Wednesday, June 29, 2005

Leaving the District

The death rate for soldiers in Iraq is 60 deaths per 100,000 troops. That reduces to 3 deaths per 5000. The murder rate in the District of Columbia is 80 murders per 100,000 people. That reduces to 4 murders per 5000. In short, you are 25% more likely to be killed while living in D.C. than while serving in Iraq. What's the obvious conclusion here? Why, the United States must immediately pull out of D.C., of course.

This is not intended in any way to minimize the deaths of our soldiers in Iraq. It is intended to make a point. Things in Iraq could be worse -- they could be as bad as things back home.

Monday, June 27, 2005

MGM v. Grokster, No. 04-480

Although the Court ruled 9-0 that Grokster and Streamcast could be sued for inducing copyright infringement, the guts of the Grokster decision appear to me as a huge loss for copyright holders. Essentially, it is only because Grokster and Streamcast screwed up by affirmatively flaunting the infringing uses of their programs that they can now be sued. In the words of the Court:
one who distributes a device with the object of promoting its use to infringe, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Slip. Op. at 1 (emphasis added). On its face, that language seems pretty good for the industry, but consider the Court's broader language near the end of its discussion of the legal principle:
[M]ere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor [of a Grokster-like product] to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful purpose.
Slip Op. at 19-20 (emphasis added). Earlier in its opinion, the Court draws attention to MGM's request that the Court:
add a more quantified description of the point of balance between protection [of copyright] and commerce when liability rests solely on distribution with knowledge that unlawful use will occur.
In other words, MGM wanted rules for the future -- a future in which Grokster-like software is distributed by an intelligent corporation that neither says nor does anything to advertise the potential infringing uses of its product or suggest that infringement is the intended use of the product. The court ostensibly refused to hang flesh on Sony's bones:
It is enough to note that the Ninth Circuit's judgment [in favor of Grokster] rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.
Slip Op. at 17. The Court's decision in this respect is hardly surprising; the court doesn't decide issues it does not necessarily need to decide. What is interesting, though, is that the Court did exactly what it said it would not -- it fleshed out Sony. Indeed, as the second block quote above makes abundantly clear, the Court has, for all practical purposes, made the rule of Sony into a per se rule that no liability for infringing use can attach to the marketing of a product capable of infringing use so long as (1) the product has non-infringing uses and (2) there is no direct evidence that the distributor intends infringing uses of the product. The Court can not be more clear than it is when it says "mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability."

That Sony is now bedrock -- a complete defense to infringement charges against the smart distributor of a product with infringing uses -- is further emphasized in note 12:
Of course, in the absence of other evidence of intent [that the product be used to infringe], a court would be unable to find contributory infringement based on a failure to take affirmative steps to prevent infringement, if the devide was otherwise capable of substantial non-infringing uses. Such a rule would tread too close to the Sony safe harbor.
Slip Op. at 22, n.12. Of course, this is the same safe harbor the contours of which the Court earlier suggested it would leave for another day.

Well, that's my take on Grokster -- a loss for Grokster and Streamcast, and a bigger, potentially devestating, loss for the copyright industry. There will be another Grokster-like product distributed soon (for all I know, it is already on the market in the form of e-mule) with regard to which there is no similar evidence of infringing intent on the part of the distributor. With the language of Grokster setting the Sony rule in stone, and admitting of virtually no exceptions, file-sharing will become a permanent fixture of the copyright landscape and will force tremendous long-term changes in the copyright industry, particularly in the music industry. I'd call this victory Pyrrhic, but it is hard to say the industry lost more by bringing this case than it would have without bringing the case. Either way, file-sharing appears to be here to stay.

Update: Douglas Lichtman agrees it's a hollow victory. To me, hollow doesn't begin to describe the disaster this is for the copyright industry (by which I mean businesses whose chief product is copyrighted work, e.g., movie studios, record labels, etc).

The SCOTUS Today

Today, the Supreme Court will hand down the term's second-most important batch of decisions. The most important decision -- Kelo -- came down last week. The more visceral decisions come today -- the two Ten Commandments decisions. In addition to those emotional, but ultimately marginal, decisions, the Court will clarify the application of copyright to file-sharing services; pass on whether cable services are information or communication technologies for purposes of must-lease rules; and will rule on the cert. petition of Miller/Cooper regarding their potential incarceration for failing to name sources in D'Affair du Plame. There may also be retirements.

I'll post my thoughts on some of the decisions later (certainly on Grokster) but, suffice to say, after today only the academy and interested lawyers will continue to talk about the virtual elimination of private property rights effected by Kelo. Kelo is over as a subject of mainstream media discussion. No doubt, that is precisely why Kelo was rendered last week.

See Goldstein & Howe's SCOTUSBlog for updates and links to discussion around the blawgosphere. Or, even better, hunt up the discussion at the Conspiracy -- it will assuredly be more interesting than the sometimes dry reporting at SCOTUSBlog.

Sunday, June 26, 2005

Cold Rain & Snow

No, not a description of the weather, which, today, is hot and sticky in South-Central Pennsylvania. Rather, continuing in the somewhat eclectic (some would say schizophrenic) vein of my blog, a song -- a Dead tune to be precise. Usually positioned as a show opener on every fifth or so Jerry night, it occasionally made appearances in the number two or three slot, and in the second set. The CR&S on which I confer the highly subjective "best ever" status appeared in none of those spaces, cropping up in the fifth slot of the first set on a Bob night -- a position almost unerringly reserved for a ballad, blues, or cowboy tune. Although the oddity of the song's placement may have had something to do with its special rendition, CR&S, much more than other Dead tunes, is carried by the beat that Billy and Mickey chose to lay behind it at the outset. Too fast and the song gets too poppy, too slow and it plods. On April 3, 1988 in Hartford, Billy and Mickey got it just right, giving Garcia the opportunity to hit every note with piercing clarity and giving the tune a two-fisted driving feel.

Clearly, the crowd ate it up. Although CR&S did not differ from playing to playing in the substantial fashion that would, say, Sugaree, Garcia's solo here is special -- a minimalist attack that soars on a spare, but spectacularly apt, choice of notes. The hypnotic rythym toward the end of the solo works to induce a crowd clap-along performed in a (very) rarely-achieved unison. Jerry and the band are taken in by the spell and during the verse following the solo, Jerry siezes the words with a gusto all the more powerful for its infrequency. I am unaware of any video of this performance, but I guarantee one of those precious avuncular chuckles as Garcia steps back from the mike and glances stage-right after a particularly heavy lean into the line "I ain't gonna be treated this-a-way."

Give it a listen (select gd88-04-05d1t05_vbr from the stream). The rest of the show is mediocre as Garcia's voice audibly gives out in the early stages of the Memphis Blues following CR&S. The Box to end the first set, though, is worth lingering for.

Friday, June 24, 2005

Genetically Stupid

Someone should give this fellow a swift kick to his teeth:

I can't remember the last time I read a column as ignorant, lazy, insulting, condescending, or just plain stupid as this 'effort' (note that it would not be difficult at all had I not stopped reading Krugman, Dowd and Rich last summer). Here's a sample, and, no, I'm not making this up -- Schram really did write it:

According to a new study published in the American Political Science Review, being politically conservative is, in part, a matter or genetics.

I've long wondered how an otherwise seemingly rational person could adhere so strictly to stilted ideologies; how they could be so consistently willing to smother a sense of social well-being.

It's merely a matter of having been dumped in the shallow end of the gene pool.

As for the kick in the chops, Lileks performs the metaphoric service:
"It's merely a matter of having been dumped in the shallow end of the gene pool. They're sorta like the puppy who piddles in the middle of the floor: They just don't know any better."

Okay, and people who want higher marginal tax rates are like babies who like to defecate in their diapers because it gives them a nice warm feeling. There you go! Argument settled, opponents infantilized, everyone go home. Drive safe

Thursday, June 23, 2005


Last night, Howard Dean clutched at a report on Ohio's electoral process, misrepresenting that report as "proving" that Republicans in Ohio worked to disenfranchise black voters.

According to the report, the systemic problems plaguing Ohio's voting process included: voter suppression, negligent and poorly trained election officials, long lines, problems with registration status, polling locations, absentee ballots and provisional ballots, and unlawful identification requirements at the polls.

Dean suggested the report backed up his claim that Republicans worked actively to suppress the African-American vote.

Here's what I don't understand. Follow me. By and large, black voters vote Democratic and, by and large, black voters live in Democratic precincts. Who runs elections in Democratic precincts? Well, it's certainly not the Republican Party. Thus, if there were "negligent and poorly trained election officials, long lines, problems with registration, polling locations [and] unlawful identification requirements" it would be whose fault? That's right. The Democrats. In short, Dean contends that Republicans are responsible for the ass-backwards manner in which the Democratic Party runs its elections -- "it's your fault we can't run our elections." If blacks had to stand in long lines (woe and ill-tidings) it is the Democrats' fault.

What Dean is really railing against is the disparity created by the fact that Republicans do their electoral jobs so much better than Democrats. He would apparently prefer a world in which all were equally incompetent -- if the lines are long for everyone, it's fair; if everyone is equally 'disenfranchised', no one is.

Well, maybe instead of tossing around specious charges of disenfranchisement, the Democrats should actually fix what's broken in their problem precincts. If they don't, there's one sure way for blacks and other urban populations to ensure a smoother voting process -- vote for their local Republicans. The next election can easily be the last election in which anyone needs to wait in a long line to be helped by a negligent and poorly trained elections official.

Wednesday, June 22, 2005

What "Mistreatment"?

Today, the New York Times 'reports' on Dick Durbin's (D-Guantanamo) 'apology' for comparing US troops to Nazis. The first graph of the 'report' states:
After a steady drumbeat of criticism from Republicans, Senator Richard J. Durbin, Democrat of Illinois, apologized Tuesday for likening American mistreatment of detainees to the acts of "Nazis, Soviets in their gulags, or some mad regime - Pol Pot or others - that had no concern for human beings."
Two things: First, there was no mistreatment -- none at all. The left and its media mouthpiece may not like the tactics, but that's tough. In truth, the tactics are just fine with them, the left is just upset that another group is employing them. Would they criticize a Democratic administration? Well, we know they did not. As with everything, it all comes down to power, or, more specifically, the lack thereof, with that bunch. Just because the Times calls it mistreatment doesn't make it so. And why is it that the Times is making such judgments? I thought their job was to report the news, not make it . . . (Related to all this 'mistreatment' crap, see Scrappleface for a parody that, but for being on Scrappleface, could fool almost anyone). Second, the "steady drumbeat of criticism" was joined by many from Durbin's own party (e.g., Mayor Daley of Chicago) and numerous traditional Democratic allies (e.g., the Anti-Defamation League). News of intra-party "pummelling" is, I suppose, unfit to print.

In the end, I'm glad I cancelled my Times subscription last summer. The house smells so much better with Krugman, Dowd and Rich lying around.

Sunday, June 19, 2005

I Wish . . .

I wish I could write like Mark Steyn. Steyn is a dynamo, publishing columns tither and yon on and almost daily basis -- tither as in England, yon as in Australia and Canada. And he publishes columns in the States as well, principally in the Chicago Sun-Times. He is a terribly skilled writer with an ear for sarcasm and an incapacity for suffering fools. The combination results in a writer whose "hat-handing" skills are second to none (I do not, though, rule out the possibility that Lileks will run a dead heat with Steyn on a good day). Today, Mark's gaze lights on Dick Durbin:

The senator from Illinois' comparisons are as tired as they're grotesque. They add nothing useful to the debate. But around the planet, folks naturally figure that, if only 100 people out of nearly 300 million get to be senators, the position must be a big deal. Hence, headlines in the Arab world like "U.S. Senator Stands By Nazi Remark." That's al-Jazeera, where the senator from al-Inois is now a big hero -- for slandering his own country, for confirming the lurid propaganda of his country's enemies. Yes, folks, American soldiers are Nazis and American prison camps are gulags: don't take our word for it, Senator Bigshot says so.

This isn't a Republican vs Democrat thing; it's about senior Democrats who are so over-invested in their hatred of a passing administration that they've signed on to the nuttiest slurs of the lunatic fringe. It would be heartening to think that Durbin will himself now be subjected to some serious torture. Not real torture, of course; I don't mean using Pol Pot techniques and playing the Celine Dion Christmas album really loud to him. But he should at least be made a little uncomfortable over what he's done -- in a time of war, make an inflammatory libel against his country's military that has no value whatsoever except to America's enemies. Shame on him, and shame on those fellow senators and Democrats who by their refusal to condemn him endorse his slander.

Emphasis mine. Hear ya go, Dick:

Saturday, June 18, 2005

Apologies and Other Nonsense

When are we going to stop playing their game? Why are right-thinking people calling on Dick Durbin (D-Guantanamo) to "apologize" to the servicemen and women he has "offended"? Our military is not offended by what Durbin or any other enemy-sympathizer said or says and they most certainly are not victims to be placated with half-hearted faux-apologies.

The Apology Fetish is pure nonsense. One cannot paper over rank treachery with a compelled apology, then walk away as though nothing happened. The Apology Fetsih is for the left and their Victim Philosophy. I don't want and won't accept an apology. Durbin's comments are just further proof that the American left does not love this country, it loves power. They are further evidence that the left is willing to shred this country root and branch to recapture the power they covet. It'll be a cold day in hell . . .

Thursday, June 16, 2005


Image hosted by

Dick Durbin (Ass-IL). Dick again proves that one can look all grown-up yet still think and behave like the smallest child. The depth of his treachery leaves me unable to summon a sufficient insult. I'll simply say, Dick, you are . . .

Surprise, surprise: Dick blames the "rightwing media" for . . . wait for it . . . taking his comments calling our troops Nazis out of context. "Context" is the last refuge of the political scoundrel. Here, Dickie-boy, the "context" speaks for itself. This won't go away. You can't piss on our country and, especially, our men and women in uniform, during a time of war and expect a free pass. You're a traitor, Dick, and, seeing that you opt to invoke the "context" defense instead of displaying the courage of your half-witted conviction, you're a coward, as well.

P.S. I've changed the title of this post from "Another Meddling Priest . . . " to Jackass because I can't suspend enough disbelief to worry that he or his thoughts actually matter. Plus, Jackass is just plain accurate.

Every Word You Say

The Archbishop of Canterbury worries about the little people having unpoliced conversations:
Dr Rowan Williams, has criticised the new web-based media for “paranoid fantasy, self-indulgent nonsense and dangerous bigotry”. He described the atmosphere on the world wide web as a free-for-all that was “close to that of unpoliced conversation”.
Unpoliced conversation!?! Good grief, can't have that. Idiot . . .

I do think, though, that Williams has hit upon a fine motto for the game MSM outlet.

ABC -- policing public conversation since 1945.

Wednesday, June 08, 2005


The gall. First they whine about and demand apologies for someone (i.e., an 'infidel') inadvertently touching a Koran without first donning gloves. Then, on the street corner, they stomp and shred an American flag (5 min. 16mb video file), objecting to America's ostensible lack of tolerance and fantasized genocidal crusade:

Image hosted by
Well, screw them and their craven demands for respect they have done absolutely nothing to earn . . . and much to surrender. Thoroughly unsurprising background on these rodents here.

Whatever Islam may have once been, it is today a menacing and spiritually-vapid ideology propounded by the husks of human beings. I'm so angry with a society that bends over backwards to accomodate (indeed, appease) thought and behavior that is so plainly irrational that I can barely formulate a response. Until we, as a society, decide to treat these Islunatics as we would treat a four-year-old who wants to play in the street, we cannot win the GWoT. Indeed, until we, as a society, call the GWoT by its rightful name -- a Global War on Militant Islam -- we will get nowhere. Sadly, I suppose that before the day we wise up arrives, it will take another day like:

Image hosted by
But when it finally does arrive . . .

Tuesday, June 07, 2005

Who's a Moron?

Funny Boston Globe story today. It appears that this guy's Yale grades were even worse than Chimpy D. McBushitler's. I'll say it again: Boy, did we ever dodge a bullet.

Image hosted by

Monday, June 06, 2005

Gonzales v. Raich

Even though I am an attorney, I don't think I've ever blawged a case before. Today is no real exception as the following is more reactive than reasoned, but here goes.

The Supreme Court, in a 5+1-3 decision, has determined that growing pot in one's backyard for personal medical use "substantially affects interstate commerce" such that Congress may regulate the practice pursuant to the commerce clause of the United States Constitution. Justice Steven's majority opinion concludes that, insofar as Congress has the power to regulate, any change in the law must come from the democratic process.

Normally, I'm a big fan of judges leaving political decisions to the political branches of government, but there is a fundamental issue here that runs deeper -- the inherent power of Congress to reach into and regulate every aspect of life. The constitution gives Congress the authority to "regulate commerce . . . among the several states." Beginning with Wickard v. Filburn (or Gibbons v. Ogden, take your pick) and continuing throughout our national history, the Court has interpreted this power broadly -- very broadly. Then, in the late 80s and 90s it begin to reign in Congress. The most significant decision in this respect was the Lopez case, in which the Court, for the first time in ages, invalidated a federal statute on the basis that it exceeded the power conferred by the commerce clause (Article 1, section 8, clause 3). Specifically, it held that mere possession of a gun in a school zone had too tenuous a connection with interstate commerce to support a statute criminalizing such possession.

Today, the Court signaled that Lopez was an abberation and that it is not serious about subjecting the power of the federal government to any significant limitation. It's a damn shame, not only because I'm not adverse to sparking one up, but also because I don't want to live in a country where the federal government's power is every bit as large as its ability to cobble together silly connections with interstate commerce. Make no mistake, under the Court's jurisprudence, virtually everything substantially affects interstate commerce. Sad, but true.

Now, as for Stevens concluding that this was a decision best left to the legislature -- I'd have tons more respect for that position if he was serious about it. Stevens, however, has encountered precious few issues that he believes are fit for legislative determination. For the most part, he thinks he's wiser than elected officials. He only bothers to defer to them when it's a question of maintaining the federal government's ability to play nursemaid -- a role he and his ilk hold dear.

Much more commentary at Goldstein & Howe's SCOTUSblog and the VC. Some of it overlaps as Goldstein today invited several blawgers to blog Raich on his SCOTUSblog. If I get around to it, I may write a somewhat more, umm, reflective piece on Raich.

Friday, June 03, 2005

The Federal Elections Commission

Everyone in the blogosphere appears very concerned over what the FEC may do in terms of regulating the political speech of bloggers. I'm not. Last time I checked, the First Amendment was still in place and if the clause "Congress shall make no law respecting the freedom of speech" protects Piss Christ, I'm reasonably confident that it will protect my written word.

Regardless of what the FEC does, I don't intend to alter my behavior one iota. I also don't intend to provide any comment on the FEC's public rule-making. To do so would, in my view, lend an air of legitimacy to a process that lies so very far beyond the pale. By my lights, the time has come to put a stop to the nonsense of regulating political speech. We will get there not by playing games with over-reaching regulatory agencies, but by simply ignoring their ill-fated regulations wholesale. Are you listening, McCain -- you, who endured unspeakable suffering on freedom's behalf, should be ashamed of the freedom-trampling constitutional abomination that bears your name.

Bonus: Talk about dignifying the process. This goes overboard. But then, I shouldn't be surprised. Atrios (he of the mayonnaise spoon) and Daily "Screw Them" Kos have dignified things far worse than a mere intolerable encroachment upon sacred liberty . . .

Thursday, June 02, 2005

Life in the Leisure Class

Doubtless you've already come across reports of DNC Dr. Dean's insult du jour. According to the good doctor:
"a lot of [Republicans] have never made an honest living in their lives."
Funny, but you'd think the party that captured Wisconsin for Kerry and Washington for Gregoire on the strength of the felon vote would be a little more circumspect with the phrase 'honest living.'

On the other hand, perhaps Dean means to suggest that the Republican party is now dominated by welfare recipients. In reality, though, the average Republican must work harder than the average Democrat. After all, in addition to supporting himself, the Republican must simultaneously support a few Democr, err, 'economically challenged' citizens. For example, last year I paid enough federal taxes to keep two families of four above the poverty line. After doing so, I was berated by a Democratic friend for having the unmitigated gall to pay more in taxes than she managed to earn, even though, in her view, her work was of far greater societal importance than mine. What did I do? I, again, successfully preserved nearly $100 billion in investor wealth from depredation by litigation. What did she do? She, again, failed to cure cancer.

Back to Dean's quote, I'll sum up my thoughts on the "honest living" smear simply by noting that, attached to most every open palm, one is quite likely to discover a Democratic voter.

For no obvious reason, I'm reminded of Jonah Goldberg's recently quotation (he attributed it only to an anonymous wag) to the effect that "wanting someone else's money is called 'need,' wanting to keep your own money is called 'greed,' and 'compassion' is when politicians arrange the transfer." The gist changes not a wit if one substitutes Democratic, Republican and compromise, for need, greed and compassion, respectively.

Read ABP's whole report -- Dr. Dean never disappoints. On a related note, it appears his schtick doesn't play to well with Democrats who do make an honest living. Contributions have virtually dried up during the Insultinator's short tenure. The Republicans apparently have a 5-1 advantage in the fund-raising battle. Here's hoping the trend continues . . .

Wednesday, June 01, 2005

Belly Laughs

Fresh from the deranged presses of the Democratic Underground, take a comical trip into the delusionary realms inhabited by the self-described -- and so very, very Orwellian -- "reality-based community":

Based on polling of voters before and during the [mid-term 2006] voting, according to political consultants for both major parties, the electorate clearly was expressing its revulsion at Bush Administration policies; voters said the key issues affecting their votes were their anger at the lies undergirding the Iraq War, now in its fourth year, the condoning of torture as American policy, and the current economic crisis.

These factors presumably led to the sweeping votes for Democratic (62%), and Green (8%), candidates around the country. Many of those voters, an estimated 20%, described themselves as "conservatives" who had supported Bush in 2004.

* * *

After the 2004 election, it was widely believed that Republican-corporate control of the mainstream media had guaranteed a permanent Republican "lock" on the federal government. Not so. Soon thereafter, the public finally began to wake up to the fact that it had been lied to by the media and, just as important, that it had been denied vital information about the misdeeds of the Congress and the Administration.

* * *

With the collapsing economy, the loss of media credibility, the continuing bad news from Iraq, and the re-emergence of investigative journalism, the public became more receptive to the idea that the 2000 and 2004 elections were fraudulent and thus that both Bush administrations were illegitimate.
When you catch your breath, ponder just how incredibly out of touch the core of the 'party of the people' has become. The Democratic party is, at bottom, a collection of very angry people who think they should be in charge because they are so very much smarter than you. They think that I, as a Bush voter, am an ignorant, bigoted, immoral, warmonger. They think the same of you. And, unfortunately, they are becoming more and more prone to violence as they realize their arguments lack persuasive force.