In the News

Illegally downloading music is against the Honor Code, BYU NewsNet reminds BYU students. So not only will corporate music's legal jihad against its customers threaten you, but BYU will pile on and kick you out of school. I don't suppose it would make any difference to the Honor Code office that the school's namesake was in violation of federal law most of his adult life with no apparent remorse.

The controversial LDS chapel in Park City is one step closer to construction, reports LDS Newsline. The city planning commission voted 5-2 in favor of the project, which the article notes will house three wards. The actual location is in Silver Summit, which I think is the scattered community of homes just north of where Highway 40 meets I-80. If the Church would just throw in racquetball courts and a small weight room to complement the cultural hall, I think neighborhoods would be a lot happier to host LDS chapels.

Texas sheriff visits Colorado City, reports the Religion News Blog. The FLDS Church is building a compound somewhere down in Texas, you see. They're a little nervous down there, after Waco and all. And I think they're a little sore about Alamo flopping too.

A Light in the Darkness is the first of a 3-part series on depression, over at the always-interesting Meridian Magazine. This one might actually be worth reading. It's written by a PhD in family science, although not an MD or a psychologist. Starts out saying "depression is not something that is uncommon or abnormal or sinful." Sounds like a good start. The Ensign used to run interesting articles like this until it got gutted by the Correlation Committee. Now it's mostly faith-promoting stories from junior GAs.

Comments

[Ann]

I don't see how someone who downloads music without paying for it can be considered a "customer." You can buy just about any song you want for either .79 or .99 at buymusic.com. You don't work for free, do you? Why should recording artists?

[Kim Siever]

Want free music?

Move to Canada.

http://news.com.com/2100-1025-5121479.html

[Nate Oman]

Dave: Actually, at best Brigham was in violation of federal law for only 12 years, from 1862 (the date of the passage of the Morrill ActO until his death in 1877. However, because the constitutionality of the Morrill Act was not settled until 1879, the extent of his lawlessness on that front is questionable as well.

I quibble, therefore I am (a lawyer)!

[Arwyn]

"It's never okay to download unauthorized music from pirate sites or peer-to-peer systems, [these] include: Kazaa, Morpheus, Napster and Gnutella."

Hmm. I know on my campus we have a number of peer-to-peer systems that are limited in use by the moderators to, say, people in their dorm or their house -- systems that seem a lot closer to sharing CDs with your buddies and letting them make copies than the Kazaa and Napster systems.

I'm sure kids over there have them set up, too -- is BYU just cracking down on people who go outside the network for their music, or people inside as well? And is it against the honor code also to burn copies of CDs for private use?

[Kim Siever]

Is it against the Honor Code to tape songs off the radio?

[Dave]

It's always hard to tell what an "official" BYU statement is really conveying, but quoting directly from the article, it summarized the director of the Honor Code as saying that "depending on the severity of the case, disciplinary action may be taken. He also assures that each case will be seen on an individual basis."

So it sounds like they want to discourage the practice but aren't planning on expelling a student unless the violations are egregious. I think that's a reasonable position, although it's not clear that's what they really have in mind.

[Dave]

Ann, about customers: People who share files are the same people who buy the music at stores or online, so they are, broadly speaking, customers. Your are right that it would be technically incorrect to call them customers merely because they illegally download a file.

It's funny to see "performing artists" who don't take drug laws or tax laws or any other law very seriously, then turn around and wax eloquent about how wrong it is to infringe music copyright laws. If it's such a moral issue, you'd think they'd be writing songs about it-- perhaps with lyrics written by their copyright lawyer.

[Dave]

Nate, quoting from the Reynolds opinion:

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society."

So while polygamy was prohibited by statute after 1862 (as confirmed by Reynolds in 1879), it was also illegal under prior common law which, as pointed out in Reynolds, was not abrogated vis-a-vis polygamy by the adoption of the Free Exercise Clause. The 1862 statute was designed to avoid the need to establish by legal process the applicability of the common law prohibition against polygamy in the territories, but doesn't by itself establish that polygamy was legal in the territories prior to the statute.

I have no doubt that Sally Gordon addressed this point somewhere in her excellent book. And of course there's always this fine paper:

http://www.kolobnetwork.org/papers/paper03110301.pdf

[danithew]

I like the idea of peer-to-peer sharing of music -- but it appears to be illegal. I can't bring myself to pay $0.99 for electronic content. I guess if it involves a cash exchange, I want something tangible in my hand to show for it. (and I also want album cover art, liner notes, printed lyrics). I also refuse to pay $18.99 for a compact disc.

Which means, as far as music goes, I'm stuck without an option I feel good about. These days I only purchase a compact disc on the rarest occasion -- and it's almost always for a gift that I'm giving to someone else.

Sigh.

[Ann]

Goodness, Dave, if only those free of hypocrisy were able to enforce violations of their intellectual and creative property rights, everything would be free.

I'm not a huge consumer of music, because the stupid TV is always on, but I have no problem paying 79 cents for "I Hope You Dance," when the option is buying an entire Lee Ann Womack CD (not my genre).

I think that a lot of new artists benefit from making their music freely available, and so they do. But it ought to be the artist's choice. I think BYU is on the right side on this one.

[Sarah Marinara]

I happily pay 99 cents for music files. I think I-tunes is the best thing to come along in a long time. I am a huge consumer of music and am happy that I can pay a buck to buy a song vs. paying 12$ for a cd I most likely won't like very much outside of that one song. Plus it saves me phyisicall storage space, since I usually am listening to music off my computer anyway, storing the cd's has become a bit of a bother. Anyway... I think BYU is right, I see it as a matter of integrity. If you got caught stealing a CD from Best Buy you'd get kicked out of BYU I don't see the differnce in downloading it illegally of the internet.

[danithew]

I second the motion to include a small weight room and racquetball courts in rooms adjoining each chapel's cultural hall.

[Clark Goble]

I think gym equipment beyond the basketball court and (in some wards) volleyball net would be great.

[spencer]

Yet one more reason I'm glad I go to UVSC.

[lyle]

hey, i just want the raquetball courts...i'm sure that a few neighborhood basement/garage cleanings could produce donations for the weights.

re: musik. Stealing is stealing. Nothing is free. And if you acquire something without paying for it, or someone else paying so that you don't have to pay for it...that someone else must be making an explicit gift & following the same rules you would have to follow. Nohting is free (except in Canada...free pot, free love, free everything...except a tax-free paycheck. Canada loves to take your paycheck). Stealing is stealing.

[Nate Oman]

Dave: First, federal common law crimes were declared unconstitutional during the first decades of the 19th century. See U.S. v. Hudson & Goodwin, 11 U.S. 32 (1812). IOW, in order to committed a federal crime you needed a statute. Second, the common law was not the law of the territory of Utah (or Deseret), which specifically refused to pass a reception statute. Third, even though state criminal common law was not unconstitutional under Hudson, but the time of that decision it was frowned upon and on its way out, at least according to Justice Johnson's opinion in that case.

Thus, the only place that Brigham might have been violating bigamy laws prior to 1862 was in Illinois, or perhaps in Iowa Territory. (I don't know if he contracted any marriages in Iowa Territory.) However, even this is unclear, given that (1) there may or may not have been criminal bigamy statutes in Illinois (probably were, though); and, (2) it is unlikely that they still had common law criminal jurisdiction.

In other words, I stand by my original quibble.

[Nate Oman]

Dave: BTW, that paper you linked to has some real problems.... ;->

[Dave]

Nate, there is merit to your quibble, and I'll agree that the status of bigamy in federal law prior to 1862 is at least unsettled. I dug up Hudson & Goodwin yesterday and said, "I'll bet Nate cites this back to me." I read it at lunch while munching fish and chips across from the San Francisco ferry terminal. That's an awfully broad holding for the facts of the case. I think any clever lawyer addressing a sympathetic territorial federal judge in, say, 1855 could have made a case for distinguishing Hudson, especially in light of the broad language used by Justice Story in Swift v. Tyson, a better reasoned and more contemporaneous (1842) case. "Questions of general criminal law" share the same broad character as "questions of general commercial law."

It's not like there were many bigamy cases flowing through federal courts, so the operational question of what a judge would have done if presented with one is subject to some uncertainty. Pragmatic judges often prefer a weak argument giving the "proper" resolution of a case to a strong argument going the other way. The problem (evident in Reynolds) is there wasn't a judge within a thousand miles of SLC that didn't think bigamy was wrong, wrong, wrong and would therefore entertain otherwise weak arguments against it. I just can't see a federal judge of that era saying, "I find no federal statute on point, Mr. Young, so I'm dismissing for want of jurisdiction and you are free to be bigamous, trigamous, or polygamous until the politicians in Washington start doing their job and give me a statute to work with."

[Nate Oman]

Dave: Perhaps you are correct, but I doubt it. First, you should Shepardize Hudson & Goodwin. You will see that the no-federal-crimal-common-law principle was pretty well established by mid century. Remember to that during the Jacksonian period you had an strong pro-codification, anti-common law movement, e.g. the Field Code, etc., so if anything the sentiment against federal criminal common law would have been stronger.

Second, the Supreme Court actually did bat down an attempt to "get" Brigham Young that played fast and easy with the scope of federal jurisdiction. The case here is Clinton v. Englebrecht, 80 U.S. 434 (1872). In that case the Supreme Court held that Utah territorial courts were Article I courts rather than Article III courts. The legal effect of the decision (which the Justices were well aware of) was to void all pending criminal cases in Utah. The most prominent of those dismissed cases included pending inditements against BY for bigamy, murder, treason, etc. In other words, it is not true that the federal courts were willing to bend any rule in order to "get" Brigham on polygamy. Indeed, Englebrecht effectively brought federal law enforcement in Utah to a dead halt, and it didn't start up again until Congress changed the law in 1874 with the Poland Act.

Mind you, I don't think that the anti-polygamy crusade was necessarily the federal courts finest hour, but I think quite a few of the federal judges were being quite impartial and fair in how they applied the law. Furthermore, I think that many of the worste judicial excesses of the anti-polygamy crusade came in the late 1880s after Brigham had been dead for ten years, and the feds were severly pissed off by post-Reynolds Mormon resistance.

[Kim Siever]

Lyle,

Do you consider finding a penny on the street and pocketing it stealing?

Oh, and the pot in Canada is most certainly not free.

[lyle]

Kim:

only if the penny belongs to someone else & i take it rather than returning it/leaving it for them to collect & 'sell'/keep, whatever.

alt. you could just 'copy' the penny, right? that's not illegal is it? :)

[cooper]

I think there has to be a line drawn somewhere on this paying for music thing.

I have been a music lover forever. My brother and I joined a record club in the sixth grade. Beach Boys, Beatles were the groups of the day.

I have purchased every Beatles album ever made. First on vinyl, second on reel to reel tape, third on 8 track, fourth on cassette, fifth on CD. I have even bought "Best Of" albums compiling the same music over.

Just how many times do I have to pay Paul et al for the song they wrote in 1960?

I bake wedding cakes and sell them. They serve it at the wedding. It doesn't all get eaten. They save it for a party a few days later. Wait a minute! I baked a wedding cake! Not a party cake! I want to be paid for the party cake now! I am an artist. Not everyone can do what I do. I should be paid for my talent.

See how ridiculous this whole thing gets. It is true that most people who download music also buy music. And, of course, there are always the few who take advantage of everything.