Of Church Buildings and Meetings and Nigerian Archbishops and Homophobia

(Editor's note: The original version of this piece included a mistake that was caught by one erudite reader in Mississippi and another in Arizona. I've corrected it since. As always, thanks to everyone for reading.)

There is a story in today's Los Angeles Times about a growing rift between the American Episcopal Church and the Worldwide Anglican Communion over issues related to homosexuality. Following a recent meeting in Africa, the Worldwide Communion ordered American bishops to adopt a new administrative hierarchy in which dissident conservative churches be allowed report to an international panel dominated by the Archbishop of Canterbury rather than the traditional diocesan hierarchy that's worked for centuries. The worldwide body also ordered the Americans to stop appointing gay bishops and stop celebrating same-sex unions. In other words, they responded to the American bishops' independence much the way that George III responded to the Continental Congress: they’re going to show the rebels who’s boss.

The American bishops, laudably puzzled by this centuries-late assertion of feudal privilege, requested a three-day meeting of prayer and discussion with the Archbishop of Canterbury, Rowan Williams, who referred to this suggestion of an all-expenses paid vacation as "discouraging." Offering to pay the expenses was a nice, if obvious, touch on the part of the Americans, since the U.S. provides a significant portion of the Worldwide Anglican Communion's budget.

Some background: according to the London Times, there are a little more than 77 million Anglicans in the worldwide church, of whom about 2.3 million, or three percent, are American. This three percent has a disproportionate impact on the overall church, because the Americans contribute about a third of the worldwide church’s budget. The split between the American Episcopals and the rest of the Anglican Communion became clear at the 1998 yearly conference, when Resolution 1.10 adopted a conservative Biblical standard with respect to sexuality but also stated that lesbians and gays in the Church should be heard . The American bishops were uncomfortable with this rule; at the time there were no openly gay bishops and the American Episcopal Church was not celebrating same-sex unions but the American Church was clearly headed towards a more liberal attitude toward same-sex relationships. The American approach was criticized by the church’s more conservative constituencies. Nigeria’s Archbishop Peter J. Akinola was vehemently and outspokenly opposed to any liberalization of Anglican policy toward homosexuals, and indeed does not seem to see any role for gays and lesbians in any aspect of Anglican life. (Note that Archbishop Akinola is not only exceedingly conservative on this issue, he is boorishly rude as well. According to the New York Times, the archbishop has knowingly shaken hands with a homosexual only once, and on that occasion he leapt back in horror when he realized what he had done.)

In 2003, the American Episcopal Church consecrated an openly gay bishop, Gene Robinson of New Hampshire. At about the same time, the New Westminster diocese in Canada authorized a rite of same-sex blessing. Both moves brought protests and calls for reform, but the American bishops accepted and endorsed both, and conservative American congregations began to try to separate themselves from the American Episcopal Church It’s not clear from published accounts whether it’s this movement is from the top (the clergy) or the bottom (church membership) or both , but some churches began to try to secede. Notably, some churches declared themselves to be part of Archbishop Akinola’s Nigerian flock rather than part of the dioceses they’d belonged to for centuries.

In this they ran into problems, because while the individual congregations were accustomed to treating their church buildings as their own, in fact the buildings are the property of the American Episcopal Church. American realty ownership rules are quite clear, as a rule, and groups don't obtain title to property simply because they feel they’re entitled to it. Several of these unfortunate fights have ended up in court, and according to NPR, the national body beats the local congregations every time. Once the dissidents learn they’ll have to buy their own church buildings and move their congregations there, their zeal for secession seems to wane. They seem as attached to their structures as their policies.

Christianity prides itself on being a religion of personal conversion in which the doors are open to anyone. The American Episcopal Church is trying to be as good as its word and allow its gay and lesbian clergy and membership the same privileges and options that it offers its straight members. So why is this so controversial?

Members often point to the Bible, and say that homosexuality is forbidden by scripture. There is some truth in this, but not as much as some would have us believe, and certainly not enough to warrant all this fuss.

Christ doesn't mention homosexuality in the Bible, not even the faintest allusion. Those opposed to liberalization of attitudes towards gays and lesbians point instead to Leviticus 18:22, which states that it is an abomination for a man to lie with another man, and Romans 1:22-27, in which St. Paul refers to gay sex as "vile." Simple, no?

Not really. Those who hang their religious hats on these scriptural pegs are wise to read further, because there are a number of other things that Leviticus describes as abominations, including eating any creature from the sea that does not have fins and scales (Lev. 11:12). Episcopals who eat oysters, shrimp, shark or catfish (and one of the most conservative secessionist groups is in South Carolina) are therefore just as abominable as gay men. Note also that the ever-precise Torah nowhere describes it as an abomination for a woman to lie with a woman, so excluding lesbians appears to be without scriptural basis.

True, many Christians think that the New Testament exempts them from the Torah’s food laws, but understand that even if one gives complete credence to the scriptures’ condemnation of gay sex, in the eyes of Leviticus, it’s the equivalent of breaking a kosher food rule. In the eyes of the Bible, sodomy and a cheeseburger are about the same.

The Bible also describes a number of other activities as abominations, including women dressing as men (Deu. 22:5), remarriage between divorced people (Deu. 24:4), and, curiously, wearing a garment of mixed wool and linen (Deu. 22:11). Leviticus and Deuteronomy also forbid pasturing dissimilar animals together, planting more than one type of seed in a field, and letting thy brother’s ox or sheep go astray. Note that the Bible is comparatively easy on certain other misdeeds, including bestiality: “Neither shall thou lie with any beast to defile thyself therewith; neither shall any woman stand before a beast to lie down thereto: it is confusion” (Lev. 18:23). So. Men having sex with men is an abomination, but anyone having sex with a donkey is merely a confusion. Is the Archbishop of Canterbury on board with this?

These rules were adopted thousands of years ago to regulate the behavior of a large group of agrarian nomads who had recently taken over hostile country with strange customs. Like immigrants and invaders throughout history, they were intrigued and tempted by new things. The Bible makes clear that these rules were intended primarily to make sure the Jews didn’t adopt the religious customs of their new neighbors: “And the land is defiled: therefore do I visit the inequity thereof upon it, and the land itself vomiteth out her inhabitants. Ye shall therefore keep my statutes and my judgments, and shall not commit any of these abominations …” (Lev. 18:26).

Various sexual practices were part of religious observations in the ancient Middle East, and reading Leviticus all the way through conveys a clear sense that some acts were prohibited as much because they were performed as part of foreign religious rituals as much as because they were thought to be bad in and of themselves. The ban on men having sex with men follows immediately after this: “Moreover thou shalt not lie carnally with thy neighbor’s wife, to defile thyself with her. And thou shalt not let any of thy seed pass through the fire to Molech, nor shalt thou profane the name of the Lord thy God: I am the Lord.” (Lev. 18:20). I am sure we can all agree that we’re glad that Molech worship has died out.

It would be instructive for anyone interested in the Bible's message about sexual practices to make a complete list of acts forbidden by Leviticus and Deuteronomy and list them in order of importance. One way to decide what the author considered important is to take note of the punishment to be meted out for offenders. Anyone who does so will realize that of the sexual offenses, adultery is as serious as they come: it is punishable by death (Lev. 22:21). Some practices that we abhor are treated relatively lightly.

Likewise with Romans. Paul begins Romans describing the condition of the world before Christ, in particular its need for redemption and repentence from sin. He talks about lust in several other letters, but in Romans he specifically associates it with idolotry. This would have been very important to the Romans, since all Roman residents were expected to take part in public rituals honoring Roman gods. Paul insisted this was improper conduct for Christians, which caused no end of trouble. Some Roman cults also encouraged drunkenness and sex as part of their celebrations, and to St. Paul, they're all related: "Professing themselves to be wise, they became fools, and changed incorruptible God into an image made like to corruptible man, and to birds, and four footed beasts, and creeping things. Wherefore God also gave them up to uncleanness through the lusts of their hearts, to dishonor their bodies between themselves, who changed the truth of God into a lie, and worshipped and served the creature more than the Creator, who is blessed forever. For this God gave them up unto vile affections: for even their women did change the natural use into that which is against nature. And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another, men with menworking that which is unseemly, and receiving in themselves that recompense of their error which was meet." Romans 1:22-27. St. Paul isn't singling out gay sex here, he's condemning lust in all its forms and is being thorough in how he catalogues it. He sees a relationship between idol worship and lust that seems odd to modern eyes, and that he sees it as a punishment, not a pleasure, may tell us something about why he was celibate.

To take the scriptures seriously, as Archbishop Akinola and conservative Episcopals want us to believe they do, means to accept the entire scriptural message and figure out what it means, not to quote only the parts that support their beliefs. There is a message there, but it is not one that reinforces personal prejudices.

Or, alternatively, the Archbishop could love his God with all his soul and with all his might, and do unto others, even gay others, as he would have them do unto him. There’s scriptural support for that, too.

Apologies

Polycarp was travelling last week and couldn't post anything new. He'll be back to complaining and opining from ignorance later today.

Polycarp's Weekly Horoscope (Special Edition)

This week, we feature a special Scooter’s All-Stars version of Polycarp’s Weekly Horoscope. For those of you who haven’t been following the story, the highlighted words are linked to subtle clues as to what Polycarp means.

Aquarius (January 20-February 18): Polycarp is blaming you for all of this, Aquarius, and not just because he doesn’t like you, although he doesn’t, but because you let your top guy take a bullet you should have taken for yourself, then when he needed your help, you went back to your undisclosed location. Do you understand that he will lose his law license over this, too? Helping you put has left him at prison's door and destitute. Shame on you. And for what? Because you wanted to cast aspersions on a Scorpio you should have listened to in the first place. Revenge, your sole motive in the original plan, is beneath great men, so you took yourself off of the list.

Pisces (February 19-March 20): You’re the Pisces whose reporting of a certain photogenic Aries CIA agent’s identity led to this whole mess, so you’re the man who knew the source of the leak and since you never went to jail (unlike some people) for failing to disclose who it was, we deduce you identified your source at your earliest opportunity. That means you’re uniquely positioned to point out that a certain Capricorn special prosecutor knew from jump street that the leak did not constitute a crime, yet barged ahead investigating anyway. Reporting on that would be news, Pisces.

Aries (March 21-April 19): Well, Polycarp never has been sure if you actually were a covert operative for the CIA, Pisces. You’re awfully photogenic for a job in which being nondescript would be an enormous asset. People claimed early on that outing you had endangered the lives of others, but no one’s beating that drum anymore. Were you, or weren’t you? And if not, why was this investigation necessary?

Taurus (April 20-May 20): Chin up, Taurus. Polycarp is a lawyer, too, and has lost a big case or two in his day. Not as big as this, of course. When Polycarp loses one, he spends a few days thinking over the mistakes he made and the things he could have done differently. He's wondering if you are pondering the wisdom of mentioning a star witness who then chickens out and never shows or crying during closing. Both were odd moves for a tough-guy New York litigator.

Gemini (May 21-June 20): Polycarp knows you had noting to do with this mess, Gemini but you’re a Republican with a solid shot at the White House and a former U.S. Attorney with a reputation as a crusading crime-fighter. If you win, can't we work on the way these prosecutions work? Stop this business where they create their own criminal, then pat themselves on the back for convicting him. If they’re going to create crimes and prosecute them both, we have a prosecutorial perpetual motion machine. Also—we need to ban this practice of pressuring suspects into giving waivers of confidentiality deals if they talked to bona fide reporters. That’s dirty pool. Prosecutors are supposed to be better than crooks, and here they clearly weren’t.

Cancer (June 21-July 22): Well, big guy, you like exercising your executive powers, and it looks like you’ll have an opportunity to use a new before too long. It’s de rigeur to wait until the last few days of your presidency before giving up unpopular pardons, but I just wonder how long you’ll be able to wait. Something came out in the trial that your favorite Capricorn politico would rather not discuss, and all this revenge-seeking, ratting out, leaving trusted aides twisting in the wind, dishonest mud-slinging doesn’t square well with your professed Christian values. Tend thy sheep, Cancer.

Leo (July 23-August 22): Ouch, Leo. Polycarp feels your pain. Four out of five counts. Not only are you out of politics, as a convicted felon you can’t practice law, or even vote in most states. Your soon-to-be new home doesn’t allow conjugal visits, either. On the up-side, the website looks good, Fred Thompson is hosting fundraisers, and we know you know how to get a pardon, Leo. After all, you’re the one who talked a certain Leo ex-president into pardoning Marc Rich.

Virgo (August 23-September 22): Polycarp has no idea what your real sign is, Mrs. Leo, but has decided you must be a Virgo because he thinks highly of Virgos and has lots of sympathy and respect for you. You were a high-powered Washington lawyer yourself when you married, and hubby became one of the leading neocon lights of this administration—in fact he’s the one who brought all this foolish neocon foreign policy nonsense from his favorite college professor to the administration. Be brave, though. If the pardon comes through, Leo will get rich on the rubber chicken circuit, and if not, well, you have an impressive resume yourself.

Libra (September 23-October 22): Polycarp knows you’re really a Taurus, but wants to complain about you and would rather do it here than talk about any real Libra. You were the source of this leak. You were the source of the information about the photogenic CIA employee. Apparently, the overzealous Capricorn prosecutor never even considered going after you. Do you feel ashamed, now? If there was any crime, you committed it. Why no criminal investigation of you?

Scorpio (October 23-November 21): Well, it’s all over now, Scorpio. Polycarp believed you all the way about the yellowcake in Niger, and think they should have listened to you all along and He’s not sure it would have kept them out of Iraq, because they were sooooo determined to go, but he's still not sure why they didn’t listen. You were, after all, one of their guys, and rumor has it the memo was on the desk of a certain Scorpio senior advisor and then-NSA chief at the time of the U.N. speech by an Aries former general. On the other hand, your barely disguised glee at Leo’s conviction is unseemly and unambassadorial, so Polycarp is not sure he likes you very much.

Sagittarius (November 22-December 21): As soon as the administration’s stenographer learned the identity of a certain photogenic Pisces he called to confirm with you, Sagittarius, a shadowy lawyer/lobbyist, and you in turn picked up the phone and called the big guy’s favorite politico. The administration’s shameless shill even sent you a copy of the article two days before publication, and you immediately faxed it to said discredited politico, one of many Capricorns involved in this story. Although it did not come out until the trial, and few other than Polycarp seem to have noticed it, this was the direct link to the White House that the overreaching Capricorn prosecutor had been sniffing for all along. It was there, and he missed it. Polycarp is therefore filing you under "missing link."

Capricorn (December 22-January 19): Prosecutors like you remind Polycarp of what he doesn’t like about special prosecutors, Capricorn. You were appointed to prosecute one particular crime. You never did that (admittedly it would have been hard, since the original leak wasn’t a crime) and instead ran around prosecuting something else entirely. You remind us of a certain Cancer former special prosecutor who started out with an Arkansas land deal and ended up investigating oral sex. The biggest surprise is that you guys seem proud of yourselves. There are enough bad guys out there already, Capricorn. You don't have to create your own.

Gay Marriage, Constitutions, and Activist Judges, or Speaking Out of Both Sides of One's Mouth

There was a story on NPR this morning (link here) about how the Christian right is attempting to get the voters of my home state North Carolina to amend our state constitution to ban gay marriage. This raises all kinds of questions, like is this necessary? (no) and is it a good idea to let people vote on minority rights? (no) and why are people so worked up about gay marriage? (beats me) and will this proposed amendment ever make it through the North Carolina House? (no) but the one that's interesting to me is why they're bothering. One answer to that question is that they think that if they could actually get it on a ballot, they actually can win.

Regrettably, they're probably right. These measures have been popular for the last six years and have been successful in a lot of states. Republican campaign managers like having these measures on the ballot because gay marriage gets some people really worked up, motivates the electorate, which increases the number of people who vote. Since the type of people who are worked up about this are more likely to vote for George Bush than John Kerry, putting an anti-gay marriage proposals out is in effect a get out the vote campaign for Bush, and you don't have to discuss the issues or spend your own money.

These bills are one of the most cold-heartedly cynical devices the Bush administration ever used. It's never fair to discriminate against a minority group. It's bad enough to do so because of personal prejudice or misguided religious belief, but to do so to get votes is, to my mind, much worse. Who is worse, a killer for hire or someone who commits murder in the course of a heated argument? A killer for hire is worse, because he commits his crime deliberately, and the likelihood that he will do so again makes him more dangerous. For the same reason, a politico who whips up prejudices he doesn't share is worse than someone who is actually prejudiced. This is all appalling, to me, but Karl Rove is more morally culpable than a Baptist who assigns a Bible verse more importance than it warrants.

As a lesson in practical politics, North Carolina's proposed amendment is utterly pointless, since it has no chance of getting on a ballot. It would likely win if it did, but similar amendments have been dying in committee in our Democratically-controlled House of Representatives for seven years, and the new speaker (who can stall a proposed bill in committee faster than you can say "accepting unlawful gratuities") of the House is more liberal than the previous speaker.

Note, too, that this particular form of discrimination is already enshrined in our law. The North Carolina legislature passed an anti-gay marriage statute in 1996. The current activists are just worried, on the strength of no evidence at all, that a state court judge would find the statute to be unconstitutional under the North Carolina Constitution. If they're actually worried about this, it would seem that the past eleven years should give them some solace, as should the fact that our state court judges are elected at all levels.

The North Carolina bill's sponsors say they're just voicing the will of the people, and sadly, they may be. As noted, these measures don't always pass, but they usually do, and North Carolina is not a liberal state.

What occurred to me this morning is that despite what they were saying, the religious right isn't really interested in the will of the people, they're interested in imposing their wishes on the rest of us, like it or not. Perhaps there's no insight there, and perhaps they're not different in this respect from any other politically-active group. In this instance, though, you can tell by their methods. If they were interested in the will of the people, they would be pursuing by similar means similar results on their other big issue, abortion. They couldn't go about it in exactly the same way, because Roe v. Wade would invalidate a state constitutional amendment, so they couldn't go state by state. They could, though, amend the United States Constitution to make abortion illegal in the entire country. The Supreme Court has no power to declare an amendment to the U.S. Constitution invalid no matter how badly it wants to. Up until the most recent elections, Republican control of congress would have made it childsplay for them to have gotten such an amendment approved, had they wished to do so.

To have done so, though would be pointless, because the next step would have been to get approval from three quarters of the states, and they could never have gotten that. Sixty percent of Americans think abortion should be legal, and an even higher percentage of us would oppose any measures to make it illegal. This isn't true of all states, of course, and some would surely pass it, but they could not get anywhere near three quarters.

So instead, they elect a president who promises to select judges on the basis of how they'd rule on Roe v. Wade. Despite all of the complaining in Congress over the last few years about "activist judges," it turns out that's exactly what they want: judges who will inflict the right's minority opinion on the rest of us by operation of law.

I know that the religious right is not alone in its willingness to impose its notions of right and wrong on the rest of the world, even if the rest of the world is thoroughly unwilling to be imposed upon. Treating gay rights or abortion rights as an issue of popular sovereignty, though, is inaccurate and misleading, and manipulating prejudice for political gain is just wrong.

The Kids Are Right , the RIAA Is Wrong

The music industry, fuming and sputtering with indignation, refers to file sharing as “theft.” They really, really want you to see it as theft, too. Don’t. There’s may be a point of ethics in there somewhere, but they’re nowhere near it yet, and the reasons they’re giving are foolish and lame. The music industry’s mouthpiece and bully, the RIAA, maintains a website in which they self-righteously complain about their customers and boast about suing people who can’t afford a lawyer. They can sound good if only if you’re easily swayed and don’t think much about what they’re saying. They’re trying to couch the argument in terms of fairness and artistic freedom, but it’s not. It’s all about money. A principle can be a source of strength, but couple that principle with a strong financial interest and you have a force to be reckoned with. At the RIAA, finance is driving and principle is just along for the ride.

The record industry wants to be seen as a victim. All of this file sharing is unfair, they say. Why should people get something for nothing? After all, how can they be expected to compete with music that’s free? This is not just silly, it’s entirely incorrect. We pay for free stuff all the time. Have they not heard of cable t.v.? They don’t have satellite radio in their Carreras? Didn’t they notice the bottled water machine next to the water fountain? The only reason I ever buy a CD is because I heard a song—for free—on the radio and liked it. You’re not just buying the product, you’re buying it in a form you like at a time that’s convenient for you in a format that suits your preferences.

They want you to equate “free” with “theft,” and it’s a bad equation. Just because you didn’t pay for something doesn’t mean you stole it. I don’t have to pay the record companies when I hear music in the elevator, or when my girlfriend gives me a CD she’s listened to a few times and is tired of but thinks I might like. You’re not a thief just because the RIAA says you are. True, they’ve gotten their shills in Congress to pass some laws that criminalize certain kinds of copying, but that’s not because it’s inherently wrong. Murder and robbery are inherently wrong. Evading copy protection is wrong in the same way that failing to pay a parking ticket is wrong—only because they say so.

The music industry claims it’s just interested in basic fairness. Since when? Charging $14.95 for a CD that costs $5.00 to produce is fair? Packaging the one song everybody wants with ten no one will never hear a second time is fair? They know they’re selling you filler—they do it on purpose. Engaging in widespread price-fixing, is fair? 43 state attorneys general alleged sued them for anti-trust violations, and they paid a lot. That was fair? Making new bands sign over ownership of their songs is fair? No on all counts. “Record company” is to “fairness” as “wolf” is to “vegetarianism.” They’re spoiled children who got their way in all things from the invention of the phonograph to the invention of the iPod and they just can’t stop having a temper tantrum now that things have changed. This attempt to redefine sharing as theft is just another attempt to push us around, to make us like what they want us to like, only this time the payola went to politicians rather than disk jockeys.

The Digital Millennium Copyright Law of 1998 makes it a crime for you to try to circumvent the anti-copying measures built into your electronically-stored media. I recently tried to copy a DVD of United 93 so I could watch it over at a friend’s house. My computer told me it was copy-protected and wouldn’t let me do it. Had I wanted to, I could have bought software reviewed in Consumer First Reviews that circumvents all of the DVD copy-protection measures now in use. Doing so would have constituted a crime, of course. And why should that act be criminal? I didn’t steal the DVD, I just wanted a copy so that if I forgot about it and left it at my friends house, as is my invariable habit, she could throw it away and I wouldn’t have to worry about picking it up later. No theft is even remotely involved. The reason the DMCL criminalizes this conduct is not because there’s anything wrong with it, but because in the eyes of the copyright owner, I have deprived the movie studio of the opportunity to sell me another DVD. Of course they’d prefer that I buy another copy. Irma Rombauer would prefer that I buy another copy of the Joy of Cooking rather than filling out a recipe card. But to require that we do so is just silly. Up until 1998, the copyright laws only penalized those who made money off of the copyrighted works of others, but this enormously sensible condition that was obliterated by the DMCL. Why? Because the record companies and the movie studios don’t want you to share your CDs and DVDs with anybody else, so they have to threaten you with fines and jail to keep you from doing so.

If I Xerox a page out of Joy of Cooking and give it to my sister, will Irma Rombauer sue me? If I record Lost so I can watch it later, will ABC hire a lawyer? Of course not. Judges who have considered these questions generally apply a common-sense limitation that unless somebody’s making money from his or her copying, it’s not worth worrying about.[1] This makes perfect sense. If, on the other hand, I copy the entire book and sell it at a flea market for ten bucks per copy, the publisher is perfectly within its rights to make me stop. The same is true of anything that broadcast on t.v.: a personal copy for which I make money is fine, but if I sell it to somebody else, that’s a problem.

Copying for personal use happens all the time and there’s no reason for the copyright holder to think it has any right to any slice of the pie. If I tape the latest Justin Timberlake video off of MTV and play it over and over again in the privacy of my own home, neither MTV nor Mr. Timberlake has any claim to money from me no matter how many times I play it or how many of my friends I invite over to watch it. The same should be true of file sharing. The music industry is just used to having its own way in all things and can’t get used to the change. Like most spoiled children, when it didn’t get its way, it became a bully. Porsche-driving music executives, waving Lars Ulrich like a banner, insisted that this travesty impaired the musicians’ ability to present their music in the way they wanted it presented. They huffed and puffed and stormed off to Washington, and (surprise!) Congress found a way to express its gratitude for all of the entertainment industry’s fundraising.

If you look at the history of trademark protection in the United States you see a nice principle that got swallowed up by corporate greed so that it now no longer resembles the original purpose in any meaningful way. The founding fathers (mothers weren’t invited back then) weren’t even sure they wanted copyright and patent restrictions written into U.S. law, and at first considered not providing for their protection in the Constitution. The matter was debated at the Constitutional Convention, with one group arguing that copyrights and patents interfered with the free flow of information and ideas and should be avoided. The lawyers present (including Madison) were convinced that the copyright of authors to original works (i.e., books) was part of the common law of England that the United States had inherited when we became independent. They therefore chose to give the right to control patents and copyrights to the national congress, and placed it in the “miscellaneous powers” section of the Constitution. Congress therefore received the exclusive power to “promote the progress of science and useful arts by securing, for a limited time, to authors and inventors the exclusive right to their respective writings and discoveries.” Note the reason it’s included: to promote the progress of science and useful arts. People will be encouraged to invent things and write books if their efforts are protected for a limited time. Madison writes in the Federalist Papers that the “Copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”

The “limited duration” referred to was assumed by all involved to be 35 years (a 21 year protection period with an available fourteen year renewal), the protected period under the English law, adopted by the Statute of Anne in 1710. After 35 years, copyrighted works fell into the public domain, meaning they could be republished without restriction. When the Second Congress considered the matter, though, it settled on an shorter period of protection—fourteen years followed by an available fourteen year extension, for a total of 28 years. The Copyright Law of 1790 also made it clear that the copyright was owned by the author, not the publisher, which was not clear before.

There the matter remained for many years. So, in 1975, works produced before 1947 were in the public domain, which is why there were so many World War II-era movies on t.v. in the afternoons back then. They were essentially free, as long as you could find a copy. The same was true of books and records and plays. Old equaled free.

The Copyright Law of 1976 changed the way the industry calculated its dates. It measured the protected period as the life of the author plus nineteen years. This was seen as a reasonable compromise between publishers, who liked the 28 year period, and authors, who wanted protection for their entire lives plus an additional 50 years. Oddly enough, as recently as 1976, publishers were lobbying for brief copyright protections, so they could get material into the public domain as quickly as possible.

That’s fine by McGraw-Hill and Joan Didion, but it turns out it’s not at all fine by Disney. At the turn of the century, the media giants flexed their muscle. Videotapes and cassettes and CDs and DVDs were giving media companies ways to make money they’d never imagined back in 1976. Then at the most recent turn of the century, the extremely easily-lobbied Republican congress, its palm ever outstretched towards campaign cash that freely flowed from entertainment industry coffers, passed a new law, and President Clinton, the darling of Hollywood fundraisers, signed it with enthusiasm. The new law, delightfully called the Sonny Bono Copyright Term Extension Law, extended the copyright period to life of the author plus 90 years. In the case of a product produced by a corporation, the period is 120 years from publication. And all of this under the guise of encouraging the authorship of original works.

So, since Walt Disney died in 1966, his cartoons would be protected until 2056. It is difficult to understand how extending the copyright term several times after Walt’s death had much influence on his creativity, which, as you’ll recall, is the sole reason Madison gave for including the copyright power in the Constitution.

It does, though, allow the Disney Company to make a lot more money than it would if Walt’s early cartoons fell into the public domain.

What the music industry should do is listen to its customers, not sue them. People like the convenience of downloading? Fine. Figure out how to charge for it. If they’d taken that approach to start with, they’d be making all of the iTunes money now, not Steve Jobs. If the fans don’t like buying fifteen songs when they only want one, figure out a way to sell that to them. Suing their customers to protect Lars Ulrich’s lifestyle was just bad business. If anyone out there felt guilty in any way for copying music from others, he or she lost that feeling in a hurry when the RIAA sued 20,000 of his or her neighbors.

One last oddity about this business. Note that you never hear record companies complain that profits are down. If they were, you’d be hearing it.

The kids are right. This isn’t theft, it’s just greed.

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[1] There are statutory penalties for certain types of intentional infringement that don’t require a showing that the infringer was making money, but they’re wholly subject to judicial discretion, and the judges generally won’t impose draconian awards for minor infringements.

Polycarp's Weekly Horoscope

Aquarius (January 20-February 18): Almost getting blown up in Afghanistan brings you a fresh new look on life and momentarily distracts you from the guilt you feel for hanging your former chief of staff out to dry.
Pisces (February 19-March 20): Even from retirement, you speak and the markets listens, and even though your comments weren’t intended for wide release, you damned near caused a global stock market crash. Be nice to my 401(k) and your successor and make sure there are no more leaks, Pisces.
Aries (March 21-April 19): Congrats on the Oscar! It couldn’t happen to a nicer popular vote winning former candidate. Let’s just hope the Nobel committee doesn’t hear about those high home heating bills or the Lexus SUVs. And have you considered Jenny Craig?
Aquarius (April 20-May 20): Your organization says you have given your last major address, Minister Taurus. And what is an address? It is made up of two words—ad, and dress. An ad is a method for getting out a message, and a dress is a way of covering up what men really want to see. That’s you, Minister Taurus—you’ve gotten out a message, but you’ve covered up everything we were curious about.
Gemini (May 21-June 20): Don't blame yourself for the way your son is screwing everything up, Gemini. You tried to show him the way. The old men had it right—regional collaboration and international involvement might have had a chance. Was there ever a chance that he’d listen? Of course not. Maybe you should just try slapping him next time.
Cancer (June 21-July 22): From the way you’re conducting your search, I’m guessing you have reliable information that the real killers work for a golf course somewhere. We’re sure you’ll let us know if you find any clues.
Leo (July 23-August 22): Pull up, Leo. It’s waaaay too early for democrats to start feeding on each other. That’s what the New Hampshire primary is for. Focus on the repubs and stop sniping in public with a certain Scorpio junior senator from New York.
Virgo (August 23-September 22): Announcing on David Letterman? Leave that kind of thing to Libras who don’t really have a chance at winning. We liked you because you were honest and fresh, anyway. What’s with all this pandering to the religious right?
Libra (September 23-October 22): I hear you found it unsettling that your ancestors were owned by the ancestors of a certain deceased Dixiecrat Sagittarius, so forgive me for finding humor here. The descendant of a man they thought no more than property becomes a highly visible preacher, activist and general nuisance whose presence makes them uncomfortable. You don’t like the irony?
Scorpio (October 23-November 21): Some people might see your remarks as a simple comment on the nutritional value American fast food, but I prefer to see it as yet another incident in the struggles of Clan MacDonald against English royalty.
Sagittarius (November 22-December 21): Don’t worry, Sagittarius. Some day they’ll forget about your Pisces predecessor, and the market won’t crash every time he sneezes.
Capricorn (December 22-January 19): Forgotten but not gone—that’s you, Capricorn. I saw you on t.v. last week, delusional as always, claiming to have discovered the Beatles, Stones and Hendrix. There was a time decades ago when this nonsense was irritating, but these days there’s a sort of charm in the consistency of your insanity.

Teachers Hear Some Insults More Clearly Than Others

There's a story in today's paper about another strange case in California. This time, classmates were teasing high school freshman Rebekah Rice about being a Mormon and in the course of the conversation asked "Do you have ten moms?" to which she responded "That's so gay," and got sent to the principal's office for saying it. Ms. Rice got a warning and a notation in her file, whereupon her parents sued the Santa Rosa school district on the grounds that their daughter's First Amendment rights had been violated. It seems to have taken several years for the suit to wend its way through the courts, because Rice is now eighteen, but the trial is going on now. The school district argues that it has a statutory duty to protect gay students from harassment, and that the school had adopted stringent but appropriate standards after two boys were paid to beat up a gay student the year before. Ms. Rice's parents argue that the phrase "that's so gay" is in such common use it was inappropriate to discipline their daughter for using it.

The story raises lots of issues, including the overly-litigious nature of our society, why our court system allows such a silly lawsuit to take up judicial resources for years, and why some parents can't stand for their children to be criticized in any way no matter how slightly. It seems to me that the school responded properly by noticing and discouraging the use of derogatory language referring to gays, and the mild punishment administered seems proportionate to the offense.

Here's what I don't understand: why in the world was it okay for her classmates to tease Rebekah Rice about her religion? If her teacher heard the offensive phrase"that's so gay" he or she must also have heard the conversation that led up to it, which is just as offensive as the speech they punished. Would it be okay for the classmates to tease someone for being Jewish or Moslem? It's surprising that the school's sensitivity is so much more pronounced with respect to one form of discrimination than another.