Sausage Mahoney.

I Love Winnin, You Know What I'm Sayin? Like It's Better'n Losin?

Sometimes, not often, I feel as good as Nuke LaLoosh climbing down the aisle of the bus.

Fair Use and Errata

Wonders never cease: my annual 300,000-word bloviation re my most beloved and/or despised music of the year has actually inspired this dialogue, and with a guy I don't personally know, even.  The jumping-off point was my comments about my number-five album of last year, The Gaslight Anthem's The '59 Sound.  When I was younger, I used to front obnoxiously about this, but these days I don't pretend to know definitively which albums are better than others, or even what I personally think about a given album.  So I willingly concede I may have overrated The '59 Sound significantly.  I have gone on at some length about the record's flaws, most obviously its relentless derivativeness and occasional outright lyrical plagiarism.  Like I've said, if you listen to the record and that stuff turns you off to the point where you fling the CD out a window, I understand.  But there's no point in flagellating myself for liking it; we're all entitled to our opinions.

In the year-end review, looking for a middle ground among the three appeals of argument, I defended the album mostly on poetic-artistic grounds.  I'm not sure I articulated myself all that well.  Basically my point was that the record's reliance on shopworn rock and roll tropes and other people's poetry was not just forgivable but compelling because it posited an existence where people have given up on the color and possibility of making their own futures and instead subsist drably in a black-and-white world formed by entertainment-industry clichés.  It struck me that there's some truth to that.

But here's another way to think about why the record's derivativeness isn't a big deal.  Many of you have probably heard about the copyright-law notion of "fair use."  (This is not The Bob Loblaw Law Blog, but bear with me a minute.)  The fair-use doctrine is why critics can quote a line from a song lyric or poem or novel in a review without getting the author's permission.  It's why an artist can parody famous copyrighted works even if the creator of the original work doesn't want them to.  If you believe, as I do, that humans in any creative endavor—not just art, but science and war and religion and everything else—have only proved capable of moving forward by standing on the shoulders of those who came before them, adding rungs of their own making to the great endless ladder of expression, then fair use is an incredibly important concept.

The way U.S. law is written, whether a particular use of a copyrighted work is fair is governed by a four-part standard.  First, you look at the purpose and character of the use.  Are you reproducing copyrighted material in its original form, or are you reimaging it, augmenting it with your own creativity?  Are you trying to make money off it or not?  Second, you examine the nature of the work.  Is it a purely fictional story or a retelling of confirmable historical fact?  Is it a work whose free distribution is unusually socially useful?  Third, you look at how much of the copyrighted work you're using relative to the whole work.  As I said above, if it's just a snippet, you're on better footing than if you're lifting the whole thing.  But even the use of a snippet can get you in hot water if it's sufficiently distinctive.  Fourth, you analyze the effect of the use on the original artist's ability to commercially exploit the original work.  If you're depriving the originator of a livelihood, that will weigh against you.

Now, one of the most important questions under this analysis—sometimes it's dispositive by itself—is whether the new work sufficiently transforms the original work to create something that's independently worthy of protection.  A good test case is the current dust-up between the Associated Press and Shepard Fairey over Fairey's ubiquitous Obama poster.  Is this a transformation by a skilled artist—an ordinary wire-service photo turned into an iconic red-white-and-blue painting—or is it just a cheap Photoshop job anyone could slap together?  I come down on the transformation side of the line, but we'll see if the AP wants to fight about it in court.  (Aesthetically, I prefer this remix, in which fair use builds on fair use.)

Looking at The '59 Sound through this lens, I forgive The Gaslight Anthem record its constant anschluss of Springsteen and Bob Seger references, even though they sometimes take you out of the experience of listening to the music, because the overall effect is fundamentally transformative.  The chord progressions and melodies break no new ground, but neither are they directly ripped off from anyone; and while the lyrics sometimes are ripped off, the barrage of traditionalist imagery is so overwhelming that it creates a world of its own, which world swallows you whole.  Put another way, it doesn't steal from prior works; it aggregates fleeting snatches of rock music's greatest hits into a brand-new mosaic of America through the lens of late-20th century popular entertainment.  It concedes how alluring that world can be while admitting it's pre-scripted and ultimately offers mostly limitations and heartbreak.

I know: that might mean it's not copyright infringement, but it doesn't mean it's a great record.  You can decide that for yourself.  (Like I said in the comments, this is the sort of trick that only works once; if the follow-up is equally grabby of other people's poetry, the jig will be up.)  Really, there's not much correlation between the absence of copyright infringement and greatness.  Some of the greatest records in history infringe the hell out of numerous copyrights.  I find them immensely transformative, boundlessly creative, and infinitely more worthy of protection than their source material, but the federal courts would disagree.  Greatness is where you find it.

*****

Now for the errata.  When you write 300,000 (or 3 million, or in any event many too many) words about a year's worth of music, you're bound to leave some stuff out and get other stuff wrong.  My biggest problem, every year, is pigeonholing a certain record too early as being, say, a B+, and then failing to give it the proper reconsideration as the year goes on.  In reality, sometimes that B+ record is actually a slow-growing A; other times, of course, it actually sucks mightily underneath its veneer of respectable acceptability.  I know these things can't be evaluated with mathematical precision, and the older I get the less time I have to mull over fine distinctions between roughly equivalent records.  But some oversights are obvious enough to demand correction.

I overrated The Hold Steady's Stay Positive at number 25.  You know, I love those guys and wanted to love the record.  But really, it was not one of the 25 best records of last year, and probably not one of the top 40.  There's plenty of stuff to like about it, but I still cringe every time Craig Finn sings that line in "Constructive Summer" about working at the mill until you die.  Then the next two songs are rejected Quincy teleplays.

I underrated Q-Tip's The Renaissance at number 40.  I think I mistrusted how blissfully smooth the beats were.  Not to mention Tip's typically laid-back and non-confrontational rhyming.  How can a record be meaningful without any rough edges?  It sort of languidly settled at the bottom of my list; it didn't raise much complaint.  But it's better than that.  And suggesting it's inferior to Young Jeezy's The Recession?  That's nuts.

I mysteriously forgot to recognize the lyrics on Nas's Untitled album.  Complete sleepage on my part.  I still give the gold medal to Will Sheff, but Nasir takes the silver, and it was close.  A virtuoso performance by a guy everybody seems to have given up on.  To paraphrase Dennis Coles, I've been heartily chuckling at Randy Newman since long before Nas dropped the Nasty, but, still, it was wrong of me to rate the guy who wrote "Korean Parents" over the author of popular music's most clear-headed and wide-ranging examination of the modern African American experience.

Yeah, that Frightened Rabbit record that I hadn't heard but everybody seems to love is pretty good.  I would probably find it more accessible if Scott Hutchinson didn't sing like a Scottish Adam Duritz, but everything goes down smoother with a spoonful of brogue.  Even a guy whose main lyrical themes are amputation and contagious diseases.  I'm staying with it.

OK, I'll stop there.  For the next eleven months, I'll try to go back to just enjoying music, without worrying so much about ranking it.

Just Watch What You Say

Like always, I'm just guessing here, but I bet that, if you asked most Americans to tell you something about the U.S. Constitution, they would start by talking about the First Amendment, which, being an amendment and all, wasn't even part of the original document.  Understandably, the Bill of Rights, with its sweeping declarative statements disabling government action and vesting rights in the individual, has more gut-level appeal to regular citizens than, say, the requirement of a bicameral national legislature or the Emoluments Clause or something.  And Hugo Black always used to insist that there's a special significance to the fact that, even within the Bill of Rights, the First Amendment came first.  No question it has the sexiest subject matter—freedoms of speech, religion, and the press, rights to peaceably gather together and complain to the government.  That's some good shit right there.  Within the frequently iffy category of things Americans are proud of, I'm all the way on board with national pride in the First Amendment.

But more specifically, I'm guessing that most Americans primarily associate, if not directly equate, the First Amendment with the guarantee of free speech.  That's not even the first issue addressed in the text of the amendment; before they got to speech, the Framers disabled Congress from establishing a state religion and granted individuals the right to free religious exercise.  But put the text to one side for a second, since many of us haven't read it.  What's more human than speech?  That's what separates us from the apes, right?  Also the mollusks.  We have an intricate system of oral communication through words and inflections, and fuck if we don't like to use it, even (or maybe especially) if no one else is listening.  Again, I haven't done the research, but my impression is that Americans are a little chauvinistic about their freedom of speech—even if they aren't politically active, or secretly think people they disagree with should be shot in the face, I'm sure they still find it comforting to know it's there.  The common view is that freedom of speech, maybe above all the other freedoms mentioned in the amendment, is a vital shield against tyranny.  And I don't want to piss on that view entirely, but there's plenty of evidence that the Free Speech Clause is neither a necessary nor sufficient condition for maintaining a functioning democratic republic that treats its citizens decently.  On the one hand, there are plenty of liberal democracies out there without free-speech guarantees, and they haven't yet descended into fascism.  On the other, our speech guarantees haven't prevented our government, including our gutless, shit-eating Democratic Congressional majority, from imposing all sorts of deeply tyrranical measures in the years since 9/11 changed everything.

Really, though, I'm here to talk about soccer.  You know how Americans despise soccer?  It's a recurring meme every time something soccer-related happens, like the World Cup or the current European Championship, or David Beckham's orange wife going ass over teakettle off the runway at the Versace show.  And it's true that, while many Americans love to watch and play soccer, it is way less popular in these parts than pretty much anywhere else in the world.  It's way bigger even in Greenland, where they have to play on a rapidly melting ice shelf.

Well, I've been watching as much of the Euros as possible, and, as always, I've duly noted all the things that supposedly cause Americans to hate soccer.  Much is made of the diving, but this is hardly soccer-specific, since the NBA recently adopted a no-flopping rule.  As much as you might like to blame the NBA's flopping problem on the usual Argentine and Slavic suspects, if you're honest, you can't deny Americans flop too, often starting at a disturbingly early age.  Then there are the shorts—apparently Americans think there's something swishy about running around outside in short pants, as if they're all Carmine Lupertazzi admonishing Tony Soprano to protect his alpha-male image.  Also, the lack of scoring, the fact that none of the good players are from the U.S.—really, there are too many complaints to catalog, and I find them all completely unpersuasive and not remotely an impediment to enjoying the game itself.  As with most sports, the only significant impediment to my enjoyment of soccer is the periodic crap play by the players on the field.

(To digress, as I typically do, by far the greatest thing about my personal Euros experience, even surpassing the fairly stunning performance by the Dutch, has been the incredible upgrade we received when ESPN leased Andy Gray from Sky to do color commentary.  Not only is Gray Scottish, which scores big points by itself, but he's unpretentious, good-humored, resoundingly correct in his analysis, and unafraid to rip underperforming referees, players, and coaches.  When he explodes with overexuberant pride and enthusiasm, it's always understandable; it means something genuinely impressive has just happened.  He doesn't overuse his catchphrases.  He's not a frontrunner, waiting for a decisive play and then piling on the loser.  He openly acknowledges the fact that he's calling the games from a studio in Bristol, Connecticut.  He is by far the best thing to happen to TV soccer coverage in the United States in my lifetime.  Not that that's saying much.  One of the biggest problems with being an American soccer fan has always been the relentlessly dumbed-down (or just plain dumb) TV commentators.  The play-by-play duties always went to guys who couldn't cut it covering more popular sports (e.g., the supremely dismal Jack Edwards, who used to note the length, in yards, of every goal kick, as if it were a punt, sometimes even mentioning its "hang time"), and the color guys were always inarticulate (Ty Keough) or stilted (John Harkes) American ex-players who didn't offer much meaningful analysis.  None of this could be a surprise to anyone; why, if you're a talented American broadcaster, would you want to cover soccer, even if you love it?  That won't do shit for your Q rating.)

Anyway, to get to the point, in addition to the other, more commonly-voiced 'Merican complaints about futbol, there is certainly a tension between our First Amendment free-speech guarantee and the laws of the game.  Players get the ziggy all the time in other sports for bitching to the officials, but soccer is the only game where referres are specifically instructed to book or, if necessary, send off players for dissent.  And pulling the old "Christ, buddy, don't you know that the Minutemen fought until their arms were bloody stumps at Lexington and Concord to preserve the right to dissent?" card is unlikely to get you off the hook.  I mean, late in the first half of Monday's Germany-Austria game, the ref, all the while looking like he was trying to keep hold of, but not rupture, the seedless grape lodged in his asshole, sent off both coaches for "persistent bickering."  That's not a joke.  PERSISTENT BICKERING was the case that he gave them, as if they were Archie and Edith Bunker or something.  That's the sort of nonsense that would drive anyone to free-speech absolutism.

Rules vs. Standards

To have any legitimacy at all, a system of justice has to ensure, for the most part, results that are both fundamentally fair and predictable.  You have to make sure the punishment fits the crime, and you can't allow the consequences of breaking the law to be uncertain, or have two cases with similar facts end up with dramatically different results.  Now, it doesn't take a genius to see that, in practice, the values of fairness and predictability often conflict with each other.  To be truly fair, you have to allow for the possibility of departing—sometimes substantially—from the norm, which creates inconsistencies. On the other hand, to be predictable, you have to be willing to dismiss some individual differences as unimportant given the ultimate goal of consistency.  The fairness argument is typically identified with liberals and the predictability argument with conservatives, but people of all political stripes use both arguments depending on the circumstances.  Someone opposing predictability will call it simple-minded and callous; if you're in favor of predictability, you call the opposition result-oriented and arbitrary.

Because fairness and predictability are always fighting each other for supremacy, our law is a hodge-podge of decisions, some favoring one and some the other.  Some of our most critical legal principles were designed with predictability in mind.  These are called "rules."  You kill a guy, you're going to jail.  You dump industrial sludge in the river, you have to pay penalties.  For years, federal judges in this country sentenced convicted criminals according to the Federal Sentencing Guidelines, a series of principles designed to maximize predictability and eliminate suspicious inconsistency in sentencing.  In practice, because the guidelines were considered mandatory, they drastically shackled judges' discretion to give an offender a break and are a big part of the reason why there are so many nonviolent drug offenders clogging up our federal prisons.  A couple of years ago, the Supreme Court ruled that the guidelines are only discretionary, not mandatory, but they're still out there and judges still use them to channel, or substitute for, their own judgment.

Of course, "inconsistency" is not necessarily a bad thing.  If you reach inconsistent results because of racism or sexism, those results aren't legitimate, but there are often perfectly good reasons to treat somewhat similar things differently. And some legal principles are designed to maximize fundamental fairness.  These are called "standards."  Standards often involve the balancing of one thing against another, or of multiple things against each other, to determine the right result.  If you drive your car into someone else's car, whether you have to pay for the damage will depend on who was more careless.  If you were driving on the wrong side of the road, it's on you.  If they ran a red light, it's on them.  If you were driving on the wrong side of the road and hit a car that ran a red light, it's a little harder.  If your neighbor is building a fence on your property and you ask a court to make her stop, the court will look at how likely it is that the fence really is on your property and how badly you'll be hurt if the fence gets built, then decide.  You have to think about how you apply a standard, and two different people may well apply the same standard differently to the same facts.

Now, I hear you—you're asking, "Who cares?"  The reason I'm talking about this is because, while I was out of town a couple of weeks ago, Robert Horry body-checked Steve Nash into the scorer's table in the closing seconds of Game 4 of the Spurs-Suns series, causing Nash's teammates Amare Stoudemire and Boris Diaw to leave the bench.  (I know this is old news and this is not the most timely of posts.)  Stoudemire and Diaw did not face up to and confront Horry, or anyone else; they were held back by assistants and returned to the bench.  But the NBA has a rule that mandates a one-game suspension for any player who leaves the bench in response to on-court hostilities, and in this case they applied the rule dumbly, by rote, and issued the suspensions.  As we all know, the depleted Suns, exhausted from playing a six-man rotation, fell apart on perimeter defense at the end of Game 5 at home and then lost Game 6, and the series, two days later in San Antonio.  It's hard to deny that the suspensions played a big role in deciding the winner of the series—and, as looks more than probable now, the NBA title.

You saw the rules vs. standards distinction clearly explained in the post-game interviews.  Stu Jackson, many years ago the underappreciated coach of the Knicks but now the NBA's disciplinary czar, made it explicit, telling the press, "It's not a matter of fairness.  It's a matter of correctness."  Stu was looking for compliance with the letter of the law, nothing less.  You couldn't have a much clearer statement.

It all would have been much more convincing if the NBA had a leg to stand on.  In the first place, you are talking about the most emotionally charged atmosphere imaginable.  The conference semifinals, between two teams generally considered the NBA's best, with the visiting team about to unexpectedly even the series at two games apiece.  Closing seconds, the game basically decided but pride still a factor.  One of the guys on the other team takes a cheap shot at your best player, a guy who is literally irreplaceable in the sense that no one else in the league can do what he does.  Anyone who is a part of this team is going to take a couple of steps forward.  The guy on the other team was in the wrong, after all.  He did something that was objectively bullshit.  Plus, Stoudemire and Diaw may have run onto the court, but they never got within 10 feet of any Spurs player.  Not only did they never raise their fists or make any other aggressive move, they never even got within punching distance.  The assistants were so pissed off themselves that they barely did anything to restrain the players, but as soon as they got their arms up Stoudemire and Diaw stopped moving forward and returned to the bench.  Neither guy demonstrated any specific intent to go after any opponent physically, as opposed to a general lizard-brain impulse to help a friend in need.  Exactly the sort of instinctive one-for-all spirit a team needs to win a championship, in other words.

Just as important, this was a situation where the consequences of applying the rule rigidly were obviously potentially huge.  Remember that 1997 Knicks-Heat series, where the Knicks all left the bench during a Game 5 brawl and had like 17 players, 6 ballboys, the Knicks City Dancers, Harry M. Stevens, and the traveling secretary all given one-game suspensions, which, even spread over two games, cost them the series and one final shot at Jordan's Bulls?  Of course you do.  So it's not like, in 2007, the NBA didn't know the rule could cost a worthy champion a shot at the title.  Here, if you applied the rule rigidly, the Suns would lose 30 points and 20 rebounds a game.  With Stoudamire out, they'd lose the offensive half of their two-headed anti-Tim Duncan machine, the guy who takes the ball to the basket and gets Duncan in foul trouble, and the guy who helps Kurt Thomas on defense and cuts the court in half.  And with Diaw suspended, they'd lose a very good passer from the perimeter or out of the low post who can run the offense while Nash is on the bench.  The NBA had to know that, without these guys, the Suns would almost certainly lose Game 5, putting them in the impossible position of having to win Game 6 in San Antonio just to have the opportunity to play to win the series.

In other words, the greater the consequences, the greater the need for flexibility.  If you're going to drop the neutron bomb, you need to be absolutely sure that's the right result.  This is the same principle behind the Supreme Court's death-penalty cases, which generally hold that defendants have the right to present, and juries must consider, any conceivably reasonable mitigating circumstance—childhood abuse, provocation, brainwashing—before the jury can sentence someone to death.  It makes sense: if you're making a final decision from which the losing party can't recover, you need to be especially careful and do it only if it really serves the interests of justice.  But the NBA wasn't flexible; it was rigid.  It ignored the heat of the moment, the fact that neither Stoudemire nor Diaw came close to throwing down with anyone, the fact that they returned to the bench when prompted.  It applied the rule, and killed the Suns.

But maybe the worst thing about the ruling was that, even if you think predictability is more important than fairness, and the NBA was right to hold fast to the letter of the rule—which is not, I have to admit, a totally crazy position—the league still got it wrong.  The day before Horry's body-block earned a two-game suspension, Baron Davis intentionally elbowed Derek Fisher in the head in the closing seconds of the Jazz's Game 4 win against the Warriors.  Davis didn't get called for a foul, while Horry did, but all this stuff is reviewed after the game on video.  Davis's elbow was just as premeditated as Horry's cross-check, and much more likely to actually cause an injury.  But the NBA didn't do anything to Davis.  Maybe they held off because the Warriors were the feel-good underdog story of the playoffs; maybe not.  But the disparate treatment of Horry and Davis didn't make any sense.  It led to the conclusion that the NBA hit Horry for two games only to try to disguise the fact that Horry's bad act ended up hurting the Suns more than the Spurs.

I gotta tell you, that adds up to a really stupid decision.  I know folks have compared it to the Tuck Rule situation—the literally correct application of a silly law—and I hear that.  But at the very least it shows that the NBA should repeal the current rule at the end of the season, and replace it with a standard that can deliver a result that makes sense.  This is basketball, after all, not criminal justice.  We can afford a little more flexibility, especially if we're trying to make sure the best team wins.