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New York City was slated to reopen public schools on Monday, but that’s now on hold due to Mayor Bill de Blasio’s 11th-hour decision to delay.

“We are doing this to make sure that all the standards we’ve set can be achieved,” he said during a news conference on Thursday, according to The New York Times.

The new plan is for pre-K students to return to school next week, with everyone else waiting until later in September or early October. For now, the school year will begin virtually for K–12.

No plan is set in stone, of course. Government officials, under constant pressure to satisfy teachers unions that have threatened to strike unless their demands for greater caution are met, can always decide to keep kids at home even longer—no matter how inconvenient and frustrating for parents.

If de Blasio is sorry for making life tougher for working-class parents—many of whom rely on public school’s day care function—he isn’t saying so. The mayor specifically declined to apologize during his news conference. Many parents, as well as principals and teachers, were blindsided by the last-minute decision.

Principal “I’m embarrassed by the city’s response to this. We have been crying for the last half hour…if you have friends who you can form pods with…DO IT…Ineffective, inadequate leadership has made a mess of all of this.” @NY1

— Amanda Farinacci (@amandafarinacci) September 17, 2020

Note that for all the concern about being able to reopen safely, New York City arguably has a better handle on COVID-19 than any other major city in the U.S. The early days of the pandemic were obviously a disaster for New York, but the situation has improved dramatically since June.

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The new Middle Eastern accord quite literally reaches for the stars. As part of the deal, inked earlier this week, Israel and United Arab Emirates have committed to cooperate in space exploration.

The Abraham Accords, signed September 15, formally normalized Israel’s relationship with both Bahrain and United Arab Emirates. While geopolitical concerns have dominated both the substance of the accords and media coverage of the deal, the signatories also pledged a “common interest in establishing and developing mutually beneficial cooperation in the field of exploration and use of outer space for peaceful purposes,” which may include “joint programs, projects, and activities.”

Both Israel and the United Arab Emirates have thriving space programs. The Israeli Space Agency, founded in 1982, has launched a number of satellites—most notably, in 2019, the Beresheet Lander to the moon. Co-designed and built by the Israeli companies SpaceIL and Israeli Aerospace Industries, Beresheet was launched on a SpaceX Falcon 9 rocket and made it all the way to the Moon for less than $100 million dollars.

Unfortunately, the Beresheet lander crashed into the lunar surface due to a mechanical error. Still, the fact that the Israeli Space Agency was able to get that close is significant. The only other nations who have been able to get that close to the lunar surface are the Americans, the Chinese, and the Russians.

The Emirati space program is significant too. Currently rocketing its way from Earth to Mars is the Al-Amal (Arabic for “Hope”) satellite, which launched in July. It is expected to arrive in February, when it will begin to investigate Martian weather patterns.

It is too soon to know how the accord will affect the two space programs. But on August 17, before the Abraham Accords were signed, Israeli Minister of Science and Technology Izhar Shay said that cooperation was “imminent” and that “[t]he infrastructure is there for the commercial engagements for the sharing of know-how and mutual efforts.” Among the possibilities: Israeli lander technology and the the Emirates’ Mars shot could combine to lead to a landing on the Red Planet; Emirati and Israeli astronauts join the U.S. on an Artemis moon mission; the two nations could launch a joint mission to explore the dwarf planet Ceres.

Clearly, space exploration is no longer the exclusive realm of the world’s superpowers. And whatever libertarian objections one might have to spending public dollars on space, scientific cooperation is certainly preferable to political rivalry. The Earth is about 42 million miles from Mars. Our human disputes may look a little less significant from out there.

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Tiana Lowe at the Washington Examiner reports:

The Department of Education has informed Princeton University that it is under investigation following the school president’s declaration that racism was “embedded” in the institution.

President Christopher L. Eisgruber published an open letter earlier this month claiming that “[r]acism and the damage it does to people of color persist at Princeton” and that “racist assumptions” are “embedded in structures of the University itself.”

According to a letter the Department of Education sent to Princeton that was obtained by the Washington Examiner, such an admission from Eisgruber raises concerns that Princeton has been receiving tens of millions of dollars of federal funds in violation of Title VI of the Civil Rights Act of 1964, which declares that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” . . . .

“Based on its admitted racism, the U.S. Department of Education (“Department”) is concerned Princeton’s nondiscrimination and equal opportunity assurances in its Program Participation Agreements from at least 2013 to the present may have been false,” the letter reads. “The Department is further concerned Princeton perhaps knew, or should have known, these assurances were false at the time they were made. Finally, the Department is further concerned Princeton’s many nondiscrimination and equal opportunity claims to students, parents, and consumers in the market for education certificates may have been false, misleading, and actionable substantial misrepresentations in violation of 20 U.S.C. § 1094(c)(3)(B) and 34 CFR 668.71(c). Therefore, the Department’s Office of Postsecondary Education, in consultation with the Department’s Office of the General Counsel, is opening this investigation.”

Readers may recall that in the University of Michigan affirmative action cases (Gratz and Grutter), some briefs filed in defense of the university’s use of race in admissions argued that such use of race should be permissible to ameliorate the effects of the university’s own prior racial discrimination. The University of Michigan did not embrace these arguments, however, and the above report helps explain why. Even assuming it was the case that there had been racial discrimination at the University of Michigan, had the university made any such admission to justify its use of race in admissions, it could have opened itself up to liability and prompted a federal inquiry, much like the one Princeton has to deal with now.

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In January, in Duquesne University of the Holy Spirit v. NLRB, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that Dusquesne’s “religious mission places it beyond” the NLRB’s jurisdiction, and therefore the Board could not order Dusquesne bargain with a union representing the school’s adjunct faculty. Judge Griffith wrote the opinion for the court, joined by Judge Rogers. Judge Pillard dissented.

Today, the D.C. Circuit denied a petition by union intervenors seeking rehearing en banc of the decision. Interestingly enough, although Judge Pillard dissented from the original panel decision, neither Judge Pillard nor any other judge on the court sought en banc review. Today’s order notes “the absence of a request by any member of the court for a vote.”

In a separate opinion concurring in the denial of rehearing en banc, Judge Pillard explains that she adheres to the belief that the panel decision was wrong, but does not believe that this case is the proper vehicle for cleaning up the D.C. Circuit’s confused precedent on the extent to which the NLRB has jurisdiction over labor disputes at religious universities. Insofar as the Dusquesne decision builds upon prior D.C. Circuit decisions that no party asked the court to review, this case “en banc review is not now the right vehicle to correct our wrong turn.”

Earlier this week, I noted another case of judges finding a decision wrong but not en banc worthy.

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The case is Chapman v. Maraj; first, the facts from NPR Marketplace (Sabri Ben-Achour):

Minaj’s song “Sorry” obviously takes from Chapman’s song “Baby Can I Hold You.” Nobody disputes that. Minaj and her people asked Chapman for permission during and after production of “Sorry,” and Chapman and her reps said no, multiple times. So Minaj didn’t release the song on her 2018 album….

[But t]he unauthorized song got out. Chapman’s attorneys say Minaj leaked it to a New York DJ, Funkmaster Flex, who then played it. Minaj’s attorneys dispute that. Either way, it got on the air, and then on the internet.

And Chapman sued, saying Minaj shouldn’t have been allowed to make the unauthorized song in the first place, even as a demo.

If Minaj did leak the new song to Flex (who wasn’t sued), then she might well be liable; but the court concluded that the factual dispute on this has to be resolved by a jury. The question thus remained: Was Minaj’s merely recording her version of Chapman’s song an infringement of Chapman’s right to prepare and record derivative works—or was it saved from infringement by the copyright “fair use” defense?

On that question, Judge Phillips held that the law was on Minaj’s side:

The parties … do not dispute that Maraj never intended to exploit the work without a license (and she did not do so). The “degree to which the new user exploits the copyright for commercial gain—as opposed to incidental use as part of a commercial enterprise—affects the weight” afforded to commercial nature as a factor. To the contrary, Maraj excluded the new work from her album.

Thus, although there is some incidental commercial nature related to recording a song that may be used for an album, the low degree of exploitation here counterbalances that. See Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 203 (4th Cir. 1998) (“…there was a potential commercial motivation in that Dr. Blythe may have received royalties if her paper were published, however, there was no attempt to exploit the Foundation. The paper was only to be published if the necessary permission were obtained from the copyright holder. Since such permission was not obtained, the paper was not published, and no royalties were ever received.”). All these facts show that Maraj’s use was not purely commercial.

Courts should also “consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially.” The public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest. As explained above, artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license.

Chapman has requested samples of proposed works before approving licensing requests herself because she wanted “to see how [her work] will be used” before approving the license, yet Chapman argues against the very practice she maintains. A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry. This is contrary to Copyright Law’s primary goal of promoting the arts for the public good. This factor thus favors a finding of fair use….

[T]here is [also] no evidence that the new work usurps any potential market for Chapman. Chapman’s only argument as to this factor is that market harm may be presumed because the work was created for commercial gain. As explained above, there was only incidental commercial purpose behind the new work of which Maraj did not attempt to exploit. The presumption of market harm is thus unwarranted…. Maraj argues, and the Court agrees, that the creation of the work for private experimentation and to secure a license from the license holder has no impact on the commercial market for the original work.

I think the analysis is generally correct, but let me offer the following speculation;

[1.] If Minaj’s version song had never gotten out, and all Minaj did with it was send it to Chapman, I very much doubt Chapman would have sued over the mere creation of the song. I suspect that Chapman sued only because of the leak, and likely because she thought Minaj was in fact behind the leak.

[2.] Proving that Minaj created the work that eventually got out is easy. Proving who was responsible for sending it to Flex is harder.

[3.] The best policy argument on Chapman’s side, I think, is that once a derivative work is created by a famous artist such as Minaj, it’s very likely that it will indeed leak, with or without Minaj’s connivance. Perhaps that risk should be factored into the fair use estimation of market harm to the original copyright owner.

So I think that might be the backstory behind the lawsuit and the plaintiff’s theory, though on balance I think Judge Phillips’ analysis is right.

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Two recent episodes, both caught on video, highlight just how bonkers the impulse to turn personal choices into political protest fodder has become. In 2020, nothing is worse, it seems, than other people going about their business in a way you happen to dislike.

In Florida, a group of about a dozen young people protested at a local Target store. Target’s corporate policy is to require masks in stores nationwide regardless of local laws, proving them for free to customers who do not have one.* In this case, the unmasked horde of protesters aimed their chants at any customers who agreed to follow the rule, moving through the store shouting at shoppers to remove their masks.

Anti-maskers in Florida invade a Target pic.twitter.com/Z8TWbl8ihD

— Fifty Shades of Whey (@davenewworld_2) September 16, 2020

The Target protesters mirror—albeit in a cheerier way—a recent group of left-wing activists who confronted people dining out near protests against police brutality in Washington, D.C. (Similar incidents also took place in Pittsburgh and in Rochester, New York.) These protesters—ostensibly concerned with racial justice and with reforming or abolishing U.S. policing—surrounded random outdoor diners, demanding at top volume that they express support for the cause. When some people wouldn’t, the crowd surrounded them, berating some diners at close range.

1) In a scene that played out several times Monday, a Black Lives Matter protest that began in Columbia Heights confronted White diners outside D.C. restaurants,  chanting “White silence is violence!” and demanding White diners show their solidarity. #DCProtests pic.twitter.com/fJbPM76vb0

— Fredrick Kunkle WaPo (@KunkleFredrick) August 25, 2020

Many people will probably object to grouping these two packs of protesters. But both are refusing to follow pandemic norms meant to protect others. Both endow normal non-political activities with perceived political meaning. And both refuse to leave space for people or private institutions to make their own choices.

The unmasked Target chanters don’t just want the right to go unmasked among friends or in public spaces. They want to go unmasked on someone else’s private property and demand that others there to unmask too. The patio protesters don’t just want the right to assemble and make their voices heard. They want to intimidate people doing unrelated activities into paying lip service to their cause.

No matter what the issue, many people are ill-content to merely avoid having their rights and the rights of others infringed upon; they want to dictate what everyone else does, says, and wears, too. Sometimes they limit that impulse to shouting obnoxiously, or demanding that everyone denounce a particular piece of media or art or public figure. Other times they try to conscript the government to their cause as well. Hence the calls to crack down on social media and the cheers when the authorities micromanage which businesses can accept willing customers during the pandemic.

These with-us-or-against-us performances are a symptom of a larger climate in which every element of our lives has become an opportunity for tribal signaling and cultural warfare, and in which our ruling political tribes are growing increasingly illiberal in their approaches to free speech, free trade, free thought, private property, and so much more. We really are confronted by enormously consequential issues right now, from policing to the pandemic. It’s hard to live and let live when so much is at stake. But that makes it all the more important to direct your anger at something more meaningful than the individual choices of random bystanders.

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