Monday, June 30, 2008

Let's Avoid Talking About the Issues

Retired General Wesley Clark said that the fact that Senator McCain spent five and a half years as a prisoner of war says nothing about his qualifications to be President. The McCain campaign piled on. Senator Obama, on a day he was emphasizing his patriotism, rejected or disavowed or strongly objected (or whatever the current verb is) to his supporter’s comments.

Clark’s analysis is absolutely true, though it says nothing about the relative merits of the two candidates. Shouldn’t McCain’s camp quietly acknowledge that and then go on to stress that McCain has decades of experience in the Senate as opposed to Obama’s few years?

Shouldn’t Obama, note that Clark was right, as far as it goes; and, then go on to say that what he stands for, globally, is better for us than McCain’s attempt to be the third term of GWB?

They both think we’re stupid.

Where Do We Draw Lines?

First, you have to read this piece at

Obscenity is a moving target in law and in my mind. If I had to make a stand, I guess I’d take a libertarian view of it. If someone harms someone else, then there’s a problem. The definition of harm is then the problem.

In the article, Google tracks searches for “orgy.” In previous posts, I’ve talked about weird searches that have arrived here. Indeed, by typing the word orgy, Google is going to put this post in the results of a search for orgy. (To increase the odds: nude, nuder, nudist.)

Before we get back to harm, let’s talk about the current legal standard for obscenity. Is the conduct within or without the accepted community standard (very simplistically put)? In, OK. Out, criminal. You then get back to having to decide what is the community, the subject of the Slate article. The Slate author says government should stay out of the business of regulating guys or girls surfing the internet for porn, unless it veers into pictures of real live children. I’m not sure that distinction captures the difference. How about this? It isn’t a crime to publish or view or engage in porn on the internet, or elsewhere, with the exception of a publisher that uses real live kids.

The problem is that there is real live harm still existing. Let’s take the issue off the web and talk about dirty books, prostitution and strip joints. Willing adults engaging in consensual activity. The problem is that there is still harm to the girls or guys selling pictures of their bodies, selling their bodies or getting money for letting people watch their bodies, not always, but it’s there. There’s harm to their families. There’s harm to the guys, girls, their families and their communities caused by disease, drugs and other effects of the conduct.

The problem with that definition of harm is that similar harm results from other conduct. Selling and using drugs and alcohol. Buying and selling guns. Gambling excessively. Driving recklessly. The list is endless; and, we aren’t going to bar most of this other harmful conduct, unless it results in the commission of another crime.

So where do we draw the obscenity line, or do we draw an obscenity line, considering or not considering the new community: the entire world that has access to the internet?

Friday, June 27, 2008

Two Movie Reviews

Pos can do this stuff in one word. I'm OK with that for the first movie, Equilibrium: Sucks. At least the first fifteen minutes which is all I got through.

Second movie is about to play, Green Mile. From the last time I watched it: Wonderful.

Local Columnist Advocates That Justice Department Break Law, As if it Needed Encouragement

Jim Wooten is the AJC's right leaning columnist (opposing Cynthia Tucker and Jay Bookman on the left). In his online column today, he wrote:

"The Justice Department’s inspector general says recruiters improperly used 'political or ideological' considerations to find and hire conservative interns. Ideology can be considered in recruiting political appointees, but not otherwise. Justice officials should get more sophisticated in screening to hire conservatives. Anybody doubt that colleges and employers look for the codes in applications and essays to achieve diversity? Ideological diversity is important, too."

Beyond the matter of encouraging the Justice Department to break the law (a skill it already has down pat) Wooten's advice is stupid. If he wants ideological diversity (which he doesn't) the way to get it is to ignore it as a factor. If you hire based on competence, you'll get some competent men and women, some competent fat and skinny people, and surprise, some competent conservatives, moderates and liberals. What you won't get are political hacks (what Wooten actually wants given his methodology).

Thursday, June 26, 2008

The Second Amendment is Alive and Little Change in Gun Law is Expected

From today’s Supreme Court decision:

Logic demands that there be a link between the stated
purpose and the command. The Second Amendment
would be nonsensical if it read, “A well regulated Militia,
being necessary to the security of a free State, the right of
the people to petition for redress of grievances shall not be
infringed.” That requirement of logical connection may
cause a prefatory clause to resolve an ambiguity in the
operative clause (“The separation of church and state
being an important objective, the teachings of canons shall
have no place in our jurisprudence.” The preface makes
clear that the operative clause refers not to canons of
interpretation but to clergymen.) But apart from that
clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris,
A General Treatise on Statutes 268–269 (P. Potter ed.
1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation
and Construction of Statutory and Constitutional Law
42–45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts . . . for
the enacting part to go beyond the preamble; the remedy
often extends beyond the particular act or mischief which
first suggested the necessity of the law.’ ” J. Bishop,
Commentaries on Written Laws and Their Interpretation
§51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165
(K. B. 1802)).
3 As Sutherland explains, the key 18th-century English case on the
effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep.
404 (1716), stated that “the preamble could not be used to restrict the
effect of the words of the purview.” J. Sutherland, Statutes and Statutory
Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was
modified in England in an 1826 case to give more importance to the
preamble, but in America “the settled principle of law is that the
preamble cannot control the enacting part of the statute in cases where
the enacting part is expressed in clear, unambiguous terms.” Ibid.
JUSTICE STEVENS says that we violate the general rule that every
clause in a statute must have effect. Post, at 8. But where the text of a
clause itself indicates that it does not have operative effect, such as
“whereas” clauses in federal legislation or the Constitution’s preamble,
a court has no license to make it do what it was not designed to do. Or
to put the point differently, operative provisions should be given effect
as operative provisions, and prologues as prologues.

(Sorry about the formatting but, Blogger apparently doesn't like Word as copied and pasted from a .pdf file.)

The opinion is written by Justice Scalia. Cutting through the legalese, he says that what I would call the main clause (his prefatory clause) of the Second Amendment, the Militia part, is only there in case what I would call the subjunctive clause (his operative clause) needs clarifying. If the second clause is clear, you can ignore the first clause. This isn’t English or law as I learned them. The subjunctive is always limited to the main idea. You will note that he does not cite to an American legal decision for his proposition and he equates preamble with prefatory without any explanation; but, I don’t think it matters.

What the Supreme Court has done is left intact most gun legislation, local, state and federal, intact; but, it has guaranteed a decade or so of litigation about what the constitutional limit of regulation of guns is. The D.C. law didn’t pass muster. Probably a few others won’t. The great majority will.

Contrary to the media I’ve read and heard today, I don’t think the opinion is that important.

The White House Imitates a Toddler

You’ve seen a two year old that doesn’t want to hear what his or her parent has to say. Hands go over ears. Eyes tear up as the child starts crying.

The Supreme Court told the EPA to prepare a report on some green house gas issues. EPA did so and sent the report in an Email to the White House. To date, the Email is apparently residing in the White House inbox, unopened. You won’t be surprised to learn that the White House didn’t like what it understood to be in the Report.

The toddler White House then pressured (tears and crying) the EPA to water down its report, which is going to be issued this week.

The success of this tactic is said to causing consideration of the White House holding its breath when faced with the next instance of an Agency making a decision it doesn't like.

Wednesday, June 25, 2008

Why Does it Cost More to Fly from Dallas to New Orleans and Back than from Atlanta to Dallas and Back?

There’s a title for you. I have to go to Dallas in July and will be there over the weekend. I just looked into flying to New Orleans for the weekend. Airfare ATL to DFW is $209. DFW to New Orleans is $250 on Southwest which is far cheaper than American and Delta. Do I bite the cost bullet and go? Or do I do some research on how to kill time in Dallas?

Comment pandering: what is there to do in Dallas? I have the what to do in New Orleans covered: good restaurants and Harrah’s Casino.

Tuesday, June 24, 2008

Manhattan: $24. Everglades: $1.7 Billion.

Florida is buying the Everglades from U.S. Sugar. The latter gets to operate the company for another six years, then, the land will be returned to its natural state.

I kind of like it; but, buy your sugar now.

Maybe I'm Not Sufficiently Sympathetic

The Senate just had a test vote, whatever that is, on a bill to spend $300 billion to underwrite mortgages for people whose homes are about to be forclosed. The bill would guarantee loans if the lender agreed to better terms than the current loan.

There’s plenty of blame to go around in the mortgage meltdown – sub prime lending, interest only loans, 100% financing. Lenders and borrowers have been stupid.

Why is it that taxpayers have to do a bail out? Let the lenders find the bottom of the market on foreclosure sales. Some, many, people that should have never qualified for a loan, will find themselves renting. The new and used home market will find equilibrium and we will wander along.

Why, why is the Government spending money on this?

Saturday, June 21, 2008

Have You Noticed?

Now that the Democrats have a candidate, the candidate is backing up. Pay attention to what Senator Obama says in the near future. I’m betting that he doesn’t talk much about getting out of Iraq any time soon.

Thursday, June 19, 2008

One Last Post on Copyright, Fair Use and the AP

My last two posts have dealt with whatever it is that the Associated Press is doing these days and Media’s and the blog world's reaction to it.

Looking at what I wrote, your comments and what I further read in Media, I think I need to sum up at bit.

AP is getting a bit of a bad rap. It did what big companies do, though it appears for a misguided purpose and in an ineffective way. It used a law, the DMCA, to go after some blogs for doing the following: aggregating some links submitted from their subscribers to AP stories that included a quote from an AP article and some blogs doing so themselves AP thinks that the links with their quotes are too long and aren’t fair use under copyright law. I think AP is wrong legally, in its accusation that the quotes are infringements of its trademark, and more importantly, from a business point of view.

Curmudgeon dealt with the last point in his two comments to my posts. Blogs, when they quote and link to AP stories in AP clients’ sites, send traffic to those sites. Traffic on the internet means money for the site. Money for the site means that it continues to buy AP content.

The possible exception to this practical view seems to be a site that doesn’t link back to the site from which the quote was obtained. Even there, there is still an issue of whether the quote is fair use under copyright law.

From a PR point of view, AP isn’t going to win the battle, even if it uses the DMCA’s legal tactic of using multiple “take down” demands to blogs. Legally, most of what has been posted by the sites that AP has taken on is fair use. With all of the publicity, a public interest law firm will represent those accused, and win.

One good thing that could out of this little tempest is an internet “best practices” standard that when you quote, you attribute and you link. Not a law thing, not a business thing. Just good manners and what has always been academic honesty.

Wednesday, June 18, 2008

I May Have Been Wrong In My Last Post

At the end of the last post, I said I didn’t think that AP would succeed in its efforts to impose fees on blogs that quoted its content.

I forgot about the provisions of the Digital Millennium Content Act of 1998. The DMCA gained fame when it was used by the RIAA to prosecute “little” people for downloading copyrighted songs. The tactic didn’t really work, other than to get rid of Napster and some similar “sharing” sites.

The revised statute could well be used to apply enormous pressure on you and me to pay AP a bribe to be allowed to fairly use its content. You see, the statute allows AP to give notice to our internet service provider (ISP) that it has a “good faith belief” that we are infringing on its copyrighted content. My ISP is AT&T. It gets a notice that AP thinks that I am infringing. The DMCA offers a “safe harbor.” If it gets the good faith notice of infringement, it can avoid liability by “respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing….” Click here for the statute.

So, what do you think AT&T, or your ISP, is going to do? It won’t “remove” the allegedly infringing quote on your blog. It will “disable access,” in plain English, it will turn off your connection to the internet. An ISP isn’t going to investigate, it is going to pull into its safe harbor.

What’s left for you to do? You can sue AP and AT&T. The winner gets attorney fees. If AP wins, it gets fees and multiple damages and/or statutory minimums.

So, if AP, inadvisably, decides it doesn’t want us to quote it without paying, what does it do? It isn’t a big deal, or expensive, for it to identify each of us that has quoted its content. You’ve heard of Google, it knows everything. You probably have not heard of iCopyright wanders around the internet finding its clients’ content. Guess who’s a client? Yep, AP. Though I didn’t fully research it, AP and other online publishers imbed tags in their content. I gather that iCopyright sends bots about to find out where the tags are. So, it’s “tag, you’re it.”

So, AP decides to quit playing nice. How many “good faith” notices does it send to AT&T, Comcast, etc.? A couple of hundred, or a couple of thousand, each? Then a week or so later, a few hundred or thousand more? Your internet is cut off, unless your ISP decides to fight. Do you really think it will fight for you? Enough of this and everyone is not quoting AP or is paying AP, except me a few other lawyers who would file suit. In the end, AP wins and loses a few lawsuits and gains a lot of income from those of you that won’t fight. In the end, it gets its way: bloggers won’t quote AP. Maybe that’s a good thing.

The Associated Press and the New "Fair Use"

BetaNews and BoingBoing have articles linked in's Technology News Section about AP's current dust up about use of its news articles and headlines.

AP recently sent a letter to Drudge Retort (not Drudge Report) demanding that it take down links to, and quotes from, several AP stories. Last weekend, AP backed off the demand and announced that it was meeting this week with leaders of the Media Bloggers Association, whatever that is, to discuss a new system of payment for quoting AP.

It seems that AP currently wants anyone quoting five words or more from one of its stories to pay $12.50 (five words) to $100.00 (251 words or more). "Educational" and "non-profit" quoters get a break on the rates.

Regular readers know that I am a strong supporter of a creator's right to receive payment from users. Downloading songs or movies without paying the copyright holder is illegal and wrong.

Copyright law has always had a "fair use" exception. You are allowed to quote, without infringing on a copyright if your use falls within certain limits:

"US COPYRIGHT ACT, Chapter 1, § 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Like a lot of law, this section of the United States Code, is not a model of clarity. (Though there are a lot of court decisions that flesh it out. For an excellent review of copyright and fair use history, I recommend this article by Lydia Loren.) AP's system is much clearer. You get four free words, after that you pay. If AP can get people to buy into it, fine. A bright line rule would of course be easier for AP to enforce. It would provide certainty for users.

There are two problems. First, it isn't the law. If the idea of fair use is going to be changed, it is a matter for Congress. Second, AP's numerical approach would gut the purpose of the fair use doctrine. Will teachers, scholars, researchers and pundits pay? Maybe some; but, most would not. Public discourse would suffer.

This last point belies the real purpose of AP's gambit. The great, great majority of commercial users of AP's content, newspapers, magazines, commercial bloggers (i.e., Huffington Post) and radio and television news, already pay for AP content. The gambit can only be seen as an attempt to profit from the rest of us, the great majority, fairly using the content to make a point.

Will it work? I don't think so. In the meantime, I'll probably use AP less as a jumping off point for my avoidance of work.

Tuesday, June 17, 2008

Post Ennui

I left a comment as Pos's place (see Recommended Sidebar) complaining that he had a backed up post idea list.

I have two half posts sitting in the "Blog Stuff" folder in Documents. One is about the Supreme Court's recent decision on habeas corpus and Guantanamo; and, the other is about AP's recent flopping on whether it wants to remake copyright law.

I know what I want to say in both unfinished posts, but I'm too lazy to finish them.

Part of the problem is that they are legal stuff which is boring even to me. Part of the problem is that I just am not interested enough to plow through the thesis, exposition and conclusion, much less try to make it interesting, with a bit of humor.

So, I'll leave you with the fact that Big Rick is in Vegas at Caesar's Palace. He was up a couple of hundred yesterday afternoon. As of this afternoon, he lost the five bucks I gave him to put on 20 on the roulette table and is down a couple of hundred of his own money. The plus or minus, depending on how you look at it, is that his plane comes back tomorrow morning.

Sunday, June 15, 2008

The Rules of Golf are Stupid

Brandt Snedicker, or some such spelling, just got a penalty stroke in the U.S. Open.

His ball was on the green. He bent to mark his ball (you put a coin next to it to pick it up to clean it). As he did so, he dropped the coin and it hit the ball. The ball moved. The rule is if you are placing the coin and it moves the ball, no penalty. But, if you drop the coin as you are placing it, you evil person you, one stroke penalty.

One of these days, I'm going to do a post on the stupidity of some of the rules of golf: "building a lie," "ball v. spike marks," "addressing the ball, rather than the ball moving before the address."

Saturday, June 14, 2008

Fathers Day

He died in 1991 on Memorial Day.

He grew up in the throws of the of the Great Depression; and, he went to war, before it was declared, and stayed until it was over.

He got married in August of 1946 and wandered off with his new wife across the United States for most of five years, living and working here and there as their mutual desire dictated.

I don’t think I can do any better than copying and pasting part of my post from last year; so, here it is.

He helped build the Alaskan Highway while in the Army and then followed the combat troops through Europe. He came home and had a lot of different jobs.

We never had a lot of money. But, we always had lots of food and clean clothes.

Random remembrances:

I was four or so and we were on vacation at a family friend’s cottage in Northern Michigan. The friend was on the dock with me and Dad was in the water, both encouraging me to jump. I was not biting. Friend picked me up and threw me, missing the target of my Father. He scooped me up quick enough and realized I was scared to death. He held me as he walked up to the grass and sat awhile. Nothing said, just his presence.

When we “visited” (that’s what you did back then) friends and relatives we got a lecture on what was and wasn’t allowed. We did what we were told.I got a D - - for a grade in Algebra II. The minus minus kept me on the Varsity wrestling team. It didn’t impress my father. He very softly explained that he could not afford to send me to college; but, I was going, he said. To do that, I had to have good grades to get grants and scholarships. I paid a bit more attention in class after that.

I wrestled in high school. My Father, at the end of my senior year. got an award from the team, none of whom told me about it, for the ‘best parent.” He attended about 95% of our meets. I was, with some shame now, embarrassed. My teammates had more class than I did.

After I got out of college, I lived at home for about six months. At night I worked as a bartender, getting off work at 2:30 a.m., and then often going to a party for a while. One late morning, I wandered into the kitchen for a cup of coffee. My father was sitting there. He said “when you finish your coffee, come on outside, I want to show you something.” “What?” “Nothing much, when you’re finished, I’ll be outside.” I walked out. He was sitting on the porch. My car was in the driveway. The sides, up to the windows, were streaked with mud and weeds. I walked over to him. “I don’t want to lose you. Give me a call next time. No questions asked. OK?” This from the man who yelled at me if I had my feet on the couch.

My father didn’t get a high school diploma. Wasn’t that big a deal in the late ‘30’s. When I was in my twenties, I’d come home on a weekend to “visit.” Maybe the visit thing is a Michigan phenomenon. My Dad was a member of the small town, local restaurant “coffee club.” They had the big table in the back. If you weren’t a member and thus part of the town elders, you didn’t sit there. No one said anything, you just didn’t. We went in one morning and he introduced me to his fellow elders as “my son, David, that went away to college.” They knew more about me than I thought my Father knew.

One time when I was visiting, I announced that I was taking Mom and Dad and my brother, his wife and their then three year old daughter out for dinner for the Friday Night Fish Fry at the Mushroom Bar. All you can eat for something like $7.99. My niece spilled her milk two or three times. The young waitress was always there immediately with a bar towel and more milk. The fried perch, fries and coleslaw were never ending. When she brought the bill, my father tried to grab it. I fought him off. The total was something in the neighborhood of $40.00. I put $50.00 on top of the bill as we gathered ourselves to leave. She brought back the change. We got up and my father nudged me, “you forgot your change.” “That’s for her, she worked her butt off.” My father, the child of the Depression, “you’ll spoil her.”

There are a lot of other stories, some of which I've written in other posts. Search for "father" to read some of them.

Mark Twain, said something like, it’s amazing how much my father learned after I turned 21. I wish I’d had more time to learn what he knew.

To those of you that are fathers, have a great day; and, more importantly remember that your kids are watching you. For better or worse, they will remember what you say and what you do. So, do well for them.

Wednesday, June 11, 2008

Back To Law; But, Not Totally

You’re a @%^&* $^* $! ) %$^#@. The number of symbols are right to spell “you are a stupid son of a bitch. Probably not hate speech. Were I to change it to “you are a blank blank (fill in an adjective that is not proper in polite speech and an noun that describes an ethnic group)” and I might be guilty of violating hate speech laws in a number of countries.

Here’s an article in today’s, Do read it. It discusses an article published in Canada that may violate a hate speech law and draws distinctions between United States First Amendment law and that found in Canada and other countries where, in my view, speech (free speech) and expression (free expression), are fettered.

I’ll avoid law by starting with the cliché “sticks and stones will break my bones, but words will never hurt me.” Of course words can hurt me, hurt my feelings and thereby my well being. But, should the fact that my feelings are hurt be a crime? I don’t think so, except when that hurt coincides with the risk of physical danger to me and/or others.

I’m a free speech and expression purist. Say what you will and I’ll respond if I’m so inclined – the model of the blog world. Burn a flag and I’ll feel sorry for you, unless you say something that moves me to agree with your expression.

Absolutism in speech and expression are fundamental rights (damn, I veered into law), necessary for us to talk about what divides us. This is not to say that I subscribe to hateful talk and conduct; but, it must be allowed.

To end, here’s a link to a post from Mike, a great writer and someone I often times don’t agree with. His solution to hate speech was perfect.

Monday, June 09, 2008

Still Working...

Rather Than Not Working.

I think this is the longest I've gone without posting since starting the blog.

I'm not happy about it; but, I worked a lot last week.

I'm back home, but still busy with working.

On top of working, I lost my cell phone yesterday. No fun.

And, it's stupid hot here. Tomorrow is supposed to be a bit better, with maybe some rain.

Intelligent posting to follow, it is to be hoped.

Tuesday, June 03, 2008

Off To Dallas

I used to travel a lot and I always, not hated it; but, I endured it.

So tomorrow I'm visiting Dallas for the rest of the week. Meetings and depositions.

Though I'll probably do a post or two, if things are too busy, enjoy your week.

"Objection as to the form." "Objection, Leading." "The witness is instructed not to answer based on attorney client privilege." Just a little practice. They don't allow "speaking objections" in Texas, so I'll be very quiet during the one deposition that I'm defending. In two more, I get to ask the questions: much more fun.

And, finally, and not related to the title, this is post number 499 since September 2006. I figure round number celebration needs some shaking up. I thought about doing a Post 500 that said something interesting. I actually started going throught the comments to see who, and since when, my regular commenters were. I got really bored by April 2007. So in order of appearance up until that point, here you are:

Curmudgeon, Life Hiker, Hedy, Fermicat, Thomas, Ron Davison, Jeni, Kvatch, Jim Donahue, Becky, Ryan, Big Rick and a special thanks to Bob Johnson who has left us.

Thanks all.

Since then, in non-chronological order:

Pos, Molly, Debo, Emmapeel, Doc Sardonicus, Keith, Sonja, Sonja's Mom, Wendy, Chamblee, Gypsy, Minnesotablue, Exception, Dilf/Moe Wanchuk/undisclosed real person, Anon now Rich, various and sundry Anons over the years, BobCiz, Kathleen and Sudiegirl.

Thank you all.

Then those of you that read and don't comment, Tony M., Doug, Jay, Bill, Mac, Michael, Kalley (on the rare occasion), Lynn, and various family members.


I hope I can keep writing what will keep you coming back.

Monday, June 02, 2008

On Which Side Do You Fall?

I just watched a news story. President Bush awarded the Congressional Medal of Honor to a Soldier who was in a vehicle in Iraq when a grenade was thrown into it. He trapped it between his body and the wall. He died. The other four soldiers inside with him are alive.

I grew up being taught that suicide was a sin. We Lutherans didn’t call it mortal; but, as I recall, it meant you couldn’t go to heaven.

I’m betting God gave him a pass. What do you think?