"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, September 12, 2017

Shall we overcome this nonsense?

The first time I have heard the song "We Shall Overcome" was when I was 16 and was invited to a concert of students in the Moscow Linguistic University in Moscow, Russia.  

Then, in mid-70s and in the USSR, that song was already known as the unofficial anthem of the civil rights movement in the U.S.

Yet, nowadays, that anthem has become the focus of a lawsuit against a corporation claiming a copyright for that song, according to the lawsuit, stifling its public performances.

Here are the relevant portions of the complaint filed on April 12, 2016 in the U.S. District Court for the Southern District of New York, the case is called: 

We Shall Overcome Foundation et al v. The Richmond Organization Inc et al, U.S. District Court, Southern District of New York, No. 16-02725.

In November of 2016, Judge Denise Cote dismissed state claims on preemption grounds - since the majority of state claims hinge upon the main issue, whether the Defendants own a copyright to this "song".

On September 8, 2017, while allowing the case to proceed to trial, Judge Cote decided for the Plaintiffs, and removed from the trial by a partial summary judgment, this issue:

Here are the differences that were claimed to be protected by copyright:

This is the first case when I felt really, really sorry for the judge who has to go through all this nonsense about copyright of a song which has been in the public domain for more than half of a century - and her meticulous work in her dismissal decision and her partial summary judgment decision is commendable.

Look at what she had to deal with:

So, the what is "copyrighted" is subtle changes to the melody that can be made by a specific singer of the song and not an author, and which do not add anything to the originality of the work - and especially of a "song" which has been in the public domain for over 70 years.

I am not saying that to file this lawsuit was silly, no. 

It was, unfortunately, necessary if the supposed "owners" of the "copyright" to the civil rights anthem claim royalties for performing this song and stifle performance of what has long ago become a civil rights anthem.

In other words, each time anybody sings this song publicly as a means of political expression, he or she, or they must pay the "owners" a fee, or be in violation of federal copyright law (which can be enforced as a federal crime, too).

The lawsuit brings up important issues - as to the status of songs that people like so much that they become the banner of a large political movement.

This case still goes to trial on all issues other than whether the Defendants own copyright for the melody and first verse of the "song".  They don't, according to the court's decision.

Other issues in the lawsuit

It will be, of course, a good and decent thing to do for people to just cede their supposed "copyright claim" to the public domain and settle the lawsuit.  But, it did not happen since April 12, 2016 when the lawsuit was filed, and our public funds are continued to be spent on the long fight which appears (on behalf of Defendants) to be nonsensical and bizarre.

It is interesting to mention - and the Plaintiffs in this case mentioned it - that the Defendants never pursued anybody for copyright violations in court, probably, understanding that they do not have much ground to stand on.

What will the jury say as to the remaining issues, now that the judge threw a wrench into the litigation by declaring that the Defendants do not own copyright as to the music and words of the first verse?  

I will continue to follow and report on this case.

Stay tuned.

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