Balkinization  

Saturday, February 07, 2004

JB

Internet Porn's Solution to Digital Piracy

The New York Times reports that the porn industry is taking a very different approach to digital piracy than the Motion Picture Association of America and the RIAA. They are focusing primarily on people who attempt to resell pirated pornography for profit. Instead of suing individual not-for-profit infringers, a few porn providers are giving people the option to join their pay sites.

These strategies suggest the two major ways that mainstream industries should deal with digital piracy. The first is to give up on tracking down individual not for profit users and instead focus on commercial pirates. The distinction between commercial and non-commercial piracy makes a great deal of sense in terms of public relations, and, perhaps more controversially, it also is consistent with what I take to be the larger purposes of intellectual property law. (Moreover, although the story does not mention it, it's also possible to raise money in other ways, for example, through a grand bargain in which copyright holders get a share of taxes on CD's or CD burners, which spreads some of the cost, albeit very imperfectly, onto non-commercial infringers.) The second strategy is to try to coax end users into pay sites by offering easier searches, wider selection, and guarantees of reliable products. Because the effective cost of any particular digital item is zero given the existence of P2P, what users are really paying for is not the information itself but convenience, selection, and reliability. (They might also pay for information about digital information, if it helps them make good decisions about what to download). If pay sites can provide these things better than P2P sites, they can make a living.


JB

Rumsfeld Blusters

The New York Times reports his fervent defense of the Iraq War despite the obvious failures of intelligence:

Asked in a question-and-answer session afterward about apparent American intelligence failures in Iraq, he acknowledged that it was a question of crucial importance that would be examined by the commission appointed Friday by President Bush, but emphasized that the panel would look at intelligence successes as well as shortcomings.

Mr. Rumsfeld's remarks drew several pointed questions from the audience challenging how the administration could defend its doctrine of pre-emptive strikes against perceived threats when the precise intelligence needed for such a strategy apparently failed in the case of Iraq.

"If you're going to live in this world, and it is a dangerous world, you do have to have elegant intelligence," Mr. Rumsfeld acknowledged.

But he repeatedly defended the get-them-before-they-get-us doctrine in an age when terrorists are threatening to acquire and use biological, chemical and nuclear weapons as "something that has to be weighed and considered by all of us" given the possible catastrophic consequences.


If there were a knock down argument against the preemption doctrine, it would be Donald Rumsfeld. The preemption doctrine is a careful balance of two considerations: the need to prevent serious threats before they occur, and the danger of wasting resources, destroying human lives and damaging international relations if one guesses wrong. That is to say, although the point of the preemption doctrine is to prevent false negatives (times you should have attacked when you didn't) it only becomes a rational strategy if you also worry about false positives (times you were wrong to think there was a looming threat). Bad intelligence can hurt you in *both* directions, and greatly undermines the success of a preemption strategy.

Rumsfeld's arrogant (and alarming) performance suggests that the Administration is not too worried about false positives, other than as a potential source of (undeserved) bad publicity. But false positives can (1) bankrupt a national treasury, (2) stretch your military resources too thin and make you vulnerable elsewhere, (3) poison your relations with other nations, and (4) inflict needless suffering that you-- and not your enemy-- will get blamed for. If Rumsfeld is aware of these dangers, he does not seem to be willing to admit them in public. And his refusal to do so does the American cause no good:

Asked whether America's stature in the world had been diminished since the war, he acknowledged the Iraq war had taken its toll, but contended that it was more because of biased reporting by Arab media like Al Jazeera than anything the United States had done. "I know in my heart and my brain that America ain't what's wrong in the world," he said.

It simply will not do to blame Al Jazeera for mistakes of American intelligence. If we don't learn from the lessons of this intelligence failure, we will be sowing chaos around the world.



Thursday, February 05, 2004

JB

Bush to Endorse Federal Marriage Amendment

The New York Times reports that he's almost there. It's just a matter of choosing the most politically propitious time.

In a sense, this was inevitable. Bush has angered the small government crowd by his enormous budget deficits and his attempt to blame (a Republican controlled) Congress for them. He can't afford to anger social and religious conservatives (who overlap with the former group). He also remembers what happened to his father when the party's conservative base deserted him. So he will come out in favor of the FMA. The only questions are when he will do it and whether he will emphasize it strongly in the upcoming campaign.

Bush may also be counting on the fact that most Americans oppose same sex marriage, and almost no Americans do who would otherwise vote for him (except perhaps for Andrew Sullivan). So it looks like an easy decision. On the other hand, as I noted in my previous post on this subject, there are real costs to this strategy. Many Americans don't want to think of themselves as intolerant, and if support for the FMA becomes tangled up in support for the religious right and opposition to gay rights generally, or is seen to be tangled up with those causes, Bush will lose the support of many moderate voters.




Wednesday, February 04, 2004

JB

Good Ol' Boy Fools Matt Yet Again

The incomparable Matthew Yglesias is, unfortunately, still in the thrall of the "Bush is stupid meme." Would liberals and progressives please stop doing this? This is how you wind up flat on the pavement with your hands pinned behind your back and your pockets picked.

I've said this before and I will say it again: just because someone doesn't care a hoot about public policy debates doesn't mean they lack intelligence. Thinking that way may be comforting to liberals' sense of superiority, but it will cause them to miss out on what Bush is about, which is not good policy but the exercise and maintenance of power. Yeah, maybe George don't know much about history, but he does know how to kick the left's behind and pull the wool over the country's eyes.

So stop telling yourself that this guy is stupid. What liberals should be reminding each other is that Bush is shrewd, crafty, cunning and ruthless.

Like lots of good old boys in the South, George W. Bush wants us, as he himself says, to "misunderestimate" him. And whenever we do that, he takes advantage of us, time and time again. Ann Richards misunderestimated George W. Bush and she got booted out of the Texas governor's mansion. Al Gore misunderestimated Bush and he ended up losing the presidency not once but twice, once in November 2000 and once again in December.

I'm a liberal, and an academic, and I know that both groups tend to look up to expertise. They admire people who know the facts and have a firm grasp of the important issues of the day. But that's not the only kind of smarts in the world. In his own way, Bush is as clever a politician as Bill Clinton was, although his style is different in important respects. What he understands is not policy but power: how to get it, how to keep it, and how to wield it. That's why his White House is secretive and disciplined almost to the point of parody, and that's why he keeps getting his way even though he can't talk about the most basic policy debates without stumbling. He leaves policy to the wonks and intellectuals he despises. He's after bigger game: political control. While you have a good laugh making fun of how he mispronounces words and mangles policy questions, he's going to use every trick in the book to bury you. And believe me, he knows a lot of tricks that you don't. It's time to take this guy seriously. Telling yourself how stupid Bush is may be a good way to make yourself feel better about the fact that you are out of power. But it's not going to help you defeat him in November.


JB

Mass SJC Forces the Issue and Bungles the Job

The Massachusetts Supreme Judicial Court today stated in an advisory opinion that a civil unions bill that gave same sex couples substantially all of the same rights as opposite sex couples did not comply with its previous ruling in Goodridge v. Department of Public Health.

I support the idea of same sex marriage as a matter of legislative policy, but I have a bone to pick with what the SJC did here. Through its two opinions it has sent conflicting signals that may have ultimately damaged the cause of gay rights. Here's why.

After holding that Masschusetts' existing law was unconstitutional for excluding same sex couples, the SJC could simply have awarded marriage licenses to the plaintiffs. Instead it refused to do so, staying its mandate until the middle of May (May 17th, the 50th anniversary of Brown v. Board of Education, by the way) for the Massachusetts Legislature to respond.

This feature of the opinion confused many people. It seemed to signal that the legislature would be free to experiment with different solutions, including possibly a civil unions law like the one passed in neighboring Vermont. The purpose of giving the issue back to the legislature, many people assumed, was to allow the legislature to debate the issue, and reach a political compromise instead of the SJC forcing the issue. The idea would be to make the same-sex marriage bill a product of a democratic process rather than a court mandate. When courts make important and controversial decisions, they are on firmest ground when they act with the blessing of the legislature. What legislatures do often ratifies what courts have done before. For example, the Civil Rights Act of 1964 effectively ratified the Court's 1954 decision in Brown v. Board of Education, making opposition to segregation not only the demand of the Supreme Court but also official U.S. legislative policy. It was the Civil Rights Act of 1964, and not Brown, that did the most to desegregate the South.

The Supreme Judicial Court of Massachusetts might have tried, as the Vermont Court did, to coax the state legislature into ratifying its decision by passing a bill based on the Legislature's own judgment about the best way to enforce the Court's order. But in its latest opinion, the SJC has essentially said that there is only one way to enforce its order. It has given the legislature no discretion at all. It has insisted on what is effectively a rubber stamp, which will achieve no additional democratic legitimacy.

Indeed, having issued its advisory opinion today, it is now clear that there was no particularly good reason for delaying its mandate in the original Goodridge opinion. It might as well have just issued marriage licenses to the plaintiffs in the first place. (To be sure, the Court might have feared that issuing the mandate immediately would be interpreted as striking down the marriage laws in Massachusetts, but that is not the only possible remedy and the Court could have dispelled any confusion on that score). In effect, the SJC has made any attempt at dialogue with the Massachusetts legislature into a sham.

Not surprisingly, many Massachusetts legislators who would have supported a civil unions bill now will vote for a amendment to the Massachsetts state constitution defining marriage as the union of one man and one woman. Such an amendment could not take effect until at least 2006. Nevertheless, the Court has wasted an opportunity to get half a loaf (and possibly a full one) when it may well end up with none in the long run.

The SJC may have been gambling that by forcing the issue, tempers will eventually cool and the residents of Massachusetts will come to accept same sex-marriage. That may turn out to be the case. Or it may not. But the Court shouldn't send out confusing signals in the way it has done. It either should have issued marriage licenses last fall or it should have allowed the Massachusetts legislature to come up with a solution with some democratic legitimacy. It has done neither, and in this respect it has made a grievous political error that may ultimately undermine its authority and lead to the overturning of its Goodridge decision.

It is possible that the Court will not have to pay for its political mistake. The Massachusetts Legislature may pass a same sex marriage act and the proposed amendment may fail. But if the amendment passes, it will be the Supreme Judicial Court's fault for bungling the situation.

A final word about the national implications of this decision. It may look at first as if this decision harms the Democrats, as President Bush will be able to run against what the SJC has done. But in fact it may have the opposite effect. Bush has tried to avoid directly stating that he supports the Federal Marriage Amendment (which I have analyzed in previous posts, here and here). He has inched toward endorsing it without doing so directly because he fears that endorsing it will make him look intolerant to swing voters. But the SJC's decision will result in increased pressure from social conservatives in the party to come out firmly in favor of the FMA. Thus, the SJC may have simultaneously made things difficult for both the Democrat nominee and for President Bush.



Tuesday, February 03, 2004

JB

AWOL Controversy Heats Up

Although the Bush was AWOL story was circulating in the blogosphere for sometime, it took Terry McAuliffe's statement on Sunday to put it in the mainstream press. Dan Froomkin has the details. There's also this story in today's Washington Post. The folks at factcheck.org conclude that "Bush was honorably discharged without ever being officially accused of desertion or being away without official leave." (emphasis supplied). Of course, not being officially accused of something is not quite the same thing as not having done it. And the real story here is whether the same preferential treatment that got Bush what was then a conveted position in the Texas National Guard (and a position in flight training school after he had received the lowest possible score for admission) also resulted in Alabama National Guard officials conveniently looking the other way when he disappeared for long stretches of time. There is also the fact that he was grounded in August 1972 because he failed to complete an annual medical exam.

If Bush consented to release his military records, as all candidates have done in the past, they would shed some light on these questions, and possibly resolve the controversy once and for all. However, Bush has refused to make his military recorts public, calculating that the controversy ultimately will die down without his having to make any disclosures that might be personally embarassing to him.

Ultimately, I think, this controversy will not by itself prove decisive. It will matter to the extent that it resonates the with public's other doubts about Bush's character, honesty, and his Administration's penchant for secrecy and dissembling. It is much more important that the President is keeping many other things secret and is stonewalling other investigations-- including the work of the 9/11 Commission, whose findings about preparedness might be much more embarassing to his Administration.



JB

Symbolic Savings, Gargantuan Giveaways

This Washington Post story on Bush's proposed budget confirms my suspicions about Bush's political strategy. To please his right wing he is proposing cuts in a whole host of social programs which will actually add up to a comparatively small amount (less than one percent of the predicted budget deficit of 521 billion dollars) while at the same time accelerating military spending (read here defense contracting) and lowering taxes yet again for the wealthy. It's pure symbolic politics that has nothing to do with fiscal discipline. By selectively picking out and gutting programs that his conservative base identifies with a liberal social agenda, President Bush he appears to stand for budgetary restraint and for making tough decisions about government expenditures when in reality he is running enormous deficits and lining the pockets of his wealthiest supporters.




Monday, February 02, 2004

JB

Halliburton's Happy Meals

A real bargain.

Harry Truman once equated various forms of war profiteering with treason. As a senator from Missouri he vigorously investigated defense contractors during World War II even while the Democrats were in the White House.

Isn't it time for a Truman Commission to investigate how much money the President's and Vice-President's friends have made off of Iraq? And shouldn't the President be the first person to call for such an investigation? Do you think there's any chance that he will?


JB

Shameless

Reuters reports:

Boxed in by a record $521 billion deficit, President Bush (news - web sites) will propose a $2.4 trillion election- year budget on Monday that will cut dozens of government programs and set deficit-reduction goals that even fellow Republicans are skeptical he can meet.

Bush has seen a dramatic deterioration in the nation's budget picture since a record surplus was reported in 2000. He hopes to improve his fiscal image before the November presidential election by promising to reduce the deficit by one-third by 2005 and by more than half within five years.

But fiscal conservatives in both parties have doubts Bush can deliver. He will leave out of his fiscal 2005 budget the tens of billions of dollars that will almost certainly be needed next year to keep U.S. troops in Iraq (news - web sites), as well as a costly tax system overhaul that Republicans and Democrats say will soon become politically imperative to keep taxes from rising on the nation's middle class.

In line with Bush's election-year priorities, homeland security and the military will be the budget's biggest winners. Defense contractors including Lockheed Martin Corp., Boeing Co., Northrop Grumman Corp., Raytheon Co. and General Dynamics Corp. stand to benefit as Bush's $401.7 billion military budget sharply increases spending on missile defense and on modernizing the Army.

The biggest losers will be environmental, agricultural and energy programs. Facing the prospects of a revolt by fiscal conservatives, Bush will call for limiting growth in discretionary spending -- outside of homeland security and defense -- to just 0.5 percent. Because that is well below the rate of inflation, it will amount to a cut in domestic programs.

In a tacit acknowledgment that deficits are here to stay, Bush will set the goal of bringing this year's record $521 billion shortfall down to $364 billion in fiscal 2005 and eventually to $237 billion in fiscal 2009. There is no talk of returning to surpluses in the foreseeable future.


Oh, and by the way, while he's running up those huge deficits, he also wants to wants to make the tax cuts that caused the problem permanent.




Sunday, February 01, 2004

JB

Oh My Freaking Goodness!

The Chairman of the Democratic Party is actually attacking President Bush on his military record, the New York Times reports. Instead of cowering in the corner when the media said that the charge of desertion was false, Terry McAuliffe is raising the more plausible question whether the President was AWOL while in Alabama. Nevertheless, it is particularly strange to me that McAuliffe chose to break this story on Super Bowl Sunday, which is not a good time to cover a political event.

The Times reports that Terry McAuliffe's statement "came two days after a scathing attack on President Bush's war record, delivered by Senator Max Cleland of Georgia on behalf of Mr. Kerry." Cleland said "Mr. Kerry was "a real deal" and President Bush was "a raw deal." He added, "We need somebody who felt the sting of battle — not someone who didn't even complete his tour stateside in the Guard.""

What is remarkable is that the Dems are making such a gamble now when the issue was first raised in June of 2000. By having the Chairman of the Democratic Party take up this line, they are making it impossible for the media not to pay attention to it. Of course, it may seriously backfire, if it turns out that Bush's unexplained absences were accounted for. But even if Bush made up the lost time later, (as the New York Times suggested in November 2000, see my previous post here) the real issue will be (1) whether he used his family connections to get special treatment that allowed him to make up the lost time that would not have been extended to the average Joe, and (2) whether there is a reason why he would not submit to a physical examination for a substantial period of time during his National Guard service. (In fact, Joe Conason reports that Bush was eventually grounded because he wouldn't submit to a physical examination.). The key issues, therefore, are not whether Bush met the technical definition of AWOL (for he might have made up the lost days later on) but the use of family connections to get special treatment and the refusal to take a physical exam. It will be interesting to see whether the media picks up on these features of the controversy or buries them.

I had long expected that this was going to be the dirtiest presidential campaign since 1988, when Lee Atwater pounded Michael Dukakis into the ground. I had no idea that the Dems would be giving back as good as they get.



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