Maybe it's because I'm a long-ago high school newspaper editor, but I was shocked and appalled (nobody is ever shocked but not appalled) by a New York Times report that Supreme Court Justice Anthony Kennedy -- "widely regarded as one of the court’s most vigilant defenders of First Amendment values" -- insisted on reviewing and tweaking an article about his appearance at a private school in New York. The student newspaper at the Dalton School published a tantalizing editor's note saying: "We are not able to cover the recent visit by a Supreme Court justice due to numerous publication constraints."

Then I read the Times article again and discerned some shades of ethical gray. It's true, as Frank D. LoMonte of the Student Press Law Center said, that "in the professional world, it would be a nonstarter if a source demanded prior approval of coverage of a speech." But apparently Kennedy's purpose wasn't to vet the article as a whole but to reconsider the felicity of some of his phraseology.

It wasn't clear whether he made this request in advance. But if he did, and the agreement was confined to allowing him to polish his prose, I'm less shocked but still somewhat appalled. My own practice as a reporter was to refuse at the outset to show my completed story to an interviewee. As for quotes, I never would allow someone to retract or rephrase an answer because of second thoughts about its political effect.

But I made an exception when I did a series of interviews with prominent intellectuals. One law professor, in explaining his constitutional philosophy, used an analogy in reference to the Constitution. He later called me to suggest a different analogy that he said more precisely made his point. I let him change it, because the whole purpose of the piece was to let him present his thinking in his own words.

The difference here is that the Kennedy story was an account of an event at which an audience heard the justice's original words. That tips the scales of journalistic justice. Kennedy said what he said; if he wanted to correct it, he should have written a letter to the editor.

Actually, there's a precedent. Last year the court ruled that the death penalty couldn't be imposed for rape. Writing for the court, Kennedy cited as proof that the penalty was cruel and unusual the fact that, while 26 states and the federal government, had the death penalty, "only six of those jurisdictions authorize the death penalty for the rape of a child." After the decision, a blogger pointed out that the Uniform Code of Military Justice allowed the death sentence in the rape of a child, a fact the court had overlooked

The court added a footnote rectifying its omission -- but it didn't blot out the original language.

--Michael McGough

Federal law gives copyright owners a legal monopoly over public performance of their works, among other uses. But their market power is supposed to be limited by the competition from other copyright owners. Consider the case of songwriters. Paul McCartney can make you pay for the privilege of including "Jet" in your movie, even if it's recorded by Shonen Knife instead of McCartney's Wings. But if you don't like what he charges, you can write your own material or go to another songwriter who demands less.

Unless you can't go to someone else. That's the problem TV broadcasters face when they air syndicated programming. They're contractually bound to air the programs they buy with the music that's already in the soundtrack. As a result, they have zero leverage with songwriters when it comes to negotiating for the rights to broadcast those songs. A group of broadcasters has now gone to federal court in New York for help, filing a class-action antitrust lawsuit against SESAC, one of the three performing rights organizations representing songwriters and music publishers. (You can download a copy here.)

The complaint was filed Wednesday afternoon by lawyers from Weil, Gotshal & Manges, and SESAC hasn't offered any comment yet. It singles out SESAC, the smallest of the performing rights groups (the others are ASCAP and BMI), for two reasons: SESAC's stable of composers includes many of the leading music writers for TV and commercials, and the other two rights groups' rates are already overseen by federal courts through longstanding consent decrees with the Justice Department.

Not being a lawyer, I won't try to guess how strong the broadcasters' case is. What's interesting to me about this case is that, unlike many of the lawsuits I write about, it doesn't challenge the breadth of the copyright owners' rights. Instead, it challenges how they're being used. According to the lawsuit, SESAC gives broadcasters the choice between buying a blanket license — the right to make unlimited use of all the music in SESAC's repertoire — or buying rights for songs on a per-program basis. But SESAC increased the cost of the per-program deal so much in recent years, it has become uneconomic, the lawsuit contends. As a result, broadcasters have been stuck buying ever-more-expensive blanket licenses, rendering moot their efforts to shop around for programs with less costly sources of music. In other words, SESAC is accused of eliminating the competition that mitigates the copyright holders' monopoly power. Meanwhile, the lawsuit claims, SESAC has used the higher fees it's been collecting to attract more soundtrack and commercial composers, tightening its grip on the market.

The broadcasters asked the court for a permanent injunction barring SESAC from fixing prices and other anticompetitive behavior. If they succeed, SESAC could find itself in the same court-supervised posture as ASCAP and BMI. But another way to restore the full benefits of competition among songwriters would be to have the producers of TV shows and commercials obtain the performance rights to the music they use, on top of the sync licenses and other clearances they routinely negotiate for. (Most networks obtain the performance rights for the new shows they produce for their stations and affiliates, but not for the same shows when they're sold into syndication.) As it is, the competition among songwriters ends as soon as a soundtrack is picked. That's why SESAC is allegedly in position to make take-it-or-leave-it offers to broadcasters, who have little choice but to take it.

-- Jon Healey

Hey parents, your little ones may posses stronger wills than a hardened Guantanamo Bay detainee. Some of the kid-friendly entertainment consumed on a mass scale by children, including Barney the Purple Dinosaur and the Sesame Street puppets, is being used for so-called enhanced interrogation of suspected terrorists:

Read the whole article by AP here.

Using G-rated jingles from childhood is a curious method to break suspected terrorists, not so much because the songs are meant to sooth and entertain children than because of the feeling that this practice doesn't come across as very surprising. There seems to be a point in our lives when our toddler-years immersion in kiddie media gives way to a wholesale rebuke of this entertainment, sometimes going so far as to result in a phobia. After all, who doesn't know at least one fully grown adult who suffers from coulrophobia? (Perhaps we can just chalk that one up to the clown scenes in the TV miniseries adaptation of Stephen King's "It.")

But I'd like to know: What's on your torture playlist? What list of songs, played repeatedly at high volume, would make you cry,"Stop!"? Would Barney and Big Bird break you? Post your list of songs as a comment below.

-- Paul Thornton

Photo credit: AP

Manny Garcia's AP photo on the left, Shepard Fairey's poster on the right.

For those who just tuned in, Fairey's the guy who created a poster supporting Barack Obama's presidential bid that was an impressive bit of retro iconography -- a cross between Andy Warhol and mid-20th century propaganda. Not sure why Obama supporters thought this was a good thing, but then, Mao's been dead for a long time (insert sarcastic emoticon here). Anyway, the Associated Press objected to the poster, saying Fairey had violated a copyrighted photo shot by the AP's Mannie Garcia at a National Press Club event in Washington, D.C. Fairey, who asked a judge to declare that the poster was a fair use (the AP later countersued), maintained for months that he'd used just a portion of a larger image that featured Obama sitting next to George Clooney. That's important, legally, because one of the four fair-use tests is whether the new object uses the entire original or just a portion of it. But the AP argued from the outset that Fairey's work reproduced virtually an entire close-up that Garcia had shot at the event.

This month, Fairey disclosed that he'd lied about which photo he had based his poster on. It was, as these things go, a whopper of an admission. This is from Fairey's website:

While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong.

In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner.

In retrospect, Fairey's initial contention just wasn't credible. I mean, how many times has George Clooney been cropped out of a shot? More important, Fairey's case raises a great issue: how far does one have to go in transforming a photo for the use to be considered fair? Garcia's photo is easily recognizable in the poster, yet the latter has a completely different context. The original is a headshot of a politician. Fairey's poster, on the other hand, invokes the idol worship of Dear Leaders of yore. It's both hagiographic and, to me, subversive. The copyright lawyers I've talked to say that there's not a lot of case law regarding fair use and photographs. Although each fair-use claim is decided on its own merits, Fairey's has the potential to help clarify the boundaries for remixers, collage artists and others who make new works out of existing photographs without licensing them. But Fairey's lies already have weakened his case -- his legal team told the AP that it will ask the court's permission to drop out. That's just the start of the possible fallout, which may be severe enough to prevent the interesting legal questions his work raises from being answered.

-- Jon Healey

The Vatican today announced a new arrangement under which Anglicans may enter the Roman Catholic Church while retaining many of their traditions, including married priests and the use of at least some parts of the Book of Common Prayer. (It isn't clear from the Vatican news release whether this means only that already married Anglican priests will be welcome, or that future priests and candidates for the priesthood will be free to marry -- probably the former.)

This is a big deal. First and foremost, it is a reflection of the continued crackup of the Anglican Communion, the worldwide association of churches with roots in the Church of England, which was created after King Henry VIII declared himself the head of the church. (As Protestant kids in Northern Ireland used to spraypaint on Belfast city walls: "One Bible, One crown, No pope in our town.") 

In an attempt at face-saving, Rowan Williams, the Hamlet-like archbishop of Canterbury, said the new express conversion (as George Costanza would say) wasn't a "commentary on Anglican problems" over the ordination of gays and women as bishops. It's lucky he doesn't claim to be infallible, because this is a holy whopper.

But if the "poping" of conservative Anglo-Catholics eases tensions in the Anglican Communion, it is likely to exacerbate them in their new spiritual home. Many Roman Catholic liberals will be aghast at this development, because they too believe in opening ordination to gays and women. And even some moderate Catholics are likely to grouse over the fact that cradle Catholics can't become priests and be married, but Anglican arrivistes can. (Married former Episcopal priests in the United States have been allowed to switch teams for some time, through the creation of an "Anglican Use" -- a church within a church.)

One group of Roman Catholics, which comprises liberals and conservatives on issues of sexuality, will be happy about this development. They are the Catholics (and I'm one of them) who abhor the tone-deaf language of the post-Vatican II Mass in English. The Anglican Book of Common Prayer is one of the wonders of the English language. Asked what he missed most about his former church, an Anglican-priest-turned Catholic supposedly replied: "The Mass in English."

After today's announcement, I suspect a lot of cradle Catholics in other countries will be sneaking off to "Anglican Use" parishes on Sundays.

-- Michael McGough

The change in administrations has led the Department of Homeland Security to adjust its much-maligned policy regarding laptop searches at the border. It's not going to search fewer laptops, iPods or other electronic devices, necessarily; it's just going to take more care not to disclose any sensitive information it finds on them.

As News.com's Declan McCullagh reported, the Obama administration continues to take an extremely permissive view toward the power of federal agents at the border. The new directives from Immigration and Customs Enforcement and U.S. Customs and Border Protection reiterate the Bush administration's stance that agents have the authority to search any digital storage device entering the country, even when there is no suspicion of wrongdoing. They'll need to show probable cause only if they want to seize the device or retain copies of its contents. The primary change in policy is more administrative oversight over how the devices and data are handled after they're seized....

Matthew Crippen, a Cal State Fullerton student, was arrested on federal charges of modifying videogame consoles for profit. The 27-year-old pleaded not guilty and was released Monday after posting $5,000 bond. If convicted, Crippen faces up to 10 years in prison.

The feds say Crippen modified Microsoft Xbox, Nintendo Wii and Sony Playstation consoles to play pirated disks, violating the Digital Millennium Copyright Act. Federal prosecutor Mark Krause told KPCC that Crippen “advertised online and had a large clientele.” 

Bringing charges against such alleged pirates as Crippen is a divisive issue. One the one hand (I'll get to the other side in a bit), you have the companies that expend considerable resources developing and selling the games and understandably want to see robust enforcement of the Digital Millennium Copyright Act. In 2005, four commercial retailers with Pandora’s Cube, a Washington-area store that sold modified consoles pre-loaded with games, were each sentenced to a few months in prison.   

The console manufacturers are guarding not just the integrity of their products, but also their business models. If modifiers were merely specializing in improved performance of the product, the issue wouldn’t be so important to the console producers. Surely Ford and GM wouldn't go after the show “Pimp My Ride” for decking out their companies' cars with louder stereos and more powerful engines.

Pirated disks can be bought for $10 or less, while the real things (brand new, of course) fetch $50 to $75 a copy. Just by looking at this price difference, it's easy to see that for game and console makers, this is indeed a lucrative business easily threatened by pirated software. 

On the flip side, some wonder why console buyers aren’t allowed to upgrade systems that are bought legitimately for as much as $600 apiece. Then there's the more pressing issue over whether locking up an otherwise harmless 27-year-old for a decade is the best use of resources (though, judging by past cases, Crippen stands to receive a much lighter sentence if convicted).  

In the battle between the rights of the creator and the freedom of the owner, which side of the game are you on?

--Kevin Patra

The New York Times recently published a story about a spike in the teaching of Chinese in public schools – well, the public schools of prosperous Westchester County, anyway. But, in a variation of a phrase found in every story like this, readers were assured: “What is happening in Westchester reflects a national trend.”

It may even be true. Citing the Asia Society, the NYT reported that the number of Chinese-language programs in prekindergarten (!) through 12th grade in the United States has grown by almost 200 percent since 2004. The explanation – you guessed it – is China’s growing influence in the global economy. (Last year, the NYT featured a story about another trend: a surge of Arabic instruction in New York schools, attributed to raised consciousness about the Middle East after 9/11. But Arabic is so 2008!)

The supposed boom in the teaching of Chinese is part of a long tradition of current-events-inspired language instruction. In 1963, my sixth-grade class, which was still recovering from nuclear jitters over the Cuban Missile Crisis, was offered the chance during the summer to study Russian.

Presumably the inspiration was a desire to catch up with the Commies post-Sputnik. But since this was a Catholic school, some of us suspected that the ulterior motive was to teach us enough Russian to be able to tell the invading Soviets in their own language that we would die before we spat on the crucifix. I have retained little of the Russian I learned except my nickname, "Misha."

The implication of language trend stories is that U.S. students now being made fluent in French or Spanish will now turn their talented tongues to Chinese and Arabic. That may be the case in Scarsdale. But is there anyone who believes that American high school students in any numbers really master a foreign language, Occidental, Oriental or Levantine? Why bother? These days everyone speaks (or texts) English.

The problem may be that foreigners speak English better than Americans. I recently swapped emails with a student in Rwanda who is helping me with a project about international competitive debate. His English was, as they say, impeccable, which might make you think that he is a native of Rwanda, where English is one of three official languages. But no – I mean Nej! The kid’s actually a transplant from Denmark.

If fluency in English will determine who succeeds in the global economy, I vote for Scandinavia. During last year’s presidential campaign, I browsed YouTube for comments by furriners about the election and U.S. politics in general.

The most amazing specimen came from a teenager in Norway. His argument may strike you as sophomoric – hey, he was a sophomore, or whatever they call them in Norway – but his English was so flawless that I sent the link to friends and asked them if they thought any U.S. teenager could have been so at ease in another language. (Answer: No.)

Here’s the video. See what you think (he takes a while to get to the America-bashing). And just hope he and his classmates don't speak Chinese.

Photo: Robert Durell / Los Angeles Times

Companies that offer downloadable movies and music online without licenses from the copyright holders typically wind up answering lawsuits from the Hollywood studios and the major labels. So it was odd to see a news release announcing the impending launch of Zookz, a site that offers unlimited music or movie downloads for about $10 a month (or both for $18). That's a bit like waving a red cape in front of a couple of bulls, isn't it? But Zookz believes it's in the clear, legally, thanks to the World Trade Organization. It's a far-fetched argument, but you've got to give Zookz credit for nerve.

The main differences between Zookz and most online outlets for bootlegged goods are that it's not a file-sharing network and that the content isn't free. Instead, it's just insanely cheap. The company's impossibly low prices reflect the fact that it doesn't pay for most of its inventory or share revenues with  copyright holders. All the proceeds go to Zookz, its 10-person staff in St. Johns, Antigua, and (through taxes) the Antiguan government.

How can it get away with this, you ask? I'm not sure it can, but here's its argument....

As confirmation hearings for Supreme Court nominee Sonia Sotomayor near, my inbox runneth over  with commentary on the nomination from special-interest groups. the latest is a release from the conservative group Committee for Justice (not to be confused with the Committee for Public Safety). Here's the leadoff:

"In a letter released today and attached below, more than two dozen leaders of the Second Amendment community from across the nation urged senators 'not to confirm Judge Sonia Sotomayor as the next associate justice of the United States Supreme Court,' citing their 'grave concern' over her Second Amendment record."

This irked me for a reason that has nothing do with the merits of Sotomayor's nomination. I'm not surprised that the gun lobby has "grave concern" about the judge (someday I'd love to receive a press release expressing "mild concern"). It's the use of the term "Second Amendment community," the latest in a long line of psuedo-communities.

I still find the term "intelligence community" bizarre, maybe because it conjures up the image of a suburban cul-de-sac where every father playing basketball with his kids is a spy. But there's also the "gay community," the "disability community" and, of special interest to Angelenos, the "entertainment community." 

This perversion of the word "community" has insinuated itself into dictionaries. Webster's online version offers eight definitions of "community." Fittingly, the first is: "A group of people living in a particular local area." But No. 4, with a bullet, is: "The body of people in a learned occupation." (I suppose firing a gun is a learned occupation if you're a sniper.)

"Community" bothers me not just because it's a cliche; the use of the term in political contexts is freighted with the dubious assumption that "communities" are monolithic. What is the "black community,"  invoked so facilely by activists and politicians? Or the "Latino community"? As the liberal-conservative schism over the policies of the current pope demonstrates, a cohesive "Catholic community" is also an illusion.

Our current president was a community organizer, but the ones the young Barack Obama organized were real communities, not constructs. Maybe Obama's experience will rehabilitate the original connotation of the term -- including in the journalistic community.

Photo: Stephen Osman / Los Angeles Times