- RIP Mike Wallace. Politicians and other miscreants may have hated to see him coming... but the rest of us loved being over his shoulder. It's not just that he asked hard questions; it's that he asked hard, fair questions after doing his homework. Then, too, his willingness to admit to being hospitalized and undergoing years of treatment for clinical depression was (and remains) an important step on the road to accepting that the mind is part of health, too, and that there's no more shame or blame in getting treatment for depression than there is in having a disfiguring birthmark surgically removed...
- ... which leads to the real question behind the fake, hyped-up controversy over the effect of psychiatric medications on soldiers' performance and state in combat (and on active duty more generally). Really, now: Have you considered the alternative — what those same individuals might be like without medication, under those very unnatural circumstances? More to the point, have any of the people involved in that pseudostudy controlled it against either peacetime civilian organizations that include veterans or military organizations outside the combat zone that include combat veterans (or, more to the point, former POWs)? Probably not — and those of us with command experience in the latter aren't talking because we respect the privacy of those under our command.
Frankly, I'd be much more worried about things if 14% of a large force whose ultimate mission involves either making the ultimate sacrifice or personally imposing the unforgivable upon others (at least according to the two decades of social conditioning that every soldier has before joining the military) was not getting some kind of assistance in any conflict context — let alone in one like this, in which
Tell her to reap it in a sickle of leather
War bellows, blazing in scarlet battalions
Parsley, sage, rosemary, and thyme
Generals order their soldiers to kill
And gather it all in a bunch of heather
And to fight for a cause they've long ago forgotten
Then she'll be a true love of mine.© 1967 Paul Simon. That would be more like falling into Phil Collins's most famous solo piece — and there's a moral and ethical and, above all, professional duty not to do that.
- Then there's always government overreaction to poetry to consider... especially when actually reading the poem reaches the opposite conclusion (auf deutsch, natürlich). This is another exhibit in both the "Theocracy Must Always Be Opposed" and "Binary Reasoning Doesn't Help Anyone" Halls of Fame... and has more than faint echoes of the WhiteRight's vision of "Real America" (in fact, I think I hear another off-key chorus of "The Star-Spangled Banner" in the background).
- From the world of publishing, the Financial Times asks if it is still possible to write philosophical novels — and completely misses the point, which is far from unusual whenever the FT (or any other "business paper") approaches the arts. The point is not whether it is possible to write such a work. The point is whether, given the supposedly all-encompassing economic motives for profit, a brilliant-enough writer operating behind an economic veil of ignorance will write such a work if he/she knows anything whatsoever about "how to get published." Those works are still being written; however, Tolstoy himself would probably be writing self-help and relationship advice bestsellers (and appear on afternoon talk shows), while Doestoevskii would probably head up a think tank devoted to either penal reform or addiction support (and appear on CSPAN), and both would be written up in blogs. Too, those categories of books simply were not published/publishable/even legal to possess in the late nineteenth century... and not just in Tsarist Russia, either.
- I'm going to suggest that contraception issues extend beyond health care and religion. Victor Frankenstein would be so proud!
All seriousness aside, this also has some fascinating (and disturbing) implications for immigration policy. Consider that illegal immigrants can have as many "children" as they want in the US... and can designate the citizenship of those children at will. Each of those children has full First Amendment rights under Citizens United to influence US elections... even if not a single one of the stockholders has the right to even register to vote in a US election. And, of course, the converse and inverse cases are also true, to at least some extent (because, strangely enough, many countries that do not have a US-style electoral system prohibit unnatural persons from playing such games).
- Here's another reason to despise the fat cats at the top of the legal profession — the ones who continue to stand in the way of national, effective regulation of lawyers. I can't really blame the judge for this, because precedent makes the result inevitable; I have little sympathy for the litigation tactics underlying the problem; but it really pisses me off to see a federal judge dismiss a federal-question lawsuit because the lawyer was not admitted in that state. The irony that this type of lawsuit — a matter of alleged internet piracy — is being further mangled by a state bar that is notoriously hostile to attorney speech (not to mention criticism) merely due to the location of a federal courthouse is a bit much for Monday... or, indeed, for any day of the week.
The state bars need the get their heads out of their (or each others') respective rectal orifices and recognize that except in certain family and juvenile law circumstances — and even those are becoming narrower all the time — there is no area of law that does require at least conscious consideration of federal and/or another state's (or nation's) law in virtually every transaction, dispute, or planning process.
Last for now, some comments on the YouTube case decided last Friday at the Second Circuit (PDF). First, I do not hate to say "I told you so": Notice that the second significant citation is to Ellison v. AOL, and that the rest of the opinion follows the strategy we established in that matter — read § 512 from the back to the front if you want to understand it, because the action is all in the eligibility provisions. In Ellison, the critical factor requiring further litigation was in § 512(i); here, it is in § 512(m) (the problems in § 512(c) all come from the district court's nonengagement with § 512(m)). Viacom could have hired me as a consultant and saved a lot of time and money...
...but that's not what it wanted to do, and the way the case was managed below demonstrates that. Left unsaid in the Second Circuit's opinion is the real distinction with Ellison: In Ellison, we sued that actual direct infringer, too, and litigated to an early settlement. In the YouTube matter, not so much. Conversely, in Ellison the plaintiff was the actual, natural-person creator of the infringed works, while in the YouTube matter the plaintiffs are all patrons of the creators who have ownership only through the misbegotten work-for-hire provisions of § 201(b).
Enough of the preliminaries, however important they really are. What does Viacom v. YouTube mean? Most obviously, it means — as we established in Ellison — that the DMCA is not an immunity statute, but a safe harbor that requires some actual, conscious navigation to sail into. The decision also means that outright pirates are not welcome in the safe harbor, even if they otherwise follow the rules; although the Second Circuit rejected applying the "red flag" theory to YouTube as a matter of law on the record below, it also indicated that "willful blindness" remains a set of rocks just outside the safe harbor that must be avoided (see slip op. at 22–24). Finally, and most importantly, this decision stands with Ellison in holding that the rules of civil procedure — and, in particular, the standards for summary judgment — really do matter in DMCA matters. However much the judges want to get these monsters off their dockets, they're simply going to have to accept that reasonable juries can find both ways when the lofty rhetoric of DMCA policies intersects with the messiness of real facts in the real world. That's what we won on in Ellison: A finding that a single fact found by the judge (and admitted by the defendant) had to be carried across the case, and could by itself have resulted in a reasonable jury finding the implementation of the repeat infringer policy unreasonable under § 512(i). Although the particular locus and fact pattern are a bit more complex (and hard to distill) in Viacom v. YouTube, the result is the same: Facts are not isolated to one part of the case (e.g., "ability to control" under § 512(c)(1)(B) (see slip op. at 25–29)), but cascade across the rest of the matter (see slip op. at 33) and frequently require a return for further factfinding if the policy arguments and lofty rhetoric overcome the trial judge's better judgment.
All of which leads to a counterweight to the pun at the top of this blawg entry... and the observation that no matter how much information wants to be free, those who express it originally want to be paid.
