Monthly Archives: October 2006

Statement by Mike Stark

Mike Stark wrote a letter about his assault by three men (who appear to have been George Allen staff members, although that’s not entirely clear to me); the letter is posted at NBC29:

My name is Mike Stark. I am a law student at the University of Virginia, a marine, and a citizen journalist. Earlier today at a public event, I was attempting to ask Senator Allen a question about his sealed divorce record and his arrest in the 1970s, both of which are in the public domain. His people assaulted me, put me in a headlock, and wrestled me to the ground. Video footage is available here, from an NBC affiliate.

I demand that Senator Allen fire the staffers who beat up a constituent attempting to use his constitutional right to petition his government. I also want to know why Senator Allen would want his staffers to assault someone asking questions about matters of public record in the heat of a political campaign. Why are his divorce records sealed? Why was he arrested in the 1970s? And why did his campaign batter me when I asked him about these questions.

George Allen defends his support of the Iraq war by saying that our troops are defending the ideals America stands for. Indeed, he says our troops are defending our very freedom. What kind of country is it when a Senator’s constituent is assaulted for asking difficult and uncomfortable questions? What freedoms do we have left? Maybe we need to bring the troops home so that they can fight for freedom at George Allen’s campaign events. Demanding accountability should not be an offense worthy of assault.

I will be pressing charges against George Allen and his surrogates later today. George Allen, at any time, could have stopped the fray. All he had to do was say, “This is not how my campaign is run. Take your hands off that man.” He could have ignored my questions. Instead he and his thugs chose violence. I spent four years in the Marine Corps. I’ll be damned if I’ll let my country be taken from me by thugs that are afraid of taking responsibility for themselves.

It just isn’t the America I know and love. Somebody needs to take a stand against those that would bully and intimidate their fellow citizens. That stand begins right here, right now.

W. Michael Stark

Posted in Politics: The Party of Sleaze | 3 Comments

Ask George Allen a Question, Get Beat Up

A first-year law student at the University of Virginia tried to ask George Allen some questions the senator didn’t like. So three big guys with Allen stickers on — staffers? — beat the guy, wrestled him to the ground, and nearly put his head through a glass door.

This news account on YouTube calls it a “fight” but if you look at the video the victim did nothing but ask questions — all the violence is on the Allen team side. Click below to see for yourself:

The shirts are not brown, but the spirit is there. I wonder if there’s any connection between the Allen staff’s frayed tempers and the latest poll, showing Webb at 50% and Allen at only 46% — within the margin of error, but Webb’s first lead nonetheless. [Update: Actually there are four polls now showing Webb ahead, but all within the margin of error.]

[Update (2): More details at The Carpetbagger]

[Update (3): Sen. Allen's reaction to the incident? "These things happen."

I guess that is true, especially when the candidate is one who says stuff like, "Let's enjoy knocking their soft teeth down their whining throats."

The victim, incidentally, is named Mike Stark. In addition to be a 1L at UVa (whose graduates include... Senator Allen), he's a former Marine, and has a blog.]

Posted in Politics: US: 2006 Election | 6 Comments

Some ‘Uniter’

The Post is good at stenography, so I guess he really said it.

Bush Says ‘America Loses’ Under Democrats: “However they put it, the Democrat approach in Iraq comes down to this: The terrorists win and America loses,” Bush told a raucous crowd of about 5,000 GOP partisans packed in an arena at Georgia Southern University in Statesboro, one of his stops Monday. “That’s what’s at stake in this election. The Democrat goal is to get out of Iraq. The Republican goal is to win in Iraq.”

Seven more days until the election, and the polls are still trending against the GOP in most (but not all races), so in all likelihood they haven’t hit the bottom of their barrel yet.

What a thought.

Posted in National Security, Politics: US: GW Bush Scandals | 1 Comment

Google-YouTube Deal Structured to Screw Authors?

It’s an anonymous source, but a pretty plausible sounding story. As recounted at Blog Maverick, Some intimate details on the Google YouTube Deal, the Google buy of YouTube was heavily driven by copyright concerns. That’s why YouTube needed to sell, that’s why a huge pot of money was set aside for liability concerns, that’s why the money is going to be shared with content companies in a way that ensure the authors won’t see any royalties, and that’s why there’s a secret deal to make the content companies lay off YouTube for six months — while they are encouraged to sue everyone else in the same business and thus help drive YouTube’s competitors into the ground.

Here’s just part of the fascinating story:

It didn’t take a team of Harvard trained investment bankers to come up with the obvious solution and that is to set aside a portion of the buyout offer to deal with copyright issues. It’s not uncommon in transactions to have holdbacks to deal with liabilities and Youtube knew they had a big one. So the parties (including venture capital firm Sequoia Capital) agreed to earmark a portion of the purchase price to pay for settlements and/or hire attorneys to fight claims. Nearly 500 million of the 1.65 billion purchase price is not being disbursed to shareholders but instead held in escrow.

While this seemed good on paper Google attorneys were still uncomfortable with the enormous possible legal claims and speculated that maybe even 500 million may not be enough – remember were talking about hundreds of thousands of possible copyright infringements. Youtube attorneys emphasized the DMCA safe harbor provisions and pointed to the 3 full timers dedicated to dealing with takedown notices, but couldn’t get G comfortable. Google wasn’t worried about the small guys, but the big guys were a significant impediment to a sale. They could swing settlement numbers widely in one direction or another. So the decision was made to negotiate settlements with some of the largest music and film companies. If they could get to a good place with these companies they could get confidence from attorneys and the ever important “fairness opinion” from the bankers involved that this was a sane purchase.

Armed with this kitty of money Youtube approached the media companies with an open checkbook to buy peace. The media companies smelled a transaction when Youtube radically changed their initial ‘revenue sharing’ offer to one laden with cash. But even they didn’t predict Google would pay such an exorbitant amount for Youtube so when Youtube started talking in multiples of tens of millions of dollars the media companies believed this to be fair and would lock in a nice Q3/Q4. [Note to self: Buy calls on media companies just prior to Q3/Q4 earnings calls.] The major labels got wind that their counterparts were in heated discussions so they used a now common trick a “most favored nation” clause to assure that if if a comparable company negotiated a better deal that they would also receive that benefit. It’s a clever ploy to avoid anti-trust issues and gives them the benefit of securing the best negotiating company. They negotiated about 50 million for each major media company to be paid from the Google buyout monies.

The media companies had their typical challenges. Specifically, how to get money from Youtube without being required to give any to the talent (musicians and actors)? If monies were received as part of a license to Youtube then they would contractually obligated to share a substantial portion of the proceeds with others. For example most record label contracts call for artists to get 50% of all license deals. It was decided the media companies would receive an equity position as an investor in Youtube which Google would buy from them. This shelters all the up front monies from any royalty demands by allowing them to classify it as gains from an investment position. A few savvy agents might complain about receiving nothing and get a token amount, but most will be unaware of what transpired.

Tell me that romantic story again, the one about copyright law being for the benefit of the authors.

Posted in Law: Copyright and DMCA | 2 Comments

The Wayback Machine Is Elsewhere

I’m a big fan of Archive.org and especially of the web-indexing project it calls the Wayback Machine.

How odd, though, to find that the Wayback Machine hasn’t visited discourse.net since March 26, 2005.

Do you suppose I offended it?

Posted in Internet | 1 Comment

What He Said

The Carpetbagger has today’s best one-liner in a long and worthwhile post about the scandal of the US sending weapons to Iraq which then vanish without a trace — or even an attempt to trace them:

There’s some irony, I suppose, in the fact that we went to Iraq to find Saddam’s weapons that weren’t there, and ended up losing track of our own weapons that were there.

Posted in Iraq | Leave a comment

Crazy Times (Martial Law Edition)

I've mentioned before that we live in crazy times, that so many things which seemed politically impossible now seem at least possible, and that those of us who take freedom seriously have to worry about stuff we'd have laughed off a decade ago.

I'm reminded of this by two things which at first may seem unrelated: an incident involving an attempt to incite the arrest of Michael Schiavo and an amendment to the (former) Insurrections Act, which has now morphed into an act regarding “Enforcement of the Laws to Restore Public Order,” an amendment which has sparked a remarkable amount of blog angst about possible martial law.

First, there's this I-wish-it-were-incredible story from Michael Schiavo, the husband of Terry Schiavo, who has been dedicating himself to going around the country supporting opponents of the legislators who tried to federalize his wife's hospitalization.

My unreal night in Colorado: Back in mid-July I travelled to Colorado and delivered a letter to Congresswoman Musgrave's office. asking her why she felt compelled to interfere in my family's personal affairs – questioning, in fact trying to refute the medical facts of my wife's case on the floor of Congress.

Not surprisingly, Marilyn Musgrave never responded to my letter.

So on Tuesday I joined about 1,000 citizens and members of the local and regional media in the Windsor High School Auditorium to hear the debate and try to get an answer to my question from Congresswoman Musgrave.

About twenty minutes before the debate started and after speaking to several reporters about how Musgrave had voted to transform her values into our laws, I took a seat in the front row. As it turned out, I was seated next to the timekeeper who held up yellow and red cards to signal time to the candidates.

But just minutes after taking my seat, I noticed a flurry of activity around my seat including about four uniformed police officers who were – I would learn later – called in by Musgrave staffers and asked to remove me from the building.

At this point, I had made no speeches, I had no signs, had made no attempt to disrupt or cause any commotion. I only came into the auditorium, spoke to a dozen or so reporters and took a seat.

To their credit, the police refused the Musgrave campaign's appeal to have me removed.

There's more to come, but I still can't get over even that part. A sitting member of Congress asked the police to remove me – a taxpaying citizen – from a public debate. Obviously, I misunderstand the concept of a political debate. I thought a debate was a place to share ideas, answer questions, defend your record and tell citizens what you've done and what you will do. Marilyn Musgrave believes, I have to gather, that debates are places to have the police remove people who don't agree with you.

(And why shouldn't Congresswoman Musgrave think that you can have your critics arrested? After all, it works for George Bush and Dick Cheney.)

Then there's this second thing, an amendment to 10 USC § 333, that significantly expands the circumstances in which the President can deploy the full armed forces — and federalize the state National Guard even over a local governor's objections. The old version of the Insurrection Act, along with the Posse Comitatus Act, sought to narrow Presidential power and localize the decision to use force. [UPDATE: For a tour de force introduction to the legal regime as it existed prior to this most recent amendment, see Steve Vladeck's amazing student note, Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004).]

Some of the circumstances the law addresses are pretty clear — “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident,” — even if not necessarily keeping with our traditions of civilian law enforcement and federalism.

But some are pretty vague: The President can call out the full military might of the US (and remove the governor's control of local forces), whenever he thinks that “any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy” in a state has resulted in situation that,

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

But here's the thing: the section quoted above, the vaguest and broadest part of this statute, the very part that has some folks worrying out loud about martial law, is pretty much the same as the old language, which allowed the President to call out the troops to,

suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Laws like this are always troubling because there is no practical way to challenge their application. Unless it were willing to strike down the statute as a standardless delegation — a nearly moribund doctrine — it is very hard to see a court telling the President that, say, the chaos in New Orleans after the flood, or even the limited violence in Florida in 2000 when GOP operatives attacked the ballot counters, didn't rise to a level that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The courts are going to label that a political question, or find some other excuse for the courts to duck the matter.

But while this sort of executive discretion is always a problem for democratic rule, as I hope I've shown by juxtaposing the old language and the new it's not a new problem, not at all.

You might wonder why people got all excited about this today, when similar language has been on the books for quite a long time. Some people might just dismiss it as hysteria, a sort of left-wing or libertarian-right-wing paranoia. I think it's subtler than that.

What's new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system; this doubt has a large number of people starting at shadows. In one sense that doubt is a beautiful thing: it is part of a free people's antibodies against tyrants. We need to respect that feeling, even while being annoyed about the extra work vigilance imposes on us.

Finding the precisely appropriate dose of concern is a difficult calibration exercise. In that context it is important to understand that the case of Michael Schiavo has two lessons: on the one hand, part of the current ruling cabal mistook our government for a revolutionary junta. On the other hand, the local police had the good sense not to listen.

Emergency federal powers of the type set out in § 333 are scary in part because they threaten to displace the good sense and discretion of a few local cops with the necessarily more order-following tradition of the military officer on the scene. But in the main that's not a new problem, it's a very old one — one today that it is exacerbated by the attack on habeas corpus, and the administration's legal claims that it can jail any of us, any time, for as long as it wants — not to mention the administration's claim that it has the legal right to kill us.

In good times we just don't have to worry about that stuff. But these are crazy times, not good ones.

Full statutory text below the fold.

Continue reading

Posted in Civil Liberties, Politics: Tinfoil | 7 Comments