20 August 2015


Donald Trump should be careful what he wishes for: If we do away with "birthright citizenship," we'll have to deport that thing on his head. I demand to see its long-form birth certificate immediately #BirtherTrumpsHair !

  • Leaving almost no opportunity unturned to create an implicit circuit conflict, the Sixth Circuit yesterday ruled that certain design elements are not inherent parts of cheerleading uniforms and therefore are eligible for copyright protection (PDF incl. dissent). Admittedly, the "useful articles" exclusion from copyright — a problem not found in many other nations' copyright law — is more than a bit obscure, especially in instances in which one must distinguish between the component parts (the fabric, eligible for copyright) and the product (the useful article, not eligible for copyright). The reality, though, is that this is an administrative law decision more than it is a copyright decision. Given the agency capture of the Copyright Office (and the unexamined question of whether a nonexecutive agency deserves Skidmore or Chevron deference, or whether any such deference is a consequence of the executive function), this was not the best possible rationale.

    If we take the Sixth Circuit's analysis at all seriously, we have yet another argument for moving the Copyright Office out of the Library of Congress. Of course, taking that analysis seriously in the context of cheerleading uniforms is a bit difficult.

  • So, then, why did the FBI spy on James Baldwin and get almost everything wrong? As to the first part, "gay black man objecting to WASP hegemony" is a more than adequate explanation. As to the second, "'FBI' and 'spy' have never mixed" is also a more than adequate explanation.
  • Last for today, a perhaps controversial note on a current nuanced issue. I am not in favor of the #BlackLivesMatter meme — not because they don't, but because it's bad rhetoric. It elevates a discernable segment to greater value by implication than other segments. And merely claiming that other segments can do the same thing — #LatinoLivesMatter, #LGBTQLivesMatter, #SemiticLivesMatter, #MuppetLivesMatter — reifies a distinction that we definitely should not be asking people carrying firearms to make. Indeed, we should be actively discouraging that distinction in all contexts: Not just when pointing weapons at them, but when pointing words and legislation and housing policy and community acceptance at them. #AllLivesMatter — and even when we don't succeed in that, we're obligated to try.