March 18, 2007

OT: Bravo for Tim Rutten [11:45 am]

Who speaks of the dog that didn’t bark last week: No trial is the error for justice - pdf

Here you have a guy — Khalid Shaikh Mohammed — who has confessed to planning and directing the worst mass murder ever perpetrated on American soil and has admitted to personally murdering a U.S. citizen in what any reasonably aggressive American prosecutor would call a hate crime, and virtually nobody in the news media has called for putting the man on trial. Worse, virtually nobody has bothered to explain that the willfully erroneous way in which this administration has chosen to deal with the Al Qaeda prisoners from the outset has made it impossible to subject them to anything resembling the normative justice they so richly deserve.

Mohammed can’t be brought to trial because the White House had him tortured and, therefore, virtually none of what you read this week could be used against him in a legitimate court of law. In fact, who knows which parts of it are true, which parts of it were given simply to stop the water boarding — simulated drowning — to which he reportedly has been subjected, which parts are perverted bravado and which parts are an attempt to draw attention from other Al Qaeda killers still at large? In secret proceedings based on physical abuse, who knows?

But then, when it comes to this issue, the nation’s commentators and editorial pages have been derelict and complicit from the start. Their refusal to reject the White House’s various euphemisms for torture and evasions concerning the existence of a secret CIA prison system in which suspected terrorists and real terrorists, like Mohammed, have been tortured and held for years without lawyers or recourse to any legal process is a categorical failure of moral responsibility without recent precedent.

This institutional flight from responsibility stands in stark — and humiliating — contrast to the work of individual reporters at the Washington Post, New York Times, Los Angeles Times and other papers, who have risked prosecution — and, sometimes, their editors’ displeasure — to expose governmental abuses of human and civil rights in the “war on terror.”

[...] We rely on our military for defense. We do not ask it to dispense justice on our behalf anymore than we should ask soldiers and Marines to act as police officers. That’s why we have courts and cops, and why our laws and, more important, well-established political tradition draw a bright line between their function and that of the armed forces.

We do not refrain from torturing criminals such as Khalid Shaikh Mohammed out of some misplaced fellow feeling for them, but out of respect for ourselves.

The general failure of the American media to note and defend those principles is something for which they ought to be held to account.

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“Facebooking” [10:33 am]

Last week I had zero friends on Facebook. Now I have 775.

When my editor David Plotz (who, not being on Facebook, has no Facebook friends, although I am now a Facebook friend of one of his real-life friends) suggested I write a follow-up, I said I thought it sounded too boastful to say how many friends I now had. He reminded me that these weren’t my friends, these were people “who are actually nothing to you.” This made my heart lurch. David, these are my friends! But I wondered what made me feel a connection to people I’d never met, whom I knew only through a click of the mouse. This was clarified in the Facebook message from a new friend, Brenda Bradley, a Cambridge University zoologist doing research on primate evolution. She explained a theory about what drove the evolution of human intelligence: It was the need to monitor and maintain complex social networks—the most successful primates were the ones who understood the dynamic social relationships around them. Developing these skills was the precursor to, for example, being able to hunt cooperatively, not vice versa. “So Facebook may indeed be an evolutionary milestone more important than the first stone tool or the control of fire!” she wrote.

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The Eternal Tension [10:21 am]

A new generation of music listeners establishes its preferences: Ever lower fidelity - pdf

For increasing numbers of consumers, mostly young but also many older music fans, listening in the digital age means ease and portability, not sound quality. Still, in an effort to make high fidelity a higher priority, the technology industry is introducing high-end ear buds, add-on gadgets that promise CD-quality sound on an iPod or computer, and other products.

[...] Consumers made a similar trade during the cassette era, when the introduction of the Sony Walkman freed music lovers to transport dozens of poor-quality songs to the gym. And certainly young people today care about audio quality in certain contexts — specifically video games, which have become renowned for lifelike sound reproduction and are enhanced by surround - sound speaker systems.

But when it comes to listeners’ personally assembled soundtracks, the convenience of downloading an entire music library and popping it into your backpack is — for people who’ve grown up with it — a given.

Letters to the editor:

Face it, we’re addicted to tunes - pdf

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The NYTimes on Movie Distribution [10:12 am]

A couple of articles on the movies and the Internet:

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Lessig on “Copyright Chaos” [12:23 am]

Having burned his bridges, it’s interesting to see him take this tack: Make Way for Copyright Chaos

These cases together signaled a very strong and sensible policy: The complex balance of interests within any copyright statute are best struck by Congress.

But 20 months ago, the Supreme Court reversed this wise policy of deference. Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court. [...]

[...] For by setting the precedent that the court is as entitled to keep the Copyright Act “in tune with the times” as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the [DMCA's] safe harbor provision to meet Viacom’s liking. But Viacom recognizes there’s no political support for the change it wants. It thus turns to a policy maker that doesn’t need political support — the Supreme Court.

The conservatives on the Supreme Court have long warned about just this dynamic. And while I remain a skeptic about deferring to Congress on constitutional matters, this case is a powerful lesson about the costs of judicial policy making in an area as complex as copyright. The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved.

No doubt the justices are clever, maybe even more clever than Congress. But however clever, it’s hard to believe that their input is worth the millions in economic value that will be wasted long before they announce their decision.

Slashdot: A Law Professor’s Opinion of Viacom vs YouTube

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