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The Pachelbel Canon

By DeusExMacintosh

There’s a lot of it, and it’s all the same tune. Pray that nobody owns the copyright or the modern music industry will collapse.

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Comedian Rob Paravonian does the Pachelbel Rant.

He’s following you too…

Word, Pat

By skepticlawyer

You may not agree with everything notable atheist and skeptic Pat Condell says, but it needs to be said all the same. You may not like Geert Wilders much, either, but this is appalling.

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More (mainly in Dutch, alas) here.

Down, Kookaburra, Down

By skepticlawyer

I learn via the Hoydens that the Federal Court (oh, the stupid, it burns) has decided that Men at Work’s Down Under infringed the copyright held by the owners of Kookaburra Sits Under the Old Gum Tree. Here are a few observations from a lawyer who has handled some small IP matters.

1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ (choses in action par excellence) are intangible property rights typically conferred in the form of temporary monopolies. As any economist can tell you, monopolies — especially monopolies backed by the coercive power of the state — are pretty nasty creatures when it comes down to it. You don’t want them hanging around for too long. That’s why — depending on jurisdiction — patents and trademarks are either strongly time-limited (between 10 and 16 years for most patents) and subject to registration and set all about with fever trees (trademarks). IP law exists to facilitate innovation, to reward the clever scientist or gifted writer. Taken too far, however, IP protection stifles innovation — making it harder, not easier, to make new things — and becomes a cash cow for a certain type of lawyer and a certain type of IP owner. 

Copyright is the worst of the lot. It requires no registration and lasts for the life of the author plus 70 years. Yes, your grandchildren — if you do well with a novel or song — could be living high on the hog once you’ve popped your clogs. It used to be life plus 50 years, but of late, the IP types have become rather greedy.

2. Property law is only any good if it can protect the interest in question. As IP’s ability to protect intangible property rights has waned thanks to technological changes, IP owners have become increasingly silly about defending what they have. This has manifested itself in various nasty legal and economic ways. There’s Australia’s parallel importation rules on books, for example (which help only publishers, not authors). Unfortunately, explaining this basic fact to authors seems to fail on account of Australian authors’ widespread inability to do sums or to understand the concept of competition. Then, of course, there’s price discrimination, of which DVD regions are a prime example. Now we have a corporation suing in the name of a creator who died in 1988. That means Men at Work — if this decision stands — will be paying out until 2058.

In my view, copyright should expire with the author. This ‘life plus 70′ crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.

A bit of basic lawyering for you:

A big part of compliance with the law is the respect of the citizenry for that law. This respect — call it morality — exists wholly outside the law and is independent of the law. The law against murder, for example, works largely because most people believe murder is wrong, not because of the law against it. In other words, law only works at the margins, which is exactly where you want law to work. If law has to do ‘moral work’ across the whole society, we’ll rapidly finish up with a ratio of one citizen to one policeman, with each cheerfully bribing the other non-stop. By engaging in such blatant gouging, IP regimes are rapidly losing the respect they require in order to operate. Eventually, the law of diminishing returns will come into play and the entire IP system — including the good bits, the bits that reward innovation — will go tits up in a big way. When it comes to music and movies, I suspect we’re not far away from that point.

The one sliver of silver lining in this matter is the fact that it’s single judge only. Let’s hope the full bench of the Federal Court rolls it on appeal.

UPDATE: Robert Merkel’s take, an interesting perspective from a scientist, not a lawyer.

Investment Wankers

By DeusExMacintosh

An Australian banker is in hot water after being filmed looking at semi-nude photos of a model while a colleague was doing a television interview nearby.

He could be seen clicking on photos of Miranda Kerr in the background of the Channel 7 interview on Tuesday with an analyst for Macquarie Private Wealth.

The footage soon made its way on to YouTube and became a huge hit.

Macquarie Private Wealth, however, was not amused and said it was taking the matter very seriously.

The images of Ms Kerr could clearly be seen during the Channel 7 interview, only at the end of which does the banker turn to the camera and realise he has been filmed.

A Macquarie statement said: “Macquarie has strict policies in place surrounding the use of technology and the issue arising from the live cross on Seven News is being dealt with internally.”

The banker in question, said to be a mid-level client investment manager, has reportedly been meeting executives to determine his future.

- BBC News

And now for your delectation, we present “the masters of the Universe” hard at work…

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UPDATE 5/2/10: DAVE WAS SAVED

An Australian banker caught viewing erotic images in the background of a live TV interview will keep his job, his employer, Macquarie Bank, has said.

David Kiely became an internet sensation when the Channel 7 interview, showing him looking at images of model Miranda Kerr, was posted on YouTube.

A massive internet campaign was launched to save his job and Ms Kerr also pleaded his case. Macquarie said it had completed an inquiry and that Mr Kiely would stay.

In a statement it said: “He will remain an employee of Macquarie. Macquarie and the employee apologise for any offence that may have been caused.”

Restitution for wrongs and child pornography

By Legal Eagle

A friend alerted to me to an interesting case reported in the New York Times involving monetary restitution to a victim of child pornography  who goes by the pseudonym “Amy”.

When she was 8 or 9 years old, Amy’s uncle had filmed her in a series of pornographic photographs known as the “Misty” series. Amy is now 19 years old. Amy’s uncle is in gaol for his crimes, but the photos are still circulating around the Internet. The federal victim notification system means that Amy is sent a notice every time the photos turn up in a prosecution. She has received over 800 notices since 2005. Amy has now commenced legal proceedings demanding that every person convicted of possessing a Misty image or images should be liable to pay damages to her until her claim of US$3.4M has been met.

Amy’s claim has been litigated pursuant to 18 USC  § 2259, which provides for mandatory restitution for any offense under Chapter 110 (dealing with sexual exploitation and other abuse of children). Section 2259 provides as follows:

(a) In general.—Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.
(b) Scope and nature of order.
(1) Directions.—The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).
(2) Enforcement.—An order under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.
(3) Definition.—For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred;
(F) any other losses suffered by the victim as a proximate result of the offense.
(4) Order mandatory.
(A) The issuance of a restitution order under this section is mandatory.
(B) A court may not decline to issue an order under this section because of—
(i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.
(c) Definition.—For purposes of this section, the term “victim” means the individual harmed as a result of the commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.

Amy was successful in her first case, prosecuted in Connecticut in February last year. The man convicted of possessing child pornography (including the “Misty” images) was ordered by Senior U.S. District Judge Warren W. Eginton to pay Amy around $200,000. The judge admitted that the case was ground-breaking, as offenders who possess illegal images have not usually been required to pay restitution (as opposed to those offenders who create images).

Subsequently, Amy had mixed success. Two Florida courts ordered defendants to pay restitution of over US$3M in favour of Amy. In a Minnesota case, the judge demanded to know why the prosecution had not filed a restitution claim on Amy’s behalf. Other Courts have declined to order restitution (e.g. in Maine and in Texas). While those courts found that Amy and other victims were harmed as a result of the possession of pornographic images depicting them, they found that she did not establish that the particular defendant’s conduct was a “proximate cause” of her specific losses (see sub-section 2259(b)(3)(F) above).

Should someone like Amy be entitled to restitution for the wrongs which have been done to her? Certainly, one law blogger, Jonathan Turley, sees the restitution awards as stretching personal accountability to breaking point. Turley continues:

There is no question that people who buy or trade such child pornography are contributors or facilitators of these terrible crimes. However, the extension of the definition of victim could lead to liability without limitation. Presumably, anyone watching porn movies with an underaged character or in possession of a magazine with such a picture could be similarly faced with restitution demands. Prosecutors could threaten targets with financial ruin under such theories — forcing guilty pleas to other offenses. Restitution is generally limited to the direct victims of the defendants actions.

The concern is that there are a host of crimes that may involve the collateral crimes of others. Thus, receipt of stolen goods requires return of the property and a criminal penalty. However, a person guilty of possession is not normally required to pay restitution for a burglary if he did not play a role in the original crime. Thus, a pawn shop owner is responsible for the crime of possession of a stolen object but not restitution for the broken window or physical assault related to the break in.

On the other hand, as the New York Times article points out, some courts have argued that extremely heavy sentences on sex offenders are unfair, and reflect a knee-jerk emotional reaction on the part of legislators and the public. Monetary damages in cases such as these may provide a different way of punishing offenders and also potentially providing some vindication for victims.

My friend and I were also discussing the problem of cases where the victims could not be identified. Should the defendant still be required to pay damages into a fund? And if so, how should the money be administered? This links into a talk I went to a while back which discussed the possibility of cy pres trusts for class actions – where moneys were unclaimed by specific plaintiffs, the money could be held on trust for people in the same category as the plaintiff or for a cause linked with the proceeding. For example, in a case involving child pornography, the moneys could be held on trust for children’s charities or the like.

Lawyers for pets

By Legal Eagle

Long-time readers of this blog will know I’m fascinated by animals and the law. A while back I wrote a post on the topic of pets who are recipients of bequests, and discussed the possibility of a rich animal being better represented before the law than a poor human being. The dog in that post was the recipient of a US$12M trust fund.

According to a piece in The Australian, it seems that there is a move in Switzerland for the appointment of lawyers for pets and animals, but they draw the line at plants:

The country will hold a referendum next month on whether domesticated creatures should have the right to be represented by lawyers in court.

The alpine state recently changed its constitution to protect the “dignity” of plant life and made a law last year establishing rights for creatures such as canaries and goldfish.

If the referendum is approved, every canton in Switzerland will be obliged to appoint a lawyer to act for pets as well as farm animals and defend them from abuse.

“Humans can hire a lawyer or get one assigned but animals cannot do that,” lawyer Antoine Goetschel said. “Which is where I come in.”

In 2007, the canton of Zurich appointed him an “animal advocate” in an experiment the success of which has encouraged animal welfare groups to mount a successful campaign for a referendum to create similar officials all over the country.

The government is against the idea of animal lawyers, as are farmers associations and pet breeders, who fear stricter regulation if the motion is approved on March 7, and a group of political parties last week established a committee called No to the Useless Animal Lawyers’ Initiative.

“Animal rights advocates are useless to animals,” it said. “They can’t prevent animal abuse because they only get involved after it has been perpetrated.”

Mr Goetschel, a 50-year-old vegetarian, disagrees and hopes that the initiative passes with a big “yes”. Unlike the Middle Ages, when locusts and frogs were often summoned to court in Europe to answer for crimes such as infestations, animals are not requested to attend proceedings.

In court, Mr Goetschel acts much like a public prosecutor appealing for an appropriate sentence. It is his job to enforce legislation enacted in 2008 under which goldfish, canaries and guinea pigs are considered “social animals”, which must never be kept alone.

Goldfish tanks cannot be transparent on four sides since fish need shelter. Dog owners must take a four-hour course on pet care before they acquire their canine companion.

Mr Goetschel, who runs a regular legal practice, does not get involved in plant life, even if the constitution has been amended to recognise that plants are entitled to dignity, meaning that it is wrong, in the view of a government-appointed ethics panel, to engage in the “decapitation of wildflowers at the roadside without rational reason”.

The maximum sentence for animal abuse is three years in prison but the usual outcome is a fine. “Pet-keepers think that a so-called love for a guinea pig is enough,” the lawyer said.

“But this ignores the animal’s needs as a species, such as having a companion.”

How can an animal convey its instructions to its lawyer? Obviously a more intelligent animal such as a dolphin or a chimpanzee may be able to communicate with humans in a complex way. But guinea pigs? What if there’s a particularly anti-social guinea pig who wants to be alone (a la Greta Garbo). How does the lawyer know it wants companion guinea pigs?

I broke them, YOU buy them

By DeusExMacintosh

Opposition Leader Tony Abbott is standing by his comments that women should try to remain virgins until they are married.

Mr Abbott agreed that his ”minders” may have been concerned by his public airing of his private views on such topics, but he said today’s politicians “inevitably” had to face more such questions than their counterparts a generation ago.

In a revealing interview with The Australian Women’s Weekly, Mr Abbott said women should try to stick to ”the rules” when considering sex before marriage.

When they cannot abstain, women should use contraception, the former Catholic seminarian says…

Mr Abbott conceded that he could face criticism for his statements, given his own sexual activity before marriage, which became public in 2005, when it was believed he had fathered a son of his former girlfriend Kathy Donnelly.

DNA testing later proved Daniel O’Connor, then working in the federal parliamentary press gallery, was not his son.

“I have a very chequered past and I don’t claim to be an exemplar of virtue in any way”, Mr Abbott told 3AW.

As to what Australians would think of his statements, given his personal history, Mr Abbott said: “I will let other people make those judgements.”

- The Age

It’s such a simple little rule…

Food allergies and negligence

By Legal Eagle

Via the Obligations Discussion Group, I have become aware of a recent English High Court case, Bhamra v Dubb (trading as Lucky Caterers) [2010] EWCA Civ 13. As someone who suffers from a severe food allergy myself (anaphylactic reaction to tree nuts) this case is of intense interest to me.

The facts of the case are unusual. Mr Bhamra attended a Sikh wedding at Ramgarhia Sikh Temple at which food was served. Mr Dubb carried on business under the name of ‘Lucky Caterers’, and was engaged by the bride’s father to cater for the wedding. Mr Bhamra was a Sikh and Mr Dubb was a Hindu Punjabi who was familiar with the Sikh religion. The Sikh religion forbids the consumption of meat, fish and eggs in a temple. Indeed, meat, fish and eggs are not supposed to be brought into the temple at all.

Mr Bhamra suffered from a severe allergy to eggs. Unfortunately, he ate a portion of ras malai which contained eggs. It seems that there were more guests than expected, and the trial judge found that Mr Dubb had had to bring in some extra food from an outside source, but that Mr Dubb did not think the ras malai contained egg (although Mr Dubb did not give evidence to this effect on the stand). Mr Bhamra had an anaphylactic reaction and, tragically, he died a few days later. His widow sued the caterers for negligence.

In the context, the trial judge decided that a caterer would not normally give a warning that a product contained egg. He found that it was reasonable of Mr Bhamra to assume that there would be no egg served in the temple because of the specific context in which the food was served. The trial judge found that Mr Dubb was liable in negligence. Mr Dubb appealed to the High Court.

The question was not whether or not Mr Dubb owed a duty of care to Mr Bhamra, but what the precise content of that duty was. The court said at [19]:

Although in the present case the judge found that egg allergy is common, there was no evidence before him capable of supporting a finding that good practice requires restaurateurs and professional caterers to warn customers that dishes contain eggs, where that is the case. It is necessary to bear in mind that, although Dr. Pumphrey described the incidence of egg allergy as “common”, it is in fact present in only 0.1% of the adult population. If the risk of causing injury to those with egg allergy were generally understood to be significant, one would expect restaurateurs of all kinds routinely to provide warnings that dishes contain, or may contain, eggs or traces of eggs, but in fact that is not the case. We therefore approach the matter on the basis that there is no general duty to provide a warning of that kind, even though it is known that some people are allergic to eggs. (The position in respect of nut allergy may differ, but it is unnecessary to consider that for the purposes of this appeal.) It follows that a restaurateur or caterer who is providing food for people who, as far as he is aware, are of no more than ordinary susceptibility does not owe them a duty to take reasonable care to prevent their suffering harm through eating egg. In the present case, however, it was important to avoid the use of eggs for purely religious reasons. It is therefore necessary to ask whether in the circumstances of this case Mr. Dubb owed Mr. Bhamra a duty not merely to take reasonable care to avoid offending his religious sensibilities but to avoid causing him physical harm through serving food containing eggs.

The court then continued at [24] – [25]:

In our view, therefore, the critical question in the present case is whether the nature of the occasion was such as to extend the scope of the ordinary duty of care to encompass personal injury caused through the consumption of otherwise wholesome food containing eggs. The judge thought that it was. Although he did not express it in quite this way, it is apparent that in his view Mr. Bhamra was entitled to rely on Mr. Dubb to ensure that he did not suffer harm as a result of eating food that contained egg. …

We have not found this an easy question to answer, primarily because the relationship between Mr. Dubb and Mr. Bhamra was essentially the same as that which exists between any restaurateur or caterer who provides food for the public and those who consume it, apart from the additional requirement that the food should not contain ingredients that were prohibited by the Sikh religion. In those circumstances he was certainly under a duty to take reasonable care not to serve dishes containing egg in order to avoid offending against Sikh religious principles, but it is not so clear that his duty extended to physical harm resulting from egg allergy. Nonetheless, there are four factors present in this case which in our view lead to that conclusion. First, Mr. Dubb was under a duty of care to avoid serving food containing eggs. For reasons given earlier, a person in his position would not ordinarily be under any such duty, but in the present case such a duty did exist. In addition, he knew that some people are allergic to eggs and that any such person would suffer illness or more serious injury if he ate food containing eggs. He also knew that those who attended the wedding, including any guest who happened to suffer from egg allergy, would expect the food to be completely free of eggs and would therefore feel confident that no harm would come from eating it. Finally, Mr. Bhamra, who knew himself to be allergic to eggs, had every reason to rely without inquiry on Mr Dubb to supply food which did not contain egg, as would not have been the case if this had been anything other than an exclusively Sikh occasion. In our view this very unusual combination of circumstances is sufficient to extend the scope of Mr. Dubb’s duty of care to harm in the form of personal injury suffered as a result of eating food containing eggs.

Ultimately, the court found that Mr Dubb was in breach of duty because he was aware that some recipes for ras malai included eggs, and that ras malai obtained from some outside sources might contain egg. Mr Dubb did not exercise due care because he did not choose an appropriate and reputable supplier, he did not stipulate expressly that the product should not contain eggs, and he did not check the list of ingredients (if there was one). In the absence of an explanation as to how the error occurred, therefore, the fact that the ras malai contained egg was sufficient to support the conclusion that Mr. Dubb failed to take reasonable care. (An aside at this point: I’m a little sad that the court didn’t use one of my favourite tortious maxims, res ipsa loquitur – “the thing speaks for itself” – it would have been a perfect moment for it).

There has been a lot of debate in the Obligations Discussion Group about this case. I’ve also asked a few legally qualified and non-legally qualified friends what they would have concluded if they had been the judge, and the views differed wildly. On the one hand, one friend thought that the failure of the caterer was clearly negligent by including egg when there was a religious dietary restriction on egg, and further, that it was reasonable of Mr Bhamra to suppose there was no egg in the food. On the other hand, some other friends thought that it was unfair to punish the caterer when the caterer was not aware of the deceased man’s allergy or of the particular importance of supplying egg-free food. (I don’t know if it’s of any significance that the first friend is a member of a religion with strict dietary requirements and the second group of friends adhere to no religion? Perhaps it’s just chance. I’d need a greater sample of people to question.)

The thing that really struck me about this case (as someone who suffers from a severe food allergy) is that the poor deceased man did not appear to be carrying an adrenaline auto-injector. I always take my adrenaline auto-injector wherever I go, regardless of whether someone has assured me that there’s no nuts in food, because as this case shows, it’s always possible for mistakes to occur. I learned my lesson the hard way. I now tend to avoid European cakes and biscuits regardless of disclaimers (hazelnut meal and almond meal is hard to spot). I once neglected to tell a caterer of my allergy at a work function. I thought, Well, I’m very careful with my selections – if it looks like it has nuts in it, I’ll avoid it. No sense making a fuss. Who would have thought a roll with roast beef would have had walnuts sprinkled through the bread roll? Now I’m always careful to tell caterers, even if it does mean that I get some kind of horrible fruit platter for dessert.

So if this poor man knew he suffered an anaphylactic reaction to eggs, should he have carried an adrenaline auto-injector with him, even if he thought that there would not be eggs in the food? In that case, is there an issue of contributory negligence? It would depend, I suppose, whether the reasonable person who suffers from anaphylaxis is like me and takes her adrenaline with her everywhere she goes.

What do you think about this case? Would you have found the caterer negligent or not?

[Incidentally, my previous post about the stupidity of the disclaimer "may contain traces of nuts" is here. Grr grr grr.]

Forgiveness is overrated

By skepticlawyer

One of the advantages of being a skeptic is that you don’t have to reject positions articulated by religious figures just because you think they believe in fairies at the bottom of the garden, but also because you think that core chunks of their doctrine — including bits often regarded as wholly good and reasonable — are badly mistaken. Today I’m taking aim at forgiveness. Recent games theory research indicates that too much forgiveness leads to an exploding population of nasty crooks. More on that later.

My point of departure is this post over at Larvatus Prodeo, where Tony Abbott once again opens his mouth and inserts his foot for our collective amusement. This time, he’s trying to argue the following:

Various people have made all the obvious arguments: that people like sex, that contraception is autonomy-enhancing, that liberals are supposed to respect autonomy, that Tony is squicky (discussing his daughters’ sex lives in public) etc. All those points are fine and good, and they’re all nicely summarized here.

Very few people, however, are suggesting that Abbott should shut his hypocritical mouth on account of his failure to live up to his own standards. The bare facts of that failure are outlined above; at no point, however, is it suggested that he is a signal example of hypocrisy.

There is a reason for a lack of shaming fingers and shouting voices yelling ‘hypocrite’ at Tony Abbott. It’s because Abbott no doubt believes he’s forgiven for his past behaviour, as do many of his interlocutors, including those who disagree with him. In other words, he is a living exemplar of a bumper-sticker I used to see a fair bit as a kid: Christians aren’t perfect, just forgiven

Thing is, I don’t think forgiving people their failures and then listening to them opine about the field in which they failed is a very smart idea. It suggests that because Tony Abbott feels guilty about something he did, he can have a private conversation with his god (or his conscience) and then emerge, clean of his transgressions. His private guilt thus deprives the rest of us of the capacity to shame him, to say: we are not going to listen to you on this topic, Tony, because you have shamed yourself.

There has been quite a bit of commentary around the traps in recent years about how, as a society, we have lost the ability to use shame as an effective restraint on bad behaviour. We have — according to quite a few people, including this academic at ADFA — become shameless (via Jason Soon). Michael Evans (the ADFA academic) traces the shamelessness to our loss of a sense of personal responsibility, and he’s at least partly right. But only partly right.

Much of the problem, I submit, stems from our willingness to forgive, of which a signal example is listening to people hold forth on things where they have failed to maintain their own standards (I’m not suggesting for a moment that these standards are or should be universal), and then taking them seriously. This especially applies to purported moral guidance: at least a businessman or stockbroker who writes a self-help book on how to make money can point to his failures and say, don’t do that, look what happened to me. He can then point to his current successes and his book (and our reason for buying it) is then about contrasting that success and failure.

Morality — particularly sexual morality — provides no such out. There’s no money in it, for starters.

Where does this leave forgiveness? In a recent paper, three computer scientists decided to put forgiveness to the test, to try to work out if there is such an animal as ‘optimum’ levels of forgiveness, and if forgiveness as a concept is overrated in contexts where human beings have to compete with each other. Their working title is Using Misperception to Counteract Noise in the Iterated Prisoner’s Dilemma. All three (Kevin Korb, Carlo Kopp and Lachlan Brumley)  are based at Monash, here in Australia, so their work couldn’t be more relevant to the issue. Their abstract:

The Iterated Prisoner’s Dilemma is a game-theoretical model which can be identied in many repeated real-world interactions between competing entities. The Tit for Tat strategy has been identified as a successful strategy which reinforces mutual cooperation, however, it is sensitive to environmental noise which disrupts continued cooperation between players to their detriment. This paper explores whether a population of Tit for Tat players may evolve specialised individual-based noise to counteract environmental noise. We have found that when the individual-based noise acts similarly to forgiveness it can counteract the environmental noise, although excessive forgiveness invites the evolution of exploitative individual-based noise, which is highly detrimental to the population when widespread.

In sum, a certain amount of forgiveness is a good thing: societies that are wholly ’shame’ based (Japan, pagan Rome) have high suicide rates when contrasted with societies that are wholly ‘guilt’ based, for example, as people kill themselves when they fail to live up to their own standards. How much forgiveness is a good thing, then, if we wish to bisect the scylla of seppuku and the charybdis of Tony Abbott and Bill Clinton being reduced to soap opera before our very eyes? Korb et al again:

This work does demonstrate that misperception can help TFT players maintain mutual cooperation in an evolutionary IPD game. However, this requires that misperception mimics forgiveness and that any misperception causing unwarranted defections is limited. Forgiveness can counteract the effects of random noise; however, excessive forgiveness leaves the population of TFT players vulnerable to exploitation, in this case by selfish Punishing Misperception. Forgiving Misperception is not an Evolutionarily Stable Strategy, as Punishing Misperception will invade the population to exploit the forgiving players.

High Punishing Misperception probabilities are an Evolutionarily Stable Strategy, albeit a highly detrimental one since such widespread behaviour produces worse payoffs than a population only affected by noise.

The optimal upper bound for Forgiving Misperception is approximately 30% for the TFT players. At this point mutual cooperation can be maintained, while Punishing Misperception does not evolve to invade the population. The Forgiving and Punishing Misperception probabilities which evolve in the player population interact in a manner similar to a predator-prey relationship. When the population’s Forgiving Misperception probability is restricted, misperception will provide an evolutionary benefit when it induces behaviour analogous to forgiveness. However, this benefit requires an asymmetric model of misperception in which the evolution of Forgiving Misperception is restricted.

About 30%, friends and neighbours. None of this 70×7 malarky: all that happens then is that you get taken to the cleaners. And exploitative individual-based noise as a result of excessive forgiveness? That’s Tony Abbott sounding off about his failures and expecting to be taken seriously.

May I suggest, then, a modest reframing of public debate every time Tony Abbot (or a similar moral failure by his own standards) sounds off on this sort of thing? We should shame him for his hypocrisy. Instead of listening to the dishonest banker caught with his fingers in the till who begs our forgiveness, we should listen to the honest banker who makes the shareholders money without cheating his customers or pissing all over market rules. Instead of listening to the Catholic who played Vatican Roulette with his girlfriend, we should listen to the parish priest who lived up to his vows (and believe me, there are plenty of them; the media are very good at highlighting only the failures). Instead of listening to a given celebrity tell of their travails with drugs, we should listen to another celebrity who has managed to avoid drugs altogether. We may actually learn something, even if we ultimately disagree with their policy proposals and submissions to public debate. I will probably disagree with everything the parish priest says about virginity before marriage, because I think it’s a double standard directed primarily (and negatively) at women. At least, however, I can take him seriously. He has lived his ideals. I can’t take Tony Abbott seriously. The distinction may be a fine one, but it is important to bear it in mind.

Let me also stress that this is not a counsel of perfection, but a recognition that it isn’t actually that difficult to be a decent person. By taking craptacular failures so seriously, we risk making decency and goodness (however defined; my particular interest is financial probity) seem impossible across the wider society. Similarly, I’m not suggesting we bring out the ’shame tool’ whenever someone has lived a less than blameless life (that really would be heading down the seppuku route). Rather, I’m suggesting that shaming is the appropriate response to public figures who get off on wallowing in their sin in public, and who then purport to advise the rest of us on the basis of that wallowing. Talking the talk requires walking the walk, in other words.

You’re not perfect, Tony Abbott, but you’re also not forgiven. Now get down to the bar and grab yourself a nice steaming hot cup of shut the fuck up.

NB: For those who want a copy of the Monash paper, you’ll have to leave a request in the comments so I can send it to you privately, as it’s still forthcoming.

UPDATE: Deborah at LP has done a links round-up here, which I recommend, as she’s parsed the Women’s Weekly article very carefully — even going out and buying the bloody thing! Apparently the recipes are good. Also, there’s this piece where George Brandis (who should know better) tries rather ham-fistedly to support his leader. The best response? From ‘Joe’ in the comments:

“Fantastic, the economy is going down the drain, and they are talking about the virginity of their children, something they can never hope to influence anyway!”

Quite, Joe.

UPDATE II: Now crossposted at Online Opinion.

Japanese ghosts are the scariest

By Legal Eagle

I was talking to a Japanese friend about how my parents had a book of Japanese myths and legends, and I loved to read it as a kid, but some of those stories were so scary. I am sure that Japanese ghosts are the scariest and the weirdest. Anyway, I thought I would put together a sample of 10 Japanese ghosts or legendary creatures.

1. Akaname

Akaname means ‘filth licker’. It is a spirit which licks dirty bathrooms clean with its tongue and the aid of poisonous saliva. Seriously. There’s also a ceiling-licking ghost called tenjōname.

I wonder if I can hire them to clean my house?

2. Kamaitachi

Kamaitachi are a trio of slashing sickle weasels. Again, seriously. Apparently these three sharp-clawed weasels rode on a gust of wind with the aim of cutting people’s legs. The first weasel knocked the unsuspecting victim down, the second cut the victim’s flesh and the third applied medication to the wounds, so that by the time the victim realised what was happening they were left with painful wounds that were no longer bleeding. Sometimes the three are described as brothers, sometimes as triplets. Why these weasels would want to do this is unclear. It’s probably a pun on a spirit which people called kamaetachi (meaning “attacking”). Toriyama Sekien changed this slightly to mean “sickle weasel”. That’s his illustration below from a bestiary.

3. Nuppeppo

An animated lump of flesh. The Nuppeppo is passive and unaggressive. It is said to smell like rotting flesh, or alternatively, perhaps it is actually decaying flesh. It is rumoured someone who eats the flesh of a Nuppeppo shall have eternal youth. The Nuppeppo aimlessly wanders deserted streets of villages, towns and cities, often at night towards the year-end, or graveyards or abandoned temples. I have no idea why it might do this.

4. Makura-gaeshi

Makura-gaeshi are ghosts who delight in moving pillows while people sleep. I’m not sure why they delight in this. Perhaps they also hide socks which are lost in the washing?

5. Ittan-momen

Ittan-momen is a strip of cloth which flies about and strangles or smothers people. However, it will consent to be worn by people it trusts. It originates from Kagoshima province, which I visited about 10 years ago. Luckily I didn’t come across this creature. Ittan-momen has been popularised in the manga GeGeGe-no-Kitaro.

6. Dodomeki

Dodomeki is the spirit of a pickpocket or thief who has eyes all over him. It must be useful for picking people’s pockets, but he is rather unpleasant looking. I don’t want to meet him in the street.

7. Momokuren

Momokuren are a swarm of eyes that appear in holes in shōji (Japanese paper sliding doors). This ghost is said to be an invention of Toriyama Sekien, who we last met with the slashing sickle weasels. The illustration below is his again.

8. Chōchinobake

Chōchinobake are a type of tsukumogami. Tsukumogami are spirits which arise when objects reach their 100th year of existence, thus causing the object to become animate. Chōchinobake in particular are created from the chōchin lantern, composed of bamboo and paper or silk. They are typically portrayed with one eye, and a long tongue protruding from an open mouth.

Also watch out for kasaobake – animated umbrellas.

9. Mekurabe

Multiplying skulls that menaced Taira no Kiyomori in his courtyard. Taira no Kiyomori is an actual historical figure, a Japanese general of the Heian period. There was a famous rivalry between the Taira and Minamoto warrior clans in which the Taira clan initially emerged victorious, but fell from power as a result of their arrogance and pride. The tale is told in Heiki Monotogari (‘The Tale of Heiki’). Taira no Kiyomori apparently died of a fever and was confronted with the ghosts of his victims before he died.

10. Abura-akago

Abura-akago is an infant ghost who licks oil from andon lamps. It apparently originates from a story where an oil merchant stole oil from a Jizō statue at the crossroads, and the man was punished posthumously by being transformed into a wandering ghost-fire. The theory was that this ghost-fire then turned into an infant who licked oil from lamps.

If you want to learn more about Japanese legendary creatures check out Wikipedia’s list.

Listverse also has a list of top 10 Japanese legendary creatures, some of which overlap with the ones here.