Friday, September 17, 2021

More -- On The Bio-Ethics -- Of "De-Extiction" -- Mammo-phants Edition: And Church's "Colossal'" Aims

I want to return to this sensational story -- as more and more tech focused outlets, and Bitcoiners in particular, are weighing in to say this is a good (or, at least "not so bad") idea. It happens that many of them -- or their parent/affiliated venture arms -- also happen to be investors in the "Neo-Jurassic Park" efforts. So do take their statements as. . . positively dripping, with financial self interest (directly, or indirectly).

For the more serious bio-sciences / bio-ethicists' side of the ledger, The Washington Post sent a reporter out to collect quotes. Here's a bit of that -- the WaPo's thoughtful piece -- on the bio-ethics:

. . .[The] idea has also generated a fierce ethical debate, not unlike the one that played out on movie screens years ago: Is this another case where scientists were so preoccupied with whether they could that they didn’t stop to think if they should?

“I’m quite leery of a technological fix for the problems we’ve created,” Wendling said. . . .

Christopher Preston, a professor of environmental ethics and philosophy at the University of Montana, questioned Colossal’s focus on climate change, given that it would take decades to raise a herd of woolly mammoths large enough to have environmental impacts and there are tried-and-true conservation tactics that need funding.

“We should be making sure those get enough resources, rather than getting taking our eye off the ball by the distraction of a project such as de-extinction,” he said. “It's very hard for me to think that the idea you could de-extinct a woolly mammoth is a technological fix for anything that needs fixing in the next century. . . .”

Paul Thompson, W.K. Kellogg Chair in Agricultural, Food and Community Ethics at Michigan State University, said. . . . there should be a high ethical bar when considering gene modification, and pointed to the controversy over the modification of plants, which prompted calls to label all foods containing genetically modified organisms or GMOs. He questioned whether creating a new species of “quasi-mammoths” is in the interest of the animals that would be created.

Thompson said biologists are still trying to uncover what makes some species invasive and others helpful to a new ecosystem, and said there’s a conversation to be had about whether introducing a woolly mammoth equates to introducing an invasive species. . . .

Of course, promoters of Colossal are given the closing quotes, urging CRISPR scientists to "stop wringing their hands" -- and just (effectively) "Slap it on a lunch-box" -- for kids, at a Siberian-tundra version of. . . Jurassic Park.

Gee -- where have I heard that before (credit Ian Malcolm)? Grinning. . . ever, grinning -- on a flawlessly fine Friday here.


Thursday, September 16, 2021

Peggy Noonan's Poor Take -- No, We Haven't Lost "The Thread"...

Ms. Noonan rarely writes much I agree with. No surprise.

But this bit is especially morose, dark and awful (even for her). She chastises 2021 America for not being more "unified" (compared to immediately after 9/11). From my perspective, there were some genuinely patriotic moments after 9/11 -- but the bulk of what was "unified" was a hatred toward a single, faceless "other". Demonized were all peoples who remotely looked to be from the middle east.

Unwittingly, one thing Tangerine helped real Americans see... was he helped all of us of good will, to see clearly how easy it is to make one American... turn on another.

His efforts at dividing us did not succeed -- but they did expose charlatans like Peggy Noonan -- for what they are: wanna-be goose-steppers.

She would prefer an America with a single common enemy (whether real or imagined)... over a complex, occasionally conflicting tapestry of brightly different threads... each shimmering in the sun, in turn, and doing their level-best to make their way in the ever accelerating, jangling world.

So -- I will dutifully ignore her take, when she intones:

. . .It had to do with a sense that we are losing the thread, that America is losing the thread. We compared -- we couldn’t help it, it is in the nature of memory -- the America of now with the America of 20 years ago, and we see a deterioration.

We feel disturbance at this because we don’t know if we can get our way back. The losing of the thread feels bigger than ideology, bigger certainly than parties. It feels like some more fundamental confusion, an inability to play the role of who we are, and to be comfortable in who we are. . .

And, preciously -- she neglects to mention that President Obama did get Osama Bin Laden. Par for her course.

So, even her "bad guys" narrative is... specious. I won't bother with debunking all of it, but she completely missed AOC's point at the Met Gala 2021 -- so I will make a picture of that much -- for her. See at right (To be sure, Tangerine hasn't been that thin since before his military academy days / boarding school -- but it was the best stock all white image I could find, of size, to photoshop!). . . .

Onward -- grinning into the warm September night's breezes -- she will not sell me a bill of fake goods about my fellow Americans. No, sir.



This Is, In My Opinion, An Ill-Informed Take -- On Elizabeth Holmes.

Yes -- sexism is absolutely a major, debilitating corporate American blight -- it is pervasive, even occasionally in prosecutorial decisions. Yes -- occasionally. . . true.

But yet and still -- Ms. Holmes has undoubtedly committed multiple felonies. [She is, in short, nothing like the courageous woman in today's masthead, above.]

That various MEN -- whyte men. . . have ALSO committed. . . similar felonies. . . is still no defense.

Here endeth this [shortish] sermon.


Wednesday, September 15, 2021

Tangent: Young Virgil Griffith Goes On Trial In Manhattan In Two Weeks... 20 Year Sentence Possible.

We have mentioned this felony case in passing a few times before. [As an update, Condor predicts that he will not escape trial by arguing that former FBI agents (in an unrelated investigation) accessed his warrant-specific Palantir data-base, without the AUSAs' prior knowledge or consent.] No. . . he will have to face the [North Korean] music. . . .

Condor further refers all erstwhile readers to the fine Inner City Press summary of the latest pre-trial hearing's to and fro'. Here's one bit -- as a teaser -- but do go read it all:

...Judge Castel: Griffith's statement, I'll try to become wealthy enough to pay my bail *is* relevant, I'm not going to exclude it. On TOR and the Dark Web, the government is not going to be permitted to wander there but some specifics, on his c.v. [will be allowed]. . . .

Onward, ever grinning. . . Bitcoin is recovering slightly, and so too -- is Riot.

But that won't last very long, despite Ms. Cathie Wood's call for ~$500K Bitcoin in five years. Silly. So... have a great day -- fall colors starting to appear here. . . .


Tuesday, September 14, 2021

This Is What Tangerine's Ongoing Stain On The GOP Looks Like: A Wipeout, In California

Welp. I could not be happier: the Trump-endorsed candidate in California. . . did nothing more than divide the GOP into split camps.

That led to the effective end of any recall effort, for the Governor in California (speaking as of this evening, local time -- and so. . . this is Condor's version of "future-casting" -- by just a bit). It seems -- as I've written about Georgia previously (and Herschel Walker's candidacy) -- the MAGA forces are more interested in destroying the GOP, than winning any actual elective office. Perfect.

And so -- all I'll say is. . . "have at it, boys!" [To be sure, they are almost all. . . boys.] Here's CNN on it all:

. . .[I]n Elder, Newsom gained a direct target who he could argue was "to the right of Donald Trump" and who would take California "off the Covid cliff," citing the experiences of Florida and Texas and their conservative anti-mask-mandate governors as the model Elder would follow in responding to the pandemic.

Elder's long history on the radio and as a columnist provided reams of controversial statements for opposition researchers and journalists to scrutinize on other topics, like his disparaging comments about women -- a key demographic for Newsom. . . .

And -- any time a misogynist (Elder or Walker) flames out. . . I will cheer from the roof-tops. In truth, based on multiple post 1600 Penn. events. . . Tangerine seems to believe the 1950s gender roles are his preferred model. Again -- have at it boys. That time has. . . died. Onward, to yet another win -- in California by morning tomorrow. Out, grinning. . . .


Monday, September 13, 2021

For Well Over A Decade, We Covered The Nuvaring® MDL -- Out Of The Eastern District Of Mizzou. It Is Now... OVER.

As indicated below, the overwhelming majority of all claimants took their portion of the $100 million settlement fund, after paying lawyers, years ago.

Those who fought on -- in separate individual cases -- have now all settled, or been defaulted for failure to show evidence of actual injuries, in discovery. So -- whilst I was in the mountains, on September 3, the able USDC Judge Rodney Sippel entered the below final order, ending the Nuvaring® federal class action / products liability case:

. . .ORDER

The United States Judicial Panel on Multidistrict Litigation transferred this matter to this Court on August 22, 2008 for coordinated and consolidated pretrial proceedings. After the completion of case-wide discovery and rulings on summary judgment and Daubert motions the parties reached a general settlement.

The vast majority of cases participated in the settlement. The remaining cases either reached individual settlements or were dismissed for failing to comply with standing discovery orders.

The last of these cases was dismissed today. As a result, all the cases involved in this litigation have been resolved and this matter may be closed.

Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall close this matter. The Clerk shall send a copy of this order to the United States Judicial Panel on Multidistrict Litigation to inform them of the resolution of this matter (copy forwarded to MDL Panel).

Signed by District Judge Rodney W. Sippel on 9/3/2021. . . .

Now you know -- onward, toward a bright, warm and sun-dappled Tuesday morning here. . . be excellent to one another, even as we see yet another long-standing commitment of ours. . . drawn to a very quiet end. It is the natural way of such passings, I may say -- based now. . . on decades of experience. Things just. . . fall into a river-stone like silence. But beneath those river stones. . . there are the words. And indeed, some of the words. . . are mine, to each of you.


[U] So... Weren't These Guys... Paying Attention, When "Jurassic Park" Debuted?!

Okay, look -- I am generally an ardent proponent of advancing bio-science. And genetic bio-science.

But the claim here -- that we will help solve the Earth's greenhouse gas emission problems -- by bringing a genetically-modified Woolly Mammoth back to life, after 15,000 years of extinction -- even if essentially quarantined (in remote Siberia) -- yet, and perhaps -- in vast herds. . . seems fanciful, at best. [And dangerous, at worst.]

More directly, the notion of making a mammal that is a cross between a nearly extinct Asian elephant, and the fully-extinct mammoth line. . . seems to open a Pandora's Box of likely unintended biological consequences, per this morning's edition of The Guardian UK:

. . .Ten thousand years after woolly mammoths vanished from the face of the Earth, scientists are embarking on an ambitious project to bring the beasts back to the Arctic tundra.

The prospect of recreating mammoths and returning them to the wild has been discussed – seriously at times – for more than a decade, but on Monday researchers announced fresh funding they believe could make their dream a reality.

The boost comes in the form of $15m (£11m) raised by the bioscience and genetics company Colossal, co-founded by Ben Lamm, a tech and software entrepreneur, and George Church, a professor of genetics at Harvard Medical School who has pioneered new approaches to gene editing. . . .

Other researchers are deeply skeptical that Colossal will pull off such a feat. And if Colossal does manage to produce baby mammoth-like elephants, the company will face serious ethical questions. Is it humane to produce an animal whose biology we know so little about? Who gets to decide whether they can be set loose, potentially to change the ecosystems of tundras in profound ways?. . . .

Russian ecologists have imported bison and other living species to a preserve in Siberia they’ve dubbed Pleistocene Park, in the hopes of turning the tundra back to grassland. Dr. Church argued that resurrected woolly mammoths would be able to do this more efficiently. The restored grassland would keep the soil from melting and eroding, he argued, and might even lock away heat-trapping carbon dioxide. . . .

This has. . . a clearly-flashing warning sign on it: "Ecological Disaster Ahead" -- it is in fact. . . written all over it. And if not a disaster -- it is at best, a throwing away, of the $15 million raised so far.

[Update: In an ironic twist, one of the investors in this project was the money behind the latest -- and least entertaining -- installment of the Jurassic Park franchises -- called Jurassic World. Ugh.] But I'll watch from the sidelines. . . grinning -- ever grinning.


Sunday, September 12, 2021

The Next-Gen Joint-Effort Space Telescope Has A December 18 Launch Date -- From French Guiana Space Port...

While we were off-grid, on vacation, the joint ESA and NASA teams confirmed a launch window for the next gen 'scope.

It is back on, for late 2021 -- after having moved to early 2022 -- after having a Halloween 2021 original launch window. But being offloaded through the Panama Canal, it is now only a bit away from final staging in French Guiana's Spaceport facility.

So, here is the Beeb, on it all:

. . .The $10bn James Webb Space Telescope is expected to launch on 18 December. . . .

All that is required is to unload the finished telescope in French Guiana, put it on the top of an Ariane rocket, light the engines and stand well back. . . .

Onward, to a birthday brunch -- ever smiling. . . and keeping tabs on / watching a blazingly fast Half-Ironman® competitor (via the handy iPhone app) in Santa Cruz, California this midday! Woot!


Saturday, September 11, 2021

H.E.R. Absolutely Nails It -- At CNN 9/11 20 Year Memorial Tonight...


Oh -- And, Trying To Find Uplifting News, Here... A "Humble Brag" -- On My City.

The City of Big Shoulders was just voted
the second most beautiful city
on Earth.

Behind. . . only Paris, France, of course. . . .

So, there's that. . . grin.


Seven Count Felony Case Against Trump Mega-Fundraiser Barrack Moves Forward -- Next Appearance Early November 2021...

On this poignant twentieth anniversary, we'll take a renewed look at a true billionaire -- one who's been a traitor to this nation, in secretly working for the interests of a brutal dictatorship, while adroitly manipulating the fecklessly-moronic (tangerine-hued) prior occupant of 1600 Pennsylvania -- one Thomas Barrack (all allegedly). [But the documents in evidence are damningly clear.]

Here is the entire updating report (from a status conference that I missed, whilst one mountain pass away from his home confinement digs, at right) -- and a bit:

. . .The government intends to seek designation of this case as complex pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii). Mr. Barrack believes this decision should be deferred until the next status conference so that there is parity of access to discovery materials before Mr. Barrack takes a position on complex case designation. . . .

Counsel for Mr. Barrack has requested a bill of particulars from the government. The government has advised counsel for Mr. Barrack that it believes the indictment satisfies the pleading standards of Federal Rule of Criminal Procedure 7(c)(1) and that a bill of particulars is not warranted in this case. . . .

The parties respectfully request that the Court schedule the next status conference approximately 60 days [out]. . . .

Now you know. Do be thankful for our freedoms this day. And be excellent to one another. . . smile.


Friday, September 10, 2021

Live NASA / JPL Video-Conference: The Mars "Mining" Era Is Officially Underway...


This is "mining" for science (signs of ancient water, and thus perhaps. . . life) -- not pecuniary profit.

This is all a drill / core / search analysis to look for signs of how life might have evolved on another world -- and perhaps even been transported to our little blue life-raft, by a meteor strike.

The subsequently-released briefing indicates that the rocks found so far contain. . . salts -- and salts deep within them. . . are powerful evidence of liquid water, "running over the rocks, from the basement of time". . . to use Norman Maclean's poetic turn of phrase (like the words, under his timeless raindrops, raindrops that fell on these long ago river rocks).

That is what all this goofy-miner stuff is ultimately about. Worthy science, indeed.

So here we go:

Have a great weekend, one and all. And as ever, do be excellent to one another. Smile.


East Bay III Is Nearly Put To Bed -- Awaiting Final New Biden Administration Rules, On Fees For Entry...

In August of 2020, Tangerine unlawfully sky-rocketed the so-called USCIS fees, for applying to enter the country -- but only for entrants from the Mexico border. It was an attempt to tax only brown skinned potential entrants. . . essentially. . . out of existence.

The courts quickly enjoined that obviously discriminatory abuse of treaty obligations. Now, about a year later (and having held a national election), the government is rescinding the rule Tangerine attempted. But since no one is paying these fees, there are more pressing matters to address in the Biden Administration. The federal litigation will end, as a complete vindication of the rule of law -- but the next "check-in date", for a judicial review of the new rules (to address the allocation of scarce resources issues) is now set as January 2022, thus:

. . .The Spring 2021 Unified Agenda (UA) entry for this rulemaking listed a November 2021 target date for a notice of proposed rulemaking (NPRM) that would rescind and replace the changes made by the August 3, 2020 rule at issue and establish new USCIS fees. At this time, the agency has not confirmed a target date for issuing the contemplated NPRM, but expects that when the Fall 2021 UA is published, it will contain an updated target date for the contemplated NPRM. . . .

For these reasons, the parties request that the Court continue to hold this case and all proceedings in abeyance. Furthermore, the parties request that they be permitted to file a joint status report by the earlier of January 14, 2022, or within two weeks of defendants either publishing in the Federal Register a notice of proposed rulemaking regarding a proposed new fee rule or advising plaintiffs that defendants have determined not to propose a new fee rule, indicating whether this case and all proceedings should continue to be held in abeyance or proposing a scheduling for continuing the litigation. . . .

Now you know -- onward to the upcoming NASA briefing over lunch on Mars "mining" successes. . . . grinning -- ever grinning.


To Belabor The (Very) Obvious, President Biden Possesses Direct Statutory Authority To Mandate Testing And Vaccines -- When A Substantial Number Of Americans Endanger Us All...

This should not need repeating, as a preliminary matter (but the usual Tangerine nut-jobs are already claiming the opposite): of course, the constitutional basis for mandated / US employer vaccines or tests. . . is directly enumerated as a power of the Executive Branch, after Congress passed (for "the general welfare") 42 U.S. Code § 247d(a)(2), also known as § 319 of the federal Public Health Service Act, which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (i.e., a part of the Executive Branch) to take necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. . . .”

In this regard, we note that SCOTUS Justice Barrett (a Tangerine suggestion) just last month denied an emergency attempt to stop Indiana University (on what purported to be religious grounds) from mandating student vaccinations. Seems as though the most conservative wing of the Supremes presently disagrees with Hinderaker: this mandate will stand. And there is this 1922 case, already decided by the Supremes, directly refuting Hinderaker's thesis.

Now, to the main point -- John thinks it is each person's choice over their bodily autonomy -- as a "penumbral" liberty interest -- to get or not get the jab.

But he thinks adult women, only six weeks pregnant (only in Texas, though -- at the moment). . . cannot make decisions for themselves. They have no penumbral liberty interest in the autonomy of their own bodies, as soon as any given zygote shows signs of fluid circulating through it. That is, it is a mass of cells -- not a human mind -- in any rational understanding of current human biology.

And then there is the fact that the Supremes already decided that precise case (called Roe v. Wade), and drew the line for any regulation of a woman's right to choose as being NO SOONER than the start of the SECOND trimester -- at any moment after 90 days of pregnancy, not -- not -- NOT 16 days (after a missed cycle).

Here endeth the lesson. Hinderaker will lose on the Texas 16 days nonsense (as Merrick Garland has now filed a case in Austin), and on the Biden vaccines argument -- as above.



Thursday, September 9, 2021

Tangent: Texas Cannot Kill A Man Unless It Allows His Pastor In The Death Chamber, To Pray With, And "Lay Hands" On Him: SCOTUS

Late last night, the Supremes unsurprisingly ruled (given the court's own recent holding in Alabama v. Willy Smith III) that Texas must allow a spiritiual adviser to be inside the death chamber, and pray with the inmate, as well as lay hands on him -- as he is put to death.

Some years ago, one of these southern states had tried to say that an Imam could be refused (no Muslim praying), but Christian ministers could come into the death chamber to pray with Christian inmates as they died. [I think it was Texas, as well -- but I won't bother to look it up. The whole puppet theater of the Governor in it is. . . absurd. And cruel.]

Of course I agree that the victims of a capital crime deserve primary consideration here, in witnessing the execution but no crime victim has any legitimate interest in preventing any death-eligible inmate from exercising his/her own religious convictions -- as s/he is put to death. So, since the first amendment is clear on its face, here. . . Governor Abbott deserves to lose. And he will. From the earlier Alabama opinion then:

. . .Under that statute, a prison may not “impose a substantial burden” on a prisoner’s “religious exercise” unless doing so satisfies our strict-scrutiny test: The challenged policy must be “the least restrictive means of furthering [a] compelling governmental interest.” 42 U. S. C. §2000cc–1(a). That standard, we have often explained, is “exceptionally demanding.” Holt, 574 U. S., at 364. If any “less restrictive means is available for the Government to achieve its goals, then the Government must use it.” Id., at 365.

Alabama’s policy substantially burdens Smith’s exercise of religion. The State bars all clergy members from the execution chamber, leaving inmates to die without spiritual attendance. But Smith understands his minister’s presence as “integral to [his] faith” and “essential to [his] spiritual search for redemption.” Complaint ¶64; Decl. of Spencer Hahn in No. 2:20–cv–1026, Doc. 4–1, ¶14. His pastor, Smith says, will not only “relieve his struggle as he passes,” but also help him “properly express to God his repentance.” Complaint ¶¶65–66. The sincerity of those religious beliefs is not in doubt: Alabama acknowledges that Smith’s request is “based on a religious belief and not some other motivation.” Brief for Defendant-Appellee in No. 21–10348 (CA11), p. 24. So Alabama’s policy must withstand strict scrutiny.

And it cannot. . . .

Once again, Gov. Abbott seeks entirely un-Christian outcomes, under the guise of his pro-religiousity governing schemes. Ugly.


Tuesday, September 7, 2021

Return Travel Days Begin…

These two days mark the ambling return to sea level. . . and will be at a leisurely pace.

As always, be excellent to one another, in the mean time.

Back to regular items here by Thursday. . . unless something major transpires before then.

Ever onward, grinning. . . .


Saturday, August 28, 2021

Is 53 Years... Enough? He Was 24 -- When "Put Away" For What Was Supposed To Be A Death Sentence...

And should it matter, that his victim was so. . . prominent? He killed the likely next President of the United States.

Thus, there is a sensible argument that his crime changed the course of US history -- if not world history. Imagine if Bobby Kennedy, and a stronger form of liberalism, more generally, had taken the White House from Nixon.

The mind could boggle -- would we have exited Vietnam by mid-1969? Would civil rights have advanced at a much quicker pace? Would there ever have been room, in serious politics, for an ex-actor from "Bedtime for Bonzo" / Ronnie Reagan (if there had been no weak handed Carter, in the White House)? [There might never have been room for Arnold as a Governor in California, if not for Reagan.]

And that in turn strongly suggests there almost certainly would never have been room for (or appetite for) a. . . Tangerine.

And maybe -- just maybe -- the first Black President would have been. . . a woman (when Barack was still in law school).

All of that said -- I am convinced that Sirhan Sirhan shouldn't be held to any greater account for that change in geo-politics, here half a century later -- than any other cold blooded murderer. And he is eligible for parole, under California's long-since changed laws.

Laws that speak of rehabilitation, and re-entry into society. In sum, to my eye, he is closer to a child-murderer -- and it counts for. . . something, that he committed this assassination when he was a very young, deluded radical. At 78, we all may agree that he presents almost zero chance of re-offending, as his last prison infraction was in 1972. So -- should he be able to die as a free man, without the state paying for his food, clothing and increasing health care needs? I think so. What do you think? Tell me in comments, as we watch Ida. . . arrive.


Please Travel Lightly -- And Safely -- But Resolutely, Away From The Big Easy... Right Away.

There is just no sense. . . in trying to ride this one out. It is now a Category 4 -- well-past time to bug out.

Please, just get on the road. . . to any / all points about 200 miles to the north, and to the west. The traffic is horrific. . . but just. . . go.

Take it easy on the road, but keep driving all night, if need be.

Please. . . be safe -- and be excellent, to one another. [The loop is from NOAA, in Boulder, Colorado.]


Friday, August 27, 2021

In A Decision Widely Hinted At, Previously -- The Supremes End Moratorium On Evictions...

Back in June (as we explained) Kavanaugh's opinion actually held that the CDC needed new Congressional authority to continue the federal level, nation wide eviction bans, due to the pandemic. Regardless, he and his conservative colleagues allowed it to continue primarily since it was to expire this month. But with the extension, it was clear the Supremes were going to strike it -- unless Congress acted. Congress. . . as we know, did not.

This decision does not end any local city, county or state level eviction bans. The states are free to keep theirs, and my city, and Cook County very likely will. Get up to date on your own city council's actions, over the last two years. In any event, here's the order:

. . .JUSTICE KAVANAUGH concurred, explaining that he agreed with the District Court that the CDC’s moratorium exceeded its statutory authority. But because the CDC planned to end the moratorium in only a few weeks, and because that time would allow for additional and more orderly distribution of congressionally appropriated rental assistance funds, he concluded that the balance of equities justified leaving the stay in place. JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT noted that they would vacate the stay.

The moratorium expired on July 31, 2021. Three days later, the CDC reimposed it. See 86 Fed. Reg. 43244. Apart from slightly narrowing the geographic scope, the new moratorium is indistinguishable from the old. . . .

I think it wise as a policy matter, not to try to move sick families during a public health emergency. And I do think the CDC has broad powers to ameliorate public health emergencies. [As a side note, it is clear that conservatives did NOT find a guy who simply applies the law as written, when they picked Kavanaugh. He here shows himself to be the worst sort of pragmatist -- which in fact makes him. . . unpredictable -- and that alone should frighten the hard-right, quite a bit, when it comes to personal liberty questions. Charming. They bought it, though -- to be certain.]

That said, there is no "unlimited in duration" authority, to act (at the federal level, at least) without new legislation being passed (afterall, landlords do have property rights, too). Two years is likely the zenith of what this court will "look the other way" on. Onward. . . smiling in spite of myself. . . .


Wednesday, August 25, 2021

A New Case To Follow: Tangerine Stole Eddy Grant's 40 Year Old "Electric Avenue" -- For A Campaign Video To Mock Mr. Biden... And Assert White Supremacy Themes...

Tangerine never asked -- never even made a phone call; he neither paid for a license (as I have, for the vast bulk of the original, private, unpublished / embedded photographic works I've used), nor asked permission / sought clearance from ASCAP.

Eddy Grant quite rightly sued in federal court in Manhattan, since the implication by the 2020 Trump Campaign was that Eddy, and his music, were anti-Biden and pro-Trumpers. . . the ad even used some of Grant's original, finished music video footage, to depict a train. . . and then associated that fast train, with Trump. Here is why Trump will lose (from Mr. Grant's fine memo of law):

. . .[Citing the Henley case:] The defendants’ songs [do] not comment on the plaintiff’s work, but instead use the same themes to comment on entirely different subjects, namely Boxer, taxation, global warming, and the proposed cap-and-trade program. . . . The song may mock political views that Henley allegedly supports, but that is insufficient justification for appropriating Henley’s works, as discussed above. The Defendants have innumerable alternatives with which to mock Boxer and her policies. . . .

The Defendants also argue that, even if their works are more satirical than parodic, they may still constitute fair use, citing Blanch v. Koons, 467 F.3d 244, 247 (2d Cir.2006). This is undoubtedly true; parody is not the only form of fair use. However, as noted in Campbell satire faces a higher bar for fair use because it requires greater justification for appropriating the original work.

Defendants here concede in their moving brief (Def. Mem. at 1), that they deem the Infringing Video to be “satire” rather than parody, thus they face a higher burden and require a greater justification for the use of Plaintiffs’ Works. They have not met that burden. As the Supreme Court held in Campbell, 510 U.S. at 580-581, “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Defendants have offered no justification for using “Electric Avenue,” rather than any other composition, as the musical underscore for the Infringing Video.

Moreover, as the Ninth Circuit recently held in Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 2020 WL 7416324 (9th Cir. Dec. 18, 2020), merely incorporating elements of existing material into a new context to make a “funny” juxtaposition does not thereby critique or comment on the borrowed material. . . .

In general, I obviously support fair use, by artists -- I employ it daily here. But I make no profit from the use, I transform the work(s) -- and while I take no money. . . mine is almost exclusively critique and education, at the core.

But when a racist white supposed billionaire steals a black artist's work, without attribution -- to promote white supremacist rhetoric. . . whelp -- there we draw a line in the sand. Tangerine is. . . in sum, no artist.

Out, grinning. . . . be excellent to one another.