the defendants. Mildred has since died and her estate appeals.

Mildred was a professional photographer who made – or took1 – a famous photograph which her daughter alleges was stolen by the three defendants. Mildred was driving one afternoon on U.S. Highway 84/285 north of Espanola, New Mexico, when her eye was caught by a cemetery on the side of the road in the village of Hernandez. It was almost sunset and a full moon was rising above cemetery and mountains behind. Mildred threw on her brakes, pulled over, and grabbed for her camera. Jumping out of her car she immediately realized that the sun would be setting in moments and that the sunlight on the crosses in the cemetery would soon be gone, ending the chance to make the photo. She also recognized that she would have to expose for the full moon, otherwise it would be nothing more than a solid, boring, white circle in the resulting photograph. (the luminance of the moon – 250 c/ft2.)

Mildred was a photographic Luddite who refused to use the pervasive photo-manipulation computer program known as “Photoshop.” In her eyes it was not only pervasive, it was pernicious; a view which, as we shall see, is relevant to this appeal.

Mildred quickly set the manual controls on her digital camera for the proper exposure for the moon and snapped the picture. She planned on making more exposures but it was too late. The sunlight was off the crosses. Hers was the only car that stopped and she was the only person who photographed the scene.

Excited, Mildred hurried to her hotel room in Santa Fe and downloaded the photo to her computer. The results were more that even she had hoped for. It was the best photograph she had ever made. The moon’s exposure was perfect and all the photo needed was some “burning and dodging”, a standard photo-development technique.

Mildred wanted to share the photo with her friends, family, and professional peers so she uploaded a small digital copy to her Facebook page. (She also put a watermark copyright notice across the face of the photo, thinking she was protecting her copyright, we suppose. We would show you the photo, but we’re afraid Facebook might sue us.)

The very next day a new employee of Facebook’s marketing department was trolling around the site, looking for photographs that Facebook could use in a new advertising campaign. The employee, Hazel Smithers, stumbled on the photo which Mildred had already named, “Moonrise, Hernandez N.M.” Young Smithers immediately recognized that it was a fine photo that, because of its scenic value, religious iconography, and astronomical interest, would appeal to Facebook users and the general public. But the digital file of the photo was too small for Facebook’s advertising department and it had that troublesome watermark copyright notice splayed all over it.

Without notice to Mildred, Hazel Smithers ran the photo through the “Photoshop” program that Mildred hated and completely removed the watermark. Then she ran it through another computer program which increased the file’s size so that it could be used in digital and print advertising. Facebook then launched an advertising program prominently featuring Mildred’s photo.

Not only that. Subsequently Facebook was contacted by Google which put the image on a line of coffee mugs, tee shirts, bookmarks, and pens in one of its advertising campaigns. Google paid Facebook one million dollars plus change for a sub-license to use the photo.

Then a vice-president of defendant ExxonMobil got one of Google’s coffee mugs with Mildred’s photo on it and thought the photo would make a wonderful addition to ExxonMobil’s latest advertising campaign encouraging Americans to get out on the “Open Road” using ExxonMobil’s gasoline. ExxonMobil paid Facebook two million dollars for the use of Mildred’s photo.

Eventually Facebook sold the rights to the photo to Simon Legree, a hedge-fund manager, for ten million dollars. Legree has since sold more than 1,000 copies of the photo at an average price of $5,000 per print.

Remember that Mildred knew nothing about these corporations using her photo or Legree selling it. They told her nothing and they paid her nothing.

She found out when her daughter showed her ExxonMobil’s full-page “Open Road” advertisement in the New York Times which was consisted only of her photo, a short caption, and a corporate logo. Up until that time the only people who ever saw an actual print of the photo were patrons of the small art gallery where Mildred showed her work.

It is well-settled American law that a copyright attaches to a work of art the instant it is created. (The defendants do not dispute that Mildred’s photo is a work of art so we save for another day the vexing legal question of whether photography is art.) So Mildred’s photo was copyrighted the instant she clicked the shutter on her camera. Putting a copyright notice on the small version she uploaded to her Facebook page was quaint legal surplusage. Not surplusage was Mildred’s registration of the copyright of the photo. She sent the government $35.00 to register the photo, necessary if she ever wanted to sue for statutory damages. Frantically Mildred tried to tell the defendants and the world that the photograph was hers. She held press conferences to which no one came, she blogged about it furiously, wrote hundreds of letters to editors, posted notices on her Facebook pages, tweeted on her Twitter page, set up her own web site, and bored anyone who would listen with her tale of copyright infringement. No one cared, least of all the defendants.

So Mildred added up the money the defendants made on her photo (About eight million dollars, not including the revenues each corporation earned from the advertising campaigns, but we’ll see that the actual amount doesn’t matter.) and asked for the money, but defendants ignored her. She sued, but as we saw, the lower court threw her case out.

Broke, starving, depressed and in despair, she threw herself in the path of a speeding ExxonMobil tanker truck, was run over, and killed.

The Constitution of the United States, in Article I, Section 8, Clause 8, gives Congress the power to enact copyright law. Congress has used the power to preempt state law entirely. 17 U.S.C. § 301(a) Exclusive jurisdiction of copyright disputes in vested in the federal courts of which we are one. 28 U.S.C. § 1338. No creator has a complete natural right to prevent others from copying or exploiting her invention so copyright law steps into that void by giving a time limited protection to creators of works that are copyrightable. Promoting progress by stimulating the creation and publication of as many works of art, literature, music, architecture, copyrights afford to creators a limited property interest in their creations, although that interest is subordinate to the public good. By creating her photograph Mildred became a person protected by the copyright laws of the United States and, unless she otherwise forfeited the right, could sue anyone, including these defendants for money damages for infringing her rights. Title 17, U.S.C. Section 504. Not only could she get the money she lost, she could also force the defendants to disgorge to her all the money they made using her photograph. Title 17, U.S.C. Section 504. Not only would these defendants owe her eight million dollars, they would also owe her all the profits made as a result of their advertising campaigns.

But remember that Mildred, rest her soul, uploaded the photo to her Facebook page. That, it turns out, was a mistake. Facebook is a social networking computer site privately owned by defendant Facebook, Inc. The service is free to the more than 750,000 benighted souls who use the service. But the service, like lunch, isn’t really free. Users must agree to a contract before they can use Facebook and Mildred agreed to Facebook’s usage terms before setting up her account. She made a binding contract with Facebook. That contract included this provision:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission . . . : you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

For a contract written by a lawyer, that one is fairly clear. In return for using Facebook’s service Mildred gave to Facebook an absolute right to use any photograph she uploaded. For free. Not only that, she also gave Facebook the right to sell her uploaded photos to anybody it wanted to. Also for free. Google, ExxonMobil, and Legree bought the rights directly from Facebook, sold to them in perfect harmony with the binding contract between Facebook and Mildred.

The contract contained another provision, adding that the license she had granted to Facebook ended when she deleted her content, “unless your content has been shared with others, and they have not deleted it.”

When Mildred discovered what she had done by uploading “Moonrise” she immediately deleted the photo and had all her friends do the same.

Too late. She bore the burden of proof that all copies had been deleted from computers all over the world and this she cannot do. Not that it matters. She shared the content with Facebook and it certainly hasn’t deleted her content. The owners of Facebook know a gold mine when they see one.

So Mildred must lose her case. Her contract with Facebook trumps the Nation’s copyright laws.

That leaves only the defendants’ requests for costs and attorney fees. Section 505 of the Copyright Act permits courts to award costs and reasonable attorney fees to the winners of copyright litigation.  The learned district judge looked over defendants’ cost bills and attorney fees and awarded them a total of three million dollars for costs and fees. Finding no abuse of discretion, we affirm the award and order Mildred’s estate to pay up.

The laity may grumble about this result in this case, thinking it unjust. They might think that defendants stole millions of dollars from Mildred and they may well be right, but it was all perfectly legal.


1“Professional” photographers like to use the verb “made” when referring to their photographs. Presumably this is an effort to distinguish themselves from the rest of us who merely “take” pictures. But everyone owns a digital camera these days and six billion photos have now been uploaded to just one photo-sharing site, so the “professionals” are swimming upstream. The semantic dispute bores this court and we take no position on it, other than to warn the “professionals” not to give up their day jobs.

The Debt Ceiling “Compromise”

August 1, 2011

The House Republicans take the president and the U.S. economy for a drive:

In the Garden of Beasts

July 31, 2011

[Ed. : Note to future Historians: this entry contains topical references which we hope will be meaningless in a few short years. We hope.]

Hitler Addressing the S.A. 1933

I’ve just read a book about the opening days of the Nazi regime takeover of Germany which, of course, followed the days of the Weimar Republic, a government that couldn’t seem to get anything done. Sort of like the one we in the United States seem to have right now. Of course, huge differences exist. The Weimar government couldn’t get much done because of outside forces it could do little about. The Treaty of Versailles and then a world-wide depression constrained its ability to do much. The current inability of the United States government to do anything is an entirely self-inflicted wound administered by a group of petulant children from the ideological right-wing, abetted by surprisingly feckless Democrats led by a president bent on jumping off the cliff with the children. Only time will tell if they all manage to destroy what is left of the economy of this great Nation.

The book, In the Garden of the Beasts by Erik Larson, follows the four-year tenure of America’s ambassador to Germany from 1933 through 1937. A scholar and chairman of the History Department at the University of Chicago, William E. Dodd, was picked by President Roosevelt for the job. He arrived with his family in Berlin just five months after the Nazis took power. Dodd quickly grasped what that meant. Along with two other embassy employees he tried to raise an alarm, but the wiser, richer heads running the State Department were much too worried about collecting bond debts from Germany for private American investors dumb enough to have bought them in the first place.

Ambassador Dodd and Family Arriving in Germany - LOC

We all learned in school about the European powers of the day adopting appeasement of Hitler as policy. Less is taught in U.S. schools about the U.S. government’s similar policy: “Ignore him and maybe he’ll go away.” Of course, not everyone in the upper reaches of the State Department thought Hitler should be ignored; some thought we could do business with him. (As did many titans of U.S. business.)

Dodd thought otherwise and was appalled at the lack of concern in Washington about what Germany was doing to its Jews, it’s lawless state-sponsored murders of people thought disagreeable by the Nazis, and by its open and plain-to-see rearmament in violation of the Treaty of Versailles.

One joke circulating through Germany about the illegal and supposedly secret rearmament may have reached Dodd. One man with a new baby in his family tells a friend that he doesn’t have enough money to buy a stroller for the baby. The friend works in a stroller factory and volunteers to bring enough spare parts to his friend so he can build a stroller himself. Some weeks later the friend spots the father carrying the baby in his arms and asks why he isn’t using the stroller he should have built from the parts. The Dad says, “I tried. I tried three times but it always ends up as a machine gun!” (From the book: Endnote 213)

Gestapo Head Rudolf Diels - Bundesarchiv

One suspects there may have been jokes circulating about Dodd’s daughter as well. She managed to bed a fair number of Nazis and other Germans while she was there. At one point she carried on a simultaneous affair with both the head of the Gestapo and a NKVD Russian spy. She had a good time in Germany even if her father didn’t.

William Bullitt - LOC

The Germans complained about Dodd, the upper-level wise men did not like him, and so they convinced President Roosevelt to replace Dodd with Hugh Wilson, another wise man from State, who set about his new job in Berlin with gusto, promising Germany’s Foreign minister, the Nazi von Ribbentrop, that if war came to Europe he (Wilson) would do all he could to keep the United States out of it. William Bullitt, one of the stars of the State Department, wrote Roosevelt that the appointment of Wilson “increased definitely” the chances for peace in Europe. Secretary of State Cordell Hull and his undersecretary Sumner Wells applauded. Soon Hitler gobbled up the Rhineland, Austria, Czechoslovakia, and invaded Poland. The rest is history.

My point? At long last I come to it: History teaches that people at high levels of government, despite their pretenses, don’t know much more about how things will turn out than we do. They aren’t bad people; they aren’t stupid, they just can’t see any further into the future than we can. And sometimes, not as far.

Oldest Living Man Interview

June 24, 2011

I expect to be the victim of one of those interviews of really, really old people. You know, the kind where the oldest man in the community gets interviewed by a young interviewer trying to learn the secret of such longevity. By then I’ll look like Dustin Hoffman playing Jack Crabbe in Little Big Man.

Jack Crabb or me???

But I am a long way from being that old and worry that cancer, or a heart attack, or a stroke, or dementia, or a car wreck, or scurvy may get me first. So, I’ve decided to do the interview now and do it myself. As Mark Twain once remarked, “If you want a job done right, do it yourself.”

Herewith is the interview.


Interviewer: Thanks for your time.

Me: You’re welcome. It’s all I’ve got left.

Interviewer: How old are you exactly?

Me: 105 years, seven months, and fourteen days — give or take.

Interviewer: Amazing. How can you remember so precisely?

Me: I’m 105 years old. What else do I have to do all day?

Interviewer: To what do you attribute your longevity?

Me: Sex and orange juice.

Interviewer : Sex?  You seem awfully old to be having sex with anyone.

Me: Oh, I haven’t had sex in forty-five years.

Interviewer.: Well then, why do you say sex is one of the things that has kept you alive?

Me: I said sex and orange juice. You don’t mix them. As soon as I realized I wasn’t going to be having sex anymore, I started drinking orange juice.

Snoot, Part 2

June 12, 2011

The folks at the very funny website have a card that sums up the snoot’s thinking about the internet:

An E Card for Snoots


June 6, 2011

I am a snoot. I didn’t mean to be a snoot when I started out and I’m not sure how it happened or even when. But I am one, one of “The Few, the Proud, the More or Less Constantly Appalled at Everyone Else.


David Foster Wallace

No need to wander off in search of a dictionary, it’s a new usage and comes from the writer David Foster Wallace who, in the fifth footnote to an article he wrote about grammar, described SNOOTS: “A SNOOT can be defined as somebody who knows what dysphemism means and doesn’t mind letting you know it.”

And to prove I am a snoot I will now let you know that dysphemism means using an intentionally harsh word instead of a polite one. Think of it as the opposite of a euphemism. A common euphemism for dying is “passed away.” Dysphemisms for dying include, “assumed room temperature”,“kicked the bucket” or ”took a dirt nap”. A truly serious dysphemism, rising to the level of an actual insult would be calling a snoot a pedant.

In short, a snoot is somebody who cares about the English language, uses it correctly, and knows what a sublime tool it is.

Snoots know, according to Wallace, when and how to hyphenate phrasal adjectives and to keep participles from dangling, and we know that we know, and we know how very few other Americans know this stuff or even care, and we judge them accordingly.” And we who revere the language are more than “appalled”, we are apoplectic when we hear a putative political leader say about Paul Revere,

“He who warned the British that they weren’t gonna be takin’ away our arms by ringing those bells, and makin’ sure as he’s riding his horse through town to send those warning shots and bells that we were going to be sure and we were going to be free, and we were going to be armed.”


One of the Homes of the English Language (Oxford, 1890)

Nor are we pleased when we read in the United States Constitution – the Constitution! – :

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws. [emphasis added]

And speaking of the Constitution, that reminds me that I find myself in the company of Justice Scalia, also a self-described snoot. He has a good working definition too:

But there are people who care a lot about words, about precise use of words, and there are people who don’t. And snoots are those who are nitpickers for the mot juste, for using a word precisely the way it should be used.

I’m troubled by being in the company of Justice Scalia just like I’m troubled when I come upon a federal judge fly-fishing or engaging in some other harmless activity: It’s jarring. But, there you have it. And while I am compelled, by virtue of his exalted station in American life, to care about what Justice Scalia thinks, it is a good bet he cares not a farthing for anything I think. But facts are facts and we’re both snoots. And how can anybody disagree with this Scalian sentiment, “To write well is to communicate well. To write poorly is to communicate poorly.”

Stradivarius in Berlin -Photo courtesy of Hay Kranen

Because he coined the term, I leave the last word to Wallace who opined that hearing adults misuse the language is akin to watching someone pound nails with a Stradivarius.


Federal Judges

May 27, 2011

Federal judges have a pretty good work life. They work in great majestic rooms and when they enter and leave those rooms, everybody stands up. They can only be fired by the United States Senate and, unless they get caught taking a bribe, that hardly ever happens. Their pay can never be cut. If they decide to retire, they can take “senior status” and make almost as much money as if they were still working every day. They get the best health care possible, United States Marshals for protection, law clerks for the drudge work of judging, and big offices, all paid for by somebody else.

But if you go to watch them at work, you’ll often be left with the distinct impression that these people are not happy. So, you may ask, why not?

Well, until you reach the august realm of the U.S. Supreme Court, federal judges are basically overworked. They handle large caseloads in an increasingly bureaucratized system. They must deal with lawyers, too many of whom are less than ideally competent. And, like bankers who spend their days saying “no”, federal judges spend a lot of time saying “no” to litigants in their courtrooms and putting other people in jail. Often, the judges might have preferred saying “yes” to litigants but couldn’t because of the controlling law. Worse, judges know that they will always make someone unhappy every time they make a ruling. It’s the nature of the adversary system. All that wears on them. They’re only human after all. Most probably suspect that Tacitus was right:

Judges are best in the beginning; they deteriorate as time passes.

Walton's Cottage in 1888

I’m not completely objective you understand. I spend my career trying to change the status quo and the judiciary is the first line of defense for the status quo. By design and by nature the judiciary is the most conservative of our governing institutions and – especially since Ronald Reagan – the federal judiciary has been populated mainly by judges personally conservative both by design and by nature. Often they don’t like attempts to change the status quo. Still, I find many violate the great fisherman Izaak Walton’s injunction in his The Compleat Angler,

If thou be a severe, sour-complexioned man, then I disallow thee to be a competent judge.

I once found a federal judge on a catch and release fly-fishing stream. This stunned me. It was the first time I’d ever seen a federal judge engaging in a harmless activity. It disordered my mind and for some weeks I felt unbalanced, like I’d seen a ghost gibbering in the streets. I watched the apparition for a while, studying the thing in my mind.

I’d been a trial lawyer for a couple of decades by then and had learned that no evidence is less reliable than eyewitness testimony. Our eyes fool us all the time so I knew that they might be fooling me now. The first thing I did was get out my camera and take a picture of the thing. But, upon reflection, I realized that any apparition capable of assuming the form of a fly-fishing federal judge could easily rearrange the pixels in my camera so I couldn’t trust any photographic evidence.

I determined to go down there and confront the thing up close. I don’t claim that I wasn’t terrified as I walked down that slope to the river: I was, but I went down there anyway, expecting at any moment to be swallowed by a wormhole and instantly transported to some place on the far side of the universe.

But nothing happened. I walked right up to that federal judge apparition and it spoke to me! Called me by my name. Shook my hand. Asked how the fishing had been for me. Wanted to know what fly I was using.

Even smiled once.

So I knew it wasn’t real. I got out of there as fast as I could.

Bob Dylan and the Law

May 24, 2011

Dylan - Photo Coutesy of Alberto Cabello

Today is Bob Dylan’s birthday. He is seventy (70) today. Millions of people will no doubt take note. Hundreds of bloggers too will hop on the bandwagon. Much real and electronic ink will be spilled today and why should this blog be any different?

I’ll just tell you that Dylan’s lyrics are cited in legal opinions and scholarly legal articles far more than anyone else. Almost three times more than his closest rival, the Beatles. By the end of 2007 his lyrics had been cited 186 times.

Not bad for a humble folk-singer.

The Rapture and Garage Sales

May 21, 2011

According to some Christians, today is The Rapture so we’re having a garage sale at our house. I wonder exactly what time the Rapture arrives? I plan to spend the day standing next to wealthy Christian men about my size. That way, I can just pick up their wallets and clothes.