Jack Balkin on the 2nd Amendment

Somewhat apropriate on Patriot’s Day: The Republican Theory of The Second Amendment and Its Ironies

Of course, the civic republican theory is premised on a romantic notion of militias made of sturdy yeoman farmers determined to protect their families and their homeland in the name of liberty. Civic republican theory assumed that in the face of oppression the People as a whole would rise up– that is, that when militias exercised their right of revolution, they would succeed only to the extent that they more or less represented a broad spectrum of popular discontent with a tyrannical government. But in practice, militias do not always consist of the whole people, but rather of particularly angry and aroused segments and factions of the population. And, perhaps more to the point, often the militias that arise to contest a hated government are not always composed of people with particularly admirable aims. Think of Honduras and El Salvador in the 1980’s. Indeed, you might say, at the risk of hyperbole, one person’s militia is another person’s death squad.

In any case, before our very eyes, we are witnessing a demonstration of the republican theory of the Second Amendment, and the role of firearms in contesting a hated government in Iraq. That government, unfortunately, happens to the the provisional authority run by the United States. It is not clear whether the various Sunni and Shiite factions that are momentarily making common cause against the government in place– that is, the United States of America– truly represent the People of Iraq. There may, in fact, be no such thing as the People of Iraq. But there are people in Iraq, and many of them seem to hate the provisional authority (and the United States) very much, to the point that they are willing to take up arms against it. Or to put the point more piquantly, one person’s minuteman is another person’s mujahideen.

Broadcast Flag for Digital Radio

Ernie and Donna both raise important questions about the provenance of the FCC’s initiative to explore regulation digital radio. The FCC press release points to the Notice of Inquiry, where we we will (supposedly) find the following:

Subjects raised for comment in the Notice of Inquiry include digital audio content control and international issues.

The FCC’s IBOC site just carries the press releases and commissioner statements. Donna notes that PublicKnowledge is exploring the extent to which the RIAA participated in the generation of this inquiry.

Public Knowledge’s request, filed electronically, asked for “all communications, letters and records of meetings between Jan. 1, 2004 and April 15, 2004 in docket MM 99-325 between Federal Communications Commission members, their staffs and Commission staff with (1) the Recording Industry Association of America (RIAA); (2) RIAA member companies; (3) representatives of the law firm of Arnold and Porter (4) representatives of the National Music Publishers Association or the Harry Fox agency.”

Taking on the FCC Profanity Ruling

Broadcasters Fight Back Against Profanity Ruling

A coalition of more than 20 broadcasters, artists’ groups and media organizations filed a petition on Monday asking the Federal Communications Commission (news – web sites) (FCC (news – web sites)) to reconsider a profanity ruling that is part of what some commentators have called a new sexual McCarthyism.

The petition, signed by broadcast network owners Viacom Inc. and Fox Entertainment Group as well as the Screen Actors’ Guild and other groups, charges the FCC has expanded its authority beyond constitutional limits and that broadcasters are being forced into self-censorship.

[…] An NBC spokeswoman said the network would file a separate petition challenging the FCC ruling on Monday. NBC is a unit of General Electric . An ABC spokeswoman said The Walt Disney Co.-owned network would not weigh in on the matter.

Update: See also the NYTimes article, Media Groups Ask F.C.C. to Reconsider NBC Ruling

Ubiquity of Music Filesharing

Piracy no stranger to Christian tunes (registration req’d) [pdf]

Christian teens are stealing Jesus music.

They’re doing it through Internet downloads and CD burnings at nearly the same rate as secular music is being pirated by non-Christians, according to a new study done for the Gospel Music Association.

The findings were a jolt to many in the evangelical music industry, who expected churchgoing teens to be mindful of the Commandment, “Thou shalt not steal.”

“I’m surprised and disappointed that the behavior isn’t that ardently different between Christians and non-Christians,” said John Styll, president of the Gospel Music Association, the leading trade group for evangelical music.

But not everybody thinks the pirating is a bad thing. After all, some church leaders say, isn’t getting the Gospel out more important than getting paid? How can it be wrong if it saves souls?

“That’s convoluted logic,” said Barry Landis, president of Word Records, a major Christian label. “You would never steal Bibles to give them away. You shouldn’t steal Christian music to give away either.”

I needed to break this quote out separately:

Musicians say the piracy issue is particularly thorny for them to broach. Many fear being seen as greedy, the backlash faced by the heavy metal band Metallica when it sued Napster, once the most popular file-sharing software system.

We can’t be like Christina Aguilera and get all attitudy,” said Jaci Velasquez, a platinum-selling singer originally from Texas. “We’re supposed to be like Christ and turn the other cheek.” [emphasis added]

Note that the whole article is worth reading, in that much of the rhetoric is directed at things that are wholly consistent with fair use, e.g., burning a copy of a purchased CD for a friend — rather than anonymous internet filesharing.

HP’s Payoff For Embracing DRM?

Hewlett Packard Goes Hollywood

On Monday, Hewlett-Packard will announce sweeping partnerships with Warner Bros. and DreamWorks. The company is aiming an array of software and services at Hollywood content creators, hoping they will choose HP for every step of the production process — from rendering animated characters on workstations to lifting dirt specks from classic films like Singin’ in the Rain.

The Need For Speed

Not everyone feels it: In a Fast-Moving Web World, Some Prefer the Dial-Up Lane

“I don’t do gaming. I don’t download a lot of graphics,” she said. “For the money I would spend, I don’t need it.”

Those are words that can give high-technology industry executives chills. They have proclaimed the spread of high-speed, or broadband, connections to be integral to the industry’s growth, essential to American competitiveness and indispensable to consumers. Even President Bush jumped into the fray last month, calling for affordable, universal high-speed access by 2007.

Up to now, the market for high-speed connections has been dominated by the young, educated, affluent and tech-savvy. In some circles, it is considered not just functional, but an essential bit of modernity, like knowing what happened on “The Sopranos” or that Diesel refers to jeans, not fuel. Some users of dial-up sheepishly acknowledge that they avoid admitting their low network speeds when they are with their better-connected friends.

Infringe Copyright: Refill a Toner Cartridge

A look at the start of the business — Ink Cartridge Hobby Becomes Franchise

Another problem for the refillers is keeping up with innovations in cartridge design while facing new legal challenges from printer makers. Lexmark filed a copyright infringement suit in 2002 against Static Control Components, a North Carolina company that makes components used in remanufactured cartridges. The suit also contended that Static Control had violated the Digital Millennium Copyright Act.

Static Control’s Smartek chip reproduced the digital code that some Lexmark printers required to recognize a cartridge as authorized. In February 2003, Lexmark won an injunction against Static Control Components, which appealed to the United States Court of Appeals for the Sixth Circuit. The parties are awaiting a ruling. In late February, Static Control released a new set of Smartek chips; Lexmark has since filed claims against Static Control Components and remanufacturers using the new chip, said Seth D. Greenstein, a lawyer for Static Control.

BloggerCon Coverage in the NYTimes

Probably not of the sort that was expected: Many Started Web Logs for Fun, but Bloggers Need Money, Too

“I didn’t get into this to make money,” said Mr. Batchelder, a blogger from Brookline, Mass., whose business card cube is posted at www.nedbatchelder.com/text/cardcube.html.

That was a refrain of most of the bloggers at Bloggercon II, a conference sponsored on Saturday by Harvard Law School’s Berkman Center for Internet and Society. But a hot topic was whether blogging would ever become a major source of income for large numbers of people.

Media Consolidation: A Different Venue, Same Problems

No Shots of a Cheap Shot, and Some Wonder Why

When Todd Bertuzzi of the Vancouver Canucks sucker-punched Steve Moore of the Colorado Avalanche last month and drove him face-first into the ice, he ended two seasons – Mr. Moore’s with two broken vertebrae and his own with an indefinite suspension. He also inadvertently fueled a controversy about ethics in the rink of photojournalism.

Getty Images markets itself as an unbiased source of news photos with ethical standards that compare favorably to competitors like Reuters or The Associated Press. But even though a Getty photographer was at the game, no photos of Mr. Bertuzzi’s cheap shot made it to Getty’s wire service, raising questions about whether Getty’s deal for exclusive marketing rights with the National Hockey League had anything to do with the image blackout.