The parties are advised to chill.
Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002)

Monday, February 27, 2006
A Hot (Import) Night In San Jose - A Pictorial

(Note - this is a graphics- and movie-heavy post. If the link says "movie," don't be a dick - right-click. And select "Save Target As..." Thanks.)

I've been getting into the import car scene recently. I know, I'm a little past the target age range, i.e., early 20s spiky hair and a car sporting an exhaust the size of Alaska, but I find it interesting how people personalize their cars. I find it hard to explain to my peers up here - perhaps it's a Southern California, car-as-lifestyle sort of thing.

As a result, I found myself going to Hot Import Nights in San Jose last Saturday. For those of you who don't know, it's a car show that goes from city to city, featuring modified cars, models, and DJ and live music.

It was quite impressive just to see a whole bunch of modified and tricked out cars driving around on the streets, much less inside - I remember in particular a group of about 4 or 5 Eclipses heading down the street, single-file, exhausts roaring. Then I went inside.

There were a ridiculous number of cars, several of which sported an astonishing array of decals. Other cars had a cleaner look to them, and some, like this Scion xB, were extensively outfitted with electronics. And it wasn't even all Japanese cars - there were quite a few cars from various Teutonic manufacturers, including this Porsche with amps under the hood. Owning a G myself, I found myself looking for various specimens, including this fiery looking one, one with an incredibly ornate airbrushed hood, and one boasting a supercharger. There was even a truck or two.

Even the military showed up with their rides. I hate to tell this to Dan of the now-defunct Schadenfreude blog, but the Corps has you Army guys beat, especially with respect to combat trunk audio.

And, I suppose I should mention the women. There were quite a few good-looking women around, both spectators and models. I was pretty surprised concerning the former, since it's almost an article of faith among SoCal expats that the average in Northern California just isn't that great, comparatively speaking.

Many, though not most, of the models were posing withthe cars, as you might expect. Others were behind tables, signing autographs and meeting a surprisingly large number of fans. And at least one was dancing in a cage.

And, I met a couple of friendly models from this magazine. One of them got me signed up for a subscription - I figured that since I already bought the magazine on the newsstand, I might as well save some money (and get a free T-shirt). Yeah, I know, they're supposed to be friendly, but still, it was quite nice.

It suddenly occurs to me - it's a wonder all these models don't go deaf during the tour season, given that the volume was at 11 for approximately six hours.

There was also a dance contest, whch was quite impressive. Here's some links to some videos I shot:

Movie 1, 0:37
Movie 2, 0:27, 14.0 MB
Movie 3, 3:22
Movie 4, 1:30
Movie 5, 0:16
Movie 6, 0:21

Definitely worth 25 bucks, all things considered.


Posted 10:56 PM by Tony

Friday, February 24, 2006
Link Pointy Thing For The Day

The Car Connection had a contest for people to find funny street names. The AP has a list of the top 10:

10. Tater Peeler Road in Lebanon, Texas
9. The intersection of Count and Basie in Richmond, Va.
8. Shades of Death Road in Warren County, N.J.
7. Unexpected Road in Buena, N.J.
6. Bucket of Blood Street in Holbrook, Ariz.
5. The intersection of Clinton and Fidelity in Houston
4. The intersection of Lonesome and Hardup in Albany, Ga.
3. Farfrompoopen Road in Tennessee (the only road up to Constipation Ridge)
2. Divorce Court in Heather Highlands, Pa.
1. Psycho Path in Traverse City, Mich.

My personal favorite isn't even on the list. More weird road sign stuff here


Posted 7:32 PM by Tony


Obnoxiousness Is Not A High Crime

I never thought I'd be defending Red Ken, but his suspension from office based on his remarks is over the line (via SF Chronicle):

London Mayor Ken Livingstone was suspended from office for four weeks on Friday for bringing his office into disrepute by comparing a Jewish reporter to a Nazi concentration camp guard.

"His treatment of the journalist was unnecessarily insensitive and offensive," said David Laverick, chairman of the Adjudication Panel for England, the disciplinary panel which ruled on the case.

Offensive, yes. Obnoxious, also yes. Stupid, hell yes. But to suspend someone from office based on an off-the-cuff remark is an absurdity. This is the sort of thing for public opinion, not official action. But then again, I feel that official policing of speech is a generally dumb idea.

And the nice thing about not having speech codes in place is that it allows us to identify particularly stupid local officials, such as Supervisor Gerardo "I don't think we should have a military" Sandoval.*
-----
* Speaking of whom, it's pretty bad when even much of the Bay Area disagrees with you. Sandoval later attempted to justify his comments by saying he was arguing against a standing army. Unfortunately, his analysis is pretty ahistorical. For instance, while we did manage "to mobilize and decisively defeat Germany and Japan, two countries with deeply militaristic traditions," our lack of preparedness at the outset generated a much higher cost in human life than otherwise, for a number of reasons that I won't get into here. Sandoval also ignores the fact that the United States has deployed its military in foreign expeditions for the last couple hundred years, as detailed in Max Boot's "The Savage Wars of Peace".


Posted 7:12 PM by Tony

Tuesday, February 21, 2006
Weirder And Weirder

So the state is holding off on executing Michael Morales for another few months. This case gets weirder and weirder.

Recently, we've seen former independent counsel Ken Starr work on Morales's behalf, the apparent submission of forged documents in support of the petition, a letter for clemency to Governor Schwarzenegger, the governor's rejection of the petition, and Judge Fogel's Valentine's Day opinion addressing the following:

Rather, the discrete issues in the present action are whether or not there is a reasonable possibility that Plaintiff will be conscious when he is injected with pancuronium bromide or potassium chloride, and, if so, how the risk of such an occurrence may be avoided.

I suppose concern over a humane execution (if that isn't an oxymoron - see, e.g., the history of the guillotine) is laudable, but it's hard for me to care, under the circumstances:

Ortega picked [17 year old victim Terri Lynn Winchell] up around 6 p.m. In the back seat was Morales, with a claw hammer, a belt and a 7-inch kitchen knife hidden and ready. He was already stoned and agitated from guzzling cheap Thunderbird wine and smoking a PCP-laced cigarette.

As night fell and the Central Valley tule fog formed, Ortega drove his car out of Lodi along lonely Peltier Road. According to court records, they were a few miles out of town when Morales suddenly cinched his belt around Winchell's neck and began strangling her. She fought back fiercely. The belt broke, so he pulled out the hammer and began bashing her head.

"She screamed for Ortega to help and attempted to fight off the attack, ripping her own hair out of her scalp in the struggle," according to a state attorney general's account. Ortega ignored her pleas and as Morales told him to keep driving he smashed her 23 times in the head, crushing the base of her neck and bloodying her arms and hands as she tried to ward off the blows.

By the time Ortega pulled over at the corner of Bender and Peltier roads, 7 miles outside Lodi, Winchell was unconscious and slumped against the passenger door. According to investigators, Morales hopped out of the car, and saying it was a shame to waste "a good piece of ass," he told Ortega to leave the two of them, drive away and come back in 15 minutes.

Morales dragged the still-unconscious Winchell face-down across the road into a vineyard. There, in the chilly darkness, he stripped her of everything but her sweater and bra, which he pulled up to her neck. Then he flipped her onto her back and raped her in the dirt.

Just before he headed back to the road, he plunged his knife four times into her chest to make sure she was dead.


Posted 8:39 PM by Tony


Puncturing The Myth In Five Paragraphs

Alvaro Vargas Llosa on Che Guevara, in the SF Chronicle:

How many people were killed at La Cabaña [administered by Guevara]? Vilasuso told me that 400 people were executed between January and the end of June in 1959 (at which point Guevara ceased to be in charge). Secret cables sent by the American Embassy in Havana to the State Department in Washington spoke of "over 500."

Which brings us to Carlos Santana and the chic Che gear he wore to perform at last year's Academy Awards ceremony. In an open letter published in Miami's El Nuevo Herald last year, the great jazz musician Paquito D'Rivera castigated Santana for his Oscars costume and added: "One of those Cubans [at La Cabaña] was my cousin Bebo, who was imprisoned there precisely for being a Christian. He recounts to me with infinite bitterness how he could hear from his cell in the early hours of dawn the executions, without trial or process of law, of the many who died shouting, 'Long live Christ the King!' "

Che Guevara's lust for power had other ways of expressing itself besides murder. His megalomania manifested itself in the predatory urge to take over people's lives and property. This obsession with collectivist control led him to collaborate on the security apparatus that was set up to subjugate 6.5 million Cubans.

The first forced labor camp, Guanahacabibes, was set up in western Cuba at the end of 1960. Said Guevara: We "only send to Guanahacabibes those doubtful cases where we are not sure people should go to jail ... people who have committed crimes against revolutionary morals, to a lesser or greater degree."

This camp was the precursor to the systematic confinement of dissidents, homosexuals, AIDS patients, Catholics, Jehovah's Witnesses and Afro-Cuban priests. Herded into buses and trucks, the "unfit" were transported at gunpoint into concentration camps organized on the Guanahacabibes mold. Some would never return; others would be raped, beaten or mutilated; most would be traumatized for life.

The Chronicle piece is actually a shorter version of a piece available here. For more on La Cabaña, there's this, this, and for those of you who read Spanish (I do not), this.

Cynic that I am, I'm a little surprised that there aren't more T-shirts celebrating Kim Il Sung or Kim Jong Il, (as opposed to celebrating North Korea), given that each of them give Guevara and Castro a run for the money.


Posted 7:29 PM by Tony


Working For The Man

Babablu points to a West Point site on al Qaeda. The documents summarized include an employment contract from al Qaeda:

Salary, vacation, and home leave travel benefits are specified for married and unmarried personnel. Procedures for handling grievances and disputes are established in accordance with Islamic Law.

I suspect the organization's health care plan may leave something to be desired, though.


Posted 6:45 PM by Tony


A Late Valentine's Post

So, I went on a date last Monday (which is astonishing for varied and sundry reasons we need not get into here). You know nothing's going to happen when the word "friendship" comes up at the end of the evening.

Back to the drawing board...


Posted 6:36 PM by Tony

Thursday, February 16, 2006
So Who's Up For Another Silly Internet Quiz?

I always wondered what sci-fi crew I'd end up in:

You scored as Serenity (Firefly). You like to live your own way and donâ??t enjoy when anyone but a friend tries to tell you should do different. Now if only the Reavers would quit trying to skin you.

Serenity (Firefly)

94%

Moya (Farscape)

81%

SG-1 (Stargate)

75%

Babylon 5 (Babylon 5)

69%

Nebuchadnezzar (The Matrix)

69%

Bebop (Cowboy Bebop)

56%

Millennium Falcon (Star Wars)

56%

FBI's X-Files Division (The X-Files)

56%

Galactica (Battlestar: Galactica)

56%

Enterprise D (Star Trek)

44%

Deep Space Nine (Star Trek)

44%

Andromeda Ascendant (Andromeda)

38%

Your Ultimate Sci-Fi Profile II: which sci-fi crew would you best fit in? (pics)
created with QuizFarm.com

Shiny.

At least it's not Star Wars


Posted 7:34 PM by Tony


Dear Al,

You suck. That's pretty much it.


Posted 6:53 PM by Tony


Ego + Crazy = Fun Times All 'Round

There's a quote by PJ O'Rourke in his book "Holidays In Hell," which was published way back in the late '80s:

The old woman was not only ugly with the ugliness age brings us all but showed signs of formidable ugliness by birth - pickle-jar chin, mainsail ears and a nose like a trigonometry problem. What's more, she had the deep frown and snit wrinkles that come from a lifetime of bad character.

I was reminded forcibly of that passage when I saw these entries at Flopping Aces and Sparks From the Anvil. Apparently, she's pissed that the president passed her over at a press conference:

"He's a coward," Thomas said afterward. "He's supposed to be this macho guy. He'll take on Osama bin Laden, but he won't take me on."

Thomas, who worked as the UPI White House reporter for 57 years and is now a columnist, raised her hand every time the president was concluding an answer to a reporter's question, but he never called on her.

Thomas, who worked as the UPI White House reporter for 57 years and is now a columnist, raised her hand every time the president was concluding an answer to a reporter's question, but he never called on her.

ÊShe had a few questions in mind, though. "I wanted to ask about Iraq: 'You said you didn't go in for oil or for Israel or for WMDs. so why did you go in?' "

She also had another question at the ready, just in case, this one about the president's contention that a 28-year-old wiretapping law known as FISA is out of date, which prompted him to order the National Security Agency to conduct a secret electronic surveillance program that Democrats contend is illegal.

"You keep saying it's a 1978 law, but the Constitution 200 years old. Is that out of date, too?"

Ex-Donkey points out just how dumb Thomas's Iraq question is. I want to address her comment comparing FISA to the Constitution.

The Constitution is supposed to set forth a general set of fundamental operating principles as to how we goven ourselves. Statutes, on the other hand, are drafted to address specific situations - changes in the situation over time may necessitate changes in the law. The difference explains why changing the Constitution is a lot more unwieldy that passing a statute.

What amused me is that Thomas still maintains the facade that she was a neutral reporter of of events, in her somewhat truncated interview with Hugh Hewitt:

HT: No, I consider myself a very straight and fair reporter.

[ . . . ]

HH: But that's not what I'm...I'm asking if you like him [the president]?

HT: I don't think that has anything to do with it.

HH: But why not tell me if you don't?

HT: What does it matter?

HH: Well, it might affect your reporting.

HT: Why isn't...that...because that isn't the way reporters operate. We operate on the news and on the facts.

[ . . . ]

HH: Why should you guys have a special position in the White House press corps that you don't have to answer questions [about who you voted for]?

HT: Because in journalism, you're supposed to play the story straight, whatever the facts are, and we're doing that.

Sure. Which would explain her pique over not being called on in a press conference. Or, more generally, the "fake but accurate" standard of reporting, and stuff like CNN quashing negative stories about Saddam Hussein's regime.

Perhaps I'm being overly critical. After all, it has been a tough three years, what with a White House unwilling to indulge her ego.


Posted 5:48 PM by Tony

Tuesday, February 14, 2006
Okay, That Was Unexpected

Now that's something one doesn't expect to see - a piece by the National Review's Jonah Goldberg in Sunday's SF Chronicle:

The riots and demonstrations across the Middle East and Western Europe (though not yet playing here) over some cartoons of the Muslim prophet Muhammad have set off a parallel intellectual riot in the West over the nature of free speech and free expression. Many pundits and editorial writers have worked feverishly to keep this a debate about the propriety of running cartoons. Some news outlets are updating their procedures so as not to offend "religious" sensibilities in the future.

The quotation marks around the word "religious" should say it all. We're not talking about "religion." We're talking about a specific religion -- Islam. Does anyone truly think that the burning of Danish embassies and calls for the "slaughter" of those responsible by Muslim protesters have really taught the BBC or the New York Times to be more polite to evangelical Christians or Orthodox Jews? Does anyone really think that Arabic newspapers -- often state-owned -- are going to stop recycling Nazi-era images of Jews as baby killers and hook-nosed conspirators because they've become enlightened to the notion that words can hurt? Considering that an Iranian newspaper just announced a contest for the best Holocaust cartoon, the odds seem slim. Besides, why belittle the Holocaust for something a Danish newspaper did? (Partial credit given for the answer: "It's always useful to pick on the Jews.")

Three points:
1) I'm reminded of a bit by PJ O'Rourke (can't find the quote right now), where he mentions that the phrase "Allah Akbar" is explained as meaning only that "God is Great," but one rarely hears Episcopalians screaming "God is Great" while in the process of killing unbelievers.
2) Nitpick - Iranians aren't Arabs, as far as I know.
3) Hamshahri may want to consider in its contest these cartoons over at IMAO.


Posted 7:16 AM by Tony

Monday, February 13, 2006
Dumb Quote Of The Day

From Gwyneth Paltrow:

I love living in the UK! Brits are far more intelligent and civilised than Americans.

This from someone whose roles have included a character named "Dixie Normous," and the, um, large woman in "Shallow Hal." While Brits may be "far more intelligent" than Americans, that may only apply to certain Americans living in the UK.


Posted 5:57 PM by Tony


Blog Pointer Of The Day

Check out The Korea Liberator, focusing on North Korea.

And I'm not just recommending it because they linked to me. :)


Posted 5:10 PM by Tony

Thursday, February 09, 2006
The Olympics

So, the Winter Olympics are upon us. I realize that it's odd for me to say so, but I'm mostly anticipating the curling events. The British team spent 22,000 pounds to develop a high-tech broom, so we'll see if that was money well-spent.

Good overview on the rules on the BBC web site.

In any event, all I can say is, go USA!


Posted 6:11 AM by Tony

Wednesday, February 08, 2006
Sophistry

The San Francisco Chronicle, while exercising its own questionable judgment about whether or not to publish the Jyllands-Posten editorial cartoons, asks a very good question:

Speaking by phone, AP executive editor Kathleen Carroll told The Chronicle, "The cartoons didn't meet our long-held standards for not moving offensive content. The AP is not just an indiscriminate warehouse for information. We put a lot of care into what we put on the wire."

Asked about the AP's use of images such as the 2004 photographs of civilian contractors slain in Fallujah, Carroll said, "Those were very different. We deal with a lot of very controversial content. Fallujah was a significant moment in the war -- the murder of these men who were not military soldiers was an indication of a significant turn in the story."

That, quite simply, is BS.

The same justification used in publishing the photos of the Blackwater contractors applies with even more force to the cartoons, i.e., "a significant turn in the story." Here, we have editorial cartoons that have led to riots in Muslim countries, and deaths in Afghanistan.* How is that not an "indication of a significant turn in the story"?

I note that, in contrast to the editorial cartoons, the Associated Press' Fallujah photos included pictures of the blackened, dismembered corpses of Americans hanging from a bridge. I further note that this is the same Associated Press that published a close-up photo of a street execution of an Iraqi election worker, and for that matter, Eddie Adams' famous photo of a street execution of a Viet Cong captain. I find that, in each of those, the offensiveness-to-newsworthiness ratio was a hell of a lot higher.**

Not that the Chroncle's treatment has been anything to write home about:

The Chronicle also chose not to reprint the cartoons.

"We always weigh the value of the journalistic impact against the impact that publication might have as far as insulting or hurting certain groups," said Chronicle Vice President and Managing Editor Robert Rosenthal. "In this case, we described the cartoons and felt that was sufficient."

The Internet arm of the Chronicle, SFGate.com, makes editorial decisions independently. A link to the cartoons was available Wednesday on the "World Views" international news blog.

That is, the only place where the cartoons are available in any media affiliated with the Chronicle is in one blog entry, which links to an external site.*** Interestingly, the SF Chrronicle did choose to run the one of the Fallujah photos. Tell me again about journalistic impact vs. hurting certain groups.

The article continues:

Whether this can be called censorship is also up for debate.

Mark Danner, professor at the UC Berkeley Graduate School of Journalism, thinks not.

"To call this only an issue of censorship is to oversimplify the weighing of values that is the day-to-day work of news judgment," Danner said.

"Balancing newsworthiness vs. the offense an image or story might cause readers is part of an editor's job -- and that holds for depictions of Jesus Christ or of Muhammad."

Here, I'd have to disagree. I don't recall ever seeing the news media refrain from showing images that would offend Christians, e.g., the depiction of the Virgin Mary made from elephant dung and cutouts of buttocks taken from magazines, And, I'm not saying that the media should have refrained in those instances, either. I just think there's a bit of a double standard going on.

-----
* As a side note, I am amused that Jacques Chirac is calling for calm, given his recent comments that France would use nuclear weapons to respond to terrorist strikes against French interests.

** By the way, when can I start rioting because I'm offended? After my countrymen get kidnapped and murdered, perhaps?

*** While we're on the topic of the Chronicle, here's a bit from the Chronicle's editorial from Sunday, which I found amusing:

THE CARICATURES of Muhammad that have ignited an international furor are offensive and recklessly off base in portraying the prophet as a terrorist. The cartoons lacked artistic merit or satirical sophistication. We have to wonder: What were the Danish cartoonists and the newspapers that originally decided to publish them thinking?

I've often thought the same thing about what the Chronicle chooses to publish.


Posted 8:29 AM by Tony


Pointy Link Thingy Of The Day

These are not the "insurgents" you are looking for.


Posted 7:42 AM by Tony

Tuesday, February 07, 2006
I Question The Timing

... to borrow from crack money manager (oh yeah, and DNC chairman) Howard Dean.

Now, there's the outrage over the Jylannds-Posten editorial cartoons that depict Mohammed (follow the links at Michelle Malkin's, who's been following the whole thing closely; also at Human Events, and Zombie has a historical perpective of Muhammed depictions over the ages). While I'm on the topic, damn that pig-f*cking two-faced cartoon fabricator Abu Laban, anyway.

But here's what I don't get.

The current festivities started at the end of last month. However, the cartoons were published September 30, 2005. So why now, four months after the event?

Ms. Malkin thinks the timing may relate to Iran's nuclear ambitions, and Denmark's accession to the chair of the UN Security Council. I don't know about that, since Denmark's tenure is only for the month of June.

Alhamedi thinks that our "friend" Saudi Arabia, which kicked things off by recalling its ambassador to Denmark, is responsible, to distract from the deaths of some 420 pilgrims during last month's hajj, and commented on extensively in the Middle East.

Curious, don't you think?

BTW, Kevin points out some additional protest slogans.


Posted 5:50 PM by Tony


Funeral Follies

I used to think of Jimmy Carter, "good person, bad president." I've long since been disabused of the former notion, given, among plenty of other things, his habit of humping the legs of every single lowlife dictator and terrorist group out there.

But Carter hit a new low today, as the Anchoress (via Instapundit) notes. In retrospect, I'm a bit surprised that Carter didn't just whip out his talleywacker and piss on Reagan's coffin during hte funeral - it would have been in character.

Remember when funerals were about commemorating the deceased, and that was all?


Posted 5:34 PM by Tony

Monday, February 06, 2006
21-10!

Woohoo!

For a different point of view, see here, and Seattle gripiness here. I didn't think the officiating was great, but I don't think it was outcome-determinative, either.


Posted 5:30 PM by Tony

Friday, February 03, 2006
Here We Go!

To see why, click here. And here. And here.

And one for the thumb.

And heh.


Posted 5:37 PM by Tony


I Don't Have The Stomach...

To listen to journalism's crazy aunt in the attic rante and rave, but for those of you who do, the SF Chronicle is hosting podcasts by Helen Thomas.


Posted 5:14 PM by Tony


Safety Tip For The Day

Don't loiter near Lawrence Livermore National Labs (via SF Chronicle):

Lawrence Livermore National Laboratory plans to install high-powered machine guns over the next few months capable of hitting land vehicles or aircraft almost a mile away in the event of a terrorist attack.

Known as Gatling guns because they are multi-barreled, like their 19th-century ancestors, they simultaneously fire 7.62mm bullets from six barrels at up to 4,000 rounds per minute, powerful enough to take down an enemy aircraft or helicopter, officials said.

[ . . . ]

Lab officials said several Gatling guns will be deployed at the lab, some mounted on vehicles and others at undisclosed fixed locations, but for security reasons declined to say exactly how many or when.

Woo.


Posted 8:23 AM by Tony

Thursday, February 02, 2006
Dear Messrs. Zane and Busey,

I have a simple question: are you freaking kidding me? From AP/AOL:

In the most expensive Turkish movie ever made [Valley of the Wolves Iraq], American soldiers in Iraq crash a wedding and pump a little boy full of lead in front of his mother.

They kill dozens of innocent people with random machine gun fire, shoot the groom in the head, and drag those left alive to Abu Ghraib prison - where a Jewish doctor cuts out their organs, which he sells to rich people in New York, London and Tel Aviv.

[ . . . ]

The movie's American stars are Billy Zane, who plays a self-professed "peacekeeper sent by God," and Gary Busey as the Jewish-American doctor.

Sigh.

Update: I forgot that, at the time of the July 4, 2003 incident, there was speculation concerning a plot to kill the mayer of Kirkuk, and that less than 3 months earlier, the 173rd had detained a dozen Turkish Special Forces troops in civilian clothes trying to sneak over the border. Oops.


Posted 8:13 PM by Tony


An Interesting Question

Is misattribution and unauthorized use of this photograph by Michael Yon absolved by a waiver? From Daily Southtown, via Mudville Gazette, by way of Instapundit:

Blogger Michael Yon snapped the photo May 2, 2005, moments after a suicide bomber attacked the unit he was embedded with. The little girl, Farah, died on her way to the hospital.

[ . . . ]

He never wanted it to get out. He told Army officials they could use the photo in internal training manuals. Instead, they put it on the news wires, originally attributing it only as a U.S. Army photo without Yon's name.

The Army's decision to release the photo has Yon, widely considered one of the most pro-military voices covering the war, readying a copyright infringement lawsuit.

In an Oct. 13 letter to Yon denying his request for compensation for the alleged infringement, Army intellectual property lawyer Alan Klein wrote that Yon had given up his right for compensation when he signed the standard liability form all embedded journalists must sign.

The form states that Yon agreed to "release the (military) of any liability from and hold them harmless for any injuries I may suffer or any equipment that may be damaged as a result of my covering combat."

In his letter, Klein argues that an injury to Yon's copyright is the same as an injury to his leg or his camera.

The release frees the Army "from any liability for any injury he may suffer," Klein wrote. "The claimant asserts he was injured by the distribution of his copyrighted works to the news media. This release absolves the Army of any liability for that injury."

Now, I'm not aware of all the facts, but it sounds to me it boils down to what "injury" means, as it's used in the waiver. The Army is claiming that "injury," as used in the waiver, extends to not only physical injury, but also intangible injuries. Obviously, Yon doesn't believe that.

But does the Army?

From Chapter 4 of Field Manual FM3-61.1, Public Affairs Tactics, Techniques, and Procedures, found at GlobalSecurity.org:

4-46. Registration Requirements. The registration process is conducted in five basic steps:

Verify the identity of the media representative (including checking for valid passport/visa, professional media organization membership card, media ID card, other military press credentials, etc.).
Have them sign an agreement to abide by the established media ground rules for the operation in exchange for granting support, access to units, information and other privileges. If required, revoke credentials for those who violate the ground rules. (Enforcement of this requirement is essential.)
Have NMR [news media representative] agree to and sign a liability waiver that frees the military of responsibility if the NMR is killed or injured as a result of covering the operation. (An example of a waiver of liability is at Annex I).
Give NMRs proof of registration (memorandum, press badge or other identification).
Maintain a roster of registered NMRs and monitor their movements during the time they are receiving military support.

[emphasis added]

Look at the "killed or injured" language - the closeness of "killed" to "injured" suggests that this is only intended to apply to physical injuries. So it sounds like to me that the Army intends the liability waiver to apply to physical injury, and not to intangible injuries.

Appendix I of the manual contains an example of a liability waiver:

Whereby, I ____NAME___passport no:_____________ am about to travel with ___________forces, and whereas I am doing so entirely upon my own initiative, risk and responsibility; now, therefore, in consideration of the permission extended to me; I do hereby for myself, my heirs, executors and administrators, remiss, release and forever discharge ________ and its member officers, agents and employees acting officially or otherwise, from any and all claims, demands actions or causes of action, on account of my death or on account of any injury to me or my property which may occur from any cause during my stay, travel as well as all ground, flight or sea operations incidents thereto.

I also agree to withhold any classified information, which may be accidentally disclosed to me, and to respect embargo restrictions, which may be imposed on information which, if disclosed, may jeopardize operational security. During my stay with _______ forces, I will not interfere with operations. I understand that failure to comply with these security restrictions will result in the loss of authorization to accompany _______ and may result in cancellation of my press registration.

[emphasis added]

Again, given that "death" and "injury" are so close together, this suggests that the Army intended that "injury" is intended to apply to physical injuries, not intangible ones. Saying that this waiver applies to non-physical injuries seems like a bit of an unnatural reading of the liability waiver and the Army's own publications. If the liability waiver really does extend to both physical and intangible injuries, then the Army is potentially free from liability for other activities causing non-physical harm, such as defamation.

In any event, the Army is being a little silly with this, particularly given its initial misattribution of the photo.

Update: As V-Man notes in the comments, the dispute's been resolved. And a good thing, too.


Posted 7:39 PM by Tony


An Orange County native trapped in the SF Bay Area. Email at orblog-at-yahoo.com.

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