Fool me once, shame on . . . shame on . . . you?

At times I wonder why reasonable people can be drawn into debating whether the Bush administration deceived the American public with respect to the casus belli for the invasion of Iraq. Let's observe the stories like these are nowa matter of public record (this from "Powell's CIA tips were soft, Committee Says"):

One day before Mr. Powell's speech laying out the reasons to invade Iraq, a Defense Department analyst warned the agency against relying on some of the most significant informants, like an Iraqi defector code named Curveball, whom Mr. Powell planned to cite.

"I went through the speech," an unidentified military intelligence officer, an expert in biological warfare, later told the Senate Intelligence Committee, which quoted him in its report, "and I thought, my gosh, we have got — I have got to go on record and make my concerns known."

But the deputy chief of the agency's Iraqi Task Force, who said "we can hash this out in a quick meeting," rejected the worries as irrelevant. "Let's keep in mind the fact that this war's going to happen regardless of what Curveball said or didn't say, and that the Powers That Be probably aren't terribly interested in whether Curveball knows what he's talking about," the deputy chief wrote in an e-mail message obtained by the committee.

Further, let's stop debating whether the Bush administration "pressured" the agencies. It did. As illustrated by the deputy chief's assertions that:

1) The war in Iraq is an inevitability; and
2) The administration was not paying especially close attention to the accuracy of the information provided.

Thus, a clear message was delivered from the administration to the intelligence agencies: we will accept whatever you have that appears to support the war we are about to embark upon.

The ongoing attempt to lay the blame for our current circumstances on the intelligence communities is contemptible.

Why We Fight

A recent NYT article on the new documentary criticizing Fox "News" Channel offers depressing testimony to the chilling effects of contemporary copyrgiht policies. In this excerpt, we see the filmmaker acknowledging that he will not ultimately deliver the film he wishes to make for fear of copyright litigation (read the last sentence). This will occur despite the fair use exception's enumeration of "commentary" and "criticism" as especially protected acitivies.

''O.K., we have only 16 days, so what's left?'' Greenwald asked. It turned out to be a lot. Sound editing, color correction, mixing. Video was still being downloaded as the editors looked for material to fill narrative gaps in the film; many segments were still in rough shape. Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.

Greenwald argues that this represents precisely the kind of corporate control of public information that he and his legal team want to challenge by strengthening the right to fair use -- the legal principle that allows you to use copyrighted material without permission for purposes of commentary, criticism or parody. Despite the principle's self-evident logic -- consider the impossible position of a critic forbidden to quote from the book he is reviewing -- it is murky in practice, and nowhere more so than in film. Part of the problem is that while a fair-use claim might stand a good chance of prevailing in court, as a practical matter the high costs of litigation force most filmmakers to simply remove the material in question.

The legal strategy for ''Outfoxed'' was still being devised by Greenwald's legal team, which includes the Stanford law professor Lawrence Lessig and Chris Sprigman, a fellow at Stanford Law School's Center for Internet and Society. Lessig and Sprigman were deciding whether it would be most advantageous to go through the motions of asking Fox for permission (which it would very likely refuse), to release the film and wait to see whether Fox would sue or to ask a judge to rule on their claims right away by issuing a so-called declaratory judgment.

Glancing around the office, Greenwald took in the news of the various permission setbacks and other loose ends with a weary look. He made it clear to the staff that they would all be working on Memorial Day, and every day after that until June 21, when the film locked. ''Let's just go out there and make the perfect movie,'' he said as he sent the team back to their editing docks, ''and we'll figure out what we'll actually be able to use later on.''

If only we could actually see that cut of the film -- the version that was made before this work of commentary and criticism surrenders a portion of its argumentative content in deference to the threat of baseless litigation.

The fun bonus question is whether Fox will be naive enough to sue, thereby assuring reams of free advertising for the documentary. Did they learn anything from Fox (O'Reilly) vs. Franken? I hope not.

Don't Let the Door Hit You, Jack . . .

One of the reasons I will not, in the least, miss Jack Valenti now that he's departing from his leadership of the MPAA is his propensity for absurd statements like this (from a recent NYT article in which people argue for their right to copy their own legally purchased DVDs):

the film industry argues that software for duplicating encrypted DVD's should be outlawed. "If everybody was a good citizen and used it for benign purposes, you'd have no problem," said Jack Valenti, president of the Motion Picture Association of America. "But if you let one person circumvent the encryption, you have to let everyone. What about the person who is not so benign?"

The association argues that the only way to prevent people from using such tools in an illegal way is to make the tools themselves illegal.

I can understand how some people might be momentarily bamboozled by statements like this. It superficially sounds reasonable. Of course, you don't have to "let everyone" circumvent encryption, but there's an even bigger problem with Valenti's argument, ably demonstrated by my civil servant of the month, Rick Boucher . . .

Representative Rick Boucher, a Virginia Democrat, rejects that premise as "hogwash." He has introduced legislation intended to promote the availability of DVD-copying tools designed primarily for legitimate consumer use, and to extend fair-use provisions of copyright law to consumers who break anti-copying protection.

"Because a hammer can be used to break a window, and a burglar can use a hammer, outlaw the hammer, that's the philosophy," he said of Hollywood's position. "But historically we have never outlawed technology that was capable of legitimate use. If the technology has bad uses, then punish the people who use it wrongfully. Don't outlaw the technology."

To which I can only respond: If I had a hammer, I'd hammer in the morning, I'd hammer in the evening, all over this land. I'd hammer out justice!