July 20, 2009

A Notable Obit In Today’s Paper [3:08 pm]

William C. Conner, 89, Judge Known for First Amendment Rulings, Dies (pdf)

Judge Conner’s expertise in intellectual property issues was the principal reason he was given responsibility in the mid-1970s for overseeing a 1941 consent order governing the activities of Ascap, which represents songwriters and music publishers in royalty and other matters. Under the order, the federal government and Ascap — an acronym for the American Society of Composers, Authors and Publishers — agreed to put Ascap’s dealings under the supervision of the federal court in Manhattan to settle an antitrust suit.

Judge Conner in 2004 approved a new deal for Ascap’s licensing of songs to radio stations. The pact is estimated to have increased payments to composers and publishers by $1.7 billion since 2001.

In 2007, Judge Conner vetoed an Ascap request to classify digital downloads as performances; the designation would have given songwriters an extra royalty. Last year, he turned down Ascap’s request to get 3 percent of revenues from songs streamed over AOL, Yahoo and RealNetworks. Instead, he decreed 2.5 percent.

[...] The Marx Brothers case in 1981 involved the Broadway show “A Day in Hollywood/A Night in the Ukraine.” Heirs of the Marx Brothers’ contended that the show had illegally appropriated the names and likenesses of Groucho, Harpo and Chico Marx. Judge Conner said that publicity rights held by the brothers, all of whom had died, trumped the producers’ First Amendment claims. The ruling was reversed by the United States Court of Appeals for the Second Circuit.

Later: A related op-ed on the role of the courts in intellectual discource — The Day Obscenity Became Art

Looking over the Roth decision, Rembar spotted a loophole. The opinion, written by Justice William J. Brennan, noted that the First Amendment’s purpose was “to assure unfettered interchange of ideas” and that “all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees.” But, Brennan went on, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Rembar mulled over a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? By Brennan’s logic, wouldn’t it qualify for the First Amendment’s protection after all?

On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled one circle “Material appealing to prurient interests.” He labeled the other “Material utterly without social importance.” By Brennan’s reasoning, only material that fell inside both circles — that was both prurient and worthless — should be denied the privileges of free speech.

This was the argument that Rembar made before Judge Frederick van Pelt Bryan of the United States District Court for the Southern District of New York. [...]

Where would we be without the “new math” education?

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