Ted Nugent gives thanks.

Ted Nugent scribes an essay on the things he was thankful for this Thanksgiving - America, freedom and, of course, corporate capitalism. He almost makes me wish I liked head-banging rock and roll. I like his observation that Thanksgiving is not merely a speed bump between Halloween and Christmas, it deserves it's own recognition as a "special holiday that naturally comes during the hunting season." [In your face, PETA.] I want to describe him as a counter-culture of the counter-culture, but his concluding paragraph argues that the counter-culture has some pretty deep roots:

America isn't at a social or political crossroads as some will try to tell us. Those who believe that would have told you 500 years ago that the earth was flat. Thirty years ago they would have been stoned on LSD, drooling and dancing naked at a Grateful Dead concert. My advice is to avoid these people. They will always gravitate towards the negative. Take it from an old, cocky rock 'n' roll guitar player whose God-given senses remain finely tuned: America's best days are in front of us.

Rock on.

This is kind of mind boggling

According to the ScienceDaily News, Jupiter-Like Planets may be formed within several hundred years, and not millions of years. In other words, blink and a Jupiter-Size planet may show up in your accretion disk. Well, maybe it's not so mind boggling since the universe itself was formed from a microdot within microseconds. Well, then again, it is all pretty amazing.

Man, Occam's razor can be very cruel

Check out genehealy.com: for a quick deconstruction of Al Gore's popularity problem.

How Appealing points the way to a law blog with a great name - The Dark Goddess Of Replevin Speaks. If you don't know what replevin means, follow Mr. B's links to the answers.

More liberal open-mindedness from the last bastion of tolerance


Roger Ho, Esq., who provided an amicus brief in this case (cool), advises that the First DCA (District Court of Appeals to you landlubbers) has ruled that Berkeley can retaliate against the Sea Scouts for the position that the Boy Scouts of America takes on homosexuality.

There is a certain appeal to this position. Federalism and conservative principles favor the notion that local communities should have substantial latitude in defining the contours of a community's morality. There is also something satisfyingly conservative in describing governmental actions as "privileges" and not "rights." Further, the Scouts have staked out a position as a private association, and so there is a "biter bit" irony to taking them at their word and denying them public benefits.

Here's the problem. All of those arguments have been made in the past when it was a conservative community challenging a broader liberal attitude, and it has never been permitted. The law does not allow a community to condition its grant of privileges or benefits on the content of a group's message. It also recognizes that withdrawing benefits after they have been granted is constitutionally noxious. Hence, a community library cannot remove a book from the shelves based on the book's content [although it may be able to decide not to purchase the book based on its content. [ See Board of Education v. Pico. ] Likewise, a community cannot pass a law stating that homosexuals are not a protected class for the purposes of its local anti-discrimination laws. [See Romer v. Evans (1996)

Both actions were assessed by the U.S. Supreme Court as involving content-based actions that sought to stigmatize a particular viewpoint.

Now, I personally disagreed with this analysis when it was pronounced. But, gosh, it sure was popular with folks at the New York Times and in Berkeley at the time. It is as they say, the law. Sauce for the goose, sauce for the gander. It all depends on whose ox is gored, etc. It seems now that the good folk of Berkeley are trying to stigmatize a particular viewpoint by through state action. The only way to see a difference is to be able to understand that those cases involved a bunch of anti-freedom book burners and this case involves courageous freedom fighters. In other words, it's the message that counts.

Perhaps the Left will find a new vitality in legal doctrines allowing greater flexibility to community actions against noxious political viewpoints. After all, they were able to reverse field on the wisdom of the Independent Counsel law once it started being applied to democrats. [Another constitutional decision that I was not alone in viewing as questionable from the outset. See Morrison v. Olson.]

Argh. The dumbing down of America continues apace.

GOP not PC at WSJ so it's RIP.

A Ramadan Thanksgiving

Masood Cajee, who lives in the Central Valley, writes about the problems of synthesizing Thanksgiving and Ramadan. It sounds like a problem. No turkey until after Iftar. I have a similar problem when St. Patrick's Day falls on a Friday, but thankfully there is always the Bishop's dispensation.

Neat Site

Click here for Monterey Bay Aquarium's Monterey Bay Cam.

One of the problems with literalism

Mormon Church may excommunicate a graduate student who used genetic information to show that the Mormon claim that Native Americans are descended from the "Lost Tribes of Israel."

Pay the price

Peggy Noonan finds a deeper meaning in Tom Daschle's complaints about Rush Limbaugh. Her point is that there has been a "paradigm" shift in the way that Americans view dissent. One case in point is the young man who wants to be both an Eagle Scout and an atheist. Because of his concern about his integrity, he doesn't want to express a belief in "reverence." [One of the points of scouting is that "a scout is reverent."] But he doesn't want to pay the price for his integrity. As Noonan writes:

In the America of 50 years ago and a 100 years ago and 1776, this is how it went:

You, a citizen, decide you want to belong to a group but you believe in "A" and they believe in "B." There is a clash. Here the old American myth kicks in. You, the citizen, stick with what you believe, and don't join the organization. You won't lie about what you believe, and they won't change what they believe. So they don't let you in. You pay a price for where you stand. But you can keep standing there.

You keep your integrity, and maybe in time the group will change and you and your suffering will be the reason. (This is the story of, among others, Dr. King in the Birmingham jail.) Or maybe the group won't change its ways, ever. But you have your integrity and they have their rules and this is America.

Noonan then discusses Tom Daschle:

He, as a leader of a great political party, is an example-setter for the young. Some of them might look to him as a famous man who knows how to be an adult. After the dreadful showing of the Democrats in the election he held a news conference in which he famously blamed Rush Limbaugh and other conservative radio talk show hosts for inciting people to . . . well, to not liking Tom Daschle. Rush says mean things about Tom. His listeners, who Tom Daschle subtly suggests are possibly unstable and insane--how could they not be, they're conservative--get a little too excited when they hear Rush, and start to make rude sounds. "The threat level goes up," says Tom Daschle.

Oh, please. Boo hoo. When people disagree with you they criticize you. When you're trying to tell an entire nation how to live, which is what big-time politics comes down to now, some people will fight back with terrible weapons such as sarcasm, irony and vulgarity. They will sometimes be mean. So what?

Tom: Grownups pay a price for where they stand! Being put down by conservatives is the price you pay. Is it really too much?

Rush Limbaugh has 20 million listeners. If Tom Daschle wants to make progress for his side why doesn't he go on his show and talk to them? Take call-ins, explain your views, be a man, move the ball forward.

Let me slide from Noonan's observation to a slightly different one. When did the Left become so whiny? The idea of stoically paying a price, even an unjust price, seems to have entirely disappeared from the Left. I suspect that in general the Right is inherently more tolerant of the irrationalities inherent in any system, and has more of a willingness to say that something that appears unjust may have to be tolerated because the system or order is given a higher priority in a hiearchy of values.

The Left wasn't always so whiny. One of my personal heroes is Eugene V. Debs. Obviously, I abhor Debs socialism, albeit the fact that he was one the highest polling third party candidate in American History, a a feat he achieved in prison, is one of those fascinating bits of trivia that history is littered with.

No, I admire him for his stoic commitment to principles. Debs helped to found the American Railway Union. When the Pullman workers went on strike over truly horrific conditions in the company town of Pullman, Debs threw the new ARU behind the Pullman workers. The strike was broken in part by the intervention of the federal govenrment and the use of anti-strike injunctions. Debs went to jail for the first time for his violation of these anti-strike injunctions. [It was in prison that Debs converted from moderate trade union activism to full-throated socialism.]

Thereafter, Debs became the flag-bearer of socialism. As part of which, Debs opposed America's entry into World War One. For his trouble, Debs was sentenced to ten years in prison in 1918 for his opposition to the war. He was pardoned in 1921 by President Harding, President Wilson having vigorously rejected pardon requests.

There is something admirable about Debs. Perhaps, under the right circumstances he could have become America's Lenin. I don't think so. Lenin was an abject coward who ran at the first sign of danger. Debs always paid the price. I think Debs actually had a moral core which was absent in his almost contemporaries, Hitler, Lenin and Mussolini.

Debs clearly viewed the American system as unjust and corrupt. I am sure he viewed his treatment as the kind of cruelty that one could expect from what he viewed as a corrupt and decadent system. But there was something courageous and compelling about him. He took it like a man. He knew that he was paying the price for the positions he felt he had to take. I can't help but think that Debs would look at his intellectual heirs with a certain contempt for the lack of manliness.

More Moore Bashing

[via Instapundit] Satirist now hoist with his own petard.

Correcting False Impressions

According to Jacob T. Levy

Rachel DiCarlo, at the Weekly Standard's website, repeats the claim that Libertarian Kurt Evans cost Republican John Thune the South Dakota Senate race. As I've blogged before, this claim is almost certainly not true. While Evans did indeed get more votes than separated Thune from Johnson, that was weeks after Evans had dropped out of the race and endorsed Thune. This means that the Libertarian-Republican swing voters are very likely to have swung to Thune. (The 3,000 votes represents a much smaller share of the vote than Evans was picking up in polls before he dropped out.) The remaining 3,000 probably wouldn't have voted for Thune in any event; and on net Evans helped Thune (first, by swinging his way those voters who could be swung; second, by keeping 3,000 of the other voters from voting for Johnson).

Interesting, I wonder if Ralph Nader is likewise keeping Green voters from voting Republican.

USS Clueless has an interesting post that starts with blog etiquette, slides into recent attempts of the blogleft to create a politically correct hemi-demi-blogosphere, and then concludes with a triumphant chorus from J.S. Mills. Pretty neat. Here is an excerpt:

Of course, there are always people who take themselves too seriously and who think they are more important than they truly are. And an unfortunately large number of those are on the political left, where there is a rising horror at the way that we bloodthirsty rabid warbloggers are perverting their medium to deliver the wrong message.
One site, "Rittenhouse Review", has decided to do something about it. Charles Johnson's Little Green Footballs has been a major blip on the leftist radar for a while now, and RR has publicly stated that from now on RR will not link to any site which itself permalinks to LGF.
This strikes me as a beautiful example modern leftist activity: it's public, it's in-your-face, it demonstrates moral and ideological purity, and it will have negligible practical effect. It's pragmatically null. It's a tempest in a teapot.

My question is why is it the left that spends all of its time on ritual purity? This isn't the first time that a gauchist blogger has declared that they wouldn't link to someone who linked to someone else. I can't imagine even making that kind of threat. Not that it would have any effect on anyone, but I couldn't imagine making the threat. What do I care who someone else's friends are?

But for blogleft it's almost reflexive. Dissension is punishable by ostracism and boycott even as to those who link with the pariah. You see the same kind of mentality in speech codes. Guilt by association is what it's called normally, and it occurs when someone is punished because they are associated with someone with less popular or down right noxious views, or when one view is associated with a more noxious view, such as when the idea that Marxist or feminist law studies have contributed nothing to tort law is associated with racism.

Obviously, Rittenhouse Review has the liberty to advocate for any silly thing he feels is necessary. He has the liberty to ask everyone to delink from anyone else. But that doesn't mean it's wise to do so. The function of the markeplace of ideas is not furthered by an intellectual embargo.

That's what I was talking about

Via Instapundit via Jerry Pournelle, Check out this satellite photo of the fogbound Central Valley. The photo was taken on November 20, so if you look at the coast and find Monterey Bay, you can move to the right to the center of the fog mass,and if you stare real hard, you should be able to see me driving up 99 to Sacto.

Requiscat in Pace

The great political philosopher, John Rawls, has died. Rawls certainly was an incredibly influential political philosopher whose seminal work was A Theory of Justice. Rawls major project was to provide a philosophical justification for the modern welfare statement. His ideas about the "veil of ignorance" was a thought provoking heuristic device.

It's been a tough year for great political philosophers. In January of this year, Robert Nozick passed away at 63. Nozick was at one point in his life a libertarian and his seminal work was Anarchy, State and Utopia. Where Rawls would justify the welfare state by having a rational person imagine an ideal world behind a veil of ignorance, Nozick would justify a minimal state by arguing that justice was a value inherent not in an end state, but in the process by which property or services were exchanged.

Oddly, it was always Nozick whose grip on reality was questioned.

Anna over at BBB: Come for the bunny photographs. Stay for the Warmongery is running a site with an odd mix of knowledgeable comments about the relative merits of various surface to air missile systems, pictures of rodents and reviews of really bad Science Fiction flicks. I think she's on to something. Anyhow that let's me seque into my current all-time favorite bad science fiction movie - Deep Rising (1998) - which is your basic alien-style mysterious monster eating the passengers and crew of a luxury liner in the Bermuda Triangle, except it's set in the South Pacific. What sells the movie for me is Treat Williams' matter of fact approach to his character. [When the king devil octopus shows up in the cruise ship's ballroom, Williams observes "Now there's something you don't see every day."] Wes Studi is the leader of a band of mercs and is rapidly carving out a Wes Studi supporting role niche for himself. Kevin J. O'Connor of The Mummie provides a nice comedic touch. Cheesy visual effects. Silly science. Trashy movie, but I like it.

Just when you think science has the basic facts about Planet Earth all organized and categorized....

They discover a new island off of Sicily. Actually, it's the tip of a volcano that has been submerged for over a millenia. It did make a a brief appearance almost two hundred years ago:

The last emergence on July 2, 1831, caused months of international wrangling with four nations making territorial claims including Britain, Spain and the Bourbon court of Sicily.
The rock, which rose some 213 feet above the surface and had a circumference of about 3 miles, emerged for six months, giving the British time to claim it as Graham Island, while Sicily's King Ferdinand II called it Ferdinandea.

And if that's not cool enough, scientists announce that a new mammal species has been identified in Australia. It's a species - or maybe two species - of mountain brushtail possum.

As John Brunner wrote in Stand on Zanzibar "it's a happening world."

The Memory Hole

Media Research Center CyberAlert reports that Dan Rather completely ignored Sen. Daschle's attempt to "censor" Rush Limbaugh and thereby institute a climate of "fear" and "intimidation." He did report that a member of the British royal family had been convicted of allowing her dog to bite two children.

Neat Science Alert, although this may actually be alarming when you think about it.

Also from Country Store is this article Did quark matter strike Earth?

Perhaps the phrase "militant activities" means something somewhat less threatening in Spanish.

Country Store (links still not working) linked to an news article containing this quote from Mexico's foreign minister comments on Mexico's initiation of a "bottoms-up campaign" to win support for the legalization of 3.5 million undocumented workers in the U.S. The article contains this provocative quote:

"What's important is that American society sees a possible migratory agreement in a positive light," Castaneda said. "We are already giving instructions to our consulates that they begin propagating militant activities -- if you will -- in their communities."

Can't say I like the sound of "militant activities" used in reference to such a large block of unassimilated people.

C-SSPAN's Washington Journal had a guest who said that Castaneda is a former hard core leftist. So the "militant activities" phrase may not be entirely innocuous.

Goofball Alert, or let's pick the one place in America least likely to be a bastion of racism.

I'd bet on Harvard, frankly, but three decades of political correct thought policing won't stop this bit of inanity:

Harvard Law Plans Speech Code - lexisONE(sm) Harvard's Black Law Students Association and some faculty have been pressing since last spring for a speech code that would punish offending students and professors. The law school community was ruptured at that time by a series of racial incidents - most notably one student's use of the word "nig" in an online course notebook, a professor's defense of that student, and another professor's comment that feminism, Marxism, and black studies have "contributed nothing" to tort law. Yet while law school officials have taken steps to soothe campus tensions since then, their primary action - forming the Committee on Healthy Diversity, which said it plans to draft the proposed speech code - has created a new wave of concern.

A professor's comment that feminism, Marxism and black studies have contributed nothing to tort law is taken as evidence of racially harassing comment. That ranks up there with the person who wanted to sue her boss for racial harassment because he would listen to Rush Limbaugh on his breaks. The professor's comments are not only obviously a fair point, they are obviously correct.

Nothing hurts like the truth.

Senator Daschle and the commitment to a robust public discourse evidencing the diversity which is the only principle on which America was founded.

Driving back from Sacto last night, I heard Senator Daschle's singularly amazing views on conservative talk radio. If you missed it, here is one quote from ABCNEWS.com:

"What happens when Rush Limbaugh attacks those of us in public life is that people aren't satisfied just to listen," Daschle, D-S.D., told reporters Wednesday. "They want to act because they get emotionally invested. And so, you know, the threats to those of us in public life go up dramatically, on our families and on us, in a way that's very disconcerting."

And here is the money shot from NewsMax.com:

"You know, we see it in foreign countries and we think, 'Well, my God, how can this religious fundamentalism become so violent?' Well, it's that same shrill rhetoric, it's that same shrill power that motivates. Somebody says something and then it becomes a little more shrill the next time. And then more shrill the next time. And pretty soon it's a foment that becomes physical in addition to just verbal. And that's happening in this country."

If you have been popping in here from time to time, you know that I have expressed a concern that the New Class has abandoned its traditional commitment to free speech. One of the vehicles in this process appears to be part of the law relating to "threats." As I observd in that earlier post, the decision in the Plannned Parenthood decision was noteworthy for its cavalier treatement of First Amendment issues in a case where there was no evidence that the defendants had any ability or intent to carry out the alleged threat.

Now comes Daschle's comments. The Machievellian attempt to paint the voters who returned control of the Senate to the Republicans as narrow minded religious bigots is obvious. The hypocrisy of this comment in the face of the Democrats' commitment to preserving the Constitutional right to burn the flag, which might be viewed as threatening to some parts of the population, is noteworthy. The naked power grab of a leader of a party that in the guise of campaign finance reform has sought to limit the ability of Americans to discuss political issues during political campaigns requires more comment. The ignorance of painting Rush Limbaugh as a theocrat is stupifying. The silence of the ACLU which vibrates with offense whenever a creche nears a public square but has nothing to say when a leader of government expresses open hostility to a religion is deafening. Sen. Daschle's comments in the light of the political statements made against Lincoln, Jefferson and Adams suggests a person with limited historical knowledge, which would be a reason in itself for his constituency to retire him from public life.

But, frankly, most alarming is the use of the language of "threats" to describe his opposition. I don't think it's an accident. The Left has spent nearly three decades practicing mind control by describing conservative speech as threatening or the equivalent of verbal violence. Some in the Critical Legal Studies movement such as my old "Biotechnology and the Law" Prof. Richard Delgado are quite open in their view that the First Amendment should not protect racist or sexist speech. One assumes by analogy that "threatening" religious speech - such as that found on Rush Limbaugh's show - would also be put beyond the pale. [Side note on the use of Rush Limbaugh as a litmus test for mind control. I once had a person contact me about suing her boss for racial harassment. She was convinced that he was a racist because one time he told her to move her car from his parking place, she was African-American and he listened to Rush Limbaugh. Of course, we didn't take the case, but the point is instructive. There is a segment of the population that really thinks people should be punished for what they presume other people are thinking based upon what those people read or listen to.]

Senator Daschle's comments are serious because they are highly indicative of a current that is flowing in his party, which may some day find itself enshrined in the Constitution if certain kinds of judges are appointed.

Lileks v. Ellison

Is there nothing sadder than an avante garde radical who is a member of the AARP?

James Lileks has this to say about the latest writings from Harlan Ellison:

The preface was written by Harlan Ellison, and it’s damn near incoherent. It rambles, shouts, hectors, sneers, and does its damnedest to be Harlanesque, but it just sounds like a cranky old man who finally got through to Art Bell and is going to set him straight about how things really were 19-ought-seven, by Gum. Did you know this is "an anti-intellectual, anti-artistic nation that breeds Jesse Helmses, Rush Limbaughs and Phyllis Schafflys"? Yes, those are his examples. Harlan: look in the Yellow Pages under “newspapers.” Phone ‘em up, and ask for them to drop a paper off at your door. You’ll discover that American culture has invented a few new bogeymen in the last 10 years, and that no one gives a nosehair for Phyllis anymore.

Which lets me segue into some Billy Joel lyrics that I always liked, even when I was 21 and going to a Gene Wolfe book signing at the Dangerous Visions bookstore.

And there's always a place for the angry young man
With his fist in the air and his head in the sand
He's never been able to learn from mistakes
He can't understand why his heart always breaks
His honor is pure, and his courage as well
he's fair and he's true, and he's boring as hell
And he'll go to his grave as an angry old man.

Thank you, Fresno. I will be playing here every Wednesday.

Living long enough to see the "kids" become old codgers is the best revenge.

Thanks for your prayers; I survived another day in Sunny California

So, yesterday I drove up from Fresno, passing through Muncie Country and ending up in Roger Ho, Esq. Land. [Which basically completes my inventory of Catholic Central Valley bloggers.] I had a deposition in Sacramento. The sky was a brilliant blue. At night, the moon shines like a quarter held at arms length in front of a limelight. It meant only one thing; I had to get on the road as early as possible to avoid the Tule Fog.

Mr. Muncie describes the infamous Tule Fog
thus:

The local name for this condition is tule fog, which can get very dense. It usually burns off by midmorning, although once or twice each year it lasts all day. In the bad spots, such as south of Merced and around Tulare, you can get huge chain reaction accidents on the highways with dozens of trucks and cars involved. The problem is that while the fog may not be all that heavy where you are, it does block your ability to see denser fog ahead. Drivers plunge on, without reducing speed, and all of a sudden are doing 80 in the middle of a zero visibility whiteout. The first person to hit their brakes initiates the pileup. According to weather.com, tule fog is the leading cause of weather related casualties in California.

Last week, I drove in from a Porterville Board of Education meeting around 7:30 p.m. and the fog was so thick, I could barely see my rear-view mirror. It almost made me think I should slow down from 80 m.p.h., but, heck, if I hit something, I want to be able to cut clean through it.

Actually, the drive to and from Sacramento wasn't too bad at night, but the morning was murder. This is the season that the PI attorneys live for. Forty car pile-ups in an early morning fog that closes up in seconds and reduces visibility to a complete white-out. I had no problems this evening. Drivers this morning, though, weren't as fortunate. According to this Bee article sixteen people were injured this morning in a dense fog that cut visibility down to about 150 feet.

We don't have hurricanes, ice storms, tornadoes, floods or earthquakes here, but we do get a decent fog.

More Like Mary, Less Like Martha has a post on the legality of internet linking. She links to Tech Law Advisor where IP attorney Keven Heller has some thoughts on the contractual aspects of IP protection. For Mr. Heller this has achieved a bloodsport level inasmuch as he has been told to eliminate deep links in his site by a voice mail from LA Times.

Anyhow, my contribution to this issue is to link to Kelly v. Arriba. [About two months ago, I wrote Bill Cork that I would outline this case. So, with my usual diligence, I finally located this case which was buried among my other advance sheets.]

The issue of deep linking constitutes of case of "first impression" - i.e., no judicial decision [at least in my jurisdiction] has made a decision as to whether a link to another website infringes on that website's copyright. Kelly provides some ammunition to argue that it does not.

Kelly involved that most vibrant portion of the internet economy - pornography. In Kelly, the defendant displayed "thumbnails" on his site, as well as links to complete pictures. The Ninth Circuit Court of Appeals considered the Copyright implications of both kind of internet links. The Court describes the factual premises of the case and its conclusions as follows:

When Kelly discovered that his photographs were part of Arriba's search engine database, he brought a claim against Arriba for copyright infringement. The district court found that Kelly had established a prima facie case of copyright infringement based on Arriba's unauthorized reproduction and display of Kelly's works, but that this reproduction and display constituted a non-infringing "fair use " under Section
107 of the Copyright Act. Kelly appeals that decision, and we affirm in part and reverse in part. The creation and use of the thumbnails in the search engine is a fair use, but the display of the larger image is a violation of Kelly's exclusive right to publicly display his works. We remand with instructions to determine damages and the need for an injunction.

The "thumbnail" links were protected as "fair use," the factors which the Court considered were described as follows:

Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997) (internal quotation marks and citation omitted). 10 The four factors are: (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. 17 U.S.C. § 107.

The policy basis of "fair use" was described by the Court as:

The Copyright Act was intended to promote creativity,thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress made the fair use exception.24 Arriba's use of Kelly's images pro-motes the goals of the Copyright Act and the fair use excep-tion. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and there-fore do not supplant the need for the originals. In addition, they benefit the public by enhancing information gathering techniques on the internet.

The Court confirmed that this was a case of first impression.

No cases have addressed the issue of whether inline linking or framing violates a copyright owner's public display rights. However, in Playboy Enterprises, Inc. v. Webbworld, Inc., the court found that the owner of an internet site infringed a magazine publisher's copyrights by displaying copyrighted images on its web site. The defendant, Webbworld, downloaded material from certain newsgroups, discarded the text and retained the images, and made those images available to its internet subscribers. Playboy owned copyrights to many of the images Webbworld retained and displayed. The court found that Webbworld violated Playboy's exclusive right to display its copyrighted works, noting that allowing subscribers to view copyrighted works on their computer monitors while online was a display. The court also discounted the fact that no image existed until the subscriber downloaded it. The image existed in digital form, which made it available for decoding as an image file by the subscriber, who could view the images merely by visiting the Webbworld site. [Kelly v. Arriba Soft Corp. 280 F.3d 934, 945 -946 (C.A.9 (Cal.),2002).]

My view, which is not a legal opinion but just a talking point, is that if you can link to, and display, a thumbnail under the Copyright Act, you can link to an on-line article. Most bloggers transform the bare link into their own product by adding their own input or observations. Further, blogging is essentially non-commerical and the amount of copyrighted material which is used is not substantial.

Mr. Heller makes a fair point about the contractual aspects of IP protection. A contract to adhere to a newspaper's terms of use may arise from accessing the site. I question, though, whether a newspaper's use of the governmental monopoly provided by copyright can be used as a vehicle to force a waiver of fair use rights. I know that in the trademark area, the owner of a mark cannot use its monopoly to "link" trademark usage to the purchase of other, non-protected. For example, Kentucky Fried Chicken cannot use its trademark leverage to force franchisees to purchase napkins from KFC.

Anyhow, this is just an attempt to put relatively recent decision involving the internet into play. Let me know what you think.

Federal prosecutors and regulators entitled to overtime according to this Law.com article. I'm not sure why they are not exempted as licensed professionals. I know I was. At least, I think I was.

So, I watched Scotland PA this weekend. It's a pretty good adaptation of the Bard's MacBeth, except for the fact that it is set in hamburger joint in a small Pennsylvania town in the early 1970's. MacBeth is a slacker fry cook who is driven by his his wife [News Radio's Maura Tierney] to murder Duncan, the owner of the burger joint, by dropping him into a deep fryer. Suspicion focuses on the older son, Malcom. MacBeth's friend Banconi, aka Banko, has some suspicions. Pretty soon MacBeth is successfully pioneering the first drive through in the area. Things look good except Mrs. MacBeth is obsessed with a burn on her hand, and Detective MacDuff, played by Christopher Walken as Christopher Walken, is putting together the clues. Here's a MovieWeb synopsis of Scotland, PA. The director described the plot as being written for a high school student who was reading Cliff Notes stoned. Fair warning - some reviewers thoroughly panned Pennsylvania PA, but I liked it for the clever take-off on the Shakespeare classic.

Anna over at BBB: Come for the bunny photographs. Stay for the Warmongery has a similar tolerance for off-beat flicks. Here's an excerpt from her review of that future classic - Six String Samurai:

You want to watch a film with lots of swordfights, Bro wants post-apocalyptic sci-fi, Sis wants a religious epic, Mom wants a tender, flowering relationship story, Dad wants an Elvis picture, and the grandparents want a musical.

How could you possibly satisfy everyone?

You could start by bringing home Six String Samurai.

Check it out. Looks like an odd way to kill a Saturday afternoon.

Here's a pretty neat site if you're the kind of person who likes to pick up on plot and scene errors in movies - Nitpickers Home Index.

Fresno Bee columnist, and an occasional denizen of Brix's, Jim Boren tells us why we should take redistricting out of the hands of the politicians. And, he's right. Basically, the politicians have cut a deal to protect incumbents.

Actually, the first two times I took this test it came out as John Wesley

"God will not suffer man to have the knowledge of things to come; for if he had prescience of his prosperity he would be careless; and understanding of his adversity he would be senseless."

You are Augustine! You love to study tough issues and don't mind it if you lose sleep over them. Everyone loves you and wants to talk to you and hear your views, you even get things like "nice debating with you." Yep, you are super smart, even if you are still trying to figure it all out. You're also very honest, something people admire, even when you do stupid things.

What theologian are you?

A creation of Henderson

[Via Megan McArdle, who has a whole new look] Armed and Dangerous has a post on military ethics in science fiction, "if you like that kind of thing." [Hey, that's my line.]

The Wealth of Memory

Rachel Lucas reports that Michael Moore has shown his typical commitment to truth and accuracy by removing the link to his "Payback Tuesday" diatribe from his website.

Reflections of a PoMo Gnostic


Mark Shea had this link and the caution that the kind of thinking reflected therein is more a reflection on modern sensibilities than theology. The link is to yet another Methodist bishop who declares that Jesus was both fully human and fully God. Fully human in being born of human parents, and fully God in his relationship to the Creator. [Also, those miracles never really happened.]

Now, it may seem that I pick on the Methodists, which maybe I do. I have nothing against Methodism. I had a grandmother who was Methodist before she converted, but it seems that there is an awfully large stockpile of people who adhere to ancient and unhealthy heresies who are serving there as bishops. Bishop Sprague, for example, observation (infra) implicates adoptionism and gnosticism. Bishop Sprague writes:

Sacrifice, even of one’s life, on behalf of others is an eloquent witness to God’s grace. Nevertheless, I find the substitutionary atonement theory, which is but one of several Christian theories of atonement, to be at odds with other images of God reflected by the witness of Jesus and experienced by this writer. In fact, I am convinced that quite often such unexamined thought repels many intelligent, sensitive, searching people and drives some of them from understanding, accepting and following the God revealed in Jesus, who is the One for whom their aching hearts yearn.
How much more blood sacrifice is needed in a world saturated with blood and famished for a different understanding of salvation? While sacrifice as an act of discipleship is essential for all of us as it was for Jesus, the concept of blood sacrifice to appease God is superstition at best and an idolatrous allegiance to a non-Jesus methodology of God-human relationship at worst. Historically and presently, the Church has other models of atonement theory to offer a hurting world. The time has come for progressives courageously to claim the atonement of Jesus as that which is reflective of everything he did and all he was, namely, the One who was in such at-one-ness with God that he could suffer and die for others.

Part of the historical problem with Gnosticism is that it is unhistorical. It establishes allegory and myth as the basis of its belief system. But that is not what the early Christians believed. They believed that they had a real empirical experience on which to base their theology. Orthodox Christianity has always been very concerned with historical truth. Christianity is uniquely about history. Salvation happened at a particular place by a particular person who was real, although the original Gnostics believed in a docetic Christ, one who was not really there.

The passage above is a case in point. Bishop Sprague doesn't like blood sacrifice. The image is probably off-putting to modern sensibilities. The problem is that the original sources - the New Testament and tradtion - don't let believers ignore the element of blood sacrifice. It's everywhere you look, and apparently the "this is my body" line was sufficiently important for early Christians to accept the calumny of being cannibals in preserving that aspect of the Gospel message.

Modern Gnosticism is cowardly. It doesn't trust the testimony of the Gospels. It seeks to accommodate the niggardly imaginations of its adherents - like Bishop Sprague - by making symbolic and mythical events that were understood to be real and actual. But if Christ's resurrection didn't happen, then the Gospel message is all in vain, at least that's what someone who was closer to the events than Bishop Sprague thought. The sad thing is that while this tactic may buy a short term peace of mind for Bishop Sprague, it can only result in an eventual surrender of belief over the members of his flock over whom he may have some influence.

David Frum contemplates Armistice Day and the poem that he says all Canadians over 50 can quote from memory, and which I know that even under-50 ex-pate Canuck lawyers can quote:

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

Fair and Balanced and paid for by the 52% of the taxpaying public that he describes as corrupt, theo-fascist bigots.

NOW: Commentary - Bill Moyers on Election 2002 | PBS

Michael Medved points out that the involvement of Hollywood celebrities in politics is not new, but the conduct of the likes of Lange, Baldwin and Sarandon in insulting their customers is.

I know what movie we should all go see.

LARRY CLARK STANDS UP FOR U.S.

MAVERICK director Larry Clark beat up the distributor for his movie "Ken Park" after the jerk declared that America deserved to get attacked on 9/11.
Clark, who helmed "Kids" and "Bully," delivered a brutal beat-down to Hamish McAlpine after the screwy Scotsman started spewing anti-American and anti-Israeli sentiments during dinner at London's posh Charlotte Street Hotel Thursday night.
An enraged Clark, 59, punched McAlpine several times in the face - breaking his nose - choked him, then overturned the dinner table on the bloodied big mouth.

It's amazing the kind of reaction that "hate speech" provokes.

My Birth State elects the first Jewish Republican woman governor

Via Australian blogger Tim Blair comes this link:

In Hawaii, Linda Lingle won in the gubernatorial race, becoming the state's first GOP governor in 40 years and America's first Jewish Republican woman governor.

Those perfidious Republicans. First, electing black women as lieutenant governors and now this. And then there's that whole Secretary of State and National Security Advisor ruse. Obviously Republicans are simply feigning "diversity" for political advantage.

EveTushnet reflects on pro-life science fiction. I think I remember the Philip K. Dick story which premised abortion being an option until a child was 12 years old. I guess in some ways that story affected me more than I realized. Why should the line be three months before birth? Why not three months after? Or twelve years? Hard to draw a principled line, except the snort by the pro-abortion crowd, "don't be ridiculous." I didn't realize that the story was by Dick. It seemed far too coherent.

Another interesting political map

This link takes you to a CNN map showing a county-by-county breakdown of election results in the race for California Governor. Again, notice that Democrat support is limited to a very few highly urbanized counties. It also demonstrates something that I've been saying for twenty years - the division in California is not between Northern California and Southern California; it's between Coastal California and Inland California. It's not surprising that all of the University of California, apart from UC Davis and the future UC Merced, are no more than ten miles from the coast.

Symbionese Liberation Thugs Cop a Plea

Fox is reporting that the SLA vermin who murdered Myrna Opsahl have pled guilty to second degree murder. Her son never forgot, and neither should we. There's got to be a sense of satisfaction for the prosecutors in knowing that people who casually dismissed Myrna Opsahl with the statement - "Oh, she's dead, but it really doesn't matter. She was a bourgeois pig anyway. Her husband is a doctor. He was at the hospital where they brought her." - will have an opportunity to reflect on the value of the late Mrs. Opsahl.

UpdateHere is the link to the LA Times story. According to the times:

Four members of the Symbionese Liberation Army, the radical leftist group that cut a violent path through California in the mid-1970s, pleaded guilty Thursday to the murder of a churchgoing mother of four during a suburban bank robbery here more than a quarter-century ago.

In an emotional courtroom hearing, the four aging SLA defendants — Emily Montague, her former husband William Harris, Michael Bortin and Sara Jane Olson — agreed to second-degree murder charges in the 1975 shotgun slaying of Myrna Opsahl and tearfully apologized to her family.

"I do not want them to believe that we ever considered her life insignificant," said Montague, 55, who acknowledged that she pulled the trigger in the shotgun slaying of Opsahl, but told a hushed courtroom that the shotgun discharged accidentally.

Obviously it was no accident that they were waiving a shotgun around in a bank because of their trivially inane "cause." Based on the comment that Mrs. Opsahl was a "bourgeoise pig" - which is entirely consistent with the other things that the SLA, and other leftists, were saying at the time - it appears that Montague, age 55, is still lying.

The SLA members will be sentenced to approximately, seven to eight years with the possibility of sentence reduction for good behavior.

The LA Times reports on the reaction of the Opsahl family, who were apparently not consulted for their input on the deal:

Opsahl's son, Jon, who learned of the plea agreement late Wednesday afternoon, said he was stunned that the case had come to such a sudden conclusion. Although he had hoped for a stiffer sentence, Opsahl said he accepted the penalties that the SLA foursome face.

"There was no reason to pursue any lengthier prison time," Opsahl said, noting that each of the four had remade themselves into responsible citizens with families and children.

"There is no such thing as perfect justice," he said. "There's nothing we can do that will bring my mother back to life."

His father, Trygve Opsahl, also expressed compassion for the four defendants and their families.

"I have no hard feelings for the people involved," said Opsahl, 76, a retired surgeon. "I hope they'll be able to have some life after they leave prison."

Montague, Harris and Olsen are lucky that the Opsahl's are models of bourgeoise behavior.

Another day late - Guy Fawkes Day

Did anyone remember that November 5th was Guy Fawkes Day, which marks the anniversary of the Gunpowder Plot? Although the Inquisition and Galileo make for popular examples of Catholic iniquities, the dire oppression of Catholics is generally forgotten. A surprisingly good book on the subject is Faith and Treason: The Gunpowder Plot by Antonia Fraser, which delves into English religious history to show the harsh persecution of Roman Catholics under Jacobean rule and how James I disappointed those Catholics who hoped for a more liberal reign. For a "fair and balanced" look at this aspect of history.

The power of the blog

The Blog from the Core - America's Small-Town Weblog links to a story with this observation:

Most under-reported story: Two newly minted black lieutenant governors. Michael Steele of Maryland, Jennette Bradley of Ohio. Ms Bradley is to be the nation's first-ever black *woman* lieutenant governor. But please, don't tell anyone. You see, both Mr Steele and Ms Bradley belong to the wrong party, the (1 word, 40 letters) vicious-mean-spirited-intolerant-insensitive party, the (horror of horrors! apostasy! treason!) Republican Party.

I'll confess, I hadn't heard about this, and I will bet I never would have if it wasn't for the samizdat blogging community.

Blog on.

Rats. I was hoping it would be Washington.

Which Founding Father Are You?

Actually, though, Hamilton was a critical part of America's survival. One other interesting alternate history point from Gary Wills, I think, is that George Washington's greatest contribution to the American Revolution was to prevent the emergence of a Napoleon-like personality. The biggest threat in that regard might have been Hamilton.

Ut Unum Sint writes:

Against Marcionism, the Catholic faith affirms that it has always been the Triune God who creates, redeems, and sanctifies his people: omnia opera Trinitatis ad extra sunt indivisa. The Catholic faith affirms that it was the Triune God who saved Israel from bondage, and who then gave to them his law. You see, we do not hold to the Lutheran belief that the law was given to beat men into submission so that later they could experience grace. The Lutheran belief is shattered by the very preface to the Ten Commandments.

This observation is interesting in light of Daniel Goldhagen resurfacing with a new book entitled What the church owes Jews, and itself The thesis of this book is apparently that the roots of Nazi anti-semitism are particularly found in Catholicism and the early traditions and writings of Christianity. Goldhagen has a modest suggestion about Catholicism:

In addition, the church must recognize that anti-Semitism has been inseparable from its authoritarian and imperialistic pretensions and must abandon papal infallibility, dissolve the Vatican as a political state, embrace religious pluralism to make clear that salvation does not come through the church alone and revise its official catechism to make unmistakable that any teaching smacking of anti-Semitism is "wrong, null and void."

He also suggests a rewriting of the Bible:

The "Bible problem," moreover, is not just that two apparently contradictory perspectives collide but that the collision takes place in texts that are regarded as sacred and divinely inspired. The need, Goldhagen contends, is for Christians to rewrite the New Testament, to expunge anti-Semitism from it, but he recognizes how difficult, perhaps insurmountable, that task may be. Nevertheless, Goldhagen does not despair. He thinks that the Christian tradition can be self-corrective, resilient and revitalized if Christians find the will to be true to their tradition's best teachings about love and justice.

The Marcion dispute, however, suggests that Goldhagen is wrong. The Church could have embraced an openly anti-semitic position at an early stage by adopting Marcion's position that there were two gods - the evil, angry God of the Old testament and the loving God of the New. It didn't. It acknowledged that the God of Abraham was the God of Peter. As I've indicated in the past, the history of Jewish persecution is not very remarkable. Where are the Lithuanian pagans today? What happened to the Saxon pagans? The real interesting question is why was a non-Christian religious group able to survive in Europe at all? The answer must be that, Goldhagen notwithstanding, there was a strand of tolerance toward Judaism found in Christian theology and doctrine which did not apply to the pagans. The Marcion dispute shows where that strand may be located.

From the Gobsmacking stupid file

Michael Moore predicts that George W. Bush will be served an "eviction notice" on November 5, 2002. Or whatever the proper past tense should be for a forward looking prediction made in the past which turns out to have been completely wrong. Actually, Moore's calling the troops to action demonstrates how deep Bush's support is. I mean, even after Moore's impassioned and obviously effective cry to arms, he still got his tail kicked.

For a left-side take on the election, go check out HamsterBlog. He has a mature, responsible theme of not blaming "the refs," working harder next time etc. None of this "men in black" intimidated the minorities nonsense. Very American. I respect that.

Desparately avoiding any reference to the popular genre of "women in prison" movies.

TalkLeft doesn't like the verdict in the Winona Ryder case.

Winona Ryder has been found not guilty of burglary but guilty of grand theft and vandalism. Our view: Unequal justice is no justice at all.

A brave new world. The Barbarians at the Gates of Paris by Theodore Dalrymple

Guardian Unlimited | Special reports | Jonathan Freedland: On the Bush campaign trail

Stereotypes

InstaPundit has an excerpt from Professor Peter Kirstein's e-mail response to a fourth year cadet at the United States Air Force Academy. The cadet had included Prof. Kirstein on a general e-mail inquiry concerning an Academy political serminar. Kirstein's response included the following:

You are a disgrace to this country and I am furious you would even think I would support you and your aggressive baby killing tactics of collateral damage. Help you recruit. Who, top guns to reign death and destruction upon nonwhite peoples throughout the world? Are you serious sir? Resign your commission and serve your country with honour.

The whole baby-killing theme reeks of a stereotype of an academic left still fighting the Battle of Telegraph Avenue in Berkeley. Prof. Reynolds was correct to suspect this was an urban legend in the making, but it wasn't. Neal Boortz has the complete story. [Scroll down from where you land.] The story includes letters of apology from Kerstein and his university, as well as a letter of apology from the Air Force Academy for its cadet's publicizing of a "private" e-mail.

And there is another stereotype - the professionalism and civility of the baby-killing military. A leftist academic would have justified such a tactic as raising public awareness. A military professional has rules that have to be followed.

Read the whole exchange. This excerpt - offered by the cadet wing as its response - caught my eye in particular:

"It is the soldier, not the reporter who has given us the freedom of the press. It is the soldier, not the poet, who has given us the freedom of speech. It is the soldier, not the campus organizer, who gives us the freedom to demonstrate. It is the soldier who salutes the flag, who serves beneath the flag, and whose coffin is draped by the flag, who allows the protester to burn the flag." ~Father Dennis Edward O'Brien, Sergeant, USMC

My Old Man - mustang lieutenant USN (ret.) - always told me that one of the paradoxes of military service in a democracy was that servicemen know they surrender their civil rights while so that civilians can keep theirs.

Noted legal scholar and philosopher Joe Bob Briggs explains why the "informed jury" movement is justified by history and principles of equity. In truth, Briggs makes some fair points and one thing great about law is that everyone is entitled to an opinion. I don't agree with his point though. For every John Peter Zenger, you have a dozen Klan members being acquitted. A system of jury nullification means that law becomes one thing for the popular and another for the unpopular.

To all you East Coast and Mid-West Bloggers who didn't stay up until 2 A.M. EST

FOX News calls the Missouri Senate Race and control of the Senate for the Republicans. Minnesota is still in play. Surprisingly, the Simon/Davis race is still too close to call, but Davis is beginning to build a lead. Tomorrow morning, Let me know who won.

The OmbudsGod is first on the scene with reports of election irregularities. If you have any reliable reports of them in your area -such as green-card Canadian lawyers being allowed to vote - report them to him.

Woo-hoo. Another Kennedy loses according to Fox News. Not that I have anything against Irish-Catholics or anything.

Mark Byron's call of the Georgia Senate race for the Republicans is spot on.

According to Instapundit, who is turning into a SF conduit, Andre Norton is very ill. Although her stuff is great for all ages, she is also a great introduction to Science Fiction for preteens. Time to introduce my daughter to Ms. Norton.

I voted. Have you?

The real interest this election is the local races for District Attorney and various superior court judgships. Candidly, I think Simon goes down in flames. Reapportionment has made all of the Congressional races non-competitive. As for the bonds, I voted against them. I don't know what there were for, but I'm against them. Let the contractors find another way to earn a buck. I did vote for Prop 49 though. Arnold in '06. Need to get started on drafting the "Schwarzenegger Amendment."

"It is no longer politically correct to be an Indian Guide."


The Clovis Independent reports that under pressure from some Indian activists, the YMCA has decided to drop the Indian theme for its parent-child program. I had some involvement in "Indian" Guides with my oldest and the one of the things that the Guides taught her were that Indians, or Native Americans if you prefer, were honest, strong and true. You can't pay for that kind of advertising.

The score is tied in the San Francisco/Oakland game. Kind of a tough call on who to root for since my knee jerk Northern California tropism is all screwed up. Interestingly, I saw a Gray Davis commercial touting California's economic performance in that it has "become" the fifth largest economy in the world. The problem is that California lost fifth place to France.

OK. San Francisco just scored. I guess that solves my problem. Go Niners.

Glen Reynolds is apparently channeling my father. Yesterday, Reynolds observed this about American cuisine:

But it's not just spiciness. It's variety. There was a time when pizza and spaghetti were considered exotic. Now I live within a mile or two of more sushi places than I can count, and they're good. Of course, I do live in the Greater East Tennessee Co-Prosperity Sphere.

Little did he know that two thousand miles westerly, and about twenty feet from Arnold Schwarzenegger, my father and I were enjoying sushi in sushi bar, and my father, a retired Naval officer with multiple international cruises on various carriers - the "Bonny Dick", the "Shitty Shang" and others - was remarking how it used be when he was young you could only get sushi in Japan, and wasn't it great how things had changed. Of course, we do live in the Greater North Central Fresno Co-Prosperity Sphere.

Nifty Star Trek Reference

I'm posting this one for my brother, who's a big Trekkie.Mind Over What Matters

Requiscat in Pace

[Via Instapundit] Charles Sheffield Dies at 67; Physicist, Sci-Fi Author (washingtonpost.com)

Can the Saudis work any harder to make themselves more expendable?

CNN.com - Saudis: No airspace, bases for Iraq strike - Nov. 3, 2002

Hollywood in the Big Raisin

One of those surreal days. I biked over to the Riverpark Mall to have lunch with my father and it turned out that Arnold Schwarzenegger was there with Fresno's very own "Mayor Bubba" for a Proposition 49 rally. Arnold has been promoting this tax increase for after-school athletics for over a year now. Oddly, although the Simon/Davis race has completely overlooked the Central Valley - I have yet to see anything but an infrequent TV ad, which probably means they are spending their money in SoCal - Arnold shows up here on the Saturday before the election. Perhaps, he's firming up his base for a future gubernatorial run. There were about two hundred people hanging around to see the Terminator. And, that's right, Fresno's Mayor is Alan Autry who had the role of Bubba on the "Heat of the Night."