Brett Kavanaugh: Through A Shotglass Darkly

I’ve been tempted to weigh in on the Brett Kavanaugh spectacle, but have largely restrained myself, being content to revisit my previous postings on essentially the same issues. In the present tribal atmosphere, it can be difficult to speak a word of sense on these issues and not be pumelled by one side or another.

I am not a conservative and am not responsible for what conservatives say — so their (often woman-hating) rants don’t interest me much as a point of rebuttal. I am a liberal (though not a knee-jerk one), so I find myself more incensed at what my fellow liberals say when it’s not informed by careful analysis and amounts to little more than pandering or meme proliferation.

To state what should be obvious, there’s a massive political overlay to the human drama between Supreme Court nominee Brett Kavanaugh and accuser Christine Blasey Ford. The fact that it’s become a political dogfight further complicates an already complicated matter: namely, how to deal with an incident which allegedly took place 36 years ago?

The more hysterical the atmosphere becomes, the more cool, detached, and even non-empathetic I become, as if recoiling from the shout-my-rape-story-in-an-elevator mentality which seems to have taken over.

In a society, a marriage, or even the individual human psyche, there is perhaps an ideal balance between reason and emotion. I am pro feminist, and support the goal of creating a society where women have equal opportunity, equal rights, equal choice, and can thrive and prosper in whatever roles they choose for themselves. I would even agree that tempering rationalism with more feminine emotion can be a good thing. Rationalism often explains away injustice, while emotion feels it and responds to it in a dynamic way. That is very good! We need a more compassionate society where we identify with each other’s pain, and respond to it with caring.

I was very moved by Rachel Maddow’s spontaneous response to incoming reports about the Trump administration’s family separation policies, which I also oppose. Props to Rachel for being a thinking, feeling, caring human being!

That being said, I can see the downside of emotionalism when taken to greater extremes, to the point where it threatens to overthrow reason. Emotions can be choreographed and orchestrated, raised to fever pitch and used to justify wholesale attacks on individuals and groups. That’s what happens in a moral panic.

Having seen moral panics before and having studied them, I tend to stand back from the fray and stubbornly refuse to endorse political slogans like “believe the women.” I think “believe the women” is as unworthy a slogan as “believe the men,” “believe the transgender people, “believe the Albanians,” “believe the Rastafarians,” or “believe the Evangelicals.” As human beings, we are simply not that trustworthy. Membership in a certain demographic fails to remedy this problem.

During a moral panic, partisans employ so-called “atrocity stories” to construct a political narrative which seems to justify their policies or actions. Take the case of Donald Trump and his VOICE program, which (I kid you not) stands for Victims of Immigration Crime Engagement. (For a satirical look at the VOICE acronym, see here.)

Statistics suggest that immigrants commit crimes at a lower rate than native-born Americans. But in creating VOICE as a platform for highlighting atrocity stories concerning immigrant crime as told by “survivors,” Trump is trying to manipulate the emotions of the public, to the point where they’ll support his often irrational and draconian policies targeting immigrants. This includes kidnapping immigrant children and whisking them off to remote locations in the dead of night. (See CNN video.)

Trump’s use of VOICE constitutes base demagoguery, and bears the fallacy of seeking to define a phenomenon solely through anecdotes which are not representative and don’t lead to sound public policy. Unfortunately, the left does this also.

“I’m a rape victim, so Christine Blasey Ford MUST be telling the truth!” is a cry heard often, or at least a variation on it: “Such-and-such victims’ rights group says that x percentage of women are victims of sexual assault, therefore Christine Blasey Ford MUST be one of them!”

Our justice system stinks, but at least during a trial some effort is made to avoid these particular fallacies and stick to the facts of the case, not blur the facts by bringing in someone else’s experience which is understandably meaningful to them, but has no bearing on the instant matter. If trying a defendant for an alleged street mugging, a prosecutor is not allowed call witnesses who were victims of other unrelated street muggings, just to work the jury into an emotional lather where they’re more likely to convict.

Identity politics is a problem on the left, as is its close cousin: presumed victimhood. Yes, racism exists, sexism exists, homophobia exists, religious intolerance exists. These are real problems, but so is a victim mentality and all the baggage (both political and psychological) which gets dragged in with it. We on the left need the courage to cry b.s. whenever people retreat into victim mode when challenged on the accuracy of their accounts or the clarity of their thinking. (The politically correct response is that when asking alleged victims to speak accurately and think clearly, we are “revictimizing” them.)

The rise of victimhood as an identity choice or by-product of bad therapy has led to the acceptance of a host of memes which excuse or even glorify the would-be victim. This flies in the face of the oft-repeated platitude that women who “come forward” have “everything to lose and nothing to gain.” In truth, they walk into a ready-made identity with numerous rewards, including attention, sympathy, and even monetary rewards down the line. In some nether regions of the vast feminist universe (which I generally support) victim feminism remains the rage, and “coming out” as an “abuse survivor” is more or less de rigueur in those circles — how you get your ticket punched.

It’s politically taboo to talk about this, but we’ve all met people who are constantly in victim mode, and show not the least interest in putting negative experiences behind them. Indeed, this is the symptom pattern for people who have been exposed to a certain type of bad therapy (hopefully rare). In this type of therapy, people are persuaded to focus obsessively on an incident from their past, to bring it into the present, and to turn it into their entire raison d’être for being, their all-consuming passion.

I’m embarrassed to say this because it’s so politically incorrect, but I admit that when listening to Christine Blasey Ford testify, my first reaction was “Here is someone who’s operating 100% in victim mode, and has been doing so for many years.” Is this a result of bad therapy? The kind of therapy which fails to help the client live joyfully in the present, but instead keeps them reliving (and obsessing over) an incident from their past?

I have no idea what happened 36 years ago. Dr. Ford’s story could be, quite simply, the truth. Brett Kavanaugh may have sexually assaulted her. Or he may not have. Or the truth may lie somewhere in the uncomfortable gray zone whose boundaries we are still actively negotiating, having to do with what goes on at teen drinking parties, and what participants of both genders expect from the experience going in.

Sexual assault is NEVER okay, even at a teenage drinking party. It’s a crime. Waiting 36 years to report an alleged instance of sexual assault is not a crime, but it is ethically questionable, especially when the first report to anything resembling a judicatory body comes on the eve of a political dogfight, and is sprung (to mix animal metaphors) like a rabbit out of a hat. No politics involved? Really?

The memes surrounding victimhood create what’s called a non-falsifiable proposition. Victims of sexual assault supposedly don’t report it. Non-victims of sexual assault also don’t report it. But if someone doesn’t report it for 36 years, that’s somehow interpreted as corroborating evidence, because that’s said to be what victims do. A little crazy, no?

Speaking of corroboration, hearsay is not corroboration! Suppose, for the sake of argument, that I make a false claim. If I make that false claim to ten people, those ten people do not corroborate the underlying claim. They only confirm that at some point in time, I began making that claim. This says little about the truth or falsity of the claim itself.

The Kavanaugh confirmation fight raises many troubling issues. The only easy answers come from demagogues on both the left and right. I don’t support his confirmation, but then I never did. His conservative views and prior judicial decisions were enough to disqualify him in my mind. And now, since his eccentric performance on September 27, he may also be considered unsuitable by reason of temperament, having appeared alternatively mawkish or rude and belligerent to questioners.

Michael Howard

The views expressed are my own, and do not represent any other person or organization.


Maddow Explains Attorney-Client Privilege FUNNY!

Latest twist in Russiagate is Donald Trump Jr.’s refusal to answer key questions before the House Committee, claiming attorney-client privilege. Rachel Maddow’s explanation is hilarious!

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NBCUniversal orders YouTube takedown of Birdie Sanders clips

NBCUniversal: “All your birdie are belong to us!”

If you’ve read my post “Put a Bird on It!” you know that it’s a work of art criticism which explores bird paintings and drawings, bird symbolism, and gives props to the original put-a-bird-on-it guy, Sri Chinmoy, who did it and meant it and lived it long before Bernie Sanders or Portlandia.

It was a post I enjoyed writing, but it was also hard work lining up all the resources which ultimately went into it: quotes from George Gamow’s book One, Two, Three…Infinity, from The Upanishads, from art collector Robert Scull, artist Paul Jenkins, and memoir writer Sumangali Morhall; also videos carefully selected to illustrate the points I was making and connect the cultural dots, so that the reader is not only entertained, but informed and educated.

The conceptual glue holding it all together is the idea that birds (especially doves) symbolize peace and freedom. This is even brought home with a video of spiritual master Sri Chinmoy playing the dove ocarina — a blue ceramic instrument in the shape of a dove.

The smooth progression of ideas flows through the famous “Birdie Sanders” incident where a little bird kibitzed on a speech given by the presidential candidate, and through Porlandia’s comedy sketch about putting birds on things.

I did not escape unscathed from the experience. NBCUniversal tried to clip my wings, but didn’t really succeed in doing anything other than shooting themselves in the tail.

“We are not here to sing, we’re here to kill the dove.” — NBCUniversal (actually Jacques Brel)

It’s apparently my fault for being a Rachel Maddow fan. On the day of March 25th, the “Birdie Sanders”/Portlandia meme went viral, and when Rachel came on at 9 PM she reported on it, as countless others had done. There are plenty of videos of both “Birdie Sanders” and the Portlandia sketch on YouTube and elsewhere, and combining them as Rachel did wasn’t exactly the soul of originality, but it was certainly the essence of convenience. Since I like Rachel, a couple months later I thought, Why not elevate two birds with one stone by embedding a YouTube of the Maddow clip? O my sad brother, will you never learn?

I thought I made “fair use” of the clip by including it in a broad presentation on the subject of bird paintings and drawings, bird symbolism, etc. After all, it’s only 4:23 from a 60-minute show, and of that 4:23, 3 minutes is a clip of the Bernie Sanders speech (which ran 1 hour 8 minutes), and 1 minute is a clip from a 2011 Portlandia episode (which ran 22 minutes). Rachel Maddow is visible on screen for all of 30 seconds and is heard commenting in places. It was old news in late May when I uploaded it.

The Bernie Sanders footage used by MSNBC was apparently taken from station KGW Portland, which is owned by Tegna Media  (Gannett spinoff). The identical footage (with its unique framing and panning) appears here on The Portlandia sketch is owned by IFC/AMC Networks.

But I get it that because Rachel Maddow commented on the speech and the sketch, NBCUniversal can claim copyright on the resulting segment. Still, the use I made of it was fair use because it was transformative — it included new ideas not present in the Sanders speech, the Portlandia sketch, or Rachel’s brief comments. It connected the existing meme with a 40-year history of bird paintings and drawings by Sri Chinmoy. It juxtaposed the short news segment with artwork and videos from gallery exhibitions, so that the resulting work of art criticism is something fresh and new.

My WordPress account and YouTube account are both non-commercial. Now, I realize that when you sneeze on the Internet, somebody in Mandalay gets 1/1000th of a cent. Everything is being monetized by somebody or other, but that somebody is not me. Nevertheless, I got a DMCA takedown notice courtesy NBCUniversal and a strike on my YouTube account. I’ll be filing a counter-notice establishing fair use, but it’s a nutty system where you only have 200 characters (about the length of a tweet) to ‘splain yourself. So I may point interested parties to this blog post for complete details.

I wasn’t the only victim of NBCUniversal’s draconian takedown policies. It turns out one other fellow posted the same “Birdie Sanders” clip I did. In fact he had posted several clips, so his YouTube account was terminated outright. Sad really.

NBCUniversal’s idea of putting a bird on it

The good news is that it was easy to replace the Rachel Maddow clip with two higher quality clips. This footage of “Birdie Sanders” posted by The Oregonian has gotten nearly 2 million hits, and this upload of the full Portlandia sketch has gotten 80,000. The uploaders are reaping the benefits of connecting with memes that people adore.

birdie-sanders-bye-bye-birdieNBCUniversal could have gotten some of that good karma, but due to their selfish attitude they get bupkis (other than a good dressing down on my blog). Kinda makes you wonder what the NBCUniversal legal dept. is drinking:

See also this interview with attorney Wendy Seltzer discussing how NBC “seems to be shutting down its own best advertising.” (The Seltzer may help cut the taste of the Thunderbird.)

On my blog, I’d rather promote The Rachel Maddow Show than The Oregonian, and include comments from Rachel in my piece about bird art. But if NBCUniversal punishes fans and denies legitimate fair use, this has the effect of freezing Rachel Maddow out of the conversation.

rachel-maddow-duct-tapeIsn’t it ironic?

There are a number of ironies to NBCUniversal’s off-putting, counterproductive behaviour here. Let’s take a gander at Kathleen O’Donnell’s note in the Duke University Law & Technology Review explaining the purpose of fair use:

Fair use has long been considered a critical component of the monopoly protection provided by copyright. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court stated that, “from the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science and useful Arts.’” The fair use doctrine recognizes that most expression is not strictly original, but rather borrows from the wealth of literature and art that came before it. Therefore, the monopoly granted by copyright is restricted to allow for “a limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent.” Through this limited right to use copyrighted material, fair use “encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law’s goal of protecting creators’ work product.” In this way, fair use preserves and fosters the same creativity that copyright law was created to encourage. [Footnotes omitted.]

According to The Center For Democracy and Technology, short news segments containing excerpts from political speeches are highly privileged under the fair use doctrine. So one irony here is that NBCUniversal appears to be benefiting from fair use by “borrowing” the Bernie Sanders clip shot by station KGW/Tegna Media, and the Portlandia clip owned by IFC/AMC Networks. Add a few words from Rachel Maddow and it’s magically transformed into NBC content! But when a blogger adds far more that’s new and original, suddenly NBC no longer recognizes fair use. The appropriately named Andrew Lack — Chairman of NBC News and MSNBC — seems to lack understanding of fair use, at least as it extends to people outside the Comcast/NBCUniversal monopoly.

For those old enough to remember the NBC peacock, another irony is that NBC’s concept of putting a bird on it is sort of the opposite of Portlandia’s: NBC puts their peacock on things to make them non-free, and therefore ugly. It’s easy to picture a satire on the Portlandia sketch which goes something like this:

Hi, I’m Steve Burke. Hi, I’m Matt Bond. And we put peacocks on things! What a sad little Bernie Sanders speech. I know! I’ll put a peacock on it. Now it’s pretty. Now it’s ours!

A decent site for MSNBC? Not if Comcast can help it…

The Rachel Maddow Show is part of MSNBC’s programming lineup. MSNBC is owned by NBCUniversal, which is owned by Comcast. The acquisition of NBCUniversal by Comcast is an example of vertical integration, since Comcast is also a major ISP and cable provider in many markets, with major complaints about its quality of service.

According to Nate Anderson writing in Ars Technica, four months after the controversial Comcast-NBC merger was approved by Federal Communications Commissioner Meredith Attwell Baker, she left the FCC for a top lobbying job with the newly combined Comcast-NBC entity.

When a media behemoth owns both the content and the “wire,” this can be a nightmare for consumers, resulting in rate hikes and paywalls. Indeed, while consumers could once watch complete video podcasts of The Rachel Maddow Show and other MSNBC fare on, such complete podcasts are now only available to cable subscribers or via a paywall.

As for the MSNBC website itself, it’s notoriously non-user-friendly and tortuous to navigate. See this link for a cavalcade of bad reviews in which “horrible” and “awful” are the predominating adjectives.

The MSNBC website seems to reflect twisted priorities or an underlying conflict of interest. If you’re YouTube, your primary mission is to make sure that everyone who visits the site can play the videos, even with a slow Internet connection. That’s why YouTube offers a low bandwidth version of every video, tries to adjust to the end user’s connection speed, and lets users choose between 144p, 240p, 360p, and higher resolutions. YouTube also makes it easy for users to embed YouTube videos in blog posts, because YouTube implements the popular oEmbed standard also used by Vimeo, DailyMotion, and other popular video sites.

But on MSNBC’s site, videos often don’t play, or choke the end user’s Internet connection, or take over the entire screen. Comcast’s self-serving message appears to be: Your connection isn’t fast enough to use our site. Better upgrade to a more expensive plan! does not implement the oEmbed standard for embedding.

So people don’t want to go to to watch a video or make a comment, because it’s just too user-unfriendly an experience. They want to go to a site like YouTube that’s easy to use, and is supported by blogging platforms like They want to go to a site where the video is streamed to end users at a bitrate they can handle.

Punishing people for YouTubing short segments won’t solve this problem; it will only ensure that bloggers turn to alternative sources (e.g. The Oregonian) for clips of the same news events. Instead of feasting on sour grapes, MSNBC should create a site that people actually want to visit and that implements the oEmbed standard, so can easily support it. Make your site better and people will actually want to visit it or link to it as a source of embedded videos on blogs. Declaring war on fair use (in addition to being illegal) is a poor excuse for figuring out why people hate your site and finding ways to make it more user-friendly.

How fair use applies in today’s media marketplace

Today, vertically integrated conglomerates like Comcast/Xfinity/NBCUniversal (which also owns Hulu) may attempt to monetize the same content in a bewildering variety of ways, in effect dominating the marketplace.

nbc-universalThough the same content may be sold from a number of different media “stalls,” this must not be allowed to undermine fair use.

Even if a short news segment containing a portion of a political speech is being deployed commercially in multiple venues, this should not preclude a blogger from uploading a clip to YouTube for purposes of comment, criticism, or “the development of new ideas that build on earlier ones.” The public good from such fair use greatly outweighs the very minor market disruption.

Where a short news segment is embedded in a blog post along with commentary reflecting obvious transformative value, NBCUniversal needs to respect such fair use. It must not be permitted to abuse the DMCA takedown process until only restricted versions of a short news segment exist. This would have the effect of creating a monopoly on ideas contrary to the intent of the fair use provisions of copyright law.

In deciding Lenz v. Universal, the Ninth Circuit Court of Appeals made clear that media companies need to carefully consider whether something qualifies as fair use before issuing a DMCA takedown notice. Where a media company shows willful blindness to fair use, they may be liable for damages under section 512(f).

Final thoughts

The nature of a meme is that it propagates through multiple iterations, and there’s a snowball effect. So aside from legal considerations, NBC violated social media etiquette by capitalizing on a meme, but then saying “The meme stops here — I call copyright.”

If you can get the site to work, you may still be able to view the short Rachel Maddow clip on here. The whole segment is her cooing over footage of the Bernie Sanders speech and the Portlandia sketch, which is fine. (I like the sound of cooing.) What’s not fine is NBCUniversal smacking down bloggers who continue the meme by uploading a portion to YouTube and blogging about it.

Michael Howard

The views expressed are my own, and do not represent any other person or organization.