About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Friday, April 18, 2008

Expelled defended - on one point

I didn't think I'd be writing any posts in defence of Expelled, the creationist propaganda film starring Ben Stein. Its content has been roundly debunked in numerous forums, and Richard Dawkins, Skatje Myers, and Josh Timonen (among others) have written convincingly scathing reviews.

Obviously, I need to see it for myself, but we can be pretty sure that Expelled is a meretricious pseudo-documentary. Its main claim is that various academics have been "expelled" from the academy for challenging Darwinian evolutionary theory. However, once examined in detail, this turns out to be a farrago of lies and distortions.

The individuals concerned are not involved in any genuine scientific research program based on the idea of "Intelligent Design"; their criticisms of mainstream evolutionary biology are without merit; they have engaged in morally dubious tactics, showing little concern for intellectual honesty; and yet they've been treated with considerable leniency, despite all their efforts to provoke confrontation. Read the details for yourself when you study up on the dramatis personae of Expelled, using the fine Expelled Exposed site.

All that said, let's consider the latest row about Expelled: its use of a snippet from the John Lennon song "Imagine", apparently in a bitterly ironic way. As far as I understand the details so far - without having seen the film - about twenty-five seconds of the song are played, involving the invitation from Lennon to imagine "no religion, too". This recording is played over frightening images related to Nazism and the Holocaust (or maybe it's to Stalin and Mao, or to all the above). The clear effect (if my understanding is accurate so far) is to attack Lennon's message and to suggest that a world without religion would be horrific.

Presumably, this part of the film attributes Nazism to atheism in some way (much as this would be a stupid claim). That is evidently one theme, though a more pervasive one, going on reports, is that Nazism can be blamed on Darwin. Or perhaps, at this stage of the film it's suggesting that any non-religious society would be as bad as Stalinist Russia. The precise point being made by Stein and company doesn't really affect any of the analysis below.

The current kerfuffle on the internet arises from the fact that the song was used without permission and is thus a copyright violation.

There are several things to be said about this. First, given all the other things that are evidently wrong with this film, complaint about a copyright violation sounds pretty trivial. But there's a lot more to it than that.

Second of all, it should be clear by now that I totally disagree with the messages of Expelled, including its attempt to equate atheism and Nazism, or to suggest, as the film is apparently trying to say throughout, that Darwinian evolutionary theory and Nietzschean atheism led to Nazism. That is a massive and unfair distortion of history, as Dawkins discusses in his review. As for a connection between Darwin and Hitler, yes Hitler may have been influenced by some garbled version of Darwinian theory, to which he added a good dose of the Humean fallacy, thus producing one ingredient in the racist, totalitarian witches' brew of Nazi ideology. But that by no means entails that Darwinian theory leads to Nazism. It also has nothing to do with whether the essentials of Darwinian evolutionary theory are actually true.

However - and this is crucial - the perpetrators of the movie are entitled to try to make their case. Which brings me back to the copyright infringement thing.

Intellectual property law exists to encourage the creation of valuable cultural products that, by their very nature, are not scarce and so cannot readily be taken from, or kept from, the commons and turned into property. Items of intellectual property are non-rivalrous because they essentially consist of information. Information can be replicated endlessly (in contrast to, say, a particular hamburger or a particular block of land or a particular, physical CD that your lover gave you for your birthday - all of which are genuinely scarce resources). It is socially important to create a kind of property in the information that cultural products such as songs and recordings ultimately consist in, but it takes a legislative scheme to accomplish that.

However, it is also socially important that items of intellectual property be open to criticism relating to their aesthetic form or to their explicit or implicit ideas. Public policy needs to strike a balance between (1) offering the creators of intellectual property a means of obtaining income from it, thus encouraging the creation of valuable works, and (2) allowing criticism and comment that relates to these works once they are created. The legislative scheme should reflect that policy.

In this case, it appears that the Expelled people play a small part of Lennon's song solely to attack its message, by the way that it is presented with images that make its original message ironic. Given the length of the snippet, it seems that they play no more of it than is needed to evoke the message that they are attacking, so it can't be said that any defence that they're playing "Imagine" to attack it is contrived. Most obviously, they are not using "Imagine" for its entertainment value - this is not a rivalrous use of "Imagine" for the purpose for which it was written, to entertain and to put across Lennon's message. It's not an ornamental use of it, as if it had been pilfered to jazz up an advertisement (for sports shoes, perhaps, or condoms, or life in the army). Rather, it is a nakedly hostile use: it's an unashamed attack on the song and what it stands for.

Given all that, and that this is a clear-cut case, not some kind of contrivance, I think that freedom of speech should prevail here. Morally speaking, the Expelled people should be allowed to put across their message in this way. It doesn't open any floodgates, because this kind of direct attack on a high-profile popular song and its message would be rare. Accordingly, I think that all the attacks in the blogosphere, asserting that this is yet another example of bad ethics by the Expelled people are actually taking the low moral ground. This is a case where we should be defending freedom of speech. If copyright law prevents this sort of thing, then it is operating in a way that goes beyond the fundamental policy considerations that justify the enactment of copyright law in the first place.

That's the moral position. What about the legal position?

I'm not a copyright lawyer. I have no idea what the case law says about a situation like this. As I stated above, it would be a rare kind of case anyway. But from the one or two comments that I've seen from people claiming expertise, Expelled may be on very shaky legal ground.

But should it be? Again, this is not a contrived case: it appears that the song is played in order to make a genuine, and genuinely hostile, comment (however wrong or foolish the comment may be in substance). It also seems that the song is played to no greater extent than necessary to make the film's point. This is not the kind of use that the law should be attempting to prevent.

Protecting the creators of intellectual property from this kind of use of their products is not consistent with the ultimate justification for intellectual property law, which is a statutory system based on particular policy considerations. If the law can be interpreted in a way that allows this kind of use, then the courts should interpret it that way. Obviously, they cannot (or should not) do so if it would go against the clear words of relevant statutes or against binding or overwhelming precedent. Whether that is or is not the situation, I will leave to lawyers with expertise in the area - but I actually hope it isn't.

Finally, a word of caution. While many of us may be involved in a kind of culture war against Expelled, and its makers, and everything they stand for, that does not mean that we should oppose them or their allies on every single issue that crops up day by day. We don't want to be a bunch of knee-jerk atheists. It's important that we stand up for such values as freedom of speech, including our opponents' free speech. That will give us more credibility, and it's also the right thing to do.


Brian said...

That will give us more credibility, and it's also the right thing to do.
Hear, hear. I'm must be mellowing in my senectitude. Once I would've said f**k 'em, they're liars and deserve what they get. Oh well....

Lippard said...

Russell: I argued that "Expelled"'s use of "Imagine" should constitute fair use, but observed that there's a 6th Circuit Court of Appeals case which says that even 1.5-second samples require licensing.

I agree with your argument on the moral case.

sylas said...

Well argued. I am persuaded.

Anonymous said...

Very well-stated conclusion, and one both sides would do well to remember and emulate -- and I concur with your opinion on both the moral and legal fronts.

Russell Blackford said...

Pleasing response so far. :)

Jim, isn't the case you referred to likely to be distinguishable?

I can see a moral claim for post-modernist forms of art to be permitted to sample little bits of earlier works to create something new, which is how I might have argued it in the case you're talking about. But the case that I'd want to run for the Expelled people would be rather different. They weren't doing anything like that. Rather, they were, in effect, making a negative comment on Lennon's song and its message. The relative brevity of the extract would be used merely to show that this defence is not a contrivance: they played no more than was necessary to make their point.

As a result, what they created was a legitimate exercise of free speech in the public interest (which is not affected by whether their view is correct or plausible) and should not be considered as coming under copyright legislation.

That's if there's room for such an interpretation of what ge law permits. Of course, there may not be.

Russell Blackford said...

"ge" in the second last sentence? hmmm, I meant to write "the". *scratch head*

Steve Zara said...

I don't think that this film is just some people putting a case, I feel it is a deliberate attempt to deceive. If there is a legal barrier to the showing of the film, I really can't see a problem in using it. I think one can be too pacifist. These people are doing the equivalent of kicking us in painful places. Should we stand back and let them trash science? Isn't it ethical to use legal processes to cause a little pain in return, in a good cause? I don't think this is a knee-jerk issue. I think this goes to the heart of the battle that has to be fought in terms of ideas and education. I have no problem if Yoko Ono proceeds with a legal case.

Larry Hamelin said...

Seems like a clear-cut case of fair use to me.

If there is a legal barrier to the showing of the film, I really can't see a problem in using it.

This is a specious argument, though, because a legal case not only decides a specific issue, it also sets a precedent. The law — as its presently constructed at a higher abstract level — is about consistent ways of settling issues.

And I see a big negative in establishing a precedent further restricting fair use.

This sort of argument is actually a fairly well-established technique in restricting legal protection for civil rights in general, and one of the chief reasons the ACLU in the US seemingly inexplicably defends the free-speech rights of neo-Nazi organizations.

Larry Hamelin said...

I have no problem if Yoko Ono proceeds with a legal case.

This is a different issue: Everyone has the right to proceed with a legal case, regardless of anyone else's opinion of its merits.

The question is not whether she should proceed, but whether we think she should win.

Steve Zara said...

And I see a big negative in establishing a precedent further restricting fair use.

This seems to me to be begging the question about whether or not this is fair use. What you seem to be saying is you are cautious about testing to see if this is, or is not, fair use. I can understand that.

The question is not whether she should proceed, but whether we think she should win.

Not for me. I think proceeding in itself would be useful negative publicity.

I am probably being both naive and ignorant of legal issues here. What I am concerned about is that the message of this film will simply be largely unchallenged from the point of view of its intended audience. I also feel we can't always sit back and play by the rules when our opponents clearly aren't.

Maybe I need to mellow more, as Brian has.

Blake Stacey said...

I'd like to agree, and to an extent, I do — I feel like in slightly different circumstances, this argument would be entirely applicable. For example, it looks like the Killers song was licensed, albeit under false pretenses.

"I just spoke to the band's manager, and adding to the confusion was the fact that they did authorize a project months ago with this request:

Quote: 'The film is a satirical documentary with an estimated running time of 1 hour and 50 minutes, exploring academic freedom in public schools and government institutions with actor, comedian, economist, Ben Stein as the spokesperson.'

What they authorized was a documentary about 'academic freedom in schools', not the film that the producers produced.

They contacted the producers of the film to ask that the song be removed but it is too late. Unfortunately it was misrepresented to them when the request came through to use it. Add this band to a long line of people who were misled by the producers of this film."

She later added: "The band asked the producers to remove their song from the film when they became aware of the true nature of it. They were told it is too late. That's all there is."

Would I support the use of legal machinery to halt the distribution of Expelled until the Killers' request was satisfied? No, just as I didn't think that Dawkins, Myers and Scott should have sued to stop the footage of their interviews — gathered also under false pretenses, you'll recall — from being used. I'm happy to use these cases for rhetorical purposes, as examples of creationist moral degeneracy, but I don't believe the law should become involved.

The "Imagine" case has an extra wrinkle: the song in question was ripped off without the slightest deference to propriety. That tips a balance somewhere within my guts.

On the issue of fair use, my personal standard of judgment actually follows US law pretty closely, although I tend to put the greatest emphasis on the "commercial use" part. I could write a treatise here, but I doubt it would be useful, so I'll just say that in an ideal world, "Imagine" might have been licensed under Creative Commons — perhaps CC Non-Commercial — and the benefits would, I expect, outweigh the irritations. However, we're stuck not living in that world.

Lippard said...

Russell: You're right that the sampling case is different in that there's no commentary going on. The purposes of commentary and education do enhance a legal argument for fair use.

The court case I cited actually didn't preclude a fair use defense to a claim of copyright infringement, it just said that there is no such thing as a de minimis use of a copyrighted work that is not prima facie infringing (and requiring of a defense like fair use in order to avoid licensing requirements).

Russell Blackford said...

The point for me is the one barefoot bum is making. Any such case would determine a general rule for other such cases; until overruled by a higher court, it would set a precedent. Therefore, anyone thinking about the issue has to think about what rule should apply to all such cases, whether the party claiming fair use in such circumstances is one of the "good guys" or one of the "bad guys". If, having thought that through, we think that the right principle is one that favours the bad guys in this particular case, we should say so. We can still say that (for other reasons) they are bad guys. That isn't being pacifist; it's being principled. IMHO, being principled is not only right in itself but more likely to make the loose movement that most people commenting here sort of belong to a successful one.

I don't know if you find this persuasive, Steve, but that's it in a nutshell.

The wrong way to go about it is to adapt our principles to whether they happen to favour the good guys or the bad guys (as we see them) in whatever case is topical.

I think it was in another forum where I said I hope Yoko Ono doesn't take legal action. I still hope that. She has every right to, of course, but I'd hate to be a in position of rooting against her on the principle. Besides, I think, despite what the legal experts at Pharyngula were saying, that the court just might actually rule against her in these unusual circumstances, and while that might be good for free speech generally, and the balance between free speech and copyright law, it would be a PR disaster for her and a PR coup for Expelled.

Best all round would be if the distribution of the film went ahead and it led to the film's claims being torn to pieces in all the media that are now focused on it.

Larry Hamelin said...

This seems to me to be begging the question about whether or not this is fair use.

I think Russell made the substantive case for fair use in the OP. In any event, I disagree with your your position, which seems to hold the substantive meta-legal issue to be irrelevant: "If there is a legal barrier to the showing of the film, I really can't see a problem in using it." This statement seems to argue that the value of suppressing the film (which I can accept arguendo as a Good Thing) should outweigh any considerations of precedent.

Anonymous said...

just saw Expelled; the fact that Ben Stein isn't trying to win any popularity contests helps to validate his message... i gather that his goal is to promote free thought, especially more thinking about worldviews that drive American academia

Blake Stacey said...

the fact that Ben Stein isn't trying to win any popularity contests helps to validate his message.

No, it doesn't. He's either right or wrong, and as it happens, on virtually every question of fact, he's flamboyantly wrong. Whether or not he has a nice tie is beside the point.

I ended up arguing something akin to Russell's side of the argument here, by the way.

Anonymous said...

I don't know... but it seems to me they might have fair use to criticize the lyrics, in which case Stein could quote them, but not to play the tune for too long. But how long is too long? I wouldn't need 25 seconds to know "Imagined."

Anonymous said...

Idealists always think that someone else's intellectual property should be free for them to use. That is just not how our free market system works however. And Expelled is not a work of scholarly criticism, or a work of journalism; it is a commercial enterprise. They actually charge money for people to see this, and gauge their success by box office receipts etc. So that is definitely a factor. In addition, it is clear that this is not some incidental usage, but is presented together with a criticism of John Lennon's ideas, and possibly Lennon personally, while they play the song with images of totalitarianism. This is not likely to endear them to Yoko particularly. If Yoko does not defend the copyright, it could set a precedent for later infringement; she has to show that she is defending it (for example, why will you get sued if you sing "Happy Birthday" to someone in the media without paying royalties and getting permission first? Same principle). The negative identification and connotations that could attach to the song could hurt its future commercial prospects and value. For example, suppose that Yoko wants to license its use for advertising, but the song has become so unpopular through this kind of representation that she cannot get the same kind of licensing deal?

As nice as it is to think of living in a fantasy world where information is freely copied by everyone and is not owned by anyone, it is just that; a fantasy.

Jaakonpoika said...

'Kampf' was a direct translation of 'struggle' from On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life (1859). Seinen Kampf. His application.

Stein is under heavy artillery for 'exaggerating' or 'going easy' on the influence of evolutionism behind Nazism and Stalinism (super evolution of Lysenkoism in the Soviet Russia). But the monstrous Haeckelian type of vulgar evolutionism drove not only the 'Politics-is-applied-biology' Nazi takeover in the continental Europe, but even the nationalistic collision at the World War I.

It was Charles Darwin himself, who praised and raised the monstrous Haeckel with his still recycled embryo drawing frauds etc. in the spotlight as the greatest authority in the field of human evolution, even in the preface to his Descent of man in 1871.

Catch 22: Haeckel's 140 years old fake embryo drawings have been mindlessly recycled for the 'public understanding of science' (PUS) in most biology text books until this millennium, although Haeckel's crackpot raging Recapitulation/Biogenetic Law and functioning gill slits of human embryos have been at the ethical tangent race hygiene/eugenics/genocide, infanticide, and Freudian psychoanalysis (subconscious atavisms). Dawkins is the Oxford professor for PUS - and should gather the courage of Stephen Jay Gould who could feel ashamed about it.

Some edited quotes from my conference posters and articles defended and published in the field of bioethics and history of biology (and underline/edit them a 'bit'):

The marriage laws were once erected not only in the Nazi Germany but also in the multicultural states of America upon the speculation that the mulatto was a relatively sterile and shortlived hybrid. The absence of blood transfusion between "white" and "colored races" was self evident (Hailer 1963, p. 52).

The first law on sterilization in US had been established in 1907 in Indiana, and 23 similar laws had been passed in 15 States and sterilization was practiced in 124 institutions in 1921 (Mattila 1996; Hietala 1985 p. 133; these were the times of IQ-tests under Gould's scrutiny in his Mismeasure of Man 1981). By 1931 thirty states had passed sterization laws in the US (Reilly 1991, p. 87). Typically, the operations hit blacks the most in the US, poor women in the Europe, and often the victims were never even told they had been sterilized.

Mendelism outweighed recapitulation (embryos climbing up their evolutionary tree through fish-, amphibian- and reptilian stages), but that merely smoothened the way for the brutal 1930’s biolegislation - that quickly penetrated practically all Western countries. The laws were copied from country to country. The A-B-O blood groups, haemophilia, eye colours etc. were found to be inherited in a Mendelian fashion by 1910. So also the complex traits and social (mis)behaviour such as alcoholism, schizophrenia, manic depression, criminality, rebelliousness, artistic sense, pauperism, racial differences, inherited scholarship (and its converse, feeble-mindedness) were all thought to be determined by one or two genes. Mendelism was "experimental" and quantitative, and its exaggeration outweighed the more cautious biometry operating on smaller variations, not discontinuous leaps. Its advocates boldly claimed that these problems could be done away within a few generations through selection, persisted (although most biologists must have known that defective genes could not be eliminated, even with the most intense forced sterilizations and marriage restrictions due to recessive genes and synergism. Nevertheless, these laws were held until 1970's and were typically changed only when the abortion legislation were released (1973).

So the American laws were pioneering endeavours. In Europe Denmark passed the first sterilization legislation in Europe (1929). Denmark was followed by Switzerland, Germany that had felt to the hands of Hitler and Gobineu, and other Nordic countries: Norway (1934), Sweden (1935), Finland (1935), and Iceland (1938 ) (Haller 1963, pp 21-57; 135-9; Proctor 1988, p. 97; Reilly 1991, p. 109). Seldom is it mentioned in the popular media, that the first outright race biological institution in the world was not established in Germany but in 1921 in Uppsala, Sweden (Hietala 1985, pp. 109). (I am not aware of the ethymology of the 'Up' of the ancient city from Plinius' Ultima Thule, however.) In 1907 the Society for Racial Hygiene in Germany had changed its name to the Internationale Gesellschaft für Rassenhygiene, and in 1910 Swedish Society for Eugenics (Sällskap för Rashygien) had become its first foreign affiliate (Proctor 1988, p. 17). Today, Swedish state church is definitely the most liberal in the face of the world.

Hitler's formulation of the differences between the human races was affected by the brilliant sky-blue eyed Ernst Haeckel (Gasman 1971, p. xxii), praised and raised by Darwin. At the top of the unilinear progression were usually the "Nordics", a tall race of blue-eyed blonds. Haeckel's position on the 'Judenfrage' was assimilation and Expelled-command from their university chairs, not yet an open elimination. But was it different only in degree, rather than kind?

In 1917 the immigration of "defective" groups was forbidden even in the United States by a law. In 1921 the European immigration was diminished to 3% based on the 1910 census.
Eventually, in the strategical year of 1924 the finest hour of eugenics had come and the fatal law was passed by Congress. It diminished immigration to 2% of the foreign-born from each country based on the 1890 census in order to preserve the "nordic" balance in population, and was hold through World War II until 1965 (Hietala 1985, p. 132).

Richard Lewontin writes:“The leading American idealogue of the innate mental inferiority of the working class was, however, H.H. Goddard, a pioneer of the mental testing movement, the discoverer of the Kallikak family,
and the administrant of IQ-tests to immigrants that found 83 % of the Jews, 80% of the Hungarians, 79% of the Italians, and 87% of the the Russians to be feebleminded.” (1977, p. 13.) Regarding us Finns, Finnish emmigrants put the cross on the box reserved for the "yellow" group (Kemiläinen 1993, p. 1930), until 1965.

Germany was the most scientifically and culturally advanced nation of the world upon opening the riddles at the close of the nineteenth century. And she went Full Monty.

Today, developmental biologists are anticipating legislation of laws that would define the do’s and dont’s. In England, they are fertilizing human embryos for research purposes and pipetting chimera embryos of humans and monkeys, 'legally'. The legislation should not distract individual researchers from their personal awareness of responsibility. A permissive law merely defines the ethical minimum. The lesson is that a law is no substitute for morals and that dissidents should not be intimidated.

I am suspicious over the burial of the Kampf (Struggle). The idea of competition is innate in the modern society. It is the the opposite view in a 180 degree angle to the Judaeo-Christian ideal of agapee, that I personally cheriss. The latter sees free giving, altruism, benevolence and self sacrificing love as the beginning, motivation, and sustainer of the reality.

Biochemist, drop-out (Master of Sciing)

Lippard said...

Stanford University Law School's Fair Use Project is helping to defend "Expelled" against the Ono Lennon suit.

Anonymous said...

To whoever said this above and to all who agree:

"And I see a big negative in establishing a precedent further restricting fair use."

Please remember this is a case that involves the use of music, not just words or ideas. Indeed, one should be allowed to discuss and criticize ideas, but if you ask yourself "why then did they need to actually use the music to make their point?" the answer is, they didn't *need* to, they *chose* to. So that begs the question "why did they use music at all?" and there's only two reasons to add music to film 1) to make it more entertaining; or 2) to help direct an emotional response.

Neither one of those reasons is covered by Fair Use law, and is exactly why, except in the most compelling of cases which this is not, all music in a film is routinely licensed.

My point is, a win for Yoko Ono does NOT set a precedent for *restricting* Fair Use, it merely upholds current practice of it in cases of music used in film.

It would be a far worse errosion of songwriters (lyricists and composers, but especially composers) rights should Premise Media wins. As I've mentioned, this type of juxtaposing images and "synching" music with them is done all the time in film. If a precedent is set that allows filmmakers to use flimsy reasons to use someone else's music (and the reason "I used your music because I wanted to use your lyrics" is pretty flimsy), then this significantly errodes the rights of composers to control and more importantly, profit from their own work.

If you don't quite buy what I'm saying yet, think about this example: What if John Lennon had written the words to "Imagine", but YOU had written the music, say, the melody and chord progression. If some filmmaker used your music, without your knowledge or permission, in a commercially-released film that took in 7 and a half million dollars, and a judge denied you your tiny tiny share of that and what it could potentially make in the future (including royalties from DVD sales) because he said the use of John Lennon's WORDS was fair, I don't think y'all would be so quick to hop on the Fair Use train.

I hope I have helped any of you with your moral dillemnas - see? you CAN still revile Premise Media and uphold Fair Use at the same time!

Russell Blackford said...

Well, for now we have a result. The judge has refused an injunction pending trial on the basis of accepting arguments very similar to those I've developed in this post.