Shepard Fairey Destroys Evidence, Goodwill; Harms His Case For No Good Reason

from the grow-up dept

On Friday morning, someone "working with" Shepard Fairey alerted me that some news was coming out that day about his lawsuit with the Associated Press over his famous Barack Obama poster:
barack-is-hope CLOONEY DARFUR
I finally got the "official" statement from Fairey late on Friday, just as I was about to leave work for the weekend, and the whole thing was so ridiculous that I just figured I'd leave it until today. Apparently, Fairey, for absolutely no good reason, tried to destroy evidence and then lie about which photo he actually used to make his poster. He's now come clean about this, and while he's right in his statement that this shouldn't have any impact on the underlying case, it certainly doesn't help. It was already pretty well known that Fairey was hardly the poster child of fair use -- given that he has a history of going after others who copy his own work, despite being an "appropriation artist" himself. But, even so, this is beyond dumb -- something I don't say lightly.

Fairey still has a very strong fair use claim -- which is entirely separate from the question of whether or not Fairey did something incredibly stupid here. Even if he used the image the AP claimed he did (which he now admits), it still seems like this is an obvious case of fair use. But destroying evidence and lying -- especially when there was no good reason to do so -- just harms his credibility and makes it that much more likely that he'll lose his case not for any legitimate reason, but because of his own separate actions in dealing with this case. There are important fair use issues at play here, and Fairey just made it that much harder to maintain the high ground.

While some are pointing out that this is the sort of thing that happens when copyright laws always seem to stack the deck against fair use, that's still no excuse for lying and trying to destroy evidence. Yes, the system sucks, but doing something like this only harms an otherwise strong case.


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Oct 19th, 2009 @ 8:31am

    One would think that this could actually lead to criminal charges being filed against him.

     

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  2.  
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    Anonymous Coward, Oct 19th, 2009 @ 8:33am

    Re:

    one could only hope...

     

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  3.  
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    Anonymous Coward, Oct 19th, 2009 @ 8:35am

    Hmm.

    So maybe there is a moral component to this stuff after all?

     

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  4.  
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    Scote, Oct 19th, 2009 @ 9:07am

    So...he didn't get the photo reference by cropping a two shot but, instead, just used a head shot of the same pose. The fair use claim gets weaker, based on that but not as weak as the case gets from lying about it in the first place. Grrrr....

    Bad artist, bad artist. Shame of you for messing up an otherwise strong fair use claim.

     

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  5.  
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    tim kenney, Oct 19th, 2009 @ 9:15am

    When all else fails, pull the cover over your head....

    Fairey may have had a fair use position, if he had been honest from the start. But he's crippled his defense now.

    There is a long history or appropriationism in art, look at Raphael and Michelangelo for a start, in the vibrant Italian Rennaissance. Or Picasso himself in ripping off Braque.

    But Fairey's conduct in his career just leaves a bad taste in my mouth, and makes it harder for everyone. Note the recent news that he had arranged for an anti-graffiti coating on the walls of his own studio! http://tinyurl.com/fairyhatesgraffiti

    Fairey has a loooong history of ripping off other legitimate artists. And again, if he'd only been honest about it we wouldn't have cared. But his arrogance seems to know no bounds.

    Too bad.

     

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  6.  
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    Anonymous Coward, Oct 19th, 2009 @ 9:48am

    It is mind boggling why these idiots think destroying evidence is a good idea. If you think you have incriminating evidence in your possession DESTROY it BEFORE court proceeding occur.

    I don't think this guy had anything to fear at all, but the court is never happy about evidence destruction and may just smash the gavel over his head to prop him up as another warning to other idiots that think destroying evidence is a good idea.

     

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  7.  
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    Paul Colford, Oct 19th, 2009 @ 9:53am

    From The Associated Press on the Fairey case

    Helpful media timeline: http://bit.ly/2FXiSG

    Other case links: http://bit.ly/JgY6l

     

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  8.  
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    Mike Masnick (profile), Oct 19th, 2009 @ 10:07am

    Re: From The Associated Press on the Fairey case

    Helpful media timeline: http://bit.ly/2FXiSG

    Other case links: http://bit.ly/JgY6l


    Paul, I'm glad you're posting in the comments now, rather than emailing us canned statements that do not address the issue, but why is the AP ignoring the fact that this should have no bearing whatsoever on the fair use claim?

    Yes, Fairey is an idiot for doing this, and perhaps it makes legal sense for you to figuratively demonize him for being a jackass, but that doesn't change the fair use arguments. Most people have been making the fair use claims based on thinking that he used the photo everyone now agrees he did use.

    Trumpeting up this as evidence that it's not fair use makes no sense, because most of us already were sure which photo he used, and it still doesn't change the fact that it was an entirely transformative use that EVEN YOU GUYS didn't realize was Garcia's photo until after someone else pointed it out.

    You really ought to drop your claim on this.

     

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  9.  
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    Sheinen, Oct 19th, 2009 @ 10:11am

    So...was he supposed to take a photo of the Pres himself to work from? That'd be kind of tricksy I'd imagine...he is a fairly busy man and such.

    I'm lost here - the pictures are the same pose, fair play, one is clearly derived from the other, but ITS TOTALLY EFFING DIFFERENT!

    Am I not allowed to make a watercolour of a meadow for fear of upsetting the land owner now? How about, no-one makes anything, because everything can somehow be traced back to something else and you'll get sued for it. What a fecking world!

     

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  10.  
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    Cap'n Jack (profile), Oct 19th, 2009 @ 10:15am

    Re: Hmm.

    Congratulations: you realized there's a moral component to the law! But you're still a dumb ass because you some how came to the conclusion that it relates to Techdirt's recent article on copyright.

    And while it may have been immoral for Fairey to lie, it wasn't illegal. So, I really don't know what you think you're proving.

     

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  11.  
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    Anonymous Coward, Oct 19th, 2009 @ 10:20am

    Re: Hmm.

    What's moral about stealing from the internet? This is a theft of the terrorism. No more, no less.

     

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  12.  
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    ALANTONE (profile), Oct 19th, 2009 @ 10:20am

    And the award for Knucklehead of the month goes to ...

    I have always found it interesting how people assume that artist or anyone for that matter is wise and intelligent just because they are good in their field.

     

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  13.  
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    Dark Helmet (profile), Oct 19th, 2009 @ 10:22am

    Re: Hmm.

    "So maybe there is a moral component to this stuff after all?"

    Uh, not to the issue of copyright. It's a matter of economics, not morality.

    Now, destroying evidence and lying through your teeth? Yeah, definitely morality issues.

    Attention Fairey: While your "Hope" poster was well done and inspirational, your actions are reprehensible and you deservce to have the court twist your nipples off with a pair of pliers. But worse, you will not be asked to do the Dark Helmet "Or Else" poster....

     

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  14.  
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    John Doe, Oct 19th, 2009 @ 10:38am

    Re:

    You jest about the meadow, but the Space Needle in Seattle is covered by copyright. You can shoot a photo of the Seattle skyline that happens to include the Space Needle and you are fine. Shoot a photo of just the space needle and try to sell it and you will be squashed.

     

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  15.  
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    Anonymous Coward, Oct 19th, 2009 @ 10:43am

    Re: Re: Hmm.

    Dumbass? Proving? Someone missed their cuppa coffee this morning!

    Here is my point. I guess that "proving something" might be related to this, so I'll grant you this point.

    I submit that much of the content on Techdirt is based on a largely unspoken morality based on fairness and equality. What bothers me is that when it seems suitable, morality is played down in favor of "mere legality", while in other cases, the subtext is definitely moral in the sense of "such-and-such did questionable-act - how could they think this was right?".

    So which is it? Narrow interpretation of legal standard only or it's-wrong-because-it's-not-right?

    The latter is definitely a moral judgement, and I will unabashedly submit that much of what is written on Techdirt sits firmly on a moral foundation that is hardly ever explicitly mentioned.

    I'm not saying this is wrong - in fact I'm drawn to Techdirt because of the underlying moral undercurrent. I just find it disturbing that there is such a fluid wandering between "faux rationality" (or hard rationality) and "wow - this is just wrong. Don't you agree!????" depending on how Mike wants to manipulate his audience.

    Admit freely that the morality here is based on the notion that the small number of greedy sociopaths should not benefit at the expense of the generally good "society" and the tone of the articles here would be much more consistent.

     

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  16.  
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    Anonymous Coward, Oct 19th, 2009 @ 10:45am

    Re: Re: Hmm.

    Stealing is immoral. That's the impact of morality on this discussion.

     

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  17.  
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    Dark Helmet (profile), Oct 19th, 2009 @ 10:48am

    Re: Re: Re: Hmm.

    "Stealing is immoral. That's the impact of morality on this discussion."

    Oh, outstanding! I clearly didn't understand the case at all as I had no idea he was in a criminal proceeding charged with stealing/theft.

    So....what'd he take?

     

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  18.  
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    Anonymous Coward, Oct 19th, 2009 @ 10:56am

    Re: Re: Hmm.

    So what is economics based on in modern society? Mere mathematics? Some other vague notion that the academics cooked up that can be easily dismissed because it originated in the ivory tower?

    Morality isn't "that stuff that religious people talk about in the abstract but has no bearing on reality". It's the very foundation on which all value judgements are based! Everything on Techdirt is based on morality. Why is it wrong for "content providers" to apply the thumbscrews to the "consumers" to "protect their rights?". That's a question of morality. The supremacy of the individual over the collective is a question of morality. The value of maximizing the greater good of all versus the benefit of a few is a question of morality.

    "This business model is better that that business model" is a question of morality. In the endless tug of war between those with power and those without, morality is the key. So please, be clear about why you find certain stances on an issue more appealing than others. Because that's morality.

     

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  19.  
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    Anonymous Coward, Oct 19th, 2009 @ 11:12am

    Re: Re: Re: Re: Hmm.

    I'm beginning to understand what reality would be like if overtaken by lawyers.

    "That depends on what your definition of "is" is.

    Use your brain, if you have one.

    Why would Mr. Fairey's case be "harmed" by his behavior unless there was some "wrong" done?

    When you trot out "criminal" as if it were merely some sort of "you cheated at Monopoly" violation of rules, it seems so trivial. But you are trivializing the underlying principle of why Techdirt can take a stance on issues.

    Why does Shepard Fairey's behavior event warrant mention on Techdirt? Because it is somehow "wrong" based on the vague, unspoken 'morality' that Techdirt readers find appealing.

    I'm just finding the two-faced "its wrong because we don't like it" attitude kind of annoying.

    Admit your views are based on a foundation of morality and learn to articulate it explicitly. Then we can at least have a conversation about it that might lead to a better morality, rather than just: "wow, x did that. That's wrong, don't you agree?" and "Xiaa did that - wow - don't they know they are evil? Don't you agree?".

    If you want better rules, be explicity about what those rules should be and what foundation they should rest upon. Otherwise you're no different from my children who shout "that's not fair", but can't explain why it's not fair.

     

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  20.  
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    Matt (profile), Oct 19th, 2009 @ 11:25am

    Two unfortunate site memes

    "While some are pointing out that this is the sort of thing that happens when copyright laws always seem to stack the deck against fair use, that's still no excuse for lying and trying to destroy evidence. Yes, the system sucks, but doing something like this only harms an otherwise strong case."

    This is a critically important point that often seems to get missed on TD. Copyright is the law. It is a crappy law, but it is the law of the land. It is not okay to break the law, even if it is a stupid one. Instead, we should work to change it.

    Fairey may not have broken the law, here - his use looks like a fair use. Unfortunately, the Congress and the Supremes have not deemed it necessary to impose a mens rea requirement on copyright infringement or present us with a clear and consistent standard, so we cannot know if any particular use (even a clearly transformative educational use that has no effect on the market for the original work) is a "fair" use until a court has spent hundreds of thousands of dollars on the question. But file sharing and other copying that appears to be condoned by some of the users of this site is clearly infringement. I support law enforcement, and even copyright owners, doing everything the law permits to enforce the law against this conduct. I just wish the law did not permit such enforcement.

    While I'm on my soapbox... many thinkers on this, including Mike, start from the position that it is natural or normal to feel put upon when one sees their creative work being used by another (particularly without credit). It just ain't so, or at least it hasn't always been. It used to was that people really believed "imitation is the sincerest form of flattery". It was okay for someone to tell another person's joke, or even paint another person's painting. Indeed, attribution was the real problem - when people became irate it was not because they saw Jack selling his copy of Jill's painting as Jack's original work, it was because they saw Jack selling his copy of Jill's painting _as Jill's_ original work.

     

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  21.  
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    Anonymous Coward, Oct 19th, 2009 @ 11:27am

    Re: Two unfortunate site memes

    "It is not okay to break the law, even if it is a stupid one."

    Civil disobedience would like a word with you.

     

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  22.  
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    Chronno S. Trigger (profile), Oct 19th, 2009 @ 11:34am

    Re: Re: Re: Re: Re: Hmm.

    "Why would Mr. Fairey's case be "harmed" by his behavior unless there was some "wrong" done? "

    He did do something wrong. He lied and he destroyed evidence. While there is a moral issue involved, it's irrelevant. Lying in court is perjury and destruction of evidence is destruction of evidence, both illegal and just dumb as hell when you have a good legal leg to stand on.

     

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  23.  
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    Dark Helmet (profile), Oct 19th, 2009 @ 11:37am

    Re: Re: Re: Hmm.

    "So what is economics based on in modern society? Mere mathematics? Some other vague notion that the academics cooked up that can be easily dismissed because it originated in the ivory tower?"

    Well, that's an extremely complicated question, but I don't think that the answer can EVER be that widespread economics can include anything but the broadest sense of morality. The reason for that is implicit in the concept of morality itself, defined as:

    "•concern with the distinction between good and evil or right and wrong; right or good conduct."
    wordnetweb.princeton.edu/perl/webwn

    There are simply too many differences in terms of good and evil or right and wrong. There is rarely a broad agreement on what falls under those distinctions, so basing encompassing economic policies and laws on morality is tricky at best. It's why, if they're smart, governments tend to NOT try to legislate morality: it just doesn't work. The best thing a government can do in most instances, particularly those that can potentially involve any concept of morality, is to get the hell out of the way. In most cases, the interested parties will work it out themselves.

    So, in my opinion, it's not so much that copyright doesn't involve a morality component, but that those morality components are so incongruent amongst the interested parties that you might as well throw it out as a distinguishing factor.

    An artist, for instance, might think it morally right that he is compensated for the work he's extolled on behalf of his vision. His work might have that value to him, and he might think it is wrong for someone else to utlize that work to make money while he's uncompensated. This is a very individualistic way of looking at things, but it doesn't make his moral viewpoint invalid.

    But nor is the consumer's viewpoint invalid either when he/she appropriates that work to make MORE art. Maybe that person has a moral viewpoint that is more socialistic, seeing art as made for the benefit of all, a societal benefit and right, and perhaps this person who is equally creative sees the restriciton of the proliferation of artwork to be morally wrong. Shall we simply deny that person the worth of his/her moral viewpoint?

    No, both are valid, and that is where economic models come into play. Both parties should work in the interest of their own viewpoints and create models and situations that benefit them REGARDLESS of the other's moral viewpoint. This might mean the original artist making money in indirect ways from his artwork. It might mean the second artist choosing not to use certain artist's work if they diverge from his moral viewpoint.

    Again, to me, it isn't that no moral viewpoint exists between the parties, only that they are so varied while both being valid that we might as well not consider them...on EITHER side of the argument.

    "Why is it wrong for "content providers" to apply the thumbscrews to the "consumers" to "protect their rights?""

    Maybe I diverge from most of the TechDirt community on this, but I DON'T think what you're describing is wrong, I just don't think it's very smart. I think you're going to alienate a great deal of consumers that way, and you're going to limit how much money you can make and how widespread your art can be because of that alienation. Even if you think you're morally right, and the other side has a moraly different viewpoint....isn't the economic part of this supposed to be to make money? Shouldn't that be the determining factor, rather than what is "right" and "wrong" in the eyes of one side or the other?

    "So please, be clear about why you find certain stances on an issue more appealing than others. Because that's morality."

    It USUALLY has a moral component, but I for one regularly suspend my moral views in order to examine what is SMART. Sometimes there is a moral middleground. I refuse to accept a world where one morality is the only morality, and only one viewpoint wins. This is the kind of thing you get from debates between religious zealots and angry athiests, party line towers on both sides of the spectrum, and elsewhere where the spectrum is so wide.

    This idea that something is right, always right, and never wrong (or vice versa) is silly and easily dismissed. The only universal truth is that there ARE no universal truths, and the sooner people stop trying to turn morality arguments into black and white, all or nothing discussions, the better off we all shall be....

    Helmet out....

     

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  24.  
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    Anonymous Coward, Oct 19th, 2009 @ 12:11pm

    Re: Re: Re: Re: Re: Re: Hmm.

    No, the lying isn't irrelevant. That's the moral part. And that's the undercurrent on which the original article was based on - the fact that Fairey lied and tried to hide things. That's a moral issue. If he had instead tried to promote the truth and argued that he was right, he would have had more of a chance. Sorry, but I think that the "it was technically legal" argument rings consistently hollow, when the underlying sentiment wishes that the questionable act was indeed illegal so it can be condemnded without bringing morality into the picture.

    Techdirt, I have taken your measure. I find it wanting. Goodbye.

     

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  25.  
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    Anonymous Coward, Oct 19th, 2009 @ 12:57pm

    Re: Re: Re: Re: Hmm.

    "I refuse to accept a world where one morality is the only morality, and only one viewpoint wins."

    "This idea that something is right, always right, and never wrong (or vice versa) is silly and easily dismissed. The only universal truth is that there ARE no universal truths, and the sooner people stop trying to turn morality arguments into black and white, all or nothing discussions, the better off we all shall be...."

    You've stumbled on the crux of the problem that has plagued humanity since it's inception.

    Here's the mistake that many make: morality is based on what a few in power dictate it to be, or it is based on what some religious dogma demands it to be, or on what some cultural relativistic viewpoint demands it to be.

    However.

    In order for something like the foundations of the United States to be viewed as universal enough to be 'exported' to the rest of the world, you have to acknowledge some universal truths. Otherwise the only thing that prevails is cultural relativism.

    The key is to distinguish between those moral principles that apply to every human being every where "we consider these truths to be self evident", and those that apply to some local minority, ethic, economic or national group in order to promote some local bias that doesn't apply to free humans.

    So, I reject your "nothing is always right" argument and submit that you are confused about what things *are* always right and what things are relatively right because of social pressure. If there are no principles that apply to free people everywhere, then I may as well throw myself into the sea, because there is no point to anything.

    Or maybe it's all just based on pragmatic thinking, to which I'd say that "moral" rules based on individiual freedom are still superior, because they work better.

    If you are an example of what passed for critical thinking in the world, no wonder we're all screwed up. Seacrest out.

     

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  26.  
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    Dark Helmet (profile), Oct 19th, 2009 @ 1:18pm

    Re: Re: Re: Re: Re: Hmm.

    "In order for something like the foundations of the United States to be viewed as universal enough to be 'exported' to the rest of the world, you have to acknowledge some universal truths. Otherwise the only thing that prevails is cultural relativism."

    I'm sorry, but I just don't agree. I've never seen a universal truth, and what you call cultural relativism, I simply call culture. We ain't the same the world over, and that's okay. One of the biggest mistakes our country has made has been trying to export America to places where it doesn't belong. There is nothing fundementally BETTER about the way American culture does things. YOU might enjoy the gadgets, the economic awesomeness, the prevailing strength of our military, etc. etc. etc., but the monk in Tibet might think those things are silly, and judge his way of life better for him. Here's the thing, if he's happier that way, he's RIGHT, and you're right too for backing the American way for YOU.

    "The key is to distinguish between those moral principles that apply to every human being every where..."

    They don't exist, sorry.

    ""we consider these truths to be self evident""

    Seriously, do you know what the two most important words in that sentence to one of the most ambitious and crazy awesome documents is? Those two most important words are "We consider". "We", because the founding fathers recognized it applied only to their viewpoint, and "consider", as opposed to "know", because they weren't so arrogant to think they had it all figured out (further proof is the call for further revolution in the Constitution should their supposed ideal be taken advantage of by tyrants).

    "So, I reject your "nothing is always right" argument and submit that you are confused about what things *are* always right and what things are relatively right because of social pressure."

    Reject and submit away, but MY way makes room for everyone and yours limits inclusion of people's ideas, and that's something that's ALWAYS going to be fought. Like I said, a government should have some basic rules (don't commit unwarranted violence, don't rape, don't take another person's possessions) that, while still relative, are super common, and the rest they should leave the hell alone. In fact, one of the biggest detractors from human existence throughout history is large numbers of people being governed together, something that almost NEVER works. One of the great successes of the early Americas was our reliance on State and local laws, with an only moderately strong Federal government. We've since gotten away with that, and it's led to nothing but trouble.

    "If there are no principles that apply to free people everywhere, then I may as well throw myself into the sea, because there is no point to anything."

    That seems silly. Isn't the point to enjoy your life, make something of yourself, leave your mark on the world, and move on to whatever lies next? Why would differing pockets of morality spread througout the world alter that? In fact, wouldn't it be interesting to travel and see even MORE diversity in culture and morality than we have now? Some people might fear that type of thing, I suppose, but I think it'd be INCREDIBLY interesting.

    "If you are an example of what passed for critical thinking in the world, no wonder we're all screwed up. Seacrest out."

    Huh, and here I thought we were having a reasonable, intellectual conversation. Strange that you would end such a conversation with such a blatant and unwarranted insult. Some might call that a moral violation of politeness. Oh well...

     

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  27.  
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    Anonymous Coward, Oct 19th, 2009 @ 1:47pm

    Re:

    Fine meme art! We have come full circle.

    Basket Cat is pleased.

     

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  28.  
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    CastorTroy-Libertarian, Oct 19th, 2009 @ 2:07pm

    Re: Re: Hmm.

    Actually i might have to photoshop that one, i like the thought of and "Or Else" Poster.

     

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  29.  
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    perlhaqr, Oct 20th, 2009 @ 9:11pm

    Re: Re: Re: Re: Hmm.

    Well, the original photographer doesn't have the original anymore. Fairey stole it, doncha know?

     

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  30.  
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    perlhaqr, Oct 20th, 2009 @ 9:15pm

    Re: Re: Hmm.

    And while it may have been immoral for Fairey to lie, it wasn't illegal.

    You may wish to check with Google regarding what Martha Stewart was put in jail for.

     

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  31.  
    identicon
    newest jordan shoes, Nov 9th, 2010 @ 12:04am

    http://www.sneakersstop.com

    I dont know what to say. This blog is fantastic. Thats not really a really huge statement, but its all I could come up with after reading this. You know so much about this subject. So much so that you made me want to learn more about it.

     

    reply to this | link to this | view in thread ]

  32.  
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    willbates (profile), Nov 12th, 2010 @ 2:30am

    Not cool

    Firstly, making a poster of a photo can't infringe copy right in my view. However, destroying evidence and lying isn't only stupid, it's an infringement of the law, silly!

     

    reply to this | link to this | view in thread ]


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