Forgive the Frankensteinian headline. Three items caught my eye today:

LATimes.com reports the Supreme Court will hear an appeal by Major League Baseball from a loss to a ”fantasy” baseball league. The for-profit fantasy league says it is just disseminating publicly available statistics (in line with First Amendment Free Speech), but MLB says that when linked to the names of players — who have a right to control their own publicity — the statistics are proprietary. The Circuit Courts are split on the issue.

[I]t could disrupt “billions of dollars” of licensing deals in pro-sports, lawyers for Major League Baseball said in their appeal to the Supreme Court. “Celebrities and athletes have enforceable publicity rights,” they argued, and the 1st Amendment has never been understood to give other companies a right “to exploit players’ identities for commercial gain.”

A lawyer for the St. Louis-based fantasy league countered that baseball and its daily box scores were available to the public. “The mere dissemination of facts or statistics is protected. And all our clients are doing is disseminating the same information that newspapers put in the sports pages every day,” said Rudolph Telscher, a lawyer who won the ruling in St. Louis.

Not so, replies Major Baseball League. The dispute involves famous names, not mere statistics, the league argues. Though the names of players such as Albert Pujols or Derek Jeter may be published or broadcast every day, “those names may not be incorporated without the famous persons’ consent primarily for commercial purposes into a product — be it a coffee mug, a poster, a board game or an Internet game — without consent,” the league said.

Washingtonpost.com reports that “Footprints in the Sand,” a famous “anonymous” religious poem, now has multiple competing claims of authorship resulting in a federal lawsuit for copyright infringement. Millions have been made printing the poem on various paraphernalia, and the newest claimant wants a piece.

At least a dozen people have insisted that the lines of “Footprints in the Sand” came to them alone, usually by divine spark, differing only by a few words here and there. The stanzas all tell a similar story: Narrator dreams he is walking on a beach with the Lord (sometimes God, sometimes Jesus). After a while, narrator turns around and sees only one set of footprints. What gives? the narrator asks the Lord — You promised You would walk with me, even in the bad times, but I see from my lone set of footprints that You weren’t there! Ah, but, the Lord replies : The single set of footprints are when I carried you through the bad times. (Cue the gulls, the gentle sound of waves and the warmth of insight.)

The only problem is one of nagging details: proof of authorship, original publication, copyright, notarization, that sort of thing. “Footprints” has been adapted into different languages, and worse, a pop song co-produced by Simon Cowell. As a sure sign of its familiarity, it has also been wickedly parodied. (”Bull-[bleep], Jesus, Those Are Obviously My Footprints,” joked an Onion headline 10 years ago.)

Finally, nysun.com has a story on Justice Scalia’s speech to a Jewish group on his views of the Establishment Clause of the First Amendment.

The justice didn’t make any radical departures from positions he has taken on the high bench, echoing language in his dissent in a 2005 case involving the displays of the Ten Commandments that two counties in Kentucky had installed in their courthouses. But his remarks appeared intended to inspirit and encourage the largest grass roots organization of fervently religious Jews in America, an organization that is engaged in the constitutional debate in the country on such issues as gay marriage, parochial schools, and civil rights for religious individuals.

Justice Scalia began speech last night, as he did his dissent in the Kentucky case, McCreary County v ACLU, by recalling President Bush’s valediction in a speech delivered shortly after the terrorist attacks of September 11, 2001: “God bless America.” Such a statement, Justice Scalia said, would be “absolutely forbidden” in many countries in Europe. Justice Scalia was in Rome at the time of the attacks, attending a conference of judges and lawyers.

Speaking last night, Justice Scalia cautioned the audience against being “so quick to believe” that the Jeffersonian principle of separation between church and state is represented by the “type of separation found in Europe.” Justice Scalia noted approvingly that in America the Supreme Court has upheld tax exemptions for houses of worship as well as the constitutionality of allowing ministers to open legislative hearings with a prayer.

I thought “the power to tax is the power to destroy” and it follows that tax exemptions for churches are allowed, indeed demanded, by the Free Exercise clause of the First Amendment (rather than by a “traditionally proper bending” of the Establishment Clause as Scalia implies), but I’m not a supreme court justice. Yet.

B

A good discussion here: http://www.slate.com/id/2181776/ 

A vast fan website tolerated by Harry Potter author J.K. Rowling has decided to publish a Guide to the Potter universe in book form. Rowling is now suing to block the publication on the basis of copyright infringement, claiming that only she should be able to publish a Guide. 

From what I know of copyright law, this case is going to fall flat on its face. Guidebooks have always been part of the literary landscape. From the Slate article: 

The closest relevant legal precedent is the 2002 Beanie Baby decision  by Judge Richard Posner (who has a taste for cases involving stuffed animals). Ty, the producer of Beanie Babies, doesn’t like unauthorized guides to the Beanie Baby universe and their unflattering tendency to criticize the company, so it sued. Ruling against the company, Judge Posner used the same analogy that I have, comparing the guides to book reviews: “Both,” he said, “are critical and evaluative as well as purely informational; and ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work.

It seems pretty clear, Rowling is not going to win this one.

B

What a topper for a great week. This really made me smile.

A Slate.com article turned me on to hacking Apple’s iPhone last night, wherein the legalities and technicalities were discussed. Why would you? See the third paragraph below. Here are some highlights, but the real point of this post is further down.

Part of the copyright code, Section 1201 of the famous Digital Millennium Copyright Act of 1998, makes it illegal to break digital locks to get at copyrighted works. But that doesn’t make unlockers criminals. The reason is an explicit exemption for personal unlocking issued by the librarian of Congress in 2006. As the librarian wrote, the locks “are used by wireless carriers to limit the ability of subscribers to switch to other carriers, a business decision that has nothing whatsoever to do with the interests protected by copyright.”

…

Even with good instructions, activating and unlocking your iPhone isn’t very easy. It’s a cinch for a supergeek, but for regular humans without technical superpowers, the experience is more like, say, scuba diving: If you do everything right, you’ll be fine, but you really don’t want to make a mistake. … During the “jailbreak” phase of the activation process, you stare at an image of prison bars for two minutes. This is not reassuring. At the penultimate stage, you need to trust your iPhone to an entity named “Cyberduck.”

… 

The good news is that my iPhone works flawlessly. With my existing T-Mobile account, I get 1,300 more minutes of talk time than I would have received from AT&T [the only option in the iPhone factory set-up] for a comparably priced plan; I also now have a phone that I can take to Asia and Europe. I avoided a $200 termination fee, AT&T’s activation fee, and having to wait for AT&T to port my existing number.

What made my week was reading the documented chronology of the insurgent engineering assault on the restrictive aspects of the iPhone following its release. This is really brilliant, and you must read it:

The Complete iPhone Unlock Star Wars Timeline.

Q: Isn’t that illegal?

A: No, we don’t live within the US, there are a lot free countries that allow you to break or modify stuff on your own.

You’re welcome.

B

Good analysis, here. The RIAA is making quite a bet that whatever the lawsuit barrage accomplishes, the resulting public relations fallout can be contained. The comments to the linked piece are not very friendly to the industry. I’m no expert on this issue and don’t know what the answer is, but does the industry?

On a philosophically related note, acclaimed band Radiohead is letting people decide on the price of its latest CD. $0 is apparently an option! Download “In Rainbows” for whatever you want to shell out, starting October 10, here. Revolutionary idea.

B