kottke.org posts about legal
In light of the ongoing policing situation in Ferguson, Missouri in the wake of the shooting of an unarmed man by a police officer and how the response to the community protests is highlighting the militarization of US police departments since 9/11, it's instructive to look at one of the first and most successful attempts at the formation of a professional police force.
The UK Parliament passed the first Metropolitan Police Act in 1829. The act was introduced by Home Secretary Sir Robert Peel, who undertook a study of crime and policing, which resulted in his belief that the keys to building an effective police force were to 1) make it professional (most prior policing had been volunteer in nature); 2) organize as a civilian force, not as a paramilitary force; and 3) make the police accountable to the public. The Metropolitan Police, whose officers were referred to as "bobbies" after Peel, was extremely successful and became the model for the modern urban police force, both in the UK and around the world, including in the United States.
At the heart of the Metropolitan Police's charter were a set of rules either written by Peel or drawn up at some later date by the two founding Commissioners: The Nine Principles of Policing. They are as follows:
1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.
3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.
4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.
5. To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.
6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.
7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.
As police historian Charles Reith noted in 1956, this philosophy was radical when implemented in London in the 1830s and "unique in history and throughout the world because it derived not from fear but almost exclusively from public co-operation with the police, induced by them designedly by behaviour which secures and maintains for them the approval, respect and affection of the public". Apparently, it remains radical in the United States in 2014. (thx, peter)
Photographer David Slater wants Wikipedia to remove his photograph of a monkey taking a photo of itself but Wikipedia has refused, saying that as the monkey was the photographer, Slater has no right to the copyright to the photo.
The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained to Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.
But shouldn't Wikipedia take it down anyway because they don't have the monkey's permission to release the photo into the public domain? (I mean, probably not...monkeys don't have any rights under the law, yes?) (via @capndesign)
Update: A previous version of this post stated that Wikipedia said that the monkey held the copyright. They said no such thing...that was my poor paraphrase. In the US at least, monkeys obviously can't hold copyrights. From the Compendium II of Copyright Office Practices, section 202.02(b) states:
The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.
Interesting phrase, "owe its origin to"...perhaps Slater has a point. (via @stvnrlly)
Update: According to a recent 1000+ page document produced by the US Copyright Office, a photograph taken by a monkey is "unprotected intellectual property".
The US Copyright Office, in a 1,222-page report discussing federal copyright law, said that a "photograph taken by a monkey" is unprotected intellectual property.
"The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy state that the work was inspired by a divine spirit," said the draft report, "Compendium of US Copyright Office Practices, Third Edition."
Hi, everybody! Tim Carmody here, guest-hosting for Jason this week.
On Monday, I tried to list some reasons why OKCupid's self-acknowledged experiments on its users didn't seem to be stirring up the same outrage that Facebook's had. Here at the end of the week, I think I was largely right: fewer people are upset, the anger is more tempered, and that has a lot to do with the reasons I gave. But one reaction I didn't expect is that some people took it as saying that I wasn't upset by what OKCupid did, or that people shouldn't be as upset by it.
What OKCupid did has actually made me madder and madder as the week's gone on, but for reasons that are different from other people's. I think this is pretty important, so I'm going to try to explain why.
Let's start with the Facebook "social contagion" study. Most Facebook critics focused on the people who were the subjects of the study, for good reasons. Did these users give consent? Can terms of service count as consent for an academic study? Should they have been informed of the study afterwards? Is Facebook responsible for any harm these users might have suffered? Is an increase or decrease in engagement really a sign that users' emotions were affected? How else has Facebook attempted to influence its users, or might try in the future? These are all good questions.
But what if you flip it around? What if you weren't one of the subjects whose moods Facebook was trying to study, but one of their friends or family? What if you were one of the people whose posts were filtered because your keywords were too happy, too angry, or too sad?
I think there's no way to know whether the Facebook study may have harmed people who weren't being studied. And even though the TOS basically says that users give Facebook permission to do whatever they want not only with the users' data, but all of their friends' too, you can't call that consent with a straight face. (This is just another reason that software terms of service are a rotten legal and ethical basis for research. They just weren't built for that reason, or to solve any of those problems.)
So Facebook didn't just mess around with some of its users' feeds, hoping to see if it might mess around with their feelings. It used some of its users' posts in order to do it. Arguably, it made them complicit.
To be clear, filtering posts, giving preference to some and not others, is how Facebook's newsfeed algorithm always works. Facebook users have been complaining about this for a long time, especially brands and news organizations and other companies who've built up their subscriber counts and complain that hardly anybody ever sees their posts unless they pay off Facebook's ad department. And Facebook makes no guarantees, anywhere, that they're going to deliver every message to every user who's subscribed to it. Readers miss posts all the time, usually just because they're just not looking at the screen or reading everything they could see. Facebook isn't certified mail. It's not even email. All this is known.
We all buy in to Facebook (and Twitter, and OKCupid, and every other social media network), giving them a huge amount of personal data, free content, and discretion on how they show it to us, with the understanding that all of this will largely be driven by choices that we make. We build our own profiles, we select our favorite pictures, we make our own friends, we friend whatever brands we like, we pick the users we want to block or mute or select for special attention, and we write our own stories.
Even the filtering algorithms, we're both told and led to assume, are the product of our choices. Either we make these choices explicitly (mute this user, don't show me this again, more results like these) or implicitly (we liked the last five baby pictures, so Facebook shows us more baby pictures; we looked at sites X, Y, and Z, so we see Amazon ads for people who looked at X, Y, and Z. It's not arbitrary; it's personalized. And it's personalized for our benefit, to reflect the choices that we and the people we trust have made.
This is what makes the user-created social web great. It's the value it adds over traditional news media, traditional classified ads, traditional shopping, everything.
We keep copyright on everything we write and every image we post, giving these services a broad license to use it. And whenever the terms of service seem to be saying that these companies have the right to do things we would never want them to do, we're told that these are just the legal terms that the companies need in order to offer the ordinary, everyday service that we've asked them to do for us.
This is why it really stings whenever somebody turns around and says, "well actually, the terms you've signed give us permission to do whatever we want. Not just the thing you were afraid of, but a huge range of things you never thought of." You can't on one hand tell us to pay no attention when you change these things on us, and with the other insist that this is what we've really wanted to do all along. I mean, fuck me over, but don't tell me that I really wanted you to fuck me over all along.
Because ultimately, the reason you needed me to agree in the first place isn't just because I'm using your software, but because you're using my stuff. And the reason I'm letting you use my stuff, and spending all this time working on it, is so that you can show it to people.
I'm not just a user of your service, somebody who reads the things that you show it to me: I'm one of the reasons you have anything that you can show to anyone at all.
Now let's go back to the OKCupid experiment. Facebook didn't show some of its users posts that their friends wrote. But at least it was a binary thing: either your post was shown, just as you wrote it, or it wasn't. OKCupid actually changed the information it displayed to users.
You can pick nits and say OKC didn't change it, but rather, just selectively repressed parts of it, deleting photos on some profiles and text on others. But if you've ever created a profile on any web site, you know that it's presented as being a whole ensemble, the equivalent of a home page. The photos, the background, the description, the questions you answer: taken altogether, that's your representation of yourself to everyone else who may be interested. It's the entire reason why you are there.
Now imagine you're an OKCupid user, and you strike up a conversation with someone or someone strikes up a conversation with you. You assume that the other person has all of your information available to them if they're willing to look at it. That's the basis of every conversation you have on that site. Except they don't. The profile that OKCupid has implicitly promised they'll show to everyone who looks at it has been changed. The other person either doesn't know what you look like (and assumes you can't be bothered to post a photo) or doesn't know anything else about you (and assumes you can't be bothered to write anything about yourself.) Both of you have been deceived, so the site can see what happens.
This is why I question the conclusion that OKC users who were only shown profiles with pictures are shallow, because their conversations were almost as long as the ones who were shown full profiles. This is how I imagine those conversations going:
Rosencrantz: So what do you do?
Guildenstern: Um I work in marketing?
Rosencrantz: That's great! Where did you go to school?
Guildenstern: I went to UVA
Guildenstern: Wait a minute are you some kind of bot?
Rosencrantz: What makes you say that?
Guildenstern: You keep asking me questions that are in my profile, did you even read it
Rosencrantz: I'm looking at it right now, why didn't you answer any of the questions
Guildenstern: lol I guess you can't read nice pic though goodbye
That's a high-value interaction by the OKC researchers' standards, by the way.
This is also why I don't have much patience with the idea that "The worst thing could have happened [with the OkCupid testing] is people send a few more messages, and maybe you went on a date you didn't like." (Rey Junco told this to ReadWrite to explain why he thought Facebook's study was worse than OKCupid's, but you see versions of this all over.)
First, going on "a date you didn't like" isn't a frivolous thing. It definitely incurs more material costs than not seeing a Facebook status. And bad (or good) messages or a bad or good date can definitely have a bigger emotional impact as well.
More importantly, though, don't make this just a question about dates or feelings, about what somebody did or didn't read and what its effect on them was. I don't care if you think someone making a dating profile is a frivolous thing. Somebody made that. They thought the company hosting it could be trusted to present it honestly. They were wrong.
So this is the problem I see not just with Facebook and OKCupid's experiments, but with most of the arguments about them. They're all too quick to accept that users of these sites are readers who've agreed to let these sites show them things. They don't recognize or respect that the users are also the ones who've made almost everything that those sites show. They only treat you as a customer, never a client.
And in this respect, OKCupid's Christian Rudder and the brigade of "and this surprises you?" cynics are right: this is what everybody does. This is the way the internet works now. (Too much of it, anyway.) It doesn't matter whether your site is performing interventions on you or not, let alone publishing them. Too many of them have accepted this framework.
Still, for as long as the web does work this way, we are never only these companies' "products," but their producers, too. And to the extent that these companies show they aren't willing to live up to the basic agreement that we make these things and give them to you so you will show them to other people -- the engine that makes this whole world wide web business go -- I'm not going to have anything to do with them any more. What's more, I'll get mad enough to find a place that will show the things I write to other people and tell them they shouldn't accept it either. Because, ultimately, you ought to be ashamed to treat people and the things they make this way.
It's not A/B testing. It's just being an asshole.
Update: OKCupid's Christian Rudder (author of the "We Experiment On Human Beings" post) gave an interview to Alex Goldman and PJ Vogt for On the Media's TLDR podcast.
Rudder says some of the negative response "is my own fault, because, y'know, the blog post is sensationally written, for sure." But he doesn't back off of that tone one bit. In fact, he doubles down.
Alex Goldman: Have you thought about bringing in, say, like an ethicist to, to vet your experiments?
Christian Rudder, founder of OkCupid: To wring his hands all day for a hundred thousand dollars a year?... This is the only way to find this stuff out. If you guys have an alternative to the scientific method, I'm all ears.
I think he maybe should have just written the blog post and left it alone.
Update: University of Maryland Professor of Law James Grimmelmann say that not only were OKCupid's and Facebook's studies unethical, but they were illegal.
Most of the resulting discussion has treated this as a story about ethics. Which it is -- and the lapses of ethical judgment shown by Facebook and OkCupid are scandalous. But the ethics are only half of the story. What Facebook and OkCupid did wasn't just unethical. It was illegal. A common assumption is that even if research laws ought to apply to private companies, they don't. But that assumption is false. Facebook and OkCupid are bound by research laws, and those research laws quite clearly prohibit what they did.
NYC and the Central Park Five have agreed to a $40 million settlement that will bring a years-long civil rights lawsuit to an end.
The five men whose convictions in the brutal 1989 beating and rape of a female jogger in Central Park were later overturned have agreed to a settlement of about $40 million from New York City to resolve a bitterly fought civil rights lawsuit over their arrests and imprisonment in the sensational crime.
The agreement, reached between the city's Law Department and the five plaintiffs, would bring to an end an extraordinary legal battle over a crime that came to symbolize a sense of lawlessness in New York, amid reports of "wilding" youths and a marauding "wolf pack" that set its sights on a 28-year-old investment banker who ran in the park many evenings after work.
Ken Burns made a documentary film about this case in 2012. Highly recommended viewing...and you can watch the whole thing on the PBS web site.
A new study finds that insider trading is much worse than commonly thought: a quarter of all public company deals may involve some kind of insider trading. From the NY Times:
The professors examined stock option movements -- when an investor buys an option to acquire a stock in the future at a set price -- as a way of determining whether unusual activity took place in the 30 days before a deal's announcement.
The results are persuasive and disturbing, suggesting that law enforcement is woefully behind -- or perhaps is so overwhelmed that it simply looks for the most egregious examples of insider trading, or for prominent targets who can attract headlines.
The professors are so confident in their findings of pervasive insider trading that they determined statistically that the odds of the trading "arising out of chance" were "about three in a trillion." (It's easier, in other words, to hit the lottery.)
Only about 5% of the deals are ever litigated by the SEC. (via mr)
Dang, Tesla just announced they're letting anyone use their patented technology. CEO Elon Musk:
Yesterday, there was a wall of Tesla patents in the lobby of our Palo Alto headquarters. That is no longer the case. They have been removed, in the spirit of the open source movement, for the advancement of electric vehicle technology.
Tesla Motors was created to accelerate the advent of sustainable transport. If we clear a path to the creation of compelling electric vehicles, but then lay intellectual property landmines behind us to inhibit others, we are acting in a manner contrary to that goal. Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.
Damn good move for a damn good reason. It's impressive to watch this company in action.
Update: I read that last line quoted above again and perhaps "abandoned" is too strong a word. Glenn Fleishman notes on Twitter:
They did not abandon their patents. They aren't apparently even licensing them. They are stating they won't sue except defensively. The devil is in the details. Twitter released a complete framework of their policy when they announced the same thing.
Hopefully Musk and co. will clarify what they mean by "in good faith".
This is called a billing block:
You find it at the bottom of movie posters and often at the end of movie trailers. In an Op-Art piece from last year, Ben Schott explains how the billing block is carefully constructed with information from contracts and legal agreements.
The content, order and format of the billing block are governed by two things: personal service contracts with cast and crew, and industrywide agreements with professional guilds -- notably the Directors Guild of America (D.G.A.) and the Writers Guild of America (W.G.A.). Thus, while some elements of the billing block remain consistent, others depend of the type of film and on individual negotiations. That said, there has been a marked inflation in billing block credits. An "Ocean's 11" poster from 1960 credited just three noncast individuals; the 2001 remake poster credited, coincidentally, 11.
Oh, wow. Tobias Frere-Jones is suing his business partner Jonathan Hoefler over ownership of world-reknowned type foundry Hoefler & Frere-Jones.
Type designer Tobias Frere-Jones claims he has been cheated out of his half of the company by his business partner, Jonathan Hoefler. In a blistering lawsuit filed today in New York City, Frere-Jones says he was duped into transferring ownership of several fonts, including the world-famous Whitney, to Hoefler & Frere-Jones (HFJ) on the understanding that he would own 50% of the company.
"In the most profound treachery and sustained exploitation of friendship, trust and confidence, Hoefler accepted all of the benefits provided by Frere-Jones while repeatedly promising Frere-Jones that he would give him the agreed equity, only to refuse to do so when finally demanded," the suit claims.
The full complaint is here. A descendant of Whitney (Whitney ScreenSmart) is what you're reading right now and I was an early beta tester of H&FJ's webfont service. This is gobsmacking news...I have no idea what to think about it. What a sad and strange situation. (via @khoi)
Update: H&FJ has released a statement from their general counsel:
Last week, designer Tobias Frere-Jones, a longtime employee of The Hoefler Type Foundry, Inc. (d/b/a "Hoefler & Frere-Jones"), decided to leave the company. With Tobias's departure, the company founded by Jonathan Hoefler in 1989 will become known as Hoefler & Co.
Update: According to a document filed with the New York County Clerk, the matter between Hoefler and Frere-Jones "has been settled". No other details are available at this time.
A federal judge ruled this morning that NYC's controversial stop-and-frisk practice violated the rights of "tens of thousands" of New Yorkers.
In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.
These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.
To fix the constitutional violations, Judge Scheindlin of Federal District Court in Manhattan said she intended to designate an outside lawyer, Peter L. Zimroth, to monitor the Police Department's compliance with the Constitution.
This is good news. Treating every young black male in the city like a criminal is not a policing strategy and it's embarrassing it has gone on this long. This kind of thing, along with the recent NSA revelations and other issues, make me wonder if "innocent until proven guilty" is still something the US citizenry and its law enforcement agencies still believe in. (via @beep)
Update: Using data from the last half of 2013, the NY Times says 'Stop-and-Frisk' Is All but Gone From New York.
Many who live and work in the neighborhoods say they see scant evidence of change, and some say the police are simply not reporting some or all of their stops. The police did not respond to requests for comment.
But something is clearly different: Misdemeanor drug and weapon charges, the most common arrests to result from a stop, are down considerably. Advocates say misdemeanor marijuana charges, which require that the drug is in plain sight, are a bellwether, because the police ordered thousands to empty pockets, and arrested them.
I'll reserve judgement until the numbers from 2014 are in, particularly those post-Bloomberg.
The Roots' Questlove has some powerful thoughts on the Trayvon Martin verdict:
I'm in scenarios all the time in which primitive, exotic-looking me -- six-foot-two, 300 pounds, uncivilized Afro, for starters -- finds himself in places where people who look like me aren't normally found. I mean, what can I do? I have to be somewhere on Earth, correct? In the beginning -- let's say 2002, when the gates of "Hey, Ahmir, would you like to come to [swanky elitist place]?" opened -- I'd say "no," mostly because it's been hammered in my DNA to not "rock the boat," which means not making "certain people" feel uncomfortable.
I mean, that is a crazy way to live. Seriously, imagine a life in which you think of other people's safety and comfort first, before your own. You're programmed and taught that from the gate. It's like the opposite of entitlement.
Reading about this case and the reaction to it has been a series of gut punches this week.
Back in November, I posted about the effort of the filmmakers of Capturing the Friedmans to prove the innocence of one of the film's subjects, Jesse Friedman. On Monday, a 168-page report released by the Nassau County District Attorney's office found that there was enough evidence to charge and convict Friedman of sexual molestation of minors.
Friedman, his supporters and the makers of the Academy Award-nominated documentary have long maintained he was railroaded into pleading guilty to charges he molested 13 kids in the late 1980s, and were expecting the report to exonerate him.
It did the opposite.
Friedman, they found, was labeled a "psychopathic deviant" by his own shrink, and had actually sexually abused a total of 17 children.
"The District Attorney concludes that Jesse Friedman was not wrongfully convicted," the blistering 172-page report says.
"In fact, by any impartial analysis, the investigation process prompted by Jesse Friedman . . . has only increased confidence in the integrity of Jesse Friedman's guilty plea adjudication as a sex offender."
The panel said it interviewed three of Friedman's now-adult victims. "Each confirmed that he was sexually abused by Jesse Friedman. Each told their separate story, marked by pain and recovery," and "recounted years of shame and humiliation," the report said.
The Washington Post has more. (via @DavidGrann)
In a unanimous decision, the US Supreme Court ruled today that human genes cannot be patented.
The case involved Myriad Genetics Inc., which holds patents related to two genes, known as BRCA1 and BRCA2, that can indicate whether a woman has a heightened risk of developing breast cancer or ovarian cancer.
Justice Clarence Thomas, writing for the court, said the genes Myriad isolated are products of nature, which aren't eligible for patents.
The high court's ruling was a win for a coalition of cancer patients, medical groups and geneticists who filed a lawsuit in 2009 challenging Myriad's patents. Thanks to those patents, the Salt Lake City company has been the exclusive U.S. commercial provider of genetic tests for breast cancer and ovarian cancer.
The challengers argued the patents have allowed Myriad to dictate the type and terms of genetic screening available for the diseases, while also dissuading research by other laboratories.
Fuck yes. A defect in her BRCA1 gene is what caused Angelina Jolie to recently have a preventive double mastectomy. (via @tylercowen)
When Commander Chris Hadfield covered David Bowie's Space Oddity on board the International Space Station:
how were the intellectual property rights handled?
The song "Space Oddity" is under copyright protection in most countries, and the rights to it belong to Mr Bowie. But compulsory-licensing rights in many nations mean that any composition that has been released to the public (free or commercially) as an audio recording may be recorded again and sold by others for a statutorily defined fee, although it must be substantively the same music and lyrics as the original. But with the ISS circling the globe, which jurisdiction was Commander Hadfield in when he recorded the song and video? Moreover, compulsory-licensing rights for covers of existing songs do not include permission for broadcast or video distribution. Commander Hadfield's song was loaded onto YouTube, which delivers video on demand to users in many countries around the world. The first time the video was streamed in each country constituted publication in that country, and with it the potential for copyright infringement under local laws. Commander Hadfield could have made matters even more complicated by broadcasting live as he sang to an assembled audience of fellow astronauts for an onboard public performance while floating from segment to segment of the ISS.
We live in a world where sending a guitar into space is trivial while ironing out rights agreements is the tough part. (via waxy)
Former Supreme Court Justice Sandra Day O'Connor now admits that taking on the Bush vs Gore case in 2000 was probably a mistake.
"It took the case and decided it at a time when it was still a big election issue," O'Connor said during a talk with the Chicago Tribune's Editorial Board on Friday. "Maybe the court should have said, 'We're not going to take it, goodbye.'"
The case, she said, "stirred up the public" and "gave the court a less than perfect reputation."
"Obviously the court did reach a decision and thought it had to reach a decision," she said. "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."
[Hair tearing-out noise]
Feeling totally depressed and sad and useless about this: the NRA wins again.
After Sandy Hook, after twenty children were shot and killed at a place where they should have been safe from all harm, there was some optimism among supporters of gun control: perhaps now, finally, both Democrats and Republicans could see the light -- and the suffering-and revive the assault -- weapons ban. It was a futile hope.
Less than a week after Adam Lanza shot up an elementary school, it was already basically clear that an assault-weapons ban could not pass Congress-that it probably couldn't even get through the Democratic-controlled Senate, never mind the House. So it was hardly a surprise when, three months later, Senate Majority Leader Harry Reid announced that the ban would be removed from a larger gun-control package that is making its way through the upper chamber and given a separate vote that it will not survive. The scale of the defeat suffered by the ban's supporters, though, is shocking. This wasn't a close call; it was a body blow.
I haven't forgotten Sandy Hook. We drive by there every time we go to Vermont. I think about those kids almost every day. Sometimes when I think about them, I close my eyes and see my 5-year-old son cowering in the corner of his classroom as a black-clad figure toting a machine gun bears down on him. And then the tears come. I can't stand that this is what America is; that we trade our children's lives for the opportunity to purchase items specifically invented for killing. I can't stand it. It's pathetic and embarrassing and barbaric.
The deceased former NFL player's family joins more than 6000 people who have sued the NFL over head injuries in the past few years.
"We were saddened to learn that Junior, a loving father and teammate, suffered from CTE," the family said in a statement released to the AP. "While Junior always expected to have aches and pains from his playing days, none of us ever fathomed that he would suffer a debilitating brain disease that would cause him to leave us too soon.
"We know this lawsuit will not bring back Junior. But it will send a message that the NFL needs to care for its former players, acknowledge its decades of deception on the issue of head injuries and player safety, and make the game safer for future generations."
Plaintiffs are listed as Gina Seau, Junior's ex-wife; Junior's children Tyler, Sydney, Jake and Hunter, and Bette Hoffman, trustee of Seau's estate.
The lawsuit accuses the league of glorifying the violence in pro football, and creating the impression that delivering big hits "is a badge of courage which does not seriously threaten one's health."
It singles out NFL Films and some of its videos for promoting the brutality of the game.
Seau is a pretty boldfaced name...I wonder what effect this will have on public perception, etc.
In The Hobbit, Bilbo Baggins signs a contract with a company of dwarves to serve as their burglar in their quest to reclaim the Lonely Mountain from a dragon. Lawyer James Daily analyzed the contract in detail for Wired.
Even in the book's version we see an issue: the dwarves accept Bilbo's "offer" but then proceed to give terms. This is not actually an acceptance but rather a counter-offer, since they're adding terms. In the end it doesn't matter because Bilbo effectively accepts the counter-offer by showing up and rendering his services as a burglar, but the basic point is that the words of a contract do not always have the legal effect that they claim to have. Sometimes you have to look past the form to the substance.
See also How valid is the implied legal advice in Jay-Z's "99 Problems"?
At a press conference today, Vice President Biden and President Obama introduced their plan to reduce the nation's gun violence. Here are main points:
Require criminal background checks for all gun sales.
Take four executive actions to ensure information on dangerous individuals is available to the background check system.
Reinstate and strengthen the assault weapons ban.
Restore the 10-round limit on ammunition magazines.
Protect police by finishing the job of getting rid of armor-piercing bullets.
Give law enforcement additional tools to prevent and prosecute gun crime.
End the freeze on gun violence research.
Make our schools safer with more school resource officers and school counselors, safer climates, and better emergency response plans.
Help ensure that young people get the mental health treatment they need.
Ensure health insurance plans cover mental health benefits.
Here's the press conference in its entirety:
The NY Times has an overview of their remarks.
A wee bit of good news about American prisons for a change: after rising each year since the mid-1970s, the US incarceration rate has declined each of the past three years.
I hereby submit my nomination for the most underreported public policy story of the past year: The continuing decline in the number of Americans who are behind bars or on probation/parole. Both the change itself and low level of attention it has garnered are worthy of reflection.
At the time of President Obama's inauguration, the incarceration rate in the United States had been rising every single year since the mid 1970s. The relentless growth in the proportion of Americans behind bars had persisted through good economic times and bad, Republican and Democratic Presidents, and countless changes in state and local politics around the country.
If a public policy trend with that much momentum had even slowed significantly, it would have been merited attention, but something far more remarkable occurred: The incarceration rate and the number of people under correctional supervision (i.e., including people on probation/parole) declined for three years in a row. At the end of 2011, the proportion of people under correctional supervision returned to a level not seen since the end of the Clinton Administration.
Commenters over at Marginal Revolution dug into the report a bit more and the decline may have a lot to do with things like state budget cuts and less to do with things like fewer/shorter prison sentences.
In an editorial for the NY Times in 1993 called Guns Don't Kill People. Bullets Do., US Senator Daniel Patrick Moynihan described a bill he introduced in the Senate which would have levied a 10,000% tax on hollow-point bullets.
"So far this year, 342 New Yorkers have been killed by stray bullets. And in the past few days, two young women were shot in their pregnant bellies." A. M. Rosenthal wrote that on this page last Tuesday, the day of the Long Island shooting. By Thursday there were 11 more homicides. If we are to stop it, or come anywhere close, we have to get hold of the ammunition.
On Nov. 3, I introduced a bill that would levy a 10,000 percent tax on Winchester hollow-tipped "Black Talon" bullets, specifically designed to rip flesh. (Colin Ferguson, the suspect in the Long Island shootings, had some 40 of them.)
The tax would effectively raise the price of Black Talons from $20 a box to $2,000. On Nov. 22, 19 days after my bill was introduced, Winchester announced that it would cease sale of Black Talons to the public. Which suggests that the munitions manufacturers are more responsive than the automobile companies were a generation ago. It is also important to note that in 1986 Congress banned the Teflon-coated "cop killer" bullet, which penetrates police body armor. The Swedes are now making a new kind of armor-piercing round. We got that banned in the Senate version of this year's crime bill without a murmur.
The Long Island shootings Moynihan refers to resulted in the deaths of six people and the injury of nineteen more. (via @Rebeccamead_NYC)
Ezra Klein asked Akhil Reed Amar, a constitutional scholar, about the Second Amendment. Amar responded with two artworks that illustrate how the meaning of the Second Amendment has shifted over the years.
In a nutshell, almost everything ordinary Americans think they know about the Bill of Rights, including the phrase 'Bill of Rights,' comes from the Reconstruction period. Not once did the Founders refer to these early amendments as a bill of rights. We read everything through the prism of the 14th amendment -- including the right to bear and keep arms.
The Fourteenth Amendment has a lot of parts, among them the definition of citizenship, Civil War debt, due process, and equal protection. Amar wrote more about the interplay between the 2nd and 14th Amendments for Slate in 2008.
But the 14th Amendment did not specifically enumerate these sacred privileges and immunities. Instead, like the Ninth, the 14th invited interpreters to pay close attention to fundamental rights that Americans had affirmed through their lived experience-in state bills of rights and in other canonical texts such as the Declaration of Independence and landmark civil rights legislation. And when it came to guns, a companion statute to the 14th Amendment, enacted by Congress in 1866, declared that "laws ... concerning personal liberty [and] personal security ... including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." Here, in sharp contrast to founding-era legal texts, the "bear arms" phrase was decisively severed from the military context. Women as well as men could claim a "personal" right to protect their "personal liberty" and "personal security" in their homes. The Reconstruction-era Congress clearly understood that Southern blacks might need guns in their homes to protect themselves from private violence in places where they could not rely on local constables to keep their neighborhoods safe. When guns were outlawed, only outlaw Klansmen would have guns, to paraphrase a modern NRA slogan. In this critical chapter in the history of American liberty, we find additional evidence of an individual right to have a gun in one's home, regardless of the original meaning of the Second Amendment.
In October 2011, after 20 years of living legally in the United States, Atanas Entchev and his 21-year-old son were detained by the US Immigration and Customs Enforcement agency, given orange jumpsuits to wear, and held for 65 days. Entchev is writing a book about his experience called My American Lemonade.
Day after day from my bunk, I listened to the immigration stories of my roommates. We all had one. Mine involved over 20 years of countless dollars spent on lawyers who would help me navigate the paperwork and court dates necessary for immigration, based on my request for political asylum. Meanwhile I strived to be tops in my field, starting with a presidential certificate from George H. W. Bush and receiving an Outstanding Professor designation from INS, ICE's predecessor agency. I started my own company, paid taxes, and raised two children here. But that obviously wasn't enough. I had failed at giving me and my family what we wanted most: U.S. citizenship. I dug deep, used what my family had taught me about resolve and hope, and thought a lot about my past to remind myself why I'd left Bulgaria. Why I'd bothered. The irony was especially palpable to me lying in that bunk, recalling the moment I knew for sure I must leave.
Entchev is one of kottke.org's most thoughtful readers...he's been sending email, links, and typo corrections regularly for more than four years now. From what I understand, he's completed a book proposal consisting of the first three chapters and is looking for an agent. If you can help him out in that regard, drop him a line.
David House testified in front of a grand jury about his potential association with Bradley Manning. On the advice of his lawyer, he took the fifth on every question except his name and birthdate.
PM: Mr. House, are you involved with the Bradley Manning Support Network?
DH: I invoke.
PM: Did you respond in the affirmative when asked by the FBI if you had heard of known WikiLeaks associate Jacob Appelbaum?
PM: I would like to state for the record that Mr. House is not answering the question and is instead taking notes.
DH: I invoke.
PM: Do you intend to answer any of my questions, aside from your date of birth and your name?
DH: I invoke.
PM: Is that because of the phalanx of attorneys present here today?
Court Stenographer: I'm sorry, the what of attorneys?
PM: Phalanx... the phalanx of attorneys.
DH: As to the phalanx of attorneys, I invoke.
I had no idea grand jury testimony could be so amusing. I love that House offers to help with the presentation display when the DOJ attorneys are having trouble making the image bigger.
I'm surprised and mostly pleased that the Supreme Court has upheld President Obama's Patient Protection and Affordable Care Act.
The Court's ruling means, that unless Congress acts, in 2014 all Americans will be required to purchase health insurance in the most sweeping overhaul of the nation's health care system since the Great Society. The Court, according to early analysis, redefined the mandate as a tax, skirting some Constitutional questions but offering a dramatic affirmation to Obama's key initiative.
Update: Josh Marshall speaks for me here.
This is an imperfect law. But what's most important is that it provides a structure under which the country can make a start not only on universal coverage -- as an ethical imperative -- but on doing away with the waste and inefficiencies created by the chronic market failure of the US health insurance system. Again, that matters. And I suspect that there's no going back.
On Thursday, 80 lawsuits against the NFL related to brain injuries and concussions were combined into one complaint and filed in Philadelphia. The suit also names helmet maker Ridell, and if I'm reading the article correctly, 2100 former players are involved in the case.
Former running back Kevin Turner, now suffering from Lou Gehrig's Disease, said:
The NFL must open its eyes to the consequences of its actions. The NFL has the power not only to give former players the care they deserve, but also to ensure that future generations of football players do not suffer the way that many in my generation have. For the longest time, about the first 10 years after I retired in January 2000, I thought I had just turned into a loser overnight. I couldn't figure out what was wrong. It was a very scary proposition -- until I found out there were a lot more guys just like me. I find they had been through some of the same struggles. I realized this is no longer a coincidence.
Back in February, we linked to a Grantland piece by economists Tyler Cowen and Kevin Grier about head injuries leading to the end of the NFL. In their version, injuries to high school and college students result in lawsuits making the sport prohibitively expensive to offer to their students (along with a perception that it's too dangerous for kids to play).
Is this case the beginning of that timeline? Depending on what comes out in the lawsuit, one (unjust) popular opinion will be that the players should have known they were playing a dangerous game and they were handsomely rewarded to boot. It's not really a fair opinion, but people love their football. (You can see evidence of this in the comments to the ESPN article linked at the top.) A best case scenario, I would think, would be for the NFL to settle with some sort of acknowledgement of the issue. Not lip-service, but actual changes to current policies and future support for former players.
In happier NFL news, Trick Shot Quarterback, Alex Tanney was signed yesterday by the KC Chiefs. Regardless of setting the NCAA Division III record for passing with 14,249 yards, the NCAA record for touchdowns with 157, and only throwing 30 interceptions in college, Tanney had gone undrafted.
Antonin Scalia once said that no one had ever been executed in the US for a crime they didn't commit. Well, the Columbia Human Rights Law Review is devoting its entire spring issue to the case of Carlos DeLuna, who was executed by the state of Texas in 1989 for the murder of Wanda Lopez. Their investigation reveals that another Carlos, Carlos Hernandez, actually committed the murder.
Many other glaring discrepancies also stand out in the DeLuna case. He was put on death row largely on the eyewitness testimony of one man, Kevan Baker, who had seen the fight inside the Shamrock and watched the attacker flee the scene.
Yet when Baker was interviewed 20 years later, he said that he hadn't been that sure about the identification as he had trouble telling one Hispanic person apart from another.
Then there was the crime-scene investigation. Detectives failed to carry out or bungled basic forensic procedures that might have revealed information about the killer. No blood samples were collected and tested for the culprit's blood type.
Fingerprinting was so badly handled that no useable fingerprints were taken. None of the items found on the floor of the Shamrock - a cigarette stub, chewing gum, a button, comb and beer cans - were forensically examined for saliva or blood.
There was no scraping of the victim's fingernails for traces of the attacker's skin. When Liebman and his students studied digitally enhanced copies of crime scene photographs, they were amazed to find the footprint from a man's shoe imprinted in a pool of Lopez's blood on the floor - yet no effort was made to measure it.
"There it was," says Liebman. "The murderer had left his calling card at the scene, but it was never used."
Even the murder weapon, the knife, was not properly examined, though it was covered in blood and flesh.
Other photographs show Lopez's blood splattered up to three feet high on the walls of the Shamrock counter. Yet when DeLuna's clothes and shoes were tested for traces of blood, not a single microscopic drop was found. The prosecution said it must have been washed away by the rain.
Awful. See also Cameron Todd Willingham.
Matt Yglesias argues that because of the way copyright is viewed by the public and interpreted by lawmakers and the courts, making an album like The Beastie Boys' Paul's Boutique would be nearly impossible today.
The death on Friday of Adam Yauch, best known as the Beastie Boys' MCA, surely sent many of us back to old albums we may not have heard for a while. And anyone who threw on Paul's Boutique, the Boys' best album, was surely struck by the sense that they don't make records like that anymore. That's not just because tastes and styles have changed. The entire album is based on lavish sampling of other recordings. "Shake Your Rump," which leads Slate's #MCATracks playlist, features samples of 14 songs by 12 separate artists. In all, the album is thought to have as many as 300 total samples. The sampling gave Paul's Boutique a sound that remains almost as distinctive today as it was when it was released in 1989.
Perhaps the main reason-and certainly the saddest reason-that it still sounds distinctive is that a rapidly shifting legal and economic landscape made it essentially impossible to repeat.
Hyman Strachman is one of the biggest bootleggers of Hollywood movies. He's also 92 years old, a WWII veteran, and gives his movies away to American troops serving overseas.
"Big Hy" -- his handle among many loyal customers -- would almost certainly be cast as Hollywood Enemy No. 1 but for a few details. He is actually Hyman Strachman, a 92-year-old, 5-foot-5 World War II veteran trying to stay busy after the death of his wife. And he has sent every one of his copied DVDs, almost 4,000 boxes of them to date, free to American soldiers in Iraq and Afghanistan.
With the United States military presence in those regions dwindling, Big Hy Strachman will live on in many soldiers' hearts as one of the war's more shadowy heroes.
"It's not the right thing to do, but I did it," Mr. Strachman said, acknowledging that his actions violated copyright law.
Twitter has developed something called the Innovator's Patent Agreement, which is an agreement between the company and its employees that their patents won't be used in offensive lawsuits (as opposed to defensive lawsuits).
The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees' inventions in offensive litigation without their permission. What's more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.
This is a significant departure from the current state of affairs in the industry. Typically, engineers and designers sign an agreement with their company that irrevocably gives that company any patents filed related to the employee's work. The company then has control over the patents and can use them however they want, which may include selling them to others who can also use them however they want. With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.
Red Hat has had a similar policy in place for many years.
The bulk of the Jan 27th episode of This American Life was about Alabama's tough new immigration laws.
Last Summer, Alabama passed HB56, the most sweeping immigration bill in the country. It's an example of a strategy called "attrition through enforcement" or, more colloquially, "self-deportation" -- making life so hard on undocumented immigrants that they choose to leave the country. But as reporter Jack Hitt found, the new law has had lots of other unintended consequences.
It's called Into the Abyss and it opens today. Trailer is here:
There's an interview with Herzog about the film on the Tribeca Film Festival site and Ebert gave it four stars.
From Lapham's Quarterly, Christopher Hitchens on capital punishment in America.
Since then no country has been allowed to apply for membership or association with the European Union without, as a precondition, dismantling its apparatus of execution. This has led states like Turkey to forego what was once a sort of national staple. The United Nations condemns capital punishment-especially for those who have not yet reached adulthood-and the Vatican has come close to forbidding if not actually anathematizing the business. This leaves the United States of America as the only nation in what one might call the West, that does not just continue with the infliction of the death penalty but has in the recent past expanded its reach. More American states have restored it in theory and carried it out in practice, and the last time the Supreme Court heard argument on the question it was to determine whether capital punishment should be inflicted for a crime other than first-degree murder (the rape of a child being the suggested pretext for extension).
Hitchens, as you may have guessed, pins much of the blame on religion...after all, the US is the most (or only?) fundamentalist country in the West. (via ★interesting-links)
Gothamist is trying something new: long-form articles available for a small fee ($2-3) on the Kindle or as a PDF. The first one in the series is a real corker...Confessions of a "Rape Cop" Juror, a piece written by a member of the jury that acquitted two NYPD officers charged with raping a young woman in her East Village apartment.
The former cop sprang from his chair and rushed toward me, and before I could step back, the stocky arms of the ex-boxer were curled around my shoulders. To my left, I saw a crowd of faces; to my right, a place setting. One knife, one fork, and one dull spoon wrapped in a white cloth napkin -- not much help if he started strangling me. The arms tightened, and then the high-pitched, soft-spoken voice I recognized from the witness stand whispered, "Thank you."
My chest sank with a long exhale, and a whirlwind of high-powered suits and smiles rose from their glasses of Cabernet. They floated toward me with outstretched hands and watery eyes, the aroma of freshly baked focaccia robiolas mixing with their cologne. One floor below, diners in this Murray Hill Italian restaurant chattered away ignorant of the strange encounter at the top of the back staircase. The man hugging me was supposed to be the monster I had spent seven weeks analyzing and seven days judging. This was Kenneth Moreno, Rape Cop.
I haven't read the piece but The Awl's Choire Sicha has:
It's a fascinating read, and I mean that in a very honest sense. In large part it's about how unbelievably important jury service is in America, and about how we treat those accused of crimes. Whether you like the verdict or not, or whether you like the case presented by prosecutors or not (SIGH), this view into the thinking and process of the jurors is really valuable.
Finally got around to listening to the excellent episode of This American Life on patents: When Patents Attack! The episode surveys the state of the US patent system, using Nathan Myhrvold's smarmy Intellectual Ventures as a hook to tell the story.
In polls, as many as 80 percent of software engineers say the patent system actually hinders innovation. In other words, it does exactly the opposite of what it's supposed to do. It doesn't encourage them to come up with new ideas and create new products, it actually gets in their way.
The Economist chimed in as well, saying that the American patent system is "a travesty which threatens the wealth and welfare of the whole world".
At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation.
Swartz is known around these parts for being a programmer, long-time blogger, early employee of Reddit, and legal enthusiast. Nick Bilton, writing for the NY Times Bits blog:
Aaron Swartz, a 24-year-old programmer and online political activist, was indicted Tuesday in Boston on charges that he stole over four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment.)
The charges were filed by the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and could result in up to 35 years in prison and a $1 million fine.
In a press release, Ms. Ortiz's office said that Mr. Swartz broke into a restricted area of M.I.T. and entered a computer wiring closet. Mr. Swartz apparently then accessed the M.I.T. computer network and stole millions of documents from JSTOR.
The full indictment is here (PDF, via @delfuego). Non-PDF version is here. The whole thing is worth a read for the technical detail of how the "hack" was allegedly perpetrated:
26. This time around, Swartz circumvented MIT's guest registration process altogether when he connected to MIT's computer network. By this point, Swartz was familiar with the IP addresses available to be assigned at the switch in the restricted network interface closet in the basement of MIT's Building 16. Swartz simply hard-wired into the network and assigned himself two IP addresses. He hid the Acer laptop and a succession of external storage drives under a box in the closet, so that they would not be obvious to anyone who might enter the closet. January 4 through 6, 2011
27. On January 4, 2011, Aaron Swartz was observed entering the restricted basement network wiring closet to replace an external hard drive attached to his computer.
28 On January 6, 2011, Swartz returned to the wiring closet to remove his computer equipment. This time he attempted to evade identification at the entrance to the restricted area. As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet before peering through a crack in the double doors and cautiously stepping out.
Here's a statement from Demand Progress, an organization founded by Swartz, about the case (via @aaronsw). This is a very different take from the indictment.
Moments ago, Aaron Swartz, former executive director and founder of Demand Progress, was indicted by the US government. As best as we can tell, he is being charged with allegedly downloading too many scholarly journal articles from the Web. The government contends that downloading said articles is actually felony computer hacking and should be punished with time in prison.
"This makes no sense," said Demand Progress Executive Director David Segal; "it's like trying to put someone in jail for allegedly checking too many books out of the library."
"It's even more strange because the alleged victim has settled any claims against Aaron, explained they've suffered no loss or damage, and asked the government not to prosecute," Segal added.
James Jacobs, the Government Documents Librarian at Stanford University, also denounced the arrest: "Aaron's prosecution undermines academic inquiry and democratic principles," Jacobs said. "It's incredible that the government would try to lock someone up for allegedly looking up articles at a library."
JSTOR, the document storage service allegedly accessed by Swartz, released a statement on the case (via @delfuego):
Last fall and winter, JSTOR experienced a significant misuse of our database. A substantial portion of our publisher partners' content was downloaded in an unauthorized fashion using the network at the Massachusetts Institute of Technology, one of our participating institutions. The content taken was systematically downloaded using an approach designed to avoid detection by our monitoring systems.
The downloaded content included over 4 million articles, book reviews, and other content from our publisher partner's academic journals and other publications; it did not include any personally identifying information about JSTOR users.
We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.
The criminal investigation and today's indictment of Mr. Swartz has been directed by the United States Attorney's Office.
As for what Swartz was planning to do with all these documents, it's not difficult to guess...he's done something like this before (this isn't actually a very good guess...see the update below):
Those courts, with the help of the Government Printing Office, had opened a free trial of Pacer at 17 libraries around the country. Mr. Malamud urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them.
Aaron Swartz, a 22-year-old Stanford dropout and entrepreneur who read Mr. Malamud's appeal, managed to download an estimated 20 percent of the entire database: 19,856,160 pages of text.
Then on Sept. 29, all of the free servers stopped serving. The government, it turns out, was not pleased.
A notice went out from the Government Printing Office that the free Pacer pilot program was suspended, "pending an evaluation." A couple of weeks later, a Government Printing Office official, Richard G. Davis, told librarians that "the security of the Pacer service was compromised. The F.B.I. is conducting an investigation."
Lawyers for Mr. Malamud and Mr. Swartz told them that they appeared to have broken no laws, noting nonetheless that it was impossible to say what angry government officials might do.
Twice bitten, indictment? Is that how the saying goes?
Update: This is a more accurate guess as to what Swartz wanted with the JSTOR documents: analyse the documents as part of his on-going work with "the corrupting influence of big money on institutions"...and *not* to free non-copyrighted information from an inefficient gatekeeper as with the PACER data. From the front page of his web site.
He is the author of numerous articles on a variety of topics, especially the corrupting influence of big money on institutions including nonprofits, the media, politics, and public opinion. In conjunction with Shireen Barday, he downloaded and analyzed 441,170 law review articles to determine the source of their funding; the results were published in the Stanford Law Review. From 2010-11, he researched these topics as a Fellow at the Harvard Ethics Center Lab on Institutional Corruption.
The Stanford Law Review article is available here.
Wow. So remember the photo taken by the monkey and Techdirt's subsequent musings about who owns the copyright a photo taken by a monkey? Today Techdirt is reporting that Caters News Agency sent a takedown notice to Techdirt asking them to remove the monkey's photos. Totally not making this up.
We were a bit surprised to receive a notice on Monday from Caters News, telling us they represented David Slater with respect to the syndication of those photos, and asking us to take down the photos. The notice was not a DMCA takedown notice. It doesn't even mention copyright, though that seems like the only basis upon which they would make such a takedown request. And, to be clear, it was not in the least bit threatening. There is no legal language and no threat at all in the note.
When asked for clarification by Techdirt, a representative from Caters replied:
Michael, regardless of the issue of who does and doesn't own the copyright -- it is 100% clear that the copyright owner is not yourself. You have blatantly 'lifted' these photographs from somewhere -- I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.
Onionesque. Please someone interview the monkey about his/her views on this.
Andy Baio got sued for using a pixel-art representation of Jay Maisel's iconic photo of Miles Davis on the chiptune album of Davis' music he commissioned in 2009. He settled with Maisel by paying him $32,500 and agreeing to stop using the artwork.
After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I'm unable to use the artwork again. (On the plus side, if you have a copy, it's now a collector's item!) I'm not exactly thrilled with this outcome, but I'm relieved it's over.
But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is "fair use" and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.
At the heart of this settlement is a debate that's been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.
Unfortunately, Baio's post does nothing to dissuade me that Maisel is a joyless putz. Seeing this kind of behavior from large clueless companies is almost expected but from a a fellow creative artist? Inexcusable. Surely some reasonable arrangement could have been made without visiting enormous stress and a $30K+ bill onto a man with a young family. Disgusting.
Paul Ford is writing on Ftrain.com again and it's just super. Today's post is a short story that extrapolates our present cultural preoccupation with lawsuits, privacy, and surveillance into a future where anyone can bring a lawsuit for copyright violations against a fetus.
We had gone to a baseball game at the beginning of the season. They had played a song on the public address system, and she sang along without permission. They used to factor that into ticket price -- they still do if you pay extra or have a season pass -- but now other companies handled the followup. And here was the video from that day, one of many tens of thousands simultaneously recorded from gun scanners on the stadium roof. In the video my daughter wore a cap and a blue T-shirt. I sat beside her, my arm over her shoulder, grinning. Her voice was clear and high; the ambient roar of the audience beyond us filtered down to static.
A gem of a Q&A from Quora: How valid is the implied legal advice in Jay-Z's "99 Problems"? The lyrics, in part:
"Well do you mind if I look around the car a little bit?"
Well my glove compartment is locked, so is the trunk in the back
And I know my rights, so you gon' need a warrant for that
And the answer:
Consenting to a voluntary search is never a good idea, especially if you have felony weight on you. The standard to search the glove compartment is actually fairly low in California, since it's accessible to the driver. I'm not sure how the locked status interferes with it being a glove compartment. The trunk can be opened if the car is impounded, for inventory reasons, which is a common way to get evidence. However, a locked case inside the trunk will not be opened (depends on the state).
A jury foreman in a criminal case describes his experience and what the jury ultimately decided (or actually, didn't decide).
These are the facts we were given as a jury, facts upon which we were to decide if a boy was guilty of a crime that would put him in prison for 10 years. We were admonished to consider all of the facts but nothing outside of them. Don't consider the sentence, or the age, or the race, or anything unrelated to what we heard while sitting in the juror box. Just focus on the facts that are presented. Yet, we were also told, time and again, that our Constitution is absolutely unwavering in its mission to protect the innocent, that no matter how clear-cut the evidence may seem, the burden of proof in criminal cases always, always, always falls on the prosecution. The boy sitting in that chair next to a pair of public defenders, possibly wearing borrowed clothes to look presentable in court, is innocent until he is proven guilty beyond a reasonable doubt.
Taryn Simon spent five days photographing items confiscated from people flying into New York's JFK airport. This one is "mystery meat":
These images are from a set of 1,075 photographs -- shot over five days last year for the book and exhibition, "Contraband" -- of items detained or seized from passengers or express mail entering the United States from abroad at the New York airport. The miscellany of prohibited objects -- from the everyday to the illegal to the just plain odd -- attests to a growing worldwide traffic in counterfeit goods and natural exotica and offers a snapshot of the United States as seen through its illicit material needs and desires.
Here's more about the project, which will be released in book form and also put on display in galleries in LA and NYC.
Steve Jobs praised an iPad RSS reader called Pulse in his keynote yesterday. Then the NY Times complained about the app and Apple pulled it from the store later in the day.
1. Why is there a comma after "The Pulse News Reader app" in the laywer's note to Apple?
2. The very same NY Times ran a positive review of the very same Pulse a few days ago. Doh!
3. Seems like all the Pulse guys need to do is unbundle the NY Times feeds and open the actual nytimes.com pages into a generic browser window and all is good.
4. I wonder why the Times et al. haven't complained about Instapaper yet. It might not technically infringe on copyright, but magazines and newspapers can't be too happy about an app that strips out all the advertising from their articles...as much as we would all be sad to see it go.
The SEC has filed a lawsuit against Goldman Sachs for fraud. Specifically:
According to the complaint, Goldman created Abacus 2007-AC1 in February 2007, at the request of John A. Paulson, a prominent hedge fund manager who earned an estimated $3.7 billion in 2007 by correctly wagering that the housing bubble would burst.
Goldman let Mr. Paulson select mortgage bonds that he wanted to bet against -- the ones he believed were most likely to lose value -- and packaged those bonds into Abacus 2007-AC1, according to the S.E.C. complaint. Goldman then sold the Abacus deal to investors like foreign banks, pension funds, insurance companies and other hedge funds.
But the deck was stacked against the Abacus investors, the complaint contends, because the investment was filled with bonds chosen by Mr. Paulson as likely to default. Goldman told investors in Abacus marketing materials reviewed by The Times that the bonds would be chosen by an independent manager.
Goldman's stock price is currently off about 12%.
In defending itself against a copyright lawsuit brought by Viacom, YouTube notes that the media company has been surreptitiously uploading its copyrighted content to YouTube for years.
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
This jibes with what I heard a couple of years ago:
I heard that the staff of the Daily Show and Colbert Report upload the shows to YouTube as soon as they can after the shows air and then the next day, lawyers from Comedy Central hit YouTube with takedown requests for the uploaded shows.
Congrats to Jen Bekman on getting funding for 20x2001.
"I love the idea of taking the friction out of the art world," said Mr. Conrad. "A lot of people want to buy nice things, but don't know how. Jen has built a business from that, which is growing very nicely and has a lot of repeat customers."
 In light of the new FTC guidelines for disclosure by bloggers2, a few somewhat relevent statements. 1. 20x200 has in the past paid $1200 to sponsor the kottke.org RSS feed. 2. I have linked to 20x200 and Jen Bekman's gallery several times on kottke.org, for which Jen Bekman has thanked me, which is a good feeling, to be thanked, and perhaps that subconsciously predisposes me towards future linking because who doesn't like to be thanked? 3. Jen Bekman is a friend. 4. I also know Caterina Fake, Zach Klein, and Scott Heiferman socially; they are a few of 20x200's angel investors. 5. I am a resident of New York City, in which 20x200 is headquartered. 6. I have purchased art from 20x200 in the past. 7. I may have received a 20x200 print from Jen Bekman herself, either as a straight-up gift or as a promotional item. Honestly, I can't remember if she gave me anything, what it was, or the circumstances of the giving. 8. I have received 20x200 prints as gifts from others. They are thanked. 9. I know my wife and my wife knows Jen Bekman. 10. I may have unwittingly posed for photos next to 20x200 artwork hanging in my residence or in the residences of others, giving the impression that I am endorsing said artwork. Apologies. 11. I have agreed to, at some point in the future, curating a selection of artworks for 20x200 and then chatting casually with Jen Bekman about my choices, an edited transcript of which will appear on the 20x200 web site. As far as I know, no payment for this service is forthcoming and if it was, I would refuse it politely. 12. Jen Bekman's dog's name is Ollie. So is my son's. ↩
 Why just for bloggers? Do New York Times book, music, and movie reviewers disclose that they received review copies for free? ↩
David Treuer, an American Indian, is writing a series of dispatches for Slate in which he visits Indian casinos. I'd never heard the story of how casinos on Indian lands came to be. It seems a state tax bill on a mobile home led to a lawsuit which led to a legal precedent that state and federal governments have no regulatory jurisdiction on Indian lands.
The Supreme Court ruling in the Bryan case was expansive. More than just a ruling on taxation, it declared that states and the feds had the right to police the reservation only in the interest of "law and order" and had no civil or regulatory jurisdiction over sovereign Indian nations. Until this time, tribes and states more or less assumed that states had civil and regulatory power on reservations. But the Supreme Court maintained that as sovereign nations, Indian tribes had always had the right to govern themselves (including civil and regulatory powers), just as all nations do, and that tribes should deal with the U.S. federal government, not with states. Kansas, for example, has no power to levy taxes in Luxembourg -- and not only because Luxembourg is far away.
I often enjoy what Christopher Hitchens says and how he says it. Here he wades smartly into the Henry Louis Gates Jr. arrest.
It is the U.S. Constitution, and not some competitive agglomeration of communities or constituencies, that makes a citizen the sovereign of his own home and privacy. There is absolutely no legal requirement to be polite in the defense of this right.
Here's a new wrinkle in the ongoing battle with people that inline other people's images: I stole your images, put them back or I will call a lawyer.
Why is business so hard? (thx, jillian)
Update: That image is from 2005...here's the rest of the story and a couple more images. (thx, andy)
Yesterday I linked to a long piece by attorney Brock Shinen discussing whether individual posts to Twitter are copyrightable and asked:
Does this mean that nearly all of Twitter's content is in the public domain? Or can you copyright a collection of tweets...the entire output of one person, for instance?
Brock sent along a short reply to my question, reprinted here with his kind permission:
This is information and not advice: It's possible (and likely) that the majority of individual Tweets are in the public domain. But copyright protection may extend to a compilation of otherwise non-protectable Tweets. The question of whether 'you' can do that as opposed to the author of those Tweets is tricky and would depend on how it's done. If the compilation is authored in such a way as to suggest a false designation of origin (i.e., that the person compiling the Tweets actually authored them), you might run into false designation claims. Also, as a practical matter, you may still get sued and forced to spend tens of thousands of dollars to defend a lawsuit you might otherwise win - if you can afford to get to trial. In the end, if you are a Tweet author and want to protect your Tweets, then you should probably compile them and seek protection with the US Copyright Office. If that works out for you, you're set. If the Copyright Office denies your application for registration, you have your answer.
In the opinion of intellectual copyright attorney Brock Shinen, the short answer is "no".
I admit, I think a protectable Tweet exists in theory. I have read hundreds if not thousands of Tweets and have yet to read one I believe would be protectable, but the possibility exists. The question is not: Are Tweets Copyrightable. The question is: Is This Tweet Copyrightable. The copyrightability of Tweets is not dependent on the fact that they are Tweets. Rather, it's dependent on the analysis of the Tweet in question. The all-encompassing response that all Tweets are either protected or not protected is misguided. The real response is that it depends. However, when you analyze most Tweets, they would never individually pass copyright muster.
Does this mean that nearly all of Twitter's content is in the public domain? Or can you copyright a collection of tweets...the entire output of one person, for instance? Let's say I want to publish Tweatise: The Wit and Wisdom of Merlin Mann, an unabridged book of Merlin's Twitter stream...can I do that?
Update: Another opinion: tweetCC.
tweetCC makes it easy for you to offer your tweets under a Creative Commons Public Domain Dedication or other Creative Commons licenses.
Update: Yet another perspective.
Reading two-week-old 13-page New Yorker articles about Rwanda probably isn't your favorite thing to do, but if you're a subscriber, I'd urge you to check out Philip Gourevitch's fascinating article about what's been happening in Rwanda in the fifteen years since the genocide. It's a complicated situation (boldface mine):
On the fifteenth anniversary of the genocide, Rwanda is one of the safest and most orderly countries in Africa. Since 1994, per-capita gross domestic prduct has nearly tripled, even as the population has increased by nearly twenty-five per cent, to more than ten million. There is national health insurance, and a steadily improving education system. [...] Most of the prisoners accused or convicted of genocide have been released. The death penalty has been abolished. And Rwanda is the only nation where hundred of thousands of people who took part in mass murder live intermingled at every level of society with the families of their victims.
Like I said, complicated. This is the best thing I've read in the New Yorker in a long while.
Update: As We Forgive is a documentary film about the Rwandan reconciliation.
Can survivors truly forgive the killers who destroyed their families? Can the government expect this from its people? And can the church, which failed at moral leadership during the genocide, fit into the process of reconciliation today? In As We Forgive, director Laura Waters Hinson and narrator Mia Farrow explore these topics through the lives of four neighbors once caught in opposite tides of a genocidal bloodbath, and their extraordinary journey from death to life through forgiveness.
The New Yorker is being sued for $10 million over a story written by Jared Diamond. The fascinating story, Vengeance Is Ours, tells of blood feuds in New Guinea and now two of the men described in the article as participating in those feuds say they have been falsely accused of "serious criminal activity" and "murder".
When foreigners come to our culture, we tell stories as entertainment. Daniel's stories were not serious narrative, and Daniel had no idea he was being interviewed for publication. He has never killed anyone or raped a woman. He certainly has never stolen a pig.
I get the impression that Diamond has spent a lot of time in Papua New Guinea and, as a result, might not be taken in so easily by locals telling tall tales. Indeed, a fact-checking research team was told by one of the men in question that "the stories he told Diamond were in fact true".
More on the Saigon Grill saga: the owners were arrested yesterday on over 400 counts of "violating minimum-wage laws, falsifying business records and defrauding the state's unemployment insurance system".
"Like so many restaurants across New York City, Saigon Grill was run on the backs of its workers," Mr. Cuomo said in a statement. "These workers allowed the business to thrive, and in exchange they were allegedly cheated out of wages, fined for ridiculous reasons" and, he said, "pulled into a painstaking ploy to cover it all up."
Lawyers representing Roman Polanski have asked a California judge to dismiss the statutory rape case against him because of evidence presented in Roman Polanski: Wanted and Desired, a documentary about the case, that the judge in the original case engaged in unethical and unlawful behavior.
Tuesday's filing said Judge Rittenband, who is now dead, intentionally violated a plea agreement with Mr. Polanski after having engaged in what it called "repeated unethical and unlawful ex parte communications" with a deputy district attorney who was not involved in the prosecution, but was independently advising the judge.
A federal judge has awarded $4.6 million in back pay and damages to 36 delivery workers at two Saigon Grill restaurants in Manhattan, finding blatant and systematic violations of minimum-wage and overtime laws.
We live right around the corner from one of the SGs and have avoided eating there despite the decent and close Vietnamese food. The fired workers were out in front of the place protesting for months and months...it's great to see hard work pay off like that, particularly when the protestors probably couldn't actually afford to be out there.
As anticipated, Muxtape was unable to maintain its original form under assault from the RIAA and slow moving legal negotiations with the labels.
The first red flag came in August. Up until then all the discussion had been about numbers, but as we closed in on an agreement the talk shifted to things like guaranteed placement and "marketing opportunities." I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted. I had been worried about Muxtape getting a fair deal, but my biggest concern all along was maintaing the integrity and experience of the site (one of the reasons I wanted to license in the first place). Now it wasn't so simple; I had agreed to a variety of encroachments into Muxtape's financials because I wanted to play ball, but giving up any kind of editorial or creative control was something I had a much harder time swallowing.
Instead, the site will become more of a stripped-down MySpace for bands wanting to put their music online. Disappointing because Muxtape, as originally conceived, was obviously what everyone but the "music industry" wanted. Some of that simplistic magic will likely transfer over to the new incarnation but it won't be as cool as mix tapes for your pals. (thx, mark)
Update: For posterity, I'm pasting Justin's whole note in here.
I love music. I believe that for people who love music, the desire to share it is innate and crucial for music itself. When we find a song we love, we beckon our friends over to the turntable, we loan them the CD, we turn up the car stereo, we put it on a mixtape. We do this because music makes us feel and we want someone else to feel it, too.
The story of Muxtape began when I had a weekly show at my university's radio station in Oregon. In addition to keeping the station's regular log I compiled my playlists into a web page, with each show represented by a simple block that corresponded to a cassette recording for that week. At the time, mixtapes were already well into their twilight, but long after my show ended I couldn't stop thinking about how the playlist page served a similar purpose, and in many ways served it better. Like a mixtape, each playlist was a curated group that was greater than the sum of its parts. Unlike a mixtape, it wasn't constrained by any physical boundaries of dissemination, but... it also didn't contain any actual music. Someone might come across the page and smile knowingly at the songs they knew, but shifting the burden of actually compiling the mix to its intended listener defeated the purpose entirely.
Five years later, internet technology had advanced significantly. I was working on experimental user interfaces for web sites when I started thinking about that playlist page again, and ultimately set out to bring it to life. My desire to share music (in the mixtape sense) hadn't gone anywhere, but the channels to do so were becoming extinct. Popular blogging services allow you to post audio files in an ephemeral sort of way, but it wasn't the context I was looking for. A physical cassette tape in your hands has such an insistent aesthetic; just holding one makes you want to find a tape player to fulfill its destiny. My goal with Muxtape's design was to translate some of that tactility into the digital world, to build a context around the music that gave it a little extra spark of life and made the holder anxious to listen.
The first version was a one-page supplement to my tumblr, and was more or less identical to what it would become later. The feedback was great, and the number one question rapidly became "can you make one for me, too?" At first I started thinking about ways I could package the source code, but the more I thought about it the more it seemed like massively wasted potential. Distributing the source would mean limiting access to the small niche of people who operate their own web server, whereas I wanted to make something that was accessible to anyone who loves music. The natural conclusion was a centralized service, which suddenly unfolded whole other dimensions of possibility for serendipitous music discovery. What seemed before like the hollow shell of a mixtape now seemed like its evolution. I knew I had to try building it. Three weeks of long nights later, I launched Muxtape.
It was successful very quickly. 8,685 users registered in the first 24 hours, 97,748 in the first month with 1.2 million unique visitors and a healthy growth rate. Lots of press. Rampant speculation. Tech rags either lauded it or declared it an instant failure. Everyone was excited. I was thrilled.
There was a popular misconception that Muxtape only survived because it was "flying under the radar," and the moment the major labels found out about it it'd be shut down. In actuality, the labels and the RIAA read web sites like everyone else, and I heard from them both within a week or so. An RIAA notice arrived in triplicate, via email, registered mail, and FedEx overnight (with print and CD versions). They demanded that I take down six specific muxtapes they felt were infringing, so I did.
Around the same time I got a call from the VP of anti-piracy at one of the majors. After I picked up the phone his first words were, "Justin, I just have one question for you: where do I send the summons and complaint?" The conversation picked up from there. There was no summons, it was an intimidation tactic setting the tone for the business development meeting he was proposing, the true reason for the call. Around the same time another one of the big four's business developers reached out to me, too.
I spent the next month listening. I talked to a lot of very smart lawyers and other people whose opinions on the matter I respected, trying to gain a consensus for Muxtape's legality. The only consensus seemed to be that there was no consensus. I had two dozen slightly different opinions that ran the gamut from "Muxtape is 100% legal and you're on solid ground," to "Muxtape is a cesspool of piracy and I hope you're ready for a hundred million dollar lawsuit and a stint at Riker's."
In the end, Muxtape's legality was moot. I didn't have any money to defend against a lawsuit, just or not, so the major labels had an ax over my head either way. I always told myself I'd remove any artist or label that contacted me and objected, no questions asked. Not a single one ever did. On the contrary, every artist I heard from was a fan of the site and excited about its possibilities. I got calls from the marketing departments of big labels whose corporate parents were supposed to be outraged, wanting to know how they get could their latest acts on the home page. Smaller labels wanted to feature their content in other creative ways. It seemed obvious Muxtape had value for listeners and artists alike.
In May I had my first meeting with a major label, Universal Music Group. I went alone and prepared myself for the worst, having spent the last decade toeing the indie party line that the big labels were hopelessly obstinate luddites with no idea what was good for them. I'm here to tell you now that the labels understand their business a lot better than most people suspect, although they each have their own surprisingly distinct personality when it comes to how they approach the future. The gentlemen I met at Universal were incredibly receptive and tactful; I didn't have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid. I sympathized with that. I told them I needed some time to get a proposal together and we left things in limbo.
A few weeks later I had a meeting with EMI, the character of which was much different. I walked into a conference room and shook eight or nine hands, sitting down at a conference table with a phonebook-thick file labeled "Muxtape" laying on it. The people I met formed a semi-circle around me like a split brain, legal on one side and business development on the other. The meeting alternated between an intense grilling from the legal side ("you are a willful infringer and we are mere hours from shutting you down") and an awkward discussion with the business side ("assuming we don't shut you down, how do you see us working together?"). I asked for two weeks to make a proposal, they gave me two days.
I had to make a decision. As I saw it I had three options. The first was to just shut everything down, which I never really considered. The second was to ban major label content entirely, which might have solved the immediate crisis, but had two strong points against it. The first, most visibly, was that it would prevent people from using the majority of available music in their mixes. The second was that it did nothing to address the deeper questions surrounding ownership and usage for everyone else who wasn't a major label: mid-size labels and independent artists who have just as fundamental a right to address how their content is used as a large corporation, even if they don't carry quite as big a stick.
The third option was to approach a fully licensed model, which I had been edging toward since I met with Universal. I knew other licensed services so far had met with mixed success, but I also knew Muxtape was different and that it was at least worth exploring. The question about whether or not the labels saw value in it had been answered, the new question was how much it was going to cost.
It was June. I approached a Fifth Ave law firm about representing me in licensing negotiations with the major labels, and they took me on. Two weeks later I met with all four, flanked by lawyers this time, and started the slow process of working out a deal. The first round of terms were stiff and complex, but not nearly as bad as I'd imagined, and I managed to convince them that allowing Muxtape to continue to operate was in everyone's best interest. Things were going well. I spent the next two months talking with investors, designing the next phases of the site itself, and supervising the negotiations. A big concern was getting a deal that took into consideration the fact that Muxtape wasn't a straightforward on-demand service, and should pay accordingly less than a service that was. Another reason I liked the licensing option from the outset was that it seemed like an uncommon win-win; I didn't want the ability to search and stream any song at any given notice, and they were reluctant to offer it (for the price, anyway). Muxtape's unusual limitations were its strength in more ways than one.
The first red flag came in August. Up until then all the discussion had been about numbers, but as we closed in on an agreement the talk shifted to things like guaranteed placement and "marketing opportunities." I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted. I had been worried about Muxtape getting a fair deal, but my biggest concern all along was maintaing the integrity and experience of the site (one of the reasons I wanted to license in the first place). Now it wasn't so simple; I had agreed to a variety of encroachments into Muxtape's financials because I wanted to play ball, but giving up any kind of editorial or creative control was something I had a much harder time swallowing.
I was wrestling with this when, on August 15th, I received notice from Amazon Web Services (the platform that hosts Muxtape's servers and files) that they had received a complaint from the RIAA. Per Amazon's terms, I had one business day to remove an incredibly long list of songs or face having my servers shut down and data deleted. This came as a big surprise to me, as I'd been thinking that I hadn't heard from the RIAA in a long time because I had an understanding with the labels. I had a panicked exchange of emails with Amazon, trying to explain that I was in the middle of a licensing deal, that I suspected it was a clerical error, and that I was doing everything I could to get someone to vouch for me on a summer Friday afternoon. My one business day extended over the weekend, and on Monday when I wasn't able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account. I moved the domain name to a new server with a short message and the very real expectation that I could get it sorted out. I still thought it was all just a big mistake. I was wrong.
Over the next week I learned a little more, mainly that the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn't necessarily carry over. I also learned that none of the labels were especially interested in helping me out, and from their perspective it had no bearing on the negotiations. I disagreed. The deals were still weeks or months away (an eternity on the internet) meaning that at best, Muxtape was going to be down until the end of year. There was also still the matter of how to pay for it; getting investment is hard enough in this volatile space even with a wildly successful and growing web site, it became an entirely different proposition with no web site at all.
And so I made one of the hardest decisions I've ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to. They'd already taken so much attention away from development that I started to question my own motivations. I didn't get into this to build a big company as fast as I could no matter what the cost, I got into this to make something simple and beautiful for people who love music, and I plan to continue doing that. As promised, the site is coming back, but not as you've known. I'm taking a feature that was in development in the early stages and making it the new central focus.
Muxtape is relaunching as a service exclusively for bands, offering an extremely powerful platform with unheard-of simplicity for artists to thrive on the internet. Musicians in 2008 without access to a full time web developer have few options when it comes to establishing themselves online, but their needs often revolve around a common set of problems. The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format. Bands will be able to assemble an attractive profile with simple modules that enable optional functionality such as a calendar, photos, comments, downloads and sales, or anything else they need. The system has been built from the ground up to be extended infinitely and is wrapped in a template system that will be open to CSS designers. There will be more details soon. The beta is still private at the moment, but that will change in the coming weeks.
I realize this is a somewhat radical shift in functionality, but Muxtape's core goals haven't changed. I still want to challenge the way we experience music online, and I still want to work to enable what I think is the most interesting aspect of interconnected music: discovering new stuff.
Thank to you everyone who made Muxtape the incredible place it was in its first phase, it couldn't have happened without your mixes. The industry will catch up some day, it pretty much has to.
A list of illegal behaviors that are also mainstream: pirating media/software, alcohol during Prohibition, speeding, marijuana, and sodomy. (via waxy)
Muxtape finally runs afoul of the RIAA.
Muxtape will be unavailable for a brief period while we sort out a problem with the RIAA.
Update: On their blog, Muxtape emphasizes that the outage is temporary:
No artists or labels have complained. The site is not closed indefinitely. Stay tuned.
This story about a "most outrageous case of neglect" was extremely difficult to read at times, but it's an amazing tale.
"It's mind-boggling that in the 21st century we can still have a child who's just left in a room like a gerbil," said Tracy Sheehan, Danielle's guardian in the legal system and now a circuit court judge. "No food. No one talking to her or reading her a story. She can't even use her hands. How could this child be so invisible?"
There's a collection of video and audio that accompanies the story as well. (via waxy)
In California, it's pretty much legal now to buy, sell, grow, and smoke pot, provided you've got the proper documentation from a doctor, which is pretty easy to get. This article from the New Yorker details the industry that's sprung up around this legalization, filled with people who, you get the feeling, really like smoking pot for recreational and not medical reasons.
The counties of California were allowed to amend the state guidelines, and the result was a patchwork of rules and regulations. Upstate in Humboldt County, the heartland of high-grade marijuana farming in California, the district attorney, Paul Gallegos, decided that a resident could grow up to ninety-nine plants at a time, in a space of a hundred square feet or less, on behalf of a qualified patient. The limited legal protections afforded to pot growers and dispensary owners have turned marijuana cultivation and distribution in California into a classic "gray area" business, like gambling or strip clubs, which are tolerated or not, to varying degrees, depending on where you live and on how aggressive your local sheriff is feeling that afternoon. This summer, Jerry Brown, the state's attorney general, plans to release a more consistent set of regulations on medical marijuana, but it is not clear that California's judges will uphold his effort. In May, the state Court of Appeal, in Los Angeles, ruled that Senate Bill 420's cap on the amount of marijuana a patient could possess was unconstitutional, because voters had not approved the limits.
Senate Bill 420! The LAPD and DEA have taken the stance that federal law takes precedence over state law and are routinely busting people for growing, selling, and possession. It'll be interesting to see what happens in the future here.
Too Weird for The Wire, a story of a number of Baltimore drug dealers and their unusual "flesh-and-blood" defense in federal court. It's a tactic used by white supremacists and other US isolationists groups in tax evasion cases and the like.
"I am not a defendant," Mitchell declared. "I do not have attorneys." The court "lacks territorial jurisdiction over me," he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve. Judge Davis, a Baltimore-born African American in his late fifties, tried to interrupt. "I object," Mitchell repeated robotically. Shelly Martin and Shelton Harris followed Mitchell to the microphone, giving the same speech verbatim. Their attorneys tried to intervene, but when Harris's lawyer leaned over to speak to him, Harris shoved him away.
David Simon, I believe you've got enough here for a sixth season of The Wire. Hop to.
A list of ways to get yourself excused from the jury pool in the R. Kelly child pornography case.
I (heart) R. Kelly. Nothing gets prospective jurors booted faster than telling the prosecution they are a fan of Kelly's. Just ask the woman who called him a "musical genius." When prodded to say something negative about Kelly, the best she could come up with was: "He and [rapper] Jay-Z don't get along?" Prosecutors bounced her soon after.
Another potential juror was excused for suggesting that Kelly "led the Taliban in attacking us on 9-11".
The purpose of the Genetic Information Nondiscrimination Act of 2008:
To prohibit discrimination on the basis of genetic information with respect to health insurance and employment.
It passed the Senate earlier this year is expected to be signed into law by the President soon. No Gattaca! (via nyer conference)
<72pt text>What?</72pt text> Clarence Thomas hasn't asked a question in a Supreme Court session in over two years...that's 142 cases. Says Thomas:
One thing I've demonstrated often in 16 years is you can do this job without asking a single question.
If anyone steals a base during the World Series, Taco Bell is going to give everyone in the US a free taco. They did something similar last year and the terms and conditions of the offer were pretty amusing.
Columbia Law School professor Tim Wu has written a really interesting 5-part series on Slate about "the laws we are allowed to break in America and why".
Tolerated lawbreaking is almost always a response to a political failure -- the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced -- or even enforced at all.
Topics include copyright, obsenity, and drug legalization.
Louisiana pastor Eddie Thompson feels that the media and activists have gotten the story wrong about the Jena Six. In this article, he attempts to correct some of the misconceptions and erroneous statements made about the case.
The actions of the three white students who hung the nooses demonstrate prejudice and bigotry. However, they were not just given "two days suspension" as reported by national news agencies. After first being expelled, then upon appeal, being allowed to re-enter the school system, they were sent to an alternative school, off-campus, for an extended period of time. They underwent investigations by Federal and Sate authorities. They were given psychological evaluations. Even when they were eventually allowed back on campus they were not allowed to be a part of the general population for weeks.
The story of the Jena Six reveals only a small part of the discrimination in the American justice system.
The Sentencing Project, a research and advocacy group, released a state-by-state study of prison populations that identified where blacks endured the highest rates of incarceration. The top four states were South Dakota, Wisconsin, Iowa, and Vermont; the top ten included Utah, Montana, and Colorado -- not places renowned for their African-American subcultures. In the United States today, driving while black -- or shoplifting while black, or taking illegal drugs, or hitting schoolmates -- often carries the greatest risk of incarceration, in comparison to the risk faced by whites, in states where people of color are rare, including a few states that are liberal, prosperous, and not a little self-satisfied. Ex-slave states that are relatively poor and have large African-American populations, such as Louisiana, display less racial disparity.
A 1993 New Yorker story by John Seabook called The Flash of Genius is being made into a movie starring Greg Kinnear. The story revolves around Bob Kearns, the inventor of the intermittent windshield wiper and his struggle to get the US auto industry to pay him for infringing on his patent. "There's no question that Dr. Kearns' wiper circuit was interesting. He had a three-brush motor, with dynamic brake and intermittent on one speed only -- his system was a concatenation of a lot of different ideas. But we figured there was just no way in the world it was patentable. An electronic timing device was an obvious thing to try next. How can you patent something that is in the natural evolution of technology?"
BTW, the phrase "flash of genius" refers to a test of patentability enacted in 1941 saying that the act of invention had to be a "flash of creative genius" on the part of the inventor and not the result of tinkering. That standard was replaced in 1952 by the non-obviousness test.
A summary of one of the several Chinese knockoffs of Harry Potter, courtesy of the NY Times:
Snape breaks into Hogwarts and rescues Lucius Malfoy from Azkaban Prison. Harry believes that he can defeat Snape and Voldemort only by strenuously practicing charms. Professor Slughorn, inspired by a book from the East provided by Cho Chang called "Thirty-Six Strategies," devises a plan enabling Harry to seize Snape in the Ministry of Magic. But Gryffindor's sword, which hung in the headmaster's office, assassinates Professor McGonagall.
When Harry confronts Voldemort at Azkaban, the Dark Lord tries to win Harry over as a fellow descendant of Slytherin. Harry refuses, and together with Ron and Hermione, kills Voldemort instead. Now what will Harry do about his two girlfriends?
In another of the books, Harry is assisted by Gandalf. No appearances by Han and Chewy, AFAIK.
Regarding the food plagiarism business from yesterday, Ed Levine reports that he visited both restaurants yesterday and has some further thoughts on the situation. I think he nails it with this observation: "He was her right-hand man for six years, with complete and unfettered access to her creativity, recipes, craftsmanship, and even the combination to her safe. Charles is a smart, fiercely independent, tough-minded chef and businessperson who misplaced her trust when she gave her chief lieutenant all that access. McFarland, bereft of his own ideas, decided to open what is, for all intents and purposes, a clone of Pearl."
Rebecca Charles, owner of the Pearl Oyster Bar in NYC, a seafood place modeled after hundreds of similar restaurants in New England offering similar menus, is suing a former employee (of six years) for copying too closely her restaurant and menu in opening his new place, Ed's Lobster Bar.
Many parallels here to the design/art/film world...what is mere inspiration versus outright theft? The key question in these kinds of cases for me is: does the person exercise creativity in the appropriation? Did they add something to it instead of just copying or superficially changing it? Clam shacks are everywhere in New England, but an upscale seafood establishment with a premium lobster roll is a unique creative twist on that concept brought to NYC by Charles. An upscale clam shack blocks away from a nearly identical restaurant at which the owner used to work for six years...that seems a bit lame to me, not the work of a creative restaurateur. Who knows how this stuff is going to play out legally; it's a complex issue with lots of slippery slope potential.
Meg has more thoughts on the issue and Ed Levine weighs in over at Serious Eats with information not found in the NY Times article. It was Ed who first raised the issue about Ed's Lobster Bar earlier in the month.
Update: I forgot to link to the menus above. Here's the menu for Pearl Oyster Bar and here's the menu for Ed's Lobster Bar. For comparison, here are the menus for a couple of traditional clam shacks: the Clam Box in Ipswich, MA and Woodman's in Essex, MA.
A five-minute crash course in constitutional law by Walter Delinger, former Solicitor General to the Supreme Court and current law professor at Duke.
Remember the guy who was suing his dry cleaner for lost pants to the tune of $65 miilion? He lost and has to pay court costs for the dry cleaner (and may have to pay their attorney's fees as well).
Larry Lessig is shifting the focus of his work away from IP and copyright issues and toward tackling what he calls corruption. "I don't mean corruption in the simple sense of bribery. I mean 'corruption' in the sense that the system is so queered by the influence of money that it can't even get an issue as simple and clear as term extension right. Politicians are starved for the resources concentrated interests can provide. In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars."
Roy Pearson, the judge who is suing his former dry cleaner for $65 million in damages for a lost pair of pants, started crying in court today when describing the moment when the dry cleaner tried to give him the wrong pants. And this was after a witness called by Pearson likened her treatment by the dry cleaners to Hitler's treatment of the Jews. The judge should have invoked Godwin and declared a mistrial. Also, nice headline from CNN: Judge aims to have pants suit ironed out next week. Haw haw.
Time to lower the drinking age? "The age at highest risk for an alcohol-related auto fatality is 21, followed by 22 and 23, an indication that delaying first exposure to alcohol until young adults are away from home may not be the best way to introduce them to drink."
Jeffrey Toobin, the New Yorker's legal writer, has penned a piece about Google's book scanning efforts and the legal challenges it faces. Interestingly, both Google and the publishers who are suing them say that the lawsuit is basically a business negotiation tactic. However, according to Larry Lessig, settling the lawsuit might not be the best thing for anyone outside the lawsuit: "Google wants to be able to get this done, and get permission to resume scanning copyrighted material at all the libraries. For the publishers, if Google gives them anything at all, it creates a practical precedent, if not a legal precedent, that no one has the right to scan this material without their consent. That's a win for them. The problem is that even though a settlement would be good for Google and good for the publishers, it would be bad for everyone else."
Top 10 most litigious US companies from 2001-2006 (based on trademark cases): 1. Microsoft. 2. Cendent. 3. Altria/Philip Morris. 4. Best Western. 5. Dunkin' Donuts. 6. Lorillard Tobacco. 7. Levi Strauss. 8. Baskin-Robbins. 9. Chanel. 10. Nike. Found in the sidebar of this article on Levi Strauss suing other jeans companies for their triangle pockets.
The following is a great 2004 BBC documentary about Tetris, the man who created it, and the lengths that several companies went to in order to procure the rights to distribute it. Tetris - From Russia With Love:
Alexey Pazhitnov, a computer programmer from Moscow, created Tetris in 1985 but as the Soviet Union was Communist and all, the state owned the game and any rights to it. Who procured the rights from whom on the other side of the Iron Curtain became the basis of legal wranglings and lawsuits; the Atari/Nintendo battle over Tetris wasn't settled until 1993. There's an abbreviated version of the story, but the documentary is a lot more fun. A rare copy of the Tengen version of Tetris, which was pulled from the shelves due to legal troubles, is available on eBay for around $50.
As part of a World Series promotion, Taco Bell will give away a free taco to everyone in the United States if someone hits a home run over the left field wall in tonight's game 3. This is a big offer for a big company so of course their lawyers want to make darn sure that we know precisely what "Taco Bell" means when they say "home run", "left field", and "free taco" with an extensive list of terms and conditions. Surely the first legal document containing the phrase "a completely outside the bun idea", the T&C is a fun read, but my favorite is the first condition that you agree to if you take advantage of the offer:
...to release, Major League Baseball Properties, Inc., Major League Baseball Enterprises, Inc., MLB Advanced Media, L.P., MLB Media Holdings, Inc., MLB Media Holdings, L.P., MLB Online Services, Inc., the Office of the Commissioner of Baseball, and the Major League Baseball Clubs, and each of their respective shareholders, employees, parents, directors, officers, affiliates, representatives, agents, successors, and assigns (hereinafter, "MLB Entities") and Sponsor and their affiliates, subsidiaries, retailers, sales representatives, distributors and franchisees, and each of their officers, directors, employees and agents ("Promotional Parties"), from any and all liability, loss or damage incurred with respect to participation in this contest and/or the awarding, receipt, possession, and/or use or misuse of any Free Taco
Man, I really hope someone hits a left field home run tonight. I'm dying to see some creative misuse of free tacos.
Notes from day 3 at PopTech:
Chris Anderson talked about, ba ba baba!, not the long tail. Well, not explicitly. Chris charted how the availability of a surplus in transistors (processors are cheap), storage (hard drives are cheap), and surplus in bandwidth (DSL is cheap) has resulted in so much opportunity for innovation and new technology. His thoughts reminded me of how surplus space in Silicon Valley (in the form of garages) allowed startup entrepreneurs to pursue new ideas without having to procure expensive commercial office space.
Quick thought re: the long tail...if the power law arises from scarcity as Matt Webb says, then it would make sense that the surplus that Anderson refers to would be flattening that curve out a bit.
Roger Brent crammed a 60 minute talk into 20 minutes. It was about genetic engineering and completely baffling...almost a series of non sequiturs. "Centripital glue engine" was my favorite phrase of the talk, but I've got no idea what Brent meant by it.
Homaro Cantu gave a puzzling presentation of a typical meal at his Chicago restaurant, Moto. I've seen this presentation twice before and eaten at Moto; all three experiences were clear and focused on the food. This time around, Cantu didn't explain the food as well or why some of the inventions were so cool. His polymer box that cooks on the table is a genuinely fantastic idea, but I got the feeling that the rest of the audience didn't understand what it was. Cantu also reiterated his position on copyrighting and patenting his food and inventions. Meg caught him saying that he was trying to solve the famine problem with his edible paper, which statement revealed two problems: a) famines are generally caused by political issues and therefore not solvable by new kinds of food, printed or otherwise, and b) he could do more good if he open sourced his inventions and let anyone produce food or improve the techniques in those famine cases where food would be useful.
Richard Dawkins gave part of his PopTech talk (the "queerer than we can suppose" part of it) at TED in 2005 (video).
Bob Metcalfe's wrap-up of the conference was a lot less contentious than in past years; hardly any shouting and only one person stormed angrily out of the room. In reference to Hasan Elahi's situation, Bob said that there's a tension present in our privacy desires: "I want my privacy, but I need you to be transparent." Not a bad way of putting it.
Serena Koenig spoke about her work in Haiti with Partners in Health. Koening spoke of a guideline that PIH follows in providing healthcare: act as though each patient is a member of your own family. That sentiment was echoed by Zinhle Thabethe, who talked about her experience as an HIV+ woman living in South Africa, an area with substandard HIV/AIDS-related healthcare. Thabethe's powerful message: we need to treat everyone with HIV/AIDS the same, with great care. Sounds like the beginning of a new Golden Rule of Healthcare.
2.7 billion results for "blog" on Google. Blogs: bigger than Jesus.
Pete Wells writes in Food and Wine about recipes, copyrights, and patents. Meg picks up the thread and argues that copyrighting recipes would stifle innovation, not promote it, rewarding mostly the lawyers who insert themselves between our food and mouths. A commenter says, "By nature, food people are generous of spirit, and recognize that the great fun of food is in the sharing."
Google is not starting to become concerned about their name being used as a generic verb meaning "to search"; they've been concerned for more than 3 years (more here). This movement to expose Google as big, dumb, and humorless strikes me as big, dumb, and humorless.
Speaking of brand genericide, Heroin was actually a brand name trademarked by the Bayer drug company. (thx chris, who joked, "Can I interest you in some Heroin brand morphine substitute?")
Harris Interactive recently released a list of products ranked by brand equity, a measure of the brand's popularity with US consumers. Here's the top 10:
1. Reynolds Wrap Aluminum Foil
2. Ziploc Food Bags
3. Hershey's Milk Chocolate Candy Bars
4. Kleenex Facial Tissues
5. Clorox Bleach
6. WD-40 Spray Lubricant
7. Heinz Ketchup
8. Ziploc Containers
9. Windex Glass Cleaner
10. Campbell's Soups
Marketing can be a double-edged sword. The companies who manufacture these products have done a fantastic job in marketing these products, so fantastic in some cases that the brand name is in danger of becoming a genericized trademark. From the list above, I routinely use Ziploc, Kleenex, WD-40, and Windex to refer to the generic versions of those products, even though we sometimes use Glad products instead of Ziploc, Puffs instead of Kleenex, or another glass cleaner instead of Windex. If the companies on this list aren't careful, they could lose the trademarked products that they've worked so hard to market so successfully.
Here's a list of American proprietary eponyms, or brand names that have fallen into general use. Some of the names on the list are so old or in such common use (escalator, popsicle) that I didn't even know they had been brands. Two current brands I can think of that might be in danger of genericide: iPod and Google. (via rw)
The WSJ hosts a DRM debate between Fritz Attaway of the MPAA and Wendy Seltzer of the EFF. "Digital rights management is the key to consumer choice." Zur? Are those irritating anti-theft packaging stickers on DVDs the key to consumer choice as well?
Mexican president Vicente Fox didn't sign the bill legalizing small quantities of drugs for personal use because of US pressure due to drug tourism fears. What I don't understand is...why not just make it legal for Mexican citizens to allay US fears? Besides, anyone who goes to Mexico for drugs can get them if they want anyway, law or no.
Michael Crichton on the sad state of patents in the US, particularly those related to medicine. "Any doctor who reads a patient's test results and even thinks of vitamin deficiency infringes the [homocysteine/B-12] patent. A federal circuit court held that mere thinking violates the patent."
I was recently wondering if any of the Creative Commons licenses had been upheld in court; a CC license was recently upheld in a Dutch courtroom.
Rogers Cadenhead, after receiving a letter from Dave Winer's attorney: "I've never been more retroactively embarrassed to have paid someone a compliment in my life."
Andy got a cease and desist from Bill Cosby's legal team for hosting the satirical House of Cosbys videos, and he's going to fight it. "More than anything, this strikes me as a special kind of discrimination against amateur creators on the Internet. Mad Magazine, Saturday Night Live, South Park, The Simpsons, Family Guy, and countless other mainstream media sources have parodied Bill Cosby over the years."
Meghann Marco, the woman who was upset at her publishing company for 1) not putting her book on Google Print, and 2) instead suing Google, has finally gotten her book listed on Google Print.
The fashion industry doesn't try to control its creativity the way that the music and film industries do. "The fashion world recognizes that creativity cannot be bridled and controlled and that obsessive quests to do so will only diminish its vitality. Other content industries would do well to heed this wisdom."
This guy has had enough of the pre-exit receipt checking at Best Buy (you're under no legal obligation to comply) but is hassled by Best Buy employees about seeing his receipt all the way out to the parking lot.
Andreas Pavel was the inventor of the portable music player (aka Walkman). "I was in the woods in St. Moritz, in the mountains. The snow was falling down. I pressed the button, and suddenly we were floating. It was an incredible feeling, to realize that I now had the means to multiply the aesthetic potential of any situation."
Scott Nelson produces a "tribute brand" called MIKE that's an homage to Michael Jordan, Nike branding, and shoes. After looking at his products (photos and interviews here and here), I'm amazed Nike hasn't sued him back to the Stone Age. Nelson's site is mike23.com.
"no sampling, please", a photoset depicting binge-sampling of nearly everything in sight, contrary to posted signage.
On the copyright of recipes. Recipes are covered by US copyright law but not very well and very few suits get brought against those who republish them without permission. For the most part, it sounds like food folks recognize the essential remix culture of cooking. (via matt)
Surowiecki on the sorry state of the US patent system. "Since the [USPTO] is funded by patent fees, as opposed to getting its budget from Washington, it has a financial incentive to process applications as quickly, rather than as diligently, as possible."
The 419 Nigerian spammers are getting smarter. This letter I received the other day offered URL references:
I am Larisa Sosnitskaya and I represent Mr. Mikhail Khordokovsky the former C.E.O of Yukos Oil Company in Russia. I have a very sensitive and confidential brief from this top (oligarch) to ask for your partnership in re-profiling funds US$46 Million. I will give the details, but in summary, the funds are coming via Bank Menatep. This is a legitimate transaction. You will be paid 20% as your commison/compensation for your active efforts and contirbution to the success of this transaction.
You can catch more of the story on This website below or you can watch more of CCN or BBC to get more news about my boss.
If you are interested, please do indicate by providing me with your confidential telephone number, fax number and email address and I will provide further details and instructions. Please keep this confidential as we cannot afford more political problems. Please do send me your response as soon as possible via my personal email :email@example.com OR firstname.lastname@example.org.
look forward to it.
Seems like pretty good evidence to me...where do I send the check?
**That's right, evolution. Sit on it, Potsie.
George Dyson visits Google on the 60th anniversary of John von Neumann's proposal for a digital computer. A quote from a Googler -- "We are not scanning all those books to be read by people. We are scanning them to be read by an AI." -- highlights a quasi-philosophical question about Google Print...if a book is copied but nobody reads it, has it actually been copied? (Or something like that.)
Our short national nightmare is over, Harriet Miers has withdrawn her nomination for the Supreme Court (her letter). However, our long national nightmare still has 1181 days to go.
Parable about Google's Library Project and copyright (discussed here last week). "All I have to do is borrow the CDs or DVDs, downloaded music or video or whatever, copy them, and then offer some sort of 'fair use' excerpt index service, just like Google is doing with the books. It's the perfect gimmick."
I got an email this morning from a kottke.org reader, Meghann Marco. She's an author and struggling to get her book out into the hands of people who might be interested in reading it. To that end, she asked her publisher, Simon & Schuster, to put her book up on Google Print so it could be found, and they refused. Now they're suing Google over Google Print, claiming copyright infringement. Meghann is not too happy with this development:
Kinda sucks for me, because not that many people know about my book and this might help them find out about it. I fail to see what the harm is in Google indexing a book and helping people find it. Anyone can read my book for free by going to the library anyway.
In case you guys haven't noticed, books don't have marketing like TV and Movies do. There are no commercials for books, this website isn't produced by my publisher. Books are driven by word of mouth. A book that doesn't get good word of mouth will fail and go out of print.
Personally, I hope that won't happen to my book, but there is a chance that it will. I think the majority of authors would benefit from something like Google Print.
She has also sent a letter of support to Google which includes this great anecdote:
Someone asked me recently, "Meghann, how can you say you don't mind people reading parts of your book for free? What if someone xeroxed your book and was handing it out for free on street corners?"
I replied, "Well, it seems to be working for Jesus."
And here's an excerpt of the email that Meghann sent me (edited very slightly):
I'm a book author. My publisher is suing Google Print and that bothers me. I'd asked for my book to be included, because gosh it's so hard to get people to read a book.
Getting people to read a book is like putting a cat in a box. Especially for someone like me, who was an intern when she got her book deal. It's not like I have money for groceries, let alone a publicist.
I feel like I'm yelling and no one is listening. Being an author can really suck sometimes. For all I know speaking up is going to get me blacklisted and no one will ever want to publish another one of my books again. I hope not though.
[My book is] called 'Field Guide to the Apocalypse' It's very funny and doesn't suck. I worked really hard on it. It would be nice if people read it before it went out of print.
As Tim O'Reilly, Eric Schmidt, and Google have argued, I think these lawsuits against Google are a stupid (and legally untenable) move on the part of the publishing industry. I know a fair number of kottke.org readers have published books...what's your take on the situation? Does Google Print (as well as Amazon "Search Inside the Book" feature) hurt or help you as an author? Do you want your publishing company suing Google on your behalf?
Twenty percent of the human genome is patented. I expect that someday in the future, my morning will be interrupted by a lawyer telling me that the company he represents holds a patent on the biochemical conversion of foodstuffs to energy suitable for powering a biological organism and that I should cease and desist eating my Cheerios.
The right of Conde Nast to sell The Complete New Yorker (which is completely awesome from a content standpoint, BTW) without paying authors for republish rights is a gray area legally. National Geographic has stopped selling a similar collection because of the unsure legal terrain.
Librarian gets even with an annoying junk faxer and even gets the guy's airplane seized...and all the proceeds from the sale will go to the Leukemia Society.