Man Without Qualities

Thursday, October 17, 2002

Mind If I Change the Subject?

Keeping in mind that keeping a topic off the front pages is not the same as keeping it out of the mind of voters, it is still worth noting just how hard it is for Democrats to change the topic of the campaign when things like Mr. Tenet telling us we're all just as likely to be murdered now by al Qaida as on September 10 keep popping onto those front pages. Surely the hijinks at the United Nations will alone be good for a few more pre-election days of news dominance. And there's lots more after that.

And while the economy is not booming, it is by no means clear that changing the topic to that topic would be a complete and unalloyed gain for the Democrats, even if they could do it - since the stock market and corporate profits seem to be doing better recently, the unemployment rate is not bad, either, the Democrats don't seem to have a real alternative plan, they've controlled half of the Congress for the last two years so share in the responsibility for the current state of the economy, and much of the current sluggishness can be traced to policies of the Clinton Administrations. Corporate governance has turned out to be a bust for the Democrats, and there don't seem to be signs that the usual demagoguery on Social Security, prescription drugs, race or class-envy is getting a lot of traction. House Minority leader Dick Gephardt just proposed increasing the federal budget deficit by over $200 Billion - including at least $75 Billion in his own kind of tax cuts. What does that say about the Democrats being able to make a big issue over the deficit if they had the chance to talk about it in the first place? And Israeli intelligence sources may be making it harder for the Democrats to argue that Mr. Bush has failed to kill Osama bin Laden. A delicate detail.

Sometimes the best thing one can say is "me, too" - and hope for the best. In this case, the "best" may be the tendency of The Party In The White House to lose some seats in mid-term elections. That considerable force just might be the Democrats' last, best hope this time around.
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Chafeeklatsch, Mr. Rove?

Lincoln Chaffee tells Novak that the Senator is highly unlikely to leave the Republican Party, where he feels "not uncomfortable."

And Senator Chaffee tells Roll Call that while he is not determined to be a Republican for his whole career:

"It would take an enormous situation for me to leave the Republican Party, where the issues that I care so deeply about were so jeopardized ... I just can't see that happening."

It all makes one wonder if someone from the White House has been having a little kaffe und kuchen with the good Senator recently. I hope so.

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Wednesday, October 16, 2002

Osama's Health and the Election

There are reports that "Israeli Intelligence sources" are saying that Osama bin Laden is dead "but his colleagues have decided that Al Qaida and its insurgency campaign against the United States will continue."

This report, if true, appears to deprive Democrats of yet another campaign argument: That the Administration is failing in the war on terrorism because bin Laden has not been personally captured or killed. If Israeli intelligence is the source of this report, it is generous of them towards the Republicans. Things seem to be warming up between Israel and the current administration generally, since President Bush is telling the media that Israel would be right to respond militarily if Israel is attacked by Iraq - which is quite different from his father's approach in the Gulf War. Israel has long made clear its obviously genuine support for an Iraq invasion, even as opponents of that invasion have sought to use Iraq's possible retaliation against Israel against the President's plans.

The issue of bin Laden's personal fate seems to be - and seems to be taken by many Democrat politicians as being - politically important. For over a year, a large number of Americans have viewed bin Laden's fate as an important factor in determining whether the "War on Terrorism" is being won. Already in January of this year, a CBS poll reported:

Despite strong public support for the war, most Americans do not think the United States can claim victory in Afghanistan unless Osama bin Laden, the man believed to have planned the September 11th attacks, is captured or killed. Now, 56% of Americans feel the war in Afghanistan will NOT be won unless bin Laden is captured, while 29% feel the war can be considered won regardless of whether Osama bin Laden is caught or not.

Apparently bin Laden being "caught" and his being "killed" are sufficiently similar for the purposes of this article that the CBS reporter slides from one to the other without comment. There have been some curious patterns in the public's reaction, as the same poll reported:

More women (61%) than men (51%) believe it is necessary for bin Laden to be captured in order for the U.S. to claim victory in Afghanistan. Also, Democrats more than Republicans feel the capture of bin Laden is crucial. Two-thirds of Democrats think if bin Laden is not captured or killed, the war will not have been won, compared to 48% of Republicans who feel the same way.

In February, Senate Majority Leader Tom Daschle said that the United States will have failed in the war on terrorism unless it "finds" (presumably including "kills") Osama bin Laden. Continuing in March. And he has not stopped.

More recently, Florida Democrat Senator Bob Graham, head of the Senate Intelligence Committee who has assumed a significant role opposing the President's Iraq plan, is convinced that bin Laden is still alive. Senator Graham voted against the resolution authorizing an attack on Iraq in part because Osama bin Laden remains on the loose, he has said. Indeed, the argument that capturing or killing bin Laden should take priority over and precede any action against Iraq was used by many, especially Democrats and Democrat aligned commentators, who opposed the Iraq resolution.

And, of course, the Democrat reliance on this theme fades to the ridiculous with Missouri Senator Jean Carnahan's comment: "I'm the No. 1 target of the White House. ... They can't get Osama bin Laden. They're going to get me."

Well, if Senator Carnahan and Israeli intelligence are both right, then it looks like Senator Carnahan can relax. However, since she is an incumbent trailing by 41% to 47% in the polls, it looks like either she or Israeli intelligence is probably wrong.

More generally, if Israeli intelligence is the source of the reports and they are correct, it looks like the Democrats have at least one more problem and one fewer argument.

And, if Israeli intelligence is the source of the reports and they are not correct or adequately supported and the sources know it, their gesture is perhaps even more generous to the Republicans than it would have been if they were just reporting the facts.

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Regarding Ms. Streisand's deep opposition to the Iranian dictator, Saddam Hussein

Barbra Streisand's "Truth Alert" website posted the following:

(updated 10-16-02)



A Republican/Conservative candidate trying with fading hopes to unseat respected Democratic Congresswoman Carolyn McCarthy made a last-ditch effort to win headlines by devising ads in which she blatantly misquoted Barbra Streisand, fabricating outrageous quotes and completely misrepresenting Ms. Streisand's deep opposition to the Iranian dictator, Saddam Hussein. An Associated Press correspondent brought the ads to the attention of Ms. Streisand's representatives Tuesday, October 15, requesting comment.

But who needs to fabricate quotes with real zingers like this?

On the other hand, Shakepeare also has a few real zingers (of a different variety than Barbra's), but Barbra used a fabricated Shakespeare quote to amuse Democrat worthies only weeks ago.

The Truth Alert post has now been altered - without explanation, apology or notice to Truth Alert readers - to read: "Ms. Streisand's deep opposition to the Iraqi dictator, Saddam Hussein."

Link via Matt Drudge, of course, who posted the snapshot of the original post before it was altered.

Ms. Streisand is just a rich, canary clown. But one really frightening aspect of her buffoonery is that as a major Democrat fundraiser, Barbra Streisand probably enjoys substantial influence in that Party.
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FURTHER UPDATE: Gee, I Used To Think That The Nobel Prize Was For Something You Did

Ruled by the notorious, murderous dictator Muammar Qadhafi, Libya is now to lead the United Nations' Commission on Human Rights. [link via Transterrestrial]

All these international-body monkeyshines are just getting to be downright insulting to Saddam Hussein. If the visionaries at the United Nations can choose Muammar Qadhafi to lead their Commission on Human Rights, then just what can the world say to Saddam Hussein to explain why the Nobel Peace Prize Committee won't award the Peace Prize to him for his offer to let the United Nations weapons inspectors back into Iraq?

This is all so hurtful. So unnecessary! Why wasn't the United Nations thinking about the HUMAN side of this?
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Throwing Out the Chafee with the Chaff?

KausFiles raises an interesting issue in the burgeoning field of Chafeeology:

Suppose the Republicans were to pick up three Senate seats in the coming election, giving them a majority of two. Is there the slightest chance that Chafee would then bolt and become a Democrat -- which would involve leaving the majority party to join the minority? No, there is not a chance. What does that say about how principled Chafee's chafing is?

KausFiles has a good point. The Man Without Qualities is not among Lincoln Chafee's greatest admirers. It is hoped in these quarters, for example, that the Rhode Island Senator will at least have the decency to leave his first name behind if he becomes a Democrat. But one must keep in mind that Senator Chafee has endured the past two years married to the minority Senate party clearly not to his tastes, during which time Senator Jeffords has been partying it up as a pseudo-Independent with all the benefits of a Senate Democrat. Indeed, at the time Senator Jeffords jumped, Senator Chafee likely could have cut a deal similar to Jefford's arrangement with the Democrats. At that time just a little collusion between Senators Jeffords and Chafee would have prevented their undercutting each other in their dickerings with Senator Daschle. So the evidence to date does not point to Senator Chafee being strongly motivated by the power that would accrue to him from his being in the majority party.

It is not clear to the Man Without Qualities exactly what does drive Senator Chafee. But Senator Chafee - for all his imperfections - seems to have more of a center than Senator Jeffords does. There are many parallels between these two New England Senators. It is highly unlikely that either of them could have been elected to their current offices as an Independent or a Democrat. Each of them relied on votes from the remaining Republican base (a base which knew it could never obtain anything better than these RINO's) plus a substantial portion of unaligned or independent voters and a few Democrats. Both of them would have been too conservative to even pass the Democratic primary in their state, and each would lose the benefits of Republican financing and party base as an "Independent" candidate. Switching parties after the election was (or would be) a true fraud on the voters and the election process in both cases. To the unboundedly narcissistic Senator Jeffords, that fraud meant nothing. But Senator Chafee seems to have more of a sense of responsibility, at least so far, even if that sense is not as strong as it should be.

So I'm not sure how much could be read into Senator Chaffee's remaining a Republican if that party gains, say, three seats in the Senate. I would prefer to think that he just again couldn't bring himself to break faith with the voters who put him in office. Call me a romantic.

FOR THE RECORD: From my mail, there seems to be some confusion over how Senator Chaffee obtained his current office. Lincoln Chafee was appointed by the Governor of Rhode Island to fill the unexpired term of his father, the late Senator John H. Chafee, in November 1999. On November 7, 2000, Senator Chafee was elected to a six-year term in the United States Senate.


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Tuesday, October 15, 2002

Nino Pro Bono?

Professor Lessig, the lead lawyer in the current attempt to overturn the Bono Act, described his Supreme Court effort as follows:

Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress's power -- the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress's power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that "affects" interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez, the Court said we need a different interpretation of "commerce" that actually recognizes limits. Limits, not control of Congress's discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.

We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government's interpretation of that clause, "limited times" has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term "limited" (limited as in limited edition print) that would also produce an effective limit on Congress's power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham, "court favorites," but instead to create an incentive for "new" creativity only).

In my view, it is most unlikely that Professor Lessig's approach will work with Justice Scalia. The parallel with the Commerce Clause is completely misleading. The Commerce Clause was given its plain meaning by the Supreme Court until the 1930's. Since then, it has metastasized - almost beyond all limits - making a virtual mockery of the "limited powers" supposedly embodied in the original Constitution. Justice Scalia has been sympathetic to some recent and rather modest attempts to restrict that boundless expansion - the Lopez line of cases among them.

There is no corresponding problem with the Copyright Clause. That Clause has not expanded beyond its plain meaning - which allows Congress to create "limited" copyright monopolies. Whatever else it is, 70 years is "limited," indeed it is notably less than the average life expectancy of people being born in the United States today. The Clause does not impose any particular limit. The Framers could very easily have written "limited periods less than 50 years" or some other fixed limit, or the Framers could have written "limited periods chosen so that a dollar, discounted to the present from the end of such period using an interest rate that seems more or less normal to people reading the Sunday papers or to a bunch of professors of economics, is worth at least $.05." But the Framers didn't do that. And as long as the Congress has a rational basis for arguing that its chosen limit is not equivalent to an unlimited period - and that argument is not difficult to make in this case - what Congress stipulates is, in fact, the law.

Of all the current Justices, Justice Scalia is perhaps the least sympathetic to proposals to import trendy or extraneous materials - such as Professor Lessig's interest rate dependent arguments - into the Constitution. He has recently referred to the Constitution as "dead" or, as he expressly rephrased the point in his preferred fashion, "enduring." He has railed against the Court's references to professional associations and public opinion polls to determine whether a "consensus" against the morality of executing young or mentally retarded criminals has developed, and instead directed the Court to the actual actions of elected legislatures. I believe that Justice Scalia will hardly pause over Professor Lessig's interest-rate-driven arguments, but he will be interested in whether there is any evidence of whether 1790 Congress or the 1976 Congress or the Court ever thought Professor Lessig's interest rates mattered before. But these arguments seem entirely novel. That novelty and lack of precedent will weigh very heavily against Professor Lessig in Justice Scalia's mind. And I see absolutely nothing sufficient to counteract that effect.

Many people have formed the entirely incorrect impression of Justice Scalia as desiring to limit the federal government in whatever way possible. That is dead wrong, and the Lopez cases do not speak of any such desire or tendency. Rather, Justice Scalia values the Constitutional structure as set out in its own words as informed by its own precedent. The modern Commerce Clause cases go way beyond that, and he is prepared to do what he can in that troubled area. But as Justice Scalia has sometimes pointed out in public: "Some modern conservatives need to understand that the Framers thought the federal government was a good idea!"

In my view, Professor Lessig has a likely and formidable opponent in Justice Scalia. In short, I expect Nino is Pro Bono. I understand from media reports that Justice Scalia asked no questions of Professor Lessig during oral argument. Professor Lessig should not count that as a good sign.
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Almost Random?

Reports are that an FBI agent, Linda Franklin, 47, of Arlington, Virginia, is the latest victim of the Washington-area sniper. She was shot Monday night as she and her husband loaded packages into their car outside a Home Depot at the Seven Corners Shopping Center.

One of the many odd aspects of this series of horrible murders is its apparent randomness. And perhaps it is completely random.

But is it possible that this series of apparently random murders is designed to conceal one or two premeditated murders - perhaps, for example, including an FBI agent working on an entirely unrelated matter? Ms. Franklin was apparently not involved in the investigation of the Washington shootings, but it might be worth checking out whether she or any other victims were involved in anti-terrorist activities, for example. Concealing one or even a few murders in a series of random murders seems like a very high profile and risky way of concealing a premediated murder, but similar things have happened in the past.

For example, (from Snopes) there have been incidents of over-the-counter drug poisonings concocted to make the death of one individual appear accidental rather than premeditated. In one such case from 1993:

A former insurance salesman was sentenced Tuesday to life in prison without parole for the Sudafed-tampering deaths of two people and for trying to poison his wife for $700,000 in insurance money. Joseph Meling, 31, also was ordered by U.S. District Judge Barbara Rothstein to pay $3.5 million restitution to Sudafed's manufacturer and other claimants if he gets paid for telling his story. A jury in April convicted Meling of fatal product tampering, which alone carries a maximum life in prison, as well as perjury and insurance fraud.

Prosecutors said Meling tried to kill his wife, Jennifer, with a cyanide-filled capsule he put in a package of Sudafed decongestant. He put similar capsules in five other Sudafed packages on store shelves to divert suspicion from himself, the court was told. Jennifer Meling survived the Feb. 2, 1991, poisoning. But Kathleen Daneker, 40, of Tacoma, and Stan McWhorter, 40, of Lacey, Wash., died later that month. Two cyanide-filled capsules were found in homes and one was recovered from a store during a $17 million nationwide Sudafed recall by manufacturer Burroughs Wellcome Co.

There is also the related phenomenon of unrelated "copycat" murderers who kill separately from a serial killer, and attempt to make their premeditated killing resemble those of the series. However, because the ballistic evidence in the Washington shooter case seems to tie all of the killings to a single gun, it does not appear that this kind of unrelated "copycat killing" could be involved in any of the Washington area murders.

In addition, seven people died of cyanide poisoning in the 1982 Tylenol murders in Chicago between 29 September and 1 October 1982, all after having taken Tylenol. Although the case is officially listed as "unsolved," it appears this was a bona fide random poisoning and not an attempt to cover up the murder of one individual by randomly killing six others.

UPDATE: Colby Cosh points to a notorious Canadian case in which an airliner was destroyed, and all aboard murdered, to kill one passenger.
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Other Good Voices Speak About the Bono Act

... but Aaron Haspel happens quite reasonably not to agree with some of the Man Without Qualities.

Colby Cosh has more insights.

Declan McCullagh's Politech notes the Cato Institute and Eagle Forum brief, among other interesting things.

The main briefs to the Supreme Court can be found here and here and more information is here.

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Monday, October 14, 2002

Some Interesting Interest Rates

This interesting BRIEF OF GEORGE A. AKERLOF, KENNETH J. ARROW, TIMOTHY F. BRESNAHAN, JAMES M. BUCHANAN, RONALD H. COASE, LINDA R. COHEN, MILTON FRIEDMAN, JERRY R. GREEN, ROBERT W. HAHN, THOMAS W. HAZLETT, C. SCOTT HEMPHILL, ROBERT E. LITAN, ROGER G. NOLL, RICHARD SCHMALENSEE, STEVEN SHAVELL, H R. VARIAN, AND RICHARD J. ZECKHAUSER AS AMICI CURIAE IN SUPPORT OF PETITIONERS has been filed with the United States Supreme Court in support of the effort to overturn the Bono Act. The argument in this brief repeatedly uses a discounting interest rate of 7% in the actual discussion of the value of the additional 20 years of copyright monopoly provided by the Bono Act, although an appendix to the brief displays how some relevant calculations would look with assumed annual interest rates of 5%, 7% and 10%.

Those interest rates are interesting in their own way. But, as noted in a prior post, how is the Court to know that this is the appropriate range apparently thought by the worthy "authors" of this brief to have been incorporated into the meaning of the federal Constitution? Do the interest rates below taken from the web page of the Bank of Japan have any bearing on the Constitutional necessity of the 5% - 10% range? These current interest rates now in force in the world's second largest economy seem to be somewhat outside the range appearing in the appendix to this brief. Perhaps the Justices should ask the authors of this brief to submit some additional briefing showing how their calculations work out at, say something closer to the 0.249% annual rate applicable to certain 10 year deposits in Tokyo, and explaining why the Constitutional calculations shouldn't be done at that rate?

Average Interest Rates Posted at Japanese Financial Institutions by Type of Deposit

October 9, 2002.............Bank of Japan..........Financial Markets Department


1. Average Interest Rates on Time Deposits of 10 Million Yen or More by Maturity1

Percent per annum 0.020......0.020........0.022.......0.033........0.044.......0.069......0.091......0.129......0.154......0.249

2. Average Interest Rates on Time Deposits of 3 Million or More and Less Than 10 Million Yen by Maturity2
Percent per annum 0.020......0.020......0.022......0.034.......0.045.....0.068.....0.076.....0.104....0.135....0.197

3. Average Interest Rates on Time Deposits of Less Than 3 Million Yen by Maturity2
Percent per annum 0.019........0.020.........0.022........0.033........0.044.......0.067........0.074.......0.102.........0.104..........0.167

4. Average Yield on Installment Savings by Maturity3
Percent per annum....0.038............0.058.............0.064

5. Average Interest Rates on Savings Deposits by Minimum Required Amount3
Minimum required
amount outstanding...........100,000 yen............300,000 yen
Percent per annum...............0.010........................0.011

6. Average Interest Rates on Ordinary Deposits3
Percent per annum 0.003


Indeed, under the theory advanced in this brief what would happen to the original 14 year copyright monopoly if American interest rates become negative for any significant period of time? Would the copyright monopoly then be unconstitutionally short?

As noted in a prior post, the last big revision of the copyright laws - which extended the monopoly from 30 to 50 years after the death of the author - was effected in 1976, at the beginning of a period of historically high interest rates. Perhaps the Justices might also like to ask the authors of this brief to show how much that additional 20 year period (that is, the extension from 30 to 50 years) was worth assuming interest rates more in keeping with the late 1970's: Say 23% annually?

And since the original copyright monopoly extended for 14 years and was created rather hard on the heels of a period of hyper inflation, perhaps the Justices would like the calculations made in this brief run to show how much value to that 14 year period would be added by, say, its last 7 years at interest rates consistent with hyper inflation: Say 10,000% annually?

I believe it was Chief Justice Marshall who noted that the Constitution was designed to last for the ages. Those extra calculations might provide the current Justices with some Constitututionally scaled perspective of Marshall's dimensions.

This brief also makes the observation that the copyright monopoly can be viewed as two distinct sources of market power:

A copyright holder has two kinds of monopoly power, each of which is a potential source of producer profit and social cost. First, as discussed above, copyright imparts control over the quantity produced of a work, permitting the holder to maintain a price higher than marginal cost. Second, copyright provides control over the production of derivative works based in part on copyrighted material. In certain circumstances described below, this control results in higher costs and lower production of new creative works.

The brief then goes on to argue that terminating the copyright monopoly allows for dertivative works to be more easily created without high transaction costs and conflicts among copyright holders. It seems to the Man Without Qualitiesd that may very well be true in some cases. But transactions costs are not proffered as an excuse for terminating other property rights. What would one think of an argument that all stock ownership should be voided after a period of time because it is hard to locate some shareholders, etc? Can't most of these "transaction costs" be dealt with by requiring more current names and addresses be put in some central register? Do we really hear cries from would-be copyright users that they are being defeated by transaction costs - as opposed to simple refusal of the copyright owner to grant the requested right? Evidence of such cries is notably lacking from the brief.

But, in principle, the thought seems reasonable. It seems to the Man Without Qualities that the Court should invite more specific challenges to narrower categories of copyrighted materials - especially if it is concerned about the First Amendment issue. What is an appropriate time period for a copyright in politically charged or religious materials may not be the right period for materials constituting or embodying pure commercial speech, for example. The Court has traditionally used such a categorical approach in its First Amendment cases. Perhaps this challenge is too braod, and the Court would prefer to move in smaller, more easily understood steps?

UPDATE: An astute reader points out that nominal interest rates normally include an inflation or deflation component. In a period of deflation nominal interest rates can be zero or less. But should the inflation (or deflation) rate have Constitutional significance? Should the inflation component be removed, and the "real" interest rate used for Constitutional purposes?

That approach would have made matters even more impossible for the first Congresses, since as almost impossibly difficult as it would have been for such a Congress to determine the nominal interest rate to legislate the copyright monopoly period in the absence of capital markets as we know them, it was surely twice as difficult for such early legislators to determine the "real" interest rate in the complete absence of official or reliable inflation statistics. So the opponents of the Bono Act seem to have arguments that imply that the Copyright Clause was just decorative before the 20th Century. Of course, not a jot of evidence has been adduced that any early Congress even dreamed that interest rates mattered for this purpose, although it is critical under the reasoning now advanced to the Court.

It is also remarkable that the opponents of the Bono Act need to treat its life-of -the-author-plus-70-years (or 95 years for corporations) as "equivalent to infinity" to address the grant of power to Congress under the Copyright Clause to create copyright monopolies for "limited periods."

But consider the following: If one is wealthy and wishes to settle a trust fund on one's own child that will allow him to live comfortably for his entire life (suppose he is disabled, for example), then one will have to plan financially for just about one's-own-life-plus-70-years. And as my astute reader points out, the current debate on Social Security frequently concerns itself with solvency questions maturing 70 years into the future - and heaps blame on politicians who aren't planning that far ahead.

Does any of that sound like the equivalent of infinity to the reader?
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Why Is Mozart Like a Buffalo?

"It is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that," said Justice Sandra Day O'Connor. "One wonders what was in the minds of the Congress."

This is surely a curious statement from Justice O'Connor, for the main current attack on the copyright extension act - the so-called Bono Act - is predicated on the actual text of the Copyright Clause, which does not say a word about "encouraging creative work". The Copyright Clause instead says that Congress has the power to pass laws:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The first copyright act created a term of 14 years, with the right to renew for another 14. In 1998 the term of the copyright monopoly was extended to the life of an author plus 70 years for individuals, or 95 years for corporate copyright holders. The government says that Congress has the power to impose any term - other than an unlimited one.

The economic argument (as opposed to the textual argument) being made in this case - and to which Justice O'Connor in part refers - by the opponents of the Bono Act is more than passing strange. One does not hear economists arguing that the economic effects of allowing long-term private property rights of other forms (say, corporate stock, real estate or animals) somehow suppresses the economic usefulness of those other forms of property. Generally, it is the absence of property rights that causes sub-efficient economic behavior. For example, when nobody owned the buffalo on the American plains, and therefore anyone could shoot them in any number, a lot of people did shoot them in preposterous numbers. THAT IS THE WELL-UNDERSTOOD REASON THE BUFFALO ALMOST BECAME EXTINCT. Today, the American landlord is similarly endangered by the common-pool effects of rent control laws, which essentially gut the exclusionary privilege of real property ownership including, quite literally, the right to charge efficient rents. This "overexploitation of the common pool" is one form of inefficiency created by the lack of sufficiently extensive property rights. One might keep in mind the interaction of limited copyrights and the "overexploitation of the common pool" effect the next time one sees a reproduction of an impressionist painting or a figure on the Sistine Chapel ceiling imprinted on, say a placemat or a shopping bag - or the next time one hears Mozart on the elevator (or hears "The Rite of Spring" in Disney's Fantasia, for which Stravinsky - then living just a few miles from Walt Disney - received essentially nothing because Stravinsky held no valid copyright).

But "overexploitation of the common pool" is not the only way efficiency is lost through failure of property rights. There is also the "capture" problem: if one doesn't own an artistic work, one can't capture all the value of promoting it. Put another way: one can make money a lot more easily promoting Rolling Stone songs than promoting Mozart operas. That's because if one promoted a Mozart opera, anyone else who wants to can just publish the exact same opera. Although one can retain rights in one's particular performance - the fact is that Mozart's genius is just a lot more important than the genius of any know performance or set of performers. So a lot of the wealth just escapes.

The perverse results of all this seems to include that one hears both too much Mozart (in the wrong places and at the wrong times and with the wrong associations) as a result of the "common pool" inefficiency and too little Mozart (in the right places and at the right times and with the right associations) as a result of the "failure to capture" inefficiency.

Both the "common pool" inefficiency and the "failure to capture" inefficiency are normally discussed in terms of the free (or "perfect") market alternative. But as pointed out in the prior post, where the copyright monopoly confers substantial value, that value is conferred by the creation of an imperfect market. This is a fact although there is an apparently unlimited number of silly copyright lawyers prepared to deny it. [Ordinary "copyrighted" materials are "substantially similiar" to other uncopyrighted works competing in the market. Copyright only protects works up to "substantial similarity." To the extent a copyrighted work is not "substantially similar" to any other, it faces only imperfect competition. This is why Harry Potter has market power but most screenwriters in Los Angeles are well advised not to quit their day jobs, although many do anyway.] How imperfect market interacts with the "common pool" and "failure to capture" inefficiencies at this point in the development of economics requires hugely complex and controversial game theoretic mathematics.

And notice that this economic analysis affects both the Copyright Clause attack and the First Amendment attack on the Bono Act. If failure to have sufficiently strong copyrights causes underdissemination of affected information (by the "failure to exploit" inefficiency), then having any finite copyright period at all might suppress First Amendment policy.

This is not to deny that there are people who would make good use of a Rolling Stones song if only they could get it away from the Mick Jagger. But there are people who would make good use of any backyard in America if they could just get it away from the owner.

One of the many peculiar aspects of the current challenge to the Bono Act is that the Copyright Clause requirement that the copyright monopoly be for "limited periods" may simply be bad economics. That doesn't mean that the limitations of the Copyright Clause should not be enforced, but it might be a good reason to construe the limitation, not the limited power, narrowly.

As an aside, it is indeed difficult to understand why the Supreme Court would want to undertake the heroic intellectual, economic and legal efforts necessary to gut the Bono Act - at least under the Copyright Clause argument, since Congress could achieve almost the entire effect by passing the Bono Act under its Commerce Clause power, which has no time limitation.

In fact, federal trademark rights are created under the Commerce Clause, and have no specified lifetime. Is there something wrong with that?

The Court has more of a mandate to perform experimental heroics to protect First Amendment rights. But until the mathematics and economics of copyright are better understood, they will probably keep far away from this generalized "cost benefit" approach.

The Man Without Qualities plans to return to Bono Act considerations to apply some of them to the prosaic chore of counting Supreme Court Justices noses, to show that those noses point in a direction distinctly Pro Bono.

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Sunday, October 13, 2002

Control of the Senate?

In a prior post the Man Without Qualities reminded readers that if the Senate were to acquire a Republican majority in November, Lincoln Chafee ("R"., R.I.) might become a Democrat or "Independent" (read, procedural Democrat).

Since Senator Chafee was the only Republican voting against the resolution authorizing war with Iraq, it seems as though he is sending some very clear signals as to his post-November intentions.

UPDATE: Some polls are now indicating that Missouri Democratic Sen. Jean Carnahan trails former Republican Rep. Jim Talent, reversing previous findings of Senator Carnahan's 6 point lead. Most political experts would say that an incumbent (such as Senator Carnahan) who has fallen behind at this stage is all but doomed, so thought about what happens if and when she loses is in order.

The Missouri race is different, because the winner will take office the day after election day - not in 2003. Regardless of which party wins control of the Senate in November, some Republicans have contemplated a "lame duck session" between election day and the new year in which only Senator Carnahan would be replaced. Confirming a lot of federal judges has been a suggested agenda.

But if that were to happen, it looks as if Senator Chaffee would try to stop it. I'm not an expert on Senate rules, but presumably it would take a full Senate vote to reconstitute the Senate committees. Senator Chaffee might bolt at that time.

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