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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Thursday, 8 January 2004

Topic: World View

Why Are The Brits Making Fun of Us?
Don't they know we need to be careful?

Here's an interesting news item they pick off the wire from Massachusetts, from the Greenfield Recorder - which they really shouldn't be reading, I suppose.

See Flight Sim enquiry raises terror alert
Andrew Orlowski, The Register (UK), Posted: 08/01/2004 at 22:39 GMT
A mother's enquiry about buying Microsoft Flight Simulator for her ten-year-old son prompted a night-time visit to her home from a state trooper.

Julie Olearcek, a USAF Reserve pilot made the enquiry at a Staples store in Massachusetts, home to an earlier bout of hysteria, during the Salem witch trials.

So alarmed was the Staples clerk at the prospect of the ten year old learning to fly, that he informed the police, the Greenfield Recorder reports. The authorities moved into action, leaving nothing to chance. A few days later, Olearcek was alarmed to discover a state trooper flashing a torch into to her home through a sliding glass door at 8:30 pm on a rainy night.

Olearcek is a regular Staples customer and schools her son at home. The Staples manager simply explained that staff were obeying advice. Shortly before Christmas, the FBI issued a terror alert to beware of drivers with maps, or reference books.

At one time it was rare to find US citizens, in the safest and most prosperous country in the world, jumping at their own shadows. Now we only note how high.
Well, that's pretty snooty. And kind of funny.

I remember when Microsoft Flight Simulator first came out. I tried it, and crashed my Cessna 172 repeatedly just trying to get in the air. Microsoft Flight Simulator has gone through years of upgrades and perhaps it is more functional now. I'm not sure even now it would aid terrorists. And one wonders how a ten-year-old young lad would get access to the flight deck of any airliner to put into practice what he mastered on his home computer - but he COULD BE a terrorist.

Yeah right.

These Brits feel all superior because they've been living with the threat of mad Irishmen blowing up a car now and then on a crowded street - and they're getting on just fine.

We feel we're different. We are.

Posted by Alan at 20:44 PST | Post Comment | Permalink

Topic: Election Notes

Religious cults, like fringe candidates, are never quite as much fun as you'd imagine.
Lyndon LaRouche, Scientology... whatever.

My neighbor for a time was thinking of supporting Lyndon LaRouche in 2004 and I think I talked her out of it. I reminded her of his conviction for mail fraud - bilking old folks out of lots of money to finance his political efforts. And then there is his ranting about how the world is really controlled by a secret group of Jewish bankers and certain members of the British House of Lords, and those evil Rothschild folks. A nut case.

Still, he is sort of the tenth candidate of all the Democrats running against Bush. Brian Montopoli has some interesting comments today on Lyndon LaRouche.

Here's a bit of it:
I've gone through life dimly aware of Lyndon LaRouche. I always thought he was some sort of wacko, vaguely cultlike figure, and when I came across his followers on the street, standing behind tables, I tried not to make eye contact, much as one does when confronted by those bright-eyed young men outside the Scientology building. Yesterday, however, I got a call from a friend at 6:15 telling me, rather breathlessly, to turn on the TV. LaRouche had bought a half hour on Fox 5 here in DC (preempting The Simpsons, no less), and he was broadcasting a speech he had given in December. I watched, and my friend was kind enough to take notes. Here are some of the highlights:

We should earmark at least $6 trillion to rebuild the infrastructure of our cities so that everyone can get to work in less than a half hour. This will involve magnetic levitation.

The monetary system may crash before the broadcast of the speech is over. (It didn't.)

Hitler was created by bankers.

The medical practice should get lessons from the Norman Wars.

The Democratic Party will "die" if it doesn't recognize LaRouche as a candidate, because in a poll nearly a year ago, an "unknown" Democrat had better odds of beating Bush than any of the established candidates.

That's enough of the bullet points. Onto LaRouche's presentation: he has this weird stream of consciousness style of speaking in which he jumped from topic to topic without ever really explaining anything. I believe he said Howard Dean shouldn't even be in this country, but never really mentioned why. Then he was onto the Peloponnesian Wars or something. It was at least timeslot appropriate: I felt like I was listening to Grandpa Simpson, only with more historical references. It was kind of a disappointment, actually, though - I was expecting a little more charisma, perhaps a crazy new laser based mail system or maybe something involving aliens and a secret handshake. I mean, LaRouche was strange, don't get me wrong. The magnetic levitation thing was great. I was just hoping he'd go a little further over the edge. It's like when I wandered into the Scientology building. I was a little under the influence, and I thought I'd see what they'd try to do to me - give me a psych test, get me to sign over the rights to my refrigerator, something like that. Instead, they just gave me a tour and tried to sell me some books. It was a pretty big letdown. Where was the indoctrination? The charismatic recruiter? Why wasn't I being lowered into a pool of something? They did invite me to L. Ron Hubbard's birthday the next night, but I decided not to go. Religious cults, like fringe candidates, are never quite as much fun as you'd imagine.
Well, Claudine didn't got to the Lyndon LaRouche rally in Long Beach, nor did I. It might have been amusing in an isn't-this-odd way.

But a lot of life out here in Hollywood is like that. Who needs more?

By the way, if any of you visit, I live quite near the Scientology Celebrity Center, the big complex up on Franklin Avenue, not far from the Magic Castle. We could visit. There's another big Scientology center a few blocks east of here right in the middle of Hollywood - the one for the "not famous." No John Travolta there. Your choice. I haven't visited either.

Posted by Alan at 20:21 PST | Post Comment | Permalink
Updated: Thursday, 8 January 2004 20:23 PST home

Topic: Election Notes

Class Warfare and Questions of Character
Why punish the successful and reward those with no ambition?

My friend Martin, the Wall Street attorney but hardly an I'm-rich-and-you're-not-ha-ha Republican, is uncomfortable with Howard Dean. He's been toying with the idea of doing some work for Wesley Clark. Heck, Martin has been toying with the idea of running for office himself. Forgive him, he chats too often with his advisor from law school, Peter Rodino of Watergate fame. But I can see why he likes Clark.

Monday Wesley Clark laid out his tax plan. The Dean folks were pretty stunned, and more than a few political writers have urged Dean and the rest to jump on board and get behind this plan as the official party position.

Under the Clark proposal, called "Families First Tax Reform," families of four making less than $50,000 would pay no federal income tax and all families with children making under $100,000 would get a tax cut. The tax cuts would be paid for by closing corporate tax loopholes and by increasing by five percentage points the tax rate on income exceeding $1 million.

As he says, "This year alone, the richest Americans - those making more than $1 million - are getting an average tax break of $128,000. So, while working families have seen their bank accounts shrink, the president has been working overtime to help the richest Americans get richer. That's not right."

Under his plan, fewer than half of families would have to file tax forms and the rest would find their taxes easier to file than they are now - "With this new system, you can figure out whether or not you need to pay taxes just by filling out three lines. The first line is your income. The second line is your marital status. The third line is the number of children you have. And if it all adds up to $50,000 or less and two children or more, then you should put away your checkbook, because you won't owe the government a dime in income taxes."

Details are here:
Clark unveils tax plan
'Karl [Rove], I want you to hear me loud and clear'
CNN, Monday, January 5, 2004, Posted: 6:03 PM EST (2303 GMT)

Now of course I do have a conservative friend out here that says, if we must have taxes at all of any kind, we should have a flat tax. His position is that those who succeed should be rewarded, not penalized. They should be able to keep what they earn, and not be forced to subsidize services provided to people who would rather play victim and do nothing to become successful. The idea is that flat taxes - everyone paying the same fixed percent of income - would act as an incentive for people to get a positive attitude, accept personal responsibility, and make something of themselves, instead of expecting those who do things and succeed to underwrite their slothful whining. If they did that then they too would be able to keep what they earn - not ninety percent of twenty-grand, but if they apply themselves and quit complaining, ninety percent of each year's millions. Otherwise they're just taking his money - the money he worked for so hard. It's not fair.

Clark says lowering taxes for the rich isn't fair. It's a matter of character. One doesn't do things that aren't fair. Making someone with low income pay the same rates as someone with high income, and then making tax breaks unavailable to them, is "not right." Maybe so.

My conservative friend says raising taxes on the successful - those who don't whine and don't play victim and who actually make things happen in this country - isn't fair. This too is a matter of character. We destroy people's character by making them think they deserve subsidies, when they do little to make this country great and could be rich too if they only applied themselves. We make them behave like victims, when they really need "tough love." Why punish the successful and reward those with no ambition?

Class warfare is in the air.

Karl Rove, the president's chief political advisor, knows it. Everyone knows it. And it should be an interesting campaign.

Martin likes Clark, not so much for the tax plan but for Clark's comments when he explained it. Clark said this:

"If Karl Rove is watching today, Karl, I want you to hear me loud and clear: I am going to provide tax cuts to ease the burdens for 31 million American families - and lift hundreds of thousands of children out of poverty - by raising the taxes on 0.1 percent of families - those who make more than $1,000,000 a year. You don't have to read my lips, I'm saying it. And if that makes me an 'old-style' Democrat, then I accept that label with pride and I dare you to come after me for it."

Let the fun begin.

Posted by Alan at 15:05 PST | Post Comment | Permalink
Updated: Thursday, 8 January 2004 15:08 PST home

Wednesday, 7 January 2004

Topic: The Law

Well, here's an interesting question. Do you punish crime but treat illness?
What to do with Michael Jackson if he is guilty.
What to do with Michael Jackson if he cannot possibly BE guilty.

This came up today.

See Vile, Vile Pedophile
Is child molesting a sickness or a crime?
Dahlia Lithwick, Slate Magazine, Posted Wednesday, Jan. 7, 2004, at 4:17 PM PT

Here's the problem.
Again, and for all the wrong reasons, we can't take our eyes off Michael Jackson. Whether or not the allegations are substantiated, the question is in the air: Is pedophilia a disease to be treated, or a crime to be punished? Are people who seduce minors sick or evil? Our current legal and medical systems blur both views. We call for the most draconian punishments (life imprisonment, castration, permanent exile) precisely because we view these acts as morally heinous, yet also driven by uncontrollable biological urges.

If sex with children is truly the product of freely made moral choices, then we should deal with it through the criminal justice system. But if it is a genetically over-determined impulse, an uncontrollable urge nestled in our DNA, then punishing pedophiles must be morally wrong. As science - and culture - increasingly medicalizes bad behavior, finding a neurological component to everything from alcoholism to youth violence, we run the parallel risks of either absolving everyone for everything, or punishing "criminals" who are no guiltier than cancer patients.

What science has revealed about the moral/medical roots of pedophiles is, of course, ambiguous.
Well drat!

Lithwick lays out the medical and legal issues from the nineteenth century forward. But she adds that researchers have been unable to isolate a biological cause for pedophilia, or even to agree on a personality profile. Not to mention the terrific confusion within the medical community in defining what this "disease" really involves. Until a few years ago, for example, the DSM-IV - the Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders - defined pedophilia as a disease only if the sufferer's "fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." In other words, a non-impaired, remorseless pedophile was apparently perfectly healthy.


But as Lithwick points out, advocates of the "disease" school say pedophilia is often the product of uncontrollable impulses that seem to respond to treatment (including castration, both surgical and chemical) particularly in conjunction with monitoring and behavioral therapy. This raises at least a possibility not associated with car thieves and insider traders: That small tweaks to one's brain chemistry may neutralize the impulse to commit more crimes. And if that is the case, they contend, shouldn't we be treating rather than punishing?

Thomas Szasz (link here) urges that pedophilia is ultimately still a moral failure regardless of its biological roots: "Bibliophilia means the excessive love of books. It does not mean stealing books from libraries. Pedophilia means the excessive (sexual) love of children. It does not mean having sex with them." The crime, he argues, is not the psychological impulse, but the willingness to give in to it. But this conclusion, Lithwick says, assumes an answer that science is still uncertain about: whether for some pedophiles, the impulse to molest has become a pathology. If that is the case, pedophiles can't have the criminal intent necessary to want to commit a crime, and that mens rea is the cornerstone of our criminal law.

Lithwick finds something else. Back in 1987, Robert Wright discussed this in relation to alcoholism in the New Republic. Wright's conclusion was that it is a mistake to label a behavior - even a behavior with some biological and genetic determinants - a "disease" because it ultimately means "giv[ing] up on the concept of volition altogether." According to Wright, since alcoholism is the product of a complicated moral soup of environmental and biological factors, since biology may play a role, but not the only, or even predominant role, in these behaviors, we are better off holding people responsible for their actions than not. Otherwise, he argues, "things fall apart."

Somehow I don't find that helpful. Pragmatic, yes. Just? Probably not.

But punishing child molester has its attraction.

And what good does it do?
There are, it's generally agreed, four basic rationales for punishment: revenge, rehabilitation, deterrence, and incapacitation. If we accept the mixed causation theory - that pedophilia is part disease and part crime, then almost none of these rationales are served. Lifetime recidivism rates show that "rehabilitation" alone has not been very effective for sex offenders, and we know that deterrence is unlikely when most offenders are able to "get away with" multiple acts before apprehension. Revenge makes sense only where rational choices led to the commission of the crime, which is in doubt when one's neurochemistry may be running the show. Which leaves only incapacitation as the reason for punishing pedophiles.
And that is where Lithwick comes down.
Now, don't knock incapacitation. A lifetime of involuntary confinement was a good idea for carriers of the Black Plague, who were guilty of no moral failures at all.
Indeed. But is that practical?

And it is right?
If science is proved even ten percent right and nature has some hand in creating a pedophile, lifelong imprisonment solves only one immediate problem - warehousing dangerous citizens. But it raises a more immediate problem - we may be punishing sick people who could have been helped.
Well, I'll have to think about this.

And by the way, the whole item is even more complex than my overview here. You might read it.

Posted by Alan at 17:32 PST | Post Comment | Permalink
Updated: Wednesday, 7 January 2004 17:56 PST home

Topic: The Law

Intellectual Property Rights:
"Malted Barbie" featured a nude Barbie in a blender.
"Fondue a la Barbie" depicted Barbie heads in a fondue pot.
"Barbie Enchiladas" showed several Barbie dolls swaddled in tortillas and roasting in an oven.

This item has been in the press for a number of days and the best summary I've found was in my local paper.

See 'Lawsuit Barbie' Fails for Mattel
Court upholds an artist's use of the doll in his series of photographs.
By Christine Steiner, The Los Angeles Times, Wednesday, January 07, 2004

Christine Steiner practices and teaches visual arts law out here in Los Angeles. She's a former counsel to the J. Paul Getty Trust and the Smithsonian Institution - and a partner in the law firm, Steiner Feig & Conley, LLP, a law practice that emphasizes business, art law and intellectual property. She represents museums, cultural organizations, foundations, universities, writers, publishers, living artists, artists' estates, and other arts-related clients. She is an adjunct professor of law at Loyola Law School, where she teaches visual arts law, and has served as a visiting professor of international art law in law school programs in Florence, Italy, and Cambridge, England. She was a member of the U.S. Conference on Fair Use (CONFU) and is General Editor of the co-authored work, A Museum Guide to Copyright and Trademark, published in 2000 by American Association of Museums. She chairs the Art Law Section of the American Bar Association's Forum on Entertainment and Sports Industries.

In short? You don't mess with her.

Here's the situation:
Although it was titled "Food Chain Barbie," the photographic series by Utah artist Tom Forsythe was not exactly appetizing: "Malted Barbie" featured a nude Barbie in a blender. "Fondue a la Barbie" depicted Barbie heads in a fondue pot. "Barbie Enchiladas" showed several Barbie dolls swaddled in tortillas and roasting in an oven.

Mattel, the company that has been making Barbie for 45 years, was, not surprisingly, displeased by these images and promptly sued, arguing that the public would mistake these exaggerated and suggestive images for authentic Mattel products, thus diluting or diminishing the commercial value of their property.

But last week, artists everywhere had reason to celebrate when the U.S. 9th Circuit Court of Appeals ruled against Mattel, saying that Forsythe's photographs were parodies of the iconic plastic doll and contained messages about gender roles and consumerism. As such, the photographs were legitimate free speech and did not infringe on Mattel's copyright or trademark rights.

The decision is important because overaggressive enforcement of intellectual property rights is destructive to the free exchange of ideas in a democracy.
Now this is a sensitive issue out here. Mattel in headquartered a few blocks south of LAX and is a source of many jobs and much pride in Los Angeles.

And I do have a friend who, I assume, sides with Mattel here, as she used to be an executive handling licensing for Mattel - both the Barbie line and "Hot Wheels" products. She has long argued with me that anyone who even mentions a licensed, copyrighted or trademarked item should only do so with full permission of the creator of the item, and with full payment to the creator for any use. She argued with me a year or two ago that the Margaret Mitchell estate had every right to block publication of the book The Sun Done Gone - that novel that "reconceptualized" Gone With the Wind. Her husband further argued that any classical composer who wrote any sort of "Variations on a theme by..." was lazy and uncreative, and a thief. That is, Brahms was no more than a thief, as was Beethoven and Mozart and any others when they wrote variations on someone else's theme. (See I'm Just Wild About Harry in Just above Sunset Magazine, Volume 1, Number 5 June 29, 2003)

I don't agree. And Steiner doesn't agree
The rights of toymakers and others to profit from their original work must of course be protected. But at the same time, courts must, as the 9th Circuit did here, balance legitimate property rights against constitutional rights of free expression.

The tension between these rights is not new. Historically, the 1st Amendment has been used to ensure that particular venues remain open to free expression - venues such as public squares, broadcast channels, books, newspapers and, most recently, cyberspace. Intellectual property law, by contrast, is concerned with safeguarding an owner's property rights and with limiting the unregulated taking of copyrighted and trademarked properties.
There's a reason in the left panel you'll find 4.) Legal Notice, as here I must be careful.

The issue is "fair use" of course.

Steiner explains it this way.
Copyright infringement occurs when a creative work is copied or used without permission. Trademarks protect commercial products or services, and infringement occurs when a trademark is used without permission and causes a likelihood of confusion between the trademarked product and the unauthorized one.

But there is such a thing as "fair use," which permits a user to take copyrighted or trademarked materials where the use is in the public interest.

The fair-use doctrine recognizes that new works draw inspiration from older works and that productive use of older works promotes the progress of science, the arts and literature.

The Copyright Act identifies these uses as criticism, comment, news reporting, teaching, scholarship and research. Courts have recognized other uses, such as parody, free speech, free expression and the public good. For example, quoting portions of books or letters, copying images for study purposes or running copyrighted footage on the evening news would all be considered fair.
And the factors are clear:
The law identifies a four-factor analysis to aid in determining what constitutes fair use: the purpose and character of the use; the nature of the underlying work; the amount taken; and the potential market effect. Thus, the U.S. Supreme Court upheld the rap group 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" because the audience was different, the new song transformed the old with new meaning, and the market effect was determined to be nil.
Yes, I quote a lot here on this blog, and provide links to other items. I don't think I'm in trouble.

Ah yes, but what about the Barbie Dolls?
By applying these factors, the 9th Circuit determined that the "Food Chain Barbie" series was a legitimate parody. Forsythe transformed the meaning and intent of the Barbie doll into new and different work, and consumers were not likely to confuse a naked Barbie in a blender with an authorized Mattel product.

The 9th Circuit decision is one in a string of cases that have been decided against the toymaker. For example, last January, the U.S. Supreme Court upheld the right of the Danish band Aqua to distribute its 1997 song "Barbie Girl," whose lyrics refer to a "blond, bimbo girl."
Of course, I'm screwed if I'm sued. My legal costs would bankrupt me.

Mattel knows this. In this case -
But the company persisted in using the law to intimidate artists. Forsythe's legal fees (which may now be reimbursed) were in the millions of dollars. The chilling effect of monetary considerations cannot be underestimated.

The court also chastised Mattel for filing abusive discovery demands against two museums whose curators dared to testify on behalf of the artist.
I'm not sure that makes me feel any better.

As Steiner points out, possibly Mattel is so aggressive in marking its territory because it believes that the product must be saved from all unauthorized activity that might dilute its uniqueness. Yet it is common sense that a corporate citizen needs not cudgel every trespasser to avoid risking loss of intellectual property rights.

Maybe so. But anyone writing about what people are saying has this sword hanging over them. Franken may have won his suit when Fox News sued him. But he was sued.

Ah, if I had more readers I'd worry.

Posted by Alan at 09:37 PST | Post Comment | View Comments (1) | Permalink

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