Friday, 31 October 2003

MythBusters profiled in SF Chronicle

The MythBusters, those two plucky guys on the Discovery Channel's new show, were featured in an article on the front page of the Datebook section in today's San Francisco Chronicle. (Article: Don't try this at home — unless you happen to be two out-there guys with a TV show devoted to putting urban myths to the test) Peter Rees, the show's producer, has become a star in his own right on alt.folklore.urban in recent months. Adam and Jamie deserve all the accolades in that article and then some. They are a wonderfully entertaining pair, combining sardonic humor and folklore analysis with practical and effective experimental design.

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Topics: Miscellany

Update: MIT lacks music licenses

As I blogged a few days ago, a group of MIT students devised an analog system for transmitting music via the university's cable television infrastructure. They intended to distribute streaming music free of charge to students without triggering copyright rules that mandate royalties for digital on-demand distribution. Today the Los Angeles Times reports that MIT had to suspend service for part of its music library because Loudeye Corp., the company from which it believed it had purchased licenses for the music, did not have the relevant licenses to sell. (Article: Music Service at MIT Hits a Snag) MIT and Loudeye are now engaged in very public finger-pointing.

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Topics: Civil Liberties, Cyberlaw, IP, Technology

Thursday, 30 October 2003

Idiot's guide to combatting satire

If there were a rule #1 in public relations for responding to satire, it would be: "If someone satirizes you, don't give him free advertising." Fortunately, most American corporations and political entities have yet to learn this lesson. This gives the rest of us endless entertainment as they add to the "who's who" list of good satire that comes from their PR blunders.

My first exposure to this maxim came in the 2000 U.S. Presidential campaign, when then-governor Bush excoriated the plucky web site in front of a large crowd and television cameras. His staff had registered all the Internet domains it could think of that contained variations of the candidate's name, but this one slipped through the cracks and was registered by a gadfly. The site satirized Bush and all the silly things he said.

Instead of ignoring this relatively unknown crank, Bush stood atop his soapbox and uttered the phrase that will live longer than his children's children: "There ought to be limits on this kind of freedom." The site enjoyed an instant (and long-lived) boost in popularity, growing from 1,000 visitors per day to over 1 million visitors per day for the rest of the campaign, with somewhat lower levels thereafter. The t-shirts it introduced the next day (with the "There ought to be limits on...freedom" speech bubble) were its hottest item for the rest of the campaign.

A group near and dear to Bush's heart, the Republican Party of Texas (RPT) is not outdone by its leader. Last March, the RPT threatened to sue the operators of a web site, The parody site mimics the RPT's site and "contains a banner which reads 'Republican Party of Texas…brought to you by Enron.' The letter 'e' in the word 'Republican' is in the form of the crooked 'e' symbol for Enron. The Web site contains 'humorous takes on the GOP's ties to Enron'" and parodic representations of its elephant logo. (Source) The site promptly displayed RPT's "cease and desist" letters, and the story was picked up by the national media. That same week, my Trademarks professor (David Byer brought it to the attention of our law school class. "I had three or four associates ask if we could represent this site pro bono," he said. "That is not the reaction you want people to have when they read about your lawsuit."

The most recent bonehead example comes from Fox. (I am not trying to paint this as a right-wing problem (honest!) the best recent examples just happen to come from "right field.") On Tuesday Matt Groening, creator of "The Simpsons," reported during an interview on NPR that Fox News nearly sued the network's entertainment division over a Simpsons episode that parodied "the Fox News rolling news ticker" by highlighting what is widely-perceived as "the channel's anti-Democrat stance, with headlines like 'Do Democrats Cause Cancer?'" (Source) If Fox News had the self-control to ignore its sister channel's show, only those who saw the show would have seen it, and only a few Simpsons devotees would remember it an hour later. Now, however, over a dozen news outlets have picked up the story.

Posted at 4:58:16 PM | Permalink

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Topics: Civil Liberties, Cyberlaw, Politics

Laser printers, razor blades, and the DMCA

The much-blogged-on exemptions from the Digital Millennium Copyright Act (DMCA), issued by the Copyright Office earlier this week, contain an interesting passage beginning at page 172. (The report is 198 pages long.) Lexmark, the #2 printer manufacturer, brought a widely publicized lawsuit against Static Control Corporation (SCC) alleging, inter alia, violations of the DMCA. When SCC filed for an exemption under the copyright rulemaking procedures, the Register was backed into the unusual corner of commenting on pending litigation.

Razor & Blades Business Model

Laser printers use an "ink" called toner, which comes in cartridges that are inserted into the printer. A new printer is sold with a full cartridge, and a moderate level of printing will use up one cartridge's worth of toner in about six months. Once this occurs, the user has two options: buy a new or refurbished (refilled) cartridge. Printer manufacturers sell new cartridges with full warranties against defective parts and workmanship. Refurbished cartridges are refilled by either the manufacturer or a third party in an aftermarket, and they generally do not carry warranties. Refurbished cartridges have two major selling points — one theoretical and one practical. First, refurbishing is a form of recycling and is more environmentally-friendly. Second, refurbished cartridges are cheaper than new ones.

The laser printer industry has long used the razor-and-blades business model famously pioneered by King C. Gillette. Shaving razors are a classic consumable good because ordinary wear and tear render them useless after a short time. A week or so of shaving will render the blade too dull to shave effectively, so the consumer discards the old blade and buys a new one. Once upon a time, razor blades were manufactured with their handles attached, as a single piece. Since each purchase entailed buying the entire unit, purchasing a Brand X blade one week did not bind a customer to buying the same brand the next week. While there may have been differences in quality among the various blades, most consumers could not objectively detect those differences, so there was no brand loyalty, and price was the chief (and perhaps only) discriminator. Gillette's innovation changed all that.

Gillette realized that he could manufacture the handles separately from the blades and that blades alone would be cheaper to make than the blade-handle combination. At the same time, he could make his handles and blades in a special shape so that neither unit would "fit" another brand. Once a consumer bought a Gillette handle, he would be locked into buying Gillette blades because nobody would want to buy relatively cheap blades that would not fit into an already-owned and relatively expensive handle. Consumers benefitted because they paid less money for blades in the long run — because they were consuming less material, since they discarded only the blades. Gillette benfitted with a steady stream of blade sales, proportional to the number of handles previously sold. (In IT jargon, the number of handles was Gillette's "installed user base.") To induce consumers to buy into this system, Gillette sold his handles as cheaply as possible, often just breaking even or taking a loss. He could afford to do this because the markup on blades was quite high, yielding a high per-blade profit, so he would make up for any loss on the handle after just a few blades.

The laser printer industry uses the same basic business model. Lexmark and competitors like Hewlett-Packard (HP) sell printers at- or below-cost, in an attempt to make them seem as inexpensive as possible in the first instance. Each manufacturer's printers work only with its own toner cartridges, as each company seeks to guarantee that its customers have to buy its toner for the life of the printer. Toner sales drive these companies' profits. (See, e.g., third quarter profit reports released by Lexmark and HP earlier this month.)

The Lawsuit

With this razor-and-blades model foremost in mind, Lexmark designed its T-series printers so that certain features that would work only with new toner cartridges or those refurbished by Lexmark but would fail with cartridges refurbished by third parties. Third-party refurbishers, Lexmark believes, hijack its aftermarket revenue stream from toner sales that "subsidize" the cheap initial price of printers. For example, T-series printers display a message when the level of toner in the current cartridge falls below a certain level, to warn the user that he should buy a new cartridge. A microchip in the cartridge feeds this information to the printer, and this chip cannot read the toner level after the cartridge has been refilled. Lexmark can correct this when it recycles its own cartridges, putting a new chip in the old cartridge that can read the toner level. However, when another company puts new chips in old cartridges (or manufactures its own cartridges and microchips in the same shape, that will fit in Lexmark printers), Lexmark cries foul. This is exactly what SCC did and how Lexmark responded. Lexmark sued SCC, alleging patent infringement and copyright infringement under the DMCA.

The reader should understand one additional point, too. Lexmark introduced an additional step into the razor-and-blades model, selling two types of toner cartridges. The first type embodies the classic model described above. The second type, called "prebate" cartridges, are sold at a $50 discount — but only under a contract that obligates the purchaser to return the empty cartridge to Lexmark once the toner is gone. In addition to this contractual protection, Lexmark builds into prebate cartridges an additional, technological measure of protection. As the Register explains, prebate cartridges contain microchips that engage

in an authentication sequence, or 'secret handshake,' with the Printer Engine Program on the Lexmark T-series printers. This authentication sequence runs each time a toner cartridge is inserted into a Lexmark T-series printer, each time the printer is turned on, or whenever the printer is opened and closed. This authentication sequence must be successfully performed in order for the Toner Loading Program to exchange information with Printer Engine Program and to allow the printer to function. If, on the other hand, the authentication sequence does not successfully occur, the printer will not recognize the toner cartridge as authorized and access to the Printer Engine Program will be disabled. [pages 174-75]

SCC designed its own printer cartridges and microchips that mimicked the functionality of Lexmark's products. Of course, SCC did this without Lexmark's permission; Lexmark never would grant permission for a product would deprive it of its most important revenue stream. So Lexmark sued SCC for patent and copyright infringement, seeking damages (money, measured as the sales of toner that Lexmark lost due to SCC's actions) and an injunction (a court order for SCC to stop).

The Register's Report

Patent law is supposed to protect inventions, devices and other functional technology, whereas copyright law is supposed to protect creative works like writings and music. This is why Lexmark's decision to invoke copyright law to protect its printers is so discordant. In my opinion, Lexmark alleged just enough creative/expressive content in its chips to avoid Rule 11 sanctions, but the District Court obviously disagreed with me — and granted it a preliminary injunction. It is well-settled that computer software is expressive for copyright and first-amendment purposes — notwithstanding that it has functional (non-expressive) characteristics. It is also generally-accepted that someone may copy another's computer program for the sole purpose of reverse engineering it, so long as the reverse-engineered code is original and no copyrighted code is used in the final product. This is what Lexmark alleged that SCC did when it claimed copyright infringement. The District Court agreed with Lexmark that this constitutes "circumvent[ion of] a technological measure that effectively controls access to a work protected under" copyright law — which the very first section of the DMCA renders illegal.

The Register of Copyrights, in her report, pointed to § 1201(f) of the statute, which Congress "intended 'to avoid hindering competition and innovation in the computer and software industry.' Congress did not intend the DMCA to change the effect of pre- DMCA case law that allowed legitimate software developers to continue engaging in certain activities for the purpose of achieving interoperability between computer programs." (page 178, quoting House Manager’s Report at 14 and citing the landmark case, Sega Enterprises Ltd. v. Accolade, Ind., 977 F.2d 1510 (9th Cir. 1992)) This concern for interoperatbility covers "not only…individual use, but [extends to] enabling competitive choices in the marketplace." (Id.) This "statutory exemption," the Register wrote, "goes far beyond the limits of this rulemaking" proceeding. (Id. at 180)

While the report denies a specific exemption to SCC, it recognizes that the exemption in § 1201(f) is broad and that SCC's activity falls within it. This interpretation of the statutory language — on the public record, by an entity with great persuasive authority in the courts — is a boon for competition. Furthermore, it reflects the instinctive dichotomy between patent and copyright law, leaving patents to protect technology and keeping copyrights focused on expression. The Register's opinion does not bind the Sixth Circuit, where the Lexmark suit is now pending, but courts of appeal do take notice when a specialized regulatory agency publishes such a strongly-worded opinion on the public record — so while SCC nominally "lost" (the Register refused to grant it an exemption), it may have "won" in a broader sense that it did not anticipate.

Posted at 9:20:33 AM | Permalink

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Topics: Civil Liberties, DMCA, Technology

Wednesday, 29 October 2003

Update: Press coverage of DMCA exemptions

Update on my prior entry about the Copyright Office's report on DMCA exemptions (short version, long version). The press is covering the issue today:

The Wired article has this succinct summary of the exemptions granted yesterday: "People may bypass a digital lock to access lists of websites blocked by commercial filtering companies, circumvent obsolete dongles to access computer programs, access computer programs and video games in obsolete formats, and access e-books where the text-to-speech function has been disabled."

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Topics: Civil Liberties, Cyberlaw, IP, Politics, Technology

Tuesday, 28 October 2003

Columbia astronaughts might have inspected wing in spacewalk

The Columbia Accident Investigation Board (CAIB) officially released volumes II-IV of its Final Report. Today's releases contain one tidbit that compels me to acknowledge that a public statement I made last February was partially wrong. With the benefit of eight months' hindsight, CAIB has concluded that the Columbia astronaughts might have undertaken a highly risky two-man spacewalk to inspect the damage to the spacecraft's left wing — "if one of them had used the other as a ladder," in the words of one New York Times article (Reports Detail a Hypothetical Shuttle Rescue).

In a post to CTY-L on 11 February 2003, I stated (wrongly, it turns out) that the Columbia astronaughts could not have inspected or repaired the damage. While CAIB concluded that the astronaughts might have inspected the damage, the report does not suggest they could have repaired it in space, or that they should have attempted to do so. Indeed, the shuttle did not have the appropriate materials or tools on board to carry out such a repair. See, e.g., this Washington Post article: "Astronauts on Columbia and engineers in Mission Control were not aware of the extent of damage to the shuttle wing. But officials said that, in any case, there was no equipment on the shuttle to patch the wing even if the problem were recognized." (Article: Paint Brush May Aid in Repair of Shuttle)

Posted at 10:25:07 PM | Permalink

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Topics: Politics, Science, Technology

Copyright Office issues DMCA exemptions

The U.S. Copyright Office today issued its report creating a new set of exemptions under the DMCA for the next three years. (Links: short version and long version) The Register granted two major exemptions and denied many others. Ernest Miller has a collection of blog links. Derek Slater has a good, short summary.

Posted at 7:05:35 PM | Permalink

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Topics: Civil Liberties, Cyberlaw, DMCA, Politics, Technology

Elvis' income tops among dead celebrities

Interesting development that brings the law of publicity to the fore: Last week Forbes magazine reported the top-earning dead celebrities. (Article: Top-Earning Dead Celebrities) Elvis Presley ($40 million) has held the top spot since Forbes introduced this ranking three years ago. This year, he is followed by the likes of "Peanuts" cartoonist Charles Schulz ($32 million), J.R.R. Tolkien ($22 million), and former Beatles John Lennon ($19 million) and George Harrison ($16 million). Tolkien's rank is temporary, I suspect, and will fall once the Lord of the Rings films finish their theater and video runs.

Posted at 3:20:15 PM | Permalink

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Topics: Civil Liberties, Cyberlaw, IP, Politics

Law driving innovation

The government should occassionally drive innovation. This is especially true when the potential benefits of a new science or technology are great but the probability of developing products based on them within a reasonable time is small. This is an obtuse reference to the old argument that the government should, in some cases, support "pure" research. In most cases, however, government intervention in the market for research and development (R&D) is unwarranted and even destructive. The case for government intervention absolutely breaks down when market forces have already produced the first viable product. Where multiple products compete, there is no plausible argument yet-made for government intervention.

Sometimes, however, government actions shape innovation as the unintended consequence of legitimate actions taken in another sphere. This is happening right now in the area of copyright law. Since the first Congress enacted the first American copyright act in 1789, copyright law has grown in two directions: more complex and more protective of copyright owners' interests. Both trends have deeply affected copyright markets in the last two centuries. Since the 1976 copyright act — the most recent major overhaul to copyright law in this country — the complexity of the law has had a disproportionate impact on the technologies developed to serve the copyright industry. My theoretical opinion and this practical reality collide in the project of two Massachusetts Institute of Technology (MIT) students.

The New York Times reported yesterday that MIT students Keith Winstein and Josh Mandel have developed a system for distributing music via campus information networks that appears to comply with copyright law and partially render moot the grand public debate over file sharing. (Article: With Cable TV at M.I.T., Who Needs Napster?) The project transmits music over MIT's cable television infrastructure in analog form — thereby taking advantage of the bulk licenses that copyright producers routinely grant to television and radio operators and avoiding digital transmission, which triggers the nastier niceties of the copyright act. This new technology adds precisely zero end-user functionality to existing distribution systems (namely, file sharing networks and radio). Its sole purpose was to formally circumvent a distribution mechanism that copyright producers find objectionable. John Schwartz of the NYT writes that "some legal experts say the M.I.T. system mainly demonstrates how unwieldy copyright laws have become." Mike Godwin, senior technology counsel to Public Knowledge, says the students have "sidestepped the stonewall that the music companies have tried to put up between campus users and music sharing."

Copyright law's burgeoning complexity may be the lifeblood of intellectual property lawyers, but it is bad social policy. I admit this as someone currently aspiring to become an IP and cyberlaw lawyer. Another prime example of complexity breeding bad results lies in the recent episode where the Minnesota Public Utilities Commission (MPUC) tried regulate Vonage and other VoIP providers as telephone service providers. The Federal Communications Commission (FCC) long ago penned the legal distinction between "telecommuniction services," which states may regulate, and "information services," which they may not regulate (because such regulations are preempted by federal law. Vonage and other VoIP providers offer consumers and businesses a method of conducting voice communication, which we would ordinarily recognize as "phone calls." The only difference, from the end-user's perspective, is that his phone is plugged into a black box which, in turn, is plugged into the wall, instead of the phone being plugged directly into the wall. The user still dials a number, talks, and listens just as he would with an ordinary telephone. The problem is that the law created two legal categories and treated them differently. As technology allowed, the market made this distinction spurious at best by offering products that straddled the line between the two categories.

In both cases, the complexities of the law drove technology and they way we use it. In the former, copyright law inspired wasteful development of a system that is, at best, as efficient as preexisting systems. In the latter, the law held up development of a highly efficient technology (compared to what it would replace) with wasteful litigation that sought to resolve whether it was really the old technology or something new. The commonality is the resources consumed by the attempt to apply overly complicated laws to new facts. These examples are drawn from this and last week's headlines. I could probably select one example per week over the last five years, with some effort. I think, however, that my point is made.

Posted at 11:19:08 AM | Permalink

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Topics: Cyberlaw, IP, Science, Technology, VoIP

Monday, 27 October 2003

Message from god?

BBC News reports that actor Jim Caviezel was twice struck by lightning while portraying Jesus in Mel Gibson's forthcoming film The Passion Of Christ. (Article: Jesus actor struck by lightning.) The man upstairs did, after all, ask Job, "Canst thou send lightnings, that they may go, and say unto thee, Here we are?" (Job 38:35)

Posted at 6:47:17 PM | Permalink

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Topics: Skeptical Inquiry

AP picks up the Diebold story

The Associated Press has picked up the story of Diebold's cease & desist demands under the DMCA. (Article: Diebold threatens publishers of leaked electronic-voting documents.) This should lead more mainstream news outlets to carry the story, beyond the paltry few that have carried it thus far (1, 2, 3). This could be the third major story with national political implications broken in the blogosphere after the mainstream press ignored it.

Posted at 6:13:01 PM | Permalink

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Topics: Civil Liberties, Cyberlaw, IP, Politics, Technology, eVoting

Update: Press digs anti-spam ruling

The press is agog with the anti-spam ruling won by California Attorney General Bill Lockyer, which I blogged on yesterday. See representative stories in Wired, San Jose Business Journal, and Computer World.

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Topics: Cyberlaw, Spam

Sunday, 26 October 2003

California wins anti-spam lawsuit

California Attorney General Bill Lockyer announced on Friday that his office had won the first-ever anti-spam lawsuit in the state. The court ordered defendant PW Marketing (and its owners) to pay "$2 million in civil penalties for violating state laws prohibiting unsolicited commercial email, false advertising and unfair business practices." It also entered an injunction against PW, prohibiting it from doing the following:

Readers should note that California's anti-spam law will not take effect until January 2004 — so this judgment rests wholly on preexisting law.

Posted at 2:29:03 PM | Permalink

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Topics: Cybercrime, Cyberlaw, Spam

Update: Indirect linking & the DMCA

Today, LawMeme asked essentially the same question I asked on Friday. I cannot link directly to the LawMeme article, in order to preserve the experiment I proposed on Friday (due to trackbacking effects). You can find it easily, however. The title is "How Direct is Too Direct When It Comes to Hyperlinks?," the author is James Grimmelmann, the publication date is 26 Oct 2003, and the category is copyright.

Posted at 1:52:22 PM | Permalink

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Topics: Civil Liberties, Cyberlaw, DMCA, Politics, Technology, eVoting

Ted's Caving Story

A friend of mine recently posted a link to Ted's Caving Story in AFU. I liked it more than most. The best descriptor I read compared it to the better Stephen King imitators with a Blair Witch twist. I endorse passing this story around among friends — especially with Halloween coming up.

Posted at 9:48:59 AM | Permalink

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Topics: Miscellany

WMD: Where's My Dope?

All but the True Believers now agree that Iraq has had no cognizable weapons of mass destruction (WMD) program for some time. Indeed, it seems likely that Saddam Hussein abandoned his nuclear ordnance program in 1991, immediately following the Gulf War — just like he said he did. Barton Gellman reports in today's Washington Post:

According to records made available to The Washington Post and interviews with arms investigators from the United States, Britain and Australia, it did not require a comprehensive survey to find the central assertions of the Bush administration's prewar nuclear case to be insubstantial or untrue. Although Hussein did not relinquish his nuclear ambitions or technical records, investigators said, it is now clear he had no active program to build a weapon, produce its key materials or obtain the technology he needed for either.

Among the closely held internal judgments of the Iraq Survey Group…are that Iraq's nuclear weapons scientists did no significant arms-related work after 1991, that facilities with suspicious new construction proved benign, and that equipment of potential use to a nuclear program remained under seal or in civilian industrial use.

Is anyone surprised that White House "officials interviewed for this report defended the integrity of the government's prewar intelligence and public statements" but that "[n]one agreed to be interviewed on the record?"

Posted at 9:31:02 AM | Permalink

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Topics: Politics, Skeptical Inquiry

Saturday, 25 October 2003

Pious Fraud?

Pope John Paul II's beatification of Mother Teresa last week brought the expected outpouring from international journalists and political leaders, who competed to produce the glurgiest fawning over this "icon of the Good Samaritan." It is fair to ask why.

Since the 1930s, Teresa's missionary order has preached in the bowels of society, and the world has heaped upon her the accolades she proved so adept at attracting. After her death, the world — and particularly the Vatican — has had less interest than ever in examining her deeds. John Paul II, who counted Teresa among his confidants, has canonized several times more saints than any other Pope in history. It is no accident that this occurred under the first Pope to reign in the era of global instant news. So why stop now? Teresa's beatification was as much a media event as a religious rite.

As is well known in the skeptical community (but largely ignored elsewhere), the alleged miracle performed by Teresa is likely a fraud. As Bob Park succintly explains:

This tiny woman had devoted her life to caring for "the poorest of the poor," built a charity network that spans 120 countries, and was awarded the 1979 Nobel Peace Prize, but no miracle, no sainthood. It was easy in the middle ages; you could whip up a miracle or two before breakfast, but this is the age of science. So the Vatican sent a crack team of investigators to India, where a woman said a beam of light from a picture of Mother Teresa had cured her of cancer. The team pronounced it a genuine miracle. But her doctor says no one asked him. He insists it was a cyst, not cancer, and he cured it with medicine. Who's right? I asked an old classmate, Dom Credulo, who knows a lot about miracles. "Do you think this is a miracle?" I asked. "Of course it's a miracle," Dom snapped, "how many times have you seen a picture emit light and cure cancer?" He had me there.

Accounts published on behalf of the cured woman's husband confirm the doctor's objection, especially the fact that she was treated with modern medicine. He details the regimen of medication she followed, side effects she experienced, and the timeline of her recovery. All are in perfect accord with the generally-prescribed course of treatment in conventional (western) medicine in the region.

Why must we debunk Teresa's supposed miracles? First, because skepticism is a virtue. Second, because Teresa's accolades, and even her Nobel prize, were almost certainly acquired through fraud. Aroup Chatterjee, who grew up in Calcutta, has spent the last decade conducting an exhaustive investigation of Teresa's life, ministry, and reputation. The result of this research is his book Mother Teresa The Final Verdict, published this year. I could not do justice to Chatterjee's 400+ pages in this space, so I will let a recent book review by Krishna Dutta speak for me. This article is reprinted from the Time Higher Education Supplement. The book itself is available online at Meteor Books.

"Saint of the gutters with friends in high places"
Krishna Dutta
Published 16 May 2003

Title: Mother Teresa The Final Verdict
Author: Aroup Chatterjee
Reviewer: Krishna Dutta
Publisher: Meteor Books, Calcutta (
ISBN: 81 88248 00 2
Pages: 427
Price: £9.99

When Mother Teresa of Calcutta died on September 5 1997, a few days after Princess Diana, a Calcutta daily carried the headline "Numbed by Diana's death, Calcutta fails to mourn for Teresa." For two days her body remained in the room of her house while few people, poor or rich, came to pay their respects. But by the time that the worldwide order she founded, the Missionaries of Charity, had moved her remains to St Thomas' Church in central Calcutta and put her body on view in a glass box, India had decided on a state funeral for its Nobel peace prize laureate. Foreign dignitaries, including Hillary Clinton, US senators and congressmen and Vatican representatives, as well as India's prime minister, state governors and other celebrities came to her funeral. Teresa's body was carried on a gun carriage through Calcutta's streets to a ceremony at an indoor stadium before 6,000 invited guests, most of whom were nuns, clerics and Indian and foreign officials; only about 100 poor people attended. Despite her wish to be buried in the grounds of her church, the city's Catholic establishment decided to bury her in Mother House, apparently for fear of desecration of the grave. Today it is mostly foreign tourists who visit her grave. Her halo has considerably faded since her death, though the pope seems determined to make her a saint.

The western media, beginning with Malcolm Muggeridge's starry-eyed BBC television programme in 1968, built Teresa up as the world's kindest and most honourable soul — overlooking the fact that her mission in life, unlike Gandhi's, was more to promote religion than to improve the lot of the poor. Her call to thousands of pregnant Bangladeshi women raped by Pakistani soldiers during the liberation war in East Bengal to have their babies was definitely prompted by her Catholic faith. But she never said a word against the widespread abortion of female foetuses practised in India because she knew that to speak out would damage the Missionaries of Charity in India. When in 1980 one of her order's homes in north London caught fire as a result of insufficient precautions, nine women burnt to death. But such was the aura of its reputation in the West that there was no proper investigation into the incident.

During the 1990s, Aroup Chatterjee, a self-proclaimed atheist, began a crusade to expose Mother Teresa. Chatterjee, who was born and educated in Calcutta, is a doctor who now lives and works in Britain. In 1994 he prompted Channel 4 to probe Teresa's reputation, and the result was the controversial television documentary, Hell's Angel , presented by Christopher Hitchens, who subsequently published a polemic against her, The Missionary Position. Chatterjee's Mother Teresa The Final Verdict is the product of his decade-long research into the Mother Teresa phenomenon.

From the evidence he documents, it is clear that Teresa often deliberately misled journalists with spurious statistics about her charitable work. Even in her Nobel acceptance speech in 1979, she falsely claimed to have picked up 36,000 destitutes from the streets of Calcutta, knowing that no western journalist would attempt to verify the statement of a pious and fragile nun. According to Chatterjee's estimate, the real figure is between 500 and 700 destitutes for the entire period of her operation in Calcutta since the 1930s, during which time there were a number of catastrophic natural and political disasters, such as the famine of 1943-44, the partition of Bengal in 1947 and the refugee influx from East Pakistan in 1971. The fact is that the Missionaries of Charity generally do not pick up the destitutes, they refer them to Calcutta Corporation's ambulance service. Only when no city hospital will take the dying are they brought to the Missionaries of Charity. Mostly, the order's ambulances are used as taxis by the nuns.

The special friendship between Teresa and Pope John Paul II naturally receives much attention in the book. They were bound together by their stance against contraception and abortion. Teresa also supported the pope's opposition to women priests and was regarded as "an honorary man by the Vatican inner circle." She became the Vatican's ideal missionary to the Islamic world and the Communist bloc by promoting "spiritual work" for the poor, travelling to Libya and Iraq, opening a convent in Tunis, and even working for her order in Cuba and Moscow. As she gleefully told an interviewer "Castro asked me, 'Why do you want to come to Cuba?' As you know the church was completely closed then — no priests, no nuns. We have five houses there now. In Russia we have ten houses." Her lifelong regret was that she could not open an institution in China.

Her order had limited success in South America because she did not approve of "liberation theology" and priests who involved themselves in community work in opposition to dictatorial governments. Neither she nor the pope openly condemned the 1980 killing by a CIA-sponsored death squad of Archbishop Romero of El Salvador while he was conducting mass.

The chapter on Mother Teresa's financial affairs is disconcerting. Her order has never properly disclosed its income except in Britain. In 1981 it was due to be investigated following a Vatican money-laundering scandal but for mysterious reasons the investigation stalled. Chatterjee favours reopening it and maintains that Mother Teresa kept her accounts secret because most charitable donations went to religious activity. In the most notorious episode, the money she received from Charles Keating, who was then convicted and imprisoned for fraud in the Savings and Loan scandal, was never returned despite an official request to her from the deputy district attorney of Los Angeles County. Certainly, many donations were not spent on the poor of Calcutta as Mother Teresa would have the outside world believe; they were deposited in the Vatican Bank. If they had been, why did the medical facilities in her home for destitutes remain so rudimentary?

As someone, like Chatterjee, born and brought up in Calcutta and now living in Britain, I can vouch for Calcutta's limited relationship with Teresa.

She hardly connected herself with the city she lived in for more than six decades — and completely neglected its cultural and intellectual life. She knew very little Bengali and had little contact with the masses, though she was friendly with the city's charity-giving rich and influential. I became aware of her celebrity status only when I moved to England in the late 1960s. On a visit to Calcutta much later, I noticed that in her tiny home for the dying in Kalighat, which thrived on designer gloom, the patients were identified by serial numbers and were not allowed to walk about. Nor were they given intelligent medical attention or care — just a plastic-covered mattress and a frugal meal of rice and lentils. When their final hour came, the nuns, who came mainly from impoverished Bihar and spoke very basic Bengali, secretly converted the dying to Catholicism by promising eternal life. But if Teresa deprived her departing souls of medical support, she never denied herself the city's best medical treatment, offered for free, at the exclusive Woodlands Clinic and Birla Heart Institute.

In sum, Teresa used Calcutta's decaying environment to enhance her global image as "the saint of the gutters." No other city of India would have been as suitable for her teleology that Calcutta's abject poverty was divinely ordained to prove the spiritual value of her mission. She knew that horrendous images from a city of bygone colonial wealth and power would make a strong impact on a guilty western psyche. Like Christ washing the feet of the poor, she would become an icon. The more sensitive Calcuttans were aware of her calumny but chose to remain quiet partly because she was marginal to the main life of the city and partly because they knew that their criticism would be ignored by the politically powerful (Indira Gandhi was among her admirers, as was Ronald Reagan). Even now very few in Calcutta openly criticise her, although the opposition is becoming stronger. The mayor's lobbying to name a street after Mother Teresa has yet to meet general approval.

Probably the Catholic church will eventually canonise her-despite the lack of a credible miracle required for beatification. As discussed by Chatterjee, the Vatican inner circle has tried to keep secret the identity of a miraculously cured illiterate tribal girl from a remote village.

Although sceptical Indian journalists discovered that the girl's tumour was cured by orthodox medical intervention, the Catholic hierarchy has ratified it as an "objective and organic miracle." The situation is somewhat reminiscent of the weapons of mass destruction in Iraq, which await ambiguous discovery. This necessary, well-documented book — which could have been improved with editing — is further testimony to much of the western world's, and especially the present US's, cultural, moral and religious insensitivity towards the rest of the globe.

Krishna Dutta is the author of Calcutta A Cultural and Literary History.

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Friday, 24 October 2003

Indirect linking & the DMCA

Ed Felton asks an important question over at Freedom to Tinker. As first blogged by Ernest Miller, Swarthmore has begun suspending the Internet accounts of students who link to the Why War? web site, which maintains direct links to the infamous Diebold memos. (See my previous blog entries on Diebold: 1, 2, 3.) While Seth Finkelstein points out the potential dangers of linking under Rameirdes (the DeCSS case), Ed notes that Swarthmore has escalated the danger by punishing students who link indirectly to the Diebold memos. The college is shutting down web sites that link to a site that links to the memos. What, Ed asks, is the limit? His article links to Ernest's article, which links to Why War?, which links to the memos. How many intermediate links would Swarthmore require before its students may exercise their free speech rights?

Ed offers the opportunity to test the waters by linking to his page, which is two steps removed from the memos. I deliberatetly avoided linking this article to any page "closer" to the memos than Ed's blog, to increase the chain by one. Anyone at Swarthmore feeling lucky?

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Antipiracy indoctrination gets off to rocky start

The Motion Picture Association of America (MPAA), the chief Hollywood lobbyist, has launched an indoctrination campaign in public schools. Although MPAA calls it "education," the program fits all the elements of the definition of indoctrination in Webster's Dictionary. MPAA paid $100,000 to deliver its message to 900,000 children over the next two years, taking advantage of public schools' budget crises. Although the program's title is "A Guide to Digital Citizenship," its curriculum is more accurately reflected by its slogan, "If you haven't paid for it, you've stolen it."

As a statement of law, this slogan is absolutely wrong. There are many situations in which one can lawfully acquire property without paying for it, and a good number of those apply to file sharing, the main target of MPAA's effort. As reported by AP, the MPAA curriculum is a simplistic and one-sided presentation on a complex area of law, delivered to children, many of whom are likely to lack the knowledge and sophistication to engage the instructors in productive discussion. In one example reported by AP, one knowledgable student was cut off by the teacher when he disagreed with the scripted lesson.

Note to MPAA: Discussion is good, but proselytization is not.

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Thursday, 23 October 2003

Benefits of free wi-fi hotspots

On Monday, Computer World reported that companies offering free wi-fi hotspots were boasting measurable returns on their investment ("Free hot spots pay dividends"). The article compares the experiences of companies that provide free hotspots with those of companies offering fee-based wi-fi service (ala Starbucks) or ethernet. This is not the first time Starbucks has missed the boat entirely. Try turning off cookies in your browser before you go to Starbucks' web site.

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Patented play or punishment?

I just got wind of patent number 6,293,874, approved two years ago and entitled "User-operated amusement apparatus for kicking the user's buttocks." The current Scientific American (Oct 2003) has an article on it. Many thanks to Clive Thompson of Collision Detection for blogging on this.

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Diebold's options

Mark Fingerman posted a comment asking some good questions about my entry on the propriety of using copyright to quell criticism ("Diebold detractors defy DMCA desist demands"). I will try to answer them all here.

First, whether Bill Gates "should be allowed to profit from" software that he designs. Of course! The law should forbid people to profit from their labor only in rare circumstances — like murders for hire. Should Ford be allowed to sell cars at a profit? And Dole to sell pineapples? Surely, no one would argue that these companies are not permitted to build and grow physical products with their own factories and land, then place those items in the stream of commerce. The difference is that cars and pineapples are physical goods, which are rivalrous, meaning that only one person can consume them at any time (and, in the case of pineapples, only one person can eat a pineapple before it becomes useless to everyone else). Software is a nontangible good, which can be copied and used by two or more people at the same time — so if you copy my Office 2002 CD, my enjoyment of the software is not diminished. That is where copyright law comes in: the law erects an artificial barrier to some activities to imbue nontangible goods with some of the same qualities that allow producers to profit from tangible goods. (Note that "artificial" sometimes carries a negative connotation, but that is not what I intend here. I mean that a legal barrier does not exist in a "natural" world without laws.)

Second, on "intermediate" products of a copyrightable nature. Surely, Tom Clancy holds a copyright in chapter 1 before he finishes writing chapter 12. Copyright law protects the expression in any creative work beginning at the instant it is "fixed in a tangible medium of expression." Courts have interpreted the term "tangible medium of expression" broadly, as anything that can hold information in a stable form for a measurable period of time — e.g., paper, rock, clay, glass, wood, magnetic disks and RAM. Section 101 of the Copyright Act defines the moment of fixation:

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

The Copyright Act does not distinguish between "finished" and "unfinished" works, and the copyrights in intermediate stages of production can be analyzed separately from the copyright in a finished work. Normally we need not bother, because the copyright in the finished product is much more valuable and is the focus of disputes that arise.

Next, Mark takes exception to my claim that "The public enjoys the right to make 'fair use' of copyrighted works — especially for purposes such as criticism, satire, parody, scholarly analysis, and other uses that are necessary to preserve unfettered public debate and preserve the liberty of free expression." He asks, "So the public has the right to break into your home, steal your private correspondence, and publish it 'especially for purposes such as criticism, satire, parody, scholarly analysis...?' Can I rob a bank for the purpose of holding them up to 'scholarly analysis?'"

The answer, of course, is no, because the actions you describe are crimes and torts. Diebold has clear legal remedies against the person who broke into its computer network. It can sue him for, among other claims, trespass, theft of trade secrets, and interference with business relations. It can also press criminal charges under the Computer Fraud & Abuse Act. Take note that Diebold has done none of these legitimate things. Instead, the company has taken aim at people who have, unquestionably, never committed a crime or tort against it. The harm that Diebold fears is not further loss of trade secrets (these "secrets" are already public knowledge so, by definition, they are no longer trade secrets). Rather, it is trying to use copyright law to stymie discussion its products after the public has learned of their flaws.

The Lanham Act, the foundation of American trademark law, explicitly allows us to reproduce trademarked words, phrases, and symbols for the purpose of discussing the products they represent. This limits the general rule that reproducing a trademark without permission is infringement, and it is necessary to avoid rendering the trademark regime unconstitutional under the First Amendment. If we can write Diebold's name but cannot discuss its products, then the limitation is meaningless. Forcing the public to discuss the voting machines' shortcomings without sufficient supporting facts is tantamount to the same thing. Yes, the person who "stole" Diebold's documents should be held responsible, if Diebold chooses to press the issue. The general public, however, should not be held responsible for one person's wrongdoing.

Finally, the questions "Is Diebolds product better than hanging chads? And did Diebold provide what the state requested?" I take it, you are referring to the Georgia election I discussed in a previous article. For all the reasons stated in that article: no, Diebold's products (in their current form and with current election laws) are not better than hanging chads. And no, it did not provide what the state requested. The state certified the machines prior to the election, according to its laws. Sometime thereafter, Diebold made changes to its software and did not disclose that changes had been made — let alone the content of those changes — to anyone. There has been no allegation that these particular changes compromised the election, but one can easily imagine a scenario where such changes would cause problems. If the government is not informed of the changes and has no opportunity to examine them, what is to stop Diebold or another manufacturer from changing every tenth Republican vote to a Democratic one?

I sympathize with Diebold's problems. Nobody likes criticism. It invested a lot of time and money in developing its touch-screen voting machines, and it wants to prevent that work from being wasted. But we live in a democracy that values the integrity of its elections and a capitalist economy that values the operation of market forces in an environment of as-nearly-perfect-as-possible information. Diebold could subvert the first and has subverted the second.

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Capitals trade Kono

For a long time, the Washington Capitals' captain, Steve Konowalchuk, was my favorite player on the team. One of the best checking forwards in the National Hockey League, his smart defensive play, gritty style, and leadership in the locker room reminded me a lot of the way I played soccer.

The two best right wings on the planet (Peter Bondra and Jaromir Jagr) frequently overshadow the Caps' left side, where Kono has been solid as a rock for 13 seasons. In a league where few offensive lines remain intact for an entire season, Kono was the cornerstone of the NHL's most respected checking line for three years. That line, which included Jeff Halpern and Ulf Dahlen, faced opponents' highest-scoring players each night and still mustered nearly the highest combined plus-minus rating of any line in the NHL during that time. Alas, nothing lasts forever.

A shoulder injury ended Kono's 2001-2002 season after a month, and he has not played at his former level since returning last year. Halpern injured his knee that same year and ended his season early, too. Dahlen left the team via free agency. Now, Kono has been dealt to the Colorado Avalanche for Bates Battaglia, a "bruising winger" who plays with "many of the same on-ice qualities as Konowalchuk," in the words of Jason La Canfora of the Washington Post.

The teams also swapped the Caps' third-round 2004 draft pick and forward Jonas Johansson, who was Colorado's first-round pick (28th overall) in 2002. And no discussion of this deal would be complete without mentioning the salary differential: Kono is earning $1.575 million this season, compared to Battaglia's $935,000. Majority owner Ted Leonsis vowed to cut costs after five years of optimistic investment in marquee players (especially Jagr, who is earning $11 million per season over seven years) failed to produce playoff results.

I will miss Kono, but the Capitals should come out ahead on this deal. This season may be a wash between the two established players, but Johansson has been a darling of the Capitals' amateur scouts for some time. They believe he will be a top-six forward in just a few years.

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Wednesday, 22 October 2003

Diebold detractors defy DMCA desist demands

As I explained in a previous article (E-lection security in Georgia), the voting machine products and related services sold by Diebold Election Systems raise serious election-integrity concerns. After a hacker broke into Diebold's computer network and downloaded ("stole," in Diebold's words) several internal memoranda, he distributed those documents widely, including some copies to journalists and activists. The compromising documents confirm that the company has known of its voting machines' shortcomings for some time. Embarassed, Diebold played the great American trump card, the lawsuit.

Diebold has sent an unknown number of "cease and desist" letters to people who posted the documents on their web sites. The letters threaten that the company will sue under the Digital Millennium Copyright Act (DMCA) if the recipient does not promptly remove the offending memos from his web site. Diebold (correctly) insists that it owns a copyright in those documents and that they are being publicly displayed without permission. It then invokes the provision of the law which requires Internet Service Providers (ISPs) to remove material that infringes a copyright promptly upon being notified of its presence on its servers. Any webmaster who does not take down the memos, Diebold threatens, will soon stare down the barrel of a copyright infringement lawsuit.

How is this wrong? Let me count the ways.

Copyright law, including the DMCA, is intended to give authors and artists a chance to earn rewards for their creative work. It grants them the exclusive rights to copy, distribute, perform, and publicly display their literature and art. In the U.S., the rationale behind copyright goes like this: if an author has the legal right to prevent others from doing these things, he will hold a limited monopoly on his own work and will be able to derive income from it. In Europe (and especially in France), the rationale is different: authors and artists are naturally and morally attached to their work, and this attachment endows them with the right to control the distribution and use of their work. Diebold, on the other hand, has never had the intention of profiting from the writings at issue. In fact, these writings harm Diebold's profit interests because they expose flaws in its revenue-generating products. The company's desire to suppress public discussion of these documents is understandable, but its method of suppressing them bends copyright law past the breaking point.

Copyright law has always granted only a limited monopoly to authors. The public enjoys the right to make "fair use" of copyrighted works — especially for purposes such as criticism, satire, parody, scholarly analysis, and other uses that are necessary to preserve unfettered public debate and preserve the liberty of free expression. These limitations on the copyright monopoly are deeply affected with First Amendment interests, and they are the Copyright Act's last line of defense against constitutional challenges. See, e.g., Eldred v. Ashcroft, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003).

It is axiomatic in First Amendment jurisprudence that "political speech," broadly defined, is at the core of what the Amendment protects. Few, if any, topics are more fundamentally political than the process by which citizens in a democracy elect their government's officials. As states and counties update their voting machinery in the wake of the 2000 Presidential election debacle and the California recall lawsuit, most of them are adopting (or at least considering) "touch screen" machines like Diebold's. In perhaps ten to 15 years, all American elections will be conducted on such machines. Diebold, by choosing to manufacture and sell voting machines, has thrust itself into the the election process and made itself a focal point of public debate. Unfortunately, the company has asserted its copyrights for the sole purpose of stifling the public discussion that is so vital if our communities are going to adopt the best election machinery and conduct the fairest possible elections.

Civil libertarian organizations like the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) are fighting to protect the public's right to access, read and discuss documents that directly affect the right to vote. Without public discussion, our communities might buy inferior equipment, and future elections would be tained with, at best, inefficiency and, at worst, fraud and corruption. Two brave groups of students at Swarthmore College are engaged in an "electronic civil disobedience" campaign to thwart Diebold's machinations. The groups, Why War? and the Swarthmore Coalition for the Digital Commons (whose web site Diebold has, at least temporarily, succeeded in shutting down), have organized a network of students and others who are willing to host the Diebold documents for at least a short time. Why War? maintains a web page with links to the "current" location of the documents, and the location changes as soon as Diebold sends another cease and desist letter. Efforts like this give life to John Gilmore's prescient statement, "The Net treats censorship as damage and routes around it."

We should support efforts like Why War?'s not only because they bolster the long-term integrity of the American electoral system (their narrowest goal) but because they also enable the free exchange of ideas (their broadest goal). The First Amendment embodies some of the most fundamental rights and liberties that our society recognizes. Pinching them through copyright law can only hurt our society.

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Terrified of Terror Profiling?

Bruce Schneier, the renowned expert in computer security (as well as founder and Chief Technical Officer of Counterpane Internet Security, Inc.) wrote a column this week for Newsday: "Terror Profiles By Computers Are Ineffective." As the title suggests, Schneier argues that all the approaches yet taken to "profiling" terrorists suffer from the same fundamental design flaw. "There's a common belief — generally mistaken — that if we only had enough data we could pick terrorists out of crowds," Schneier writes. He goes on to show that the types of information that we have endeavored to gather — indeed, the types of information that we can gather — bear no statistically significant relationship with terrorist acts, or even propensity toward terrorism.

Schneier's argument is bolstered by the simple, elegant, and compelling mathematical analysis done by Temple University mathematician John Allen Paulos, in the January 2003 installment of his column "Who's Counting?." The article, "Future World: Privacy, Terrorists, and Science Fiction," assumes that a project such as the recently de-funded Terrorist Information Awareness program (née "Total Information Awareness"), has succeeded beyond the wildest dreams of its founders by 2054, the year when the film Minority Report is set. This hypothetical program has a predictive success rate of 99%. Examining this number and assuming that the U.S. has 300 million citizens, Paulos proves that it would imprison just under 1,000 terrorists and just under 3 million innocent people.

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Outsourced medical transcription causes privacy snafu

Today the San Francisco Chronicle reported an incident that may be a harbinger of disaster for medical privacy. ("A Tough Lesson on Medical Privacy")

It is common practice for doctors to dictate notes that are later transcribed by clerical staff. This makes healthcare delivery more efficient because it frees doctors to spend more time with patients and less time with paperwork. With the advent of portable tape recorders and, more recently, personal digital recorders, healthcare organizations have found it even more efficient to "outsource" this transcription — to hire someone on a contract basis to record the oral notes in written form. Over time, a network of contractors and subcontractors developed to serve what became a $20 billion dollar medical transcription industry. Naturally, not all of these subcontractors are in the United States.

The Chronicle reports that Lubna Baloch, a medical transcription subcontractor in Pakistan, sent an email to the UCSF Medical Center which complained about her low wages and threatened to post patients' records on the Internet if she was not paid hundreds of dollars. To back up her threat, Ms. Baloch attached two patients' records to the email. "Your patient records are out in the open to be exposed," she wrote, "so you better track that person and make him pay my dues or otherwise I will expose all the voice files and patient records of UCSF Parnassus and Mt. Zion campuses on the Internet."

The records have apparently not been posted to the Internet — yet. A subcontractor between her and the Medical Center paid her $500 on the condition that she withdraw her threat. Shortly thereafter, she sent another email to the medical center, writing, "I verify that I do not have any intent to distribute/release any patient health information out and I have destroyed the said information. I am retracting any statements made by me earlier." A spokesman for the Medical Center points out, however, that "We do not have any evidence that the person has destroyed the files."

The United States has a law known as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under this law, the Department of Health & Human Services has issued detailed regulations that govern how medical information must be kept confidential. Those rules are difficult or impossible to enforce abroad, however. While Ms. Baloch is at least three subcontracts removed from the UCSF Medical Center, it is not clear whether the hospitals or doctors could be held responsible in the event of a breach of its patients' privacy. The Medical Center claims that it was aware of only two levels of subcontracting and had no idea that its medical files were being sent offshore. The current regulations permit subcontracting of work like transcription, so long as the contracts have provisions requiring confidentiality. Details are still sketchy as to the content of the contract involved in this case. Time will tell if the law has been violated.

Even if the Medical Center did not break the law, this story should send shivers down the spines of all Americans who have ever been treated by a doctor. Economic globalization and digital communications technology have made outsourcing and "offshoring" routine, and no one knows how much of this work is being done outside the United States. Most of the work is going to countries where wages are low — otherwise, there would be no cost savings, and the medical staff would transcribe the notes in-house. Developing countries do not have privacy laws as comprehensive and sophisticated as those in the U.S. and Europe.

Ms. Baloch has come up with the idea for this extortion and it has become public, so it is only a matter of time before someone else tries it. The next person may demand much more than $500, and the next hospital may not be willing to pay. (Note that in this case a subcontractor paid the bribe, not the hospital.) Who loses in this situation? The patients. The most intimate details of our lives will be exposed to everyone with a computer and a telephone line.

How should we respond? Amend HIPAA? Possibly. Perhaps we need more stringent requirements for contracting and subcontracting. Maybe we should bar outsourcing to offshore companies, or at least restrict the countries where outsourcing is permitted to those having strong privacy laws. Maybe we need to do something else. But these problems will not go away — they will only become more pervasive.

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Tuesday, 21 October 2003

CDT report on broadcast flag

Today, the Center for Democracy and Policy (CDT), Public Knowledge and Consumers Union (publisher of Consumer Reports) issued a 31-page report entitled "Implications of The Broadcast Flag: A Public Interest Primer" [pdf]. The report has an excellent description of the background of the broadcast flag and explains how the issues affect the television and film industries, the government, and the public interest with remarkable clarity. This is a must-read for anyone interested in the most active area of debate in copyright law for the next three years.

The report's three most important findings (in my opinion) are:

Monday, 20 October 2003

Copyright Insurance: Further Discussion

This article continues the discussion on copyright liability insurance, proposed (separately) by P2P Fund and Steven Wu of LawMeme. Ernest Miller posted some criticisms of the idea, to which I responded. Ernest has posted his reply, highlighting the weaknesses of my response.

Ernest points out that the insurance policy I suggested would be unusual: it would cover settlements but not judgments in copyright infringement suits. This may seem bizarre, but it is necessary for two reasons. First, it is an attempt to dodge the required disclosures under Rule 26 of the Federal Rules of Civil Procedure (FRCP). If the policy does not cover judgments, it does not fall within the literal language of the rule. If push comes to shove, a court might see it for what it is (an attempt to dodge the rule) and assess sanctions for failure to disclose. I would not recommend this litigation strategy for most people, but someone interested in setting precedent (EFF? ACLU?) might be interested.

Second, Ernest mentions that most people would want an insurance policy that covers them for judgments as well as settlements. I do not think I argued to the contrary in my article. However, I believe that some people would make this trade-off to make the system workable and to keep prices reasonable. A culpable file sharer would be liable for at least $750 per song after judgment. Since RIAA is currently suing only people who (allegedly) share at least 1,000 copyrighted songs, an adverse judgment on all counts would incur liability of at least $750,000. Any commercially viable insurance product would require high premiums to cover such payouts — especially considering the self-selection problem and risk factors I discussed in my previous article. Few, if any, people would be willing to pay enough for the insurance to make it commercially viable. All that said, RIAA has filed over 450 file-sharing lawsuits this month. It cannot possibly intend to take them all (or even most) to trial and judgment. Settling the vast majority quickly is an integral part of RIAA's litigation strategy, and most of those settlements have been for amounts between $2,000 and $15,000. An insurance market can cover payouts of this size without exorbitant premiums, so buying settlement insurance is a reasonable counter-strategy for most people.

The next point is one that we should perhaps ask of an experienced litigator. I suggested that settlement insurance would be outside of the disclosure requirement in FRCP 26 because it would not involve a "judgment." Ernest responded that a settlement is really an "offer for judgment" under FRCP Rule 68. My understanding is that an offer for judgment under that rule is a unique species of settlement offer. The rule requires the "losing" party after trial to pay the "winning" party's legal costs that are incurred after an offer for judgment if the eventual adjudicated judgment is nearly the same as the offer. The rationale is to encourage parties to settle and to economize judicial resources. Certainly, other forms of settlement offer exist. One common settlement structure entails voluntary dismissal of the complaint, mutual release of all claims, and (usually) some money or property changing hands. There is no reason for a settlement to require a judgment in many cases. (Notable exceptions are class actions and cases where extended judicial oversight of some aspect of the settlement is required.) That is the beauty of settlements being contracts — they can be whatever the parties want them to be.

Finally, I believe Ernest misunderstands my argument about Federal Rule of Evidence (FRE) 411 and the admissibility of evidence of liability insurance to prove wrongful conduct. The Rule expressly forbids the admission of such evidence for this purpose. When I wrote that evidence of insurance is admissible for other purposes such as proving ownership, control or knowledge, Ernest jumped on knowledge as an element of wrongfulness. This argument has some intuitive appeal, since knowledge is an element of willful copyright infringement. However, in the context of FRE 411, "knowledge" means something different — it generally means that a person knows what is being done with her property.

Proving ownership, control, or knowledge would likely be done in a case where the defendant argues that RIAA has mistaken her for someone else. The case of Sara Ward is illustrative. RIAA sued this 66-year-old "computer neophyte," alleging that she made over 2,000 songs available for sharing through Kazaa. Later, it came to light that most of the songs she is alleged to have shared would appeal to someone in a much younger demographic group — e.g., "I'm a Thug," by the rapper Trick Daddy. Furthermore, she owns only a Macintosh and no PC, and there is no Macintosh version of Kazaa. She appears to have compelling defenses against the lawsuit. However, if RIAA later discovers that she purchased copyright insurance, this would be strong evidence that she really does own a PC or that she knows someone is trading files through her ISP account, or that something else fishy is going on. This is what the FRE mean by "ownership" and "knowledge." Other media stories in recent weeks have highlighted the problem of children sharing files without their parents' knowledge. These parents might defend a lawsuit based on a lack of knowledge, and evidence that they purchased copyright insurance would eviscerate such a defense.

I see no difference between the proposed copyright insurance and any other kind of liability insurance. I can buy copyright insurance to defray the cost of defending myself against a lawsuit without admitting wrongdoing, just as I buy car insurance to protect myself against the improbable event that I negligently cause an accident or that someone else hits me and has no insurance to cover my injuries. I have never driven carelessly, and no would-be plaintiff could introduce my insurance policy as evidence of carelessness. When a doctor purchases malpractice insurance, he does not use it as an excuse to deliver substandard care or deliberately harm his patients — he uses it to defray the costs of defending himself against rare lawsuits by disgruntled patients and even rarer payouts for settlements or judgments. Similarly, I trade many files via Gnutella that are not copyrighted, that I have permission to distribute, or whose copyrights I own. Occasionally, for fun, I rename files as "NOT [songname].mp3" in a deliberate effort to confuse RIAA. This practice may well land me in court some day, if RIAA does not believe those files are really "NOT" what they are named. Additionally, with the cases of obvious mistaken identity that have come to light in the last two weeks, there is even more reason for innocent file sharers — who are not infringing copyrights — to worry.

Copyright liability insurance would be designed with this audience in mind. Are they likely to be its biggest consumers? Probably not. Is that a bad thing? I am not sure where I stand on that.

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Copyright Liability Insurance: A Response

Steven Wu of Lawmeme has suggested a system of copyright liability insurance to protect file sharers from the risk of being sued by RIAA. The newly-organized P2P Fund is designed to serve a similar purpose, folded into a compulsory-licensing system. Ernest Miller has responded, arguing that such insurance is a bad idea. I find the idea intuitively appealing, and I think Ernest's criticisms are answerable. That said, I have reservations about the suggested implementation of the insurance scheme that must be resolved before it becomes workable.

As Steven Wu explains, self-insurance (where each person pays his own way) can be prohibitively expensive. If a sufficient number of file sharers buy into an insurance market, each one can pay a small premium and be protected. He compares this to patent infringement liability insurance, which is "professional liability insurance for manufacturers, users and sellers accused of infringing a patent holder's rights."

1. Critical Mass & Self-Selection

Steven acknowledges the first major problem, critical mass, but he underestimates its size. An insurance company lives or dies by the number of people it can attract as customers. Steven treats this as merely a problem of getting the word out to file sharers ("people will join it out of self interest, which is always more reliable than altruism: the price is worth the peace of mind."). However, he gets to this point through a general economic analysis of insurance, comparing the economic advantages that an insurance market holds over self-insurance. Unfortunately, he ignores the concomitant problem of self-selection. The people most likely to buy into an insurance plan are those most likely to need its payout — in this case, the most active file sharers (which I shall call "heavy users" of file sharing networks). RIAA has stated publicly that it will at first sue the heaviest users, people who share over 1,000 copyrighted songs. "Light users," those who share a smaller number of songs or who share none at all, are less likely to pay into a system from which they are less likely to need a payout.

Self-selection works against the viability of an insurance system, but it is not insurmountable: the system can account for varying degrees of risk. Life insurers do this routinely, charging different premiums or offering different payouts based on such factors as age and smoking, which affect a person's risk of developing health problems. Similarly, the copyright liability insurance policy could peg each person's premium to the number of files he shares, the number of hours per week he is logged onto the network, and other factors that affect the risk of attracting RIAA's ire. The identity of the insured's ISP may also be a valid risk factor. While Verizon and SBC have challenged DMCA subpoenas, others have complied without a fight.

Heavy users would pay higher premiums, giving them a disincentive to buy insurance. On the other hand, this scenario gives light users a strong incentive to buy insurance. Light users would be footing a smaller percentage of other people's legal bills and paying a small monthly premium, so they may be likely to join. This, in turn, will raise the insured base and permit the insurer to charge lower rates to heavy users after a time. The net effect of these incentives is hard to predict in advance, but the insurance industry has good economists and actuaries working for it. Someone should be able to pin down a good set of risk factors and prices.

2. Discovery & Disclosure

Ernest argues and Steven acknowledges that RIAA will likely change its litigation strategy if such an insurance system arises. I agree. However, finding out who is covered may not be as easy for RIAA as Ernest suggests.

Federal Rule of Civil Procedure (FRCP) 26 requires automatic disclosure of some insurance policies. Rule 26(a)(1)(D) requires disclosure of "any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment." The language of the rule plainly contemplates insurance policies that will pay judgments against a litigant, not settlements. Most insurance policies will pay out for both, because they are designed to insure against types of claims that are frequently resolved by either judgment or settlement. In this particular market, however, RIAA has repeatedly stated to the press that it wants to settle its claims against file sharers, and no claim against an individual file sharer has yet gone to trial, let alone to judgment. An insurance policy could be written to reflect this reality and insure against settlements but not judgments, thereby sidestepping FRCP 26. If there is caselaw interpreting FRCP 26 as requiring disclosure of all insurance policies (and not just those insuring against judgments), I did not find it in a brief search.

3. Insurance as Evidence of Willfulness?

Ernest further argues that the purchase of a copyright liability insurance policy is "likely to be considered evidence of willful infringement, which" would permit RIAA to seek higher statutory damages. I think he is wrong for two reasons. First, he does not explain why copyright insurance would be viewed with more suspicion than any other form of insurance. Do courts view doctors' and lawyers' purchase of malpractice insurance as evidence of negligence or willfulness? I have yet to see evidence of open season on patients and clients. Second, Federal Rule of Evidence (FRE) 411 prohibits the admission of evidence of liability insurance for this purpose. The rule reads, in relevant part, "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully."

Under FRE 411, then, RIAA could not use the proposed copyright liability insurance against file sharers in court to prove willful infringement. The file sharers therefore have a colorable argument that insurance is irrelevant to the cause of action, should RIAA ask for that information in discovery. This is a valid ground to object to questions in depositions, documents requested for production, or facts requested for admission. The insurance may be relevant (and therefore discoverable) for other purposes if the defendant makes particular arguments — e.g., if he denies having shared files, owning a computer, or some other fact that is material to RIAA's claim. In such a case, RIAA would be able to use the insurance to prove ownership, control, or knowledge — but still not wrongfulness.

Once RIAA learns through discovery that a defendant has purchased an insurance policy, it can use that information for whatever purpose it likes during settlement discussions, even if a court would bar it from using it for the same purpose at trial. Therefore, RIAA could learn of and use the insurance policy against defendants who deny certain aspects of RIAA's case but not against defendants who admit infringement. This is a problem that remains to be solved before this idea goes mainstream.

4. Conclusion

So what should we make of copyright infringement insurance? The basic idea appeals to me. Would I buy it? Sure, if the price is right and these problems are worked out. The problems are real, although not as insurmountable as Ernest implies. This debate is a good first step to solving them.

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Wednesday, 15 October 2003

Iraq "war:" What's the point?

Stars and Stripes, the newspaper for American servicemen, has completed the most extensive survey yet conducted of American troops stationed in Iraq. Not surprisingly, the Bush administration's glurgy picture of troops' morale is not entirely accurate. In fact, it could be fairly described as wholly lacking basis in fact. About one-half of respondents described their morale as low. Approximately one-third characterized their mission as having "little value" or "no value at all," and about the same number reported that they believed their mission(s) in Iraq were "not clearly defined" or "not at all defined." Furthermore, over 40% reported that they have no training for their present duties. Pain perdue, anyone?

True, the survey had serious methodoligical flaws. David Mazzarella, the newspaper's editorial director in Washington said, "We conducted a 'convenience survey,' meaning we gave it to those who happened to be available at the time rather than to a randomly selected cross section, so the results cannot necessarily be projected as representing the whole population." However, the results support what many already suspected. David Segal, a military sociologist at the University of Maryland at College Park, told the Washington Post that the new data bolster the conclusions he has drawn from other research. "I am getting a sense that there is a high and increasing level of demoralization and a growing sense of being in something they don't understand and aren't sure the American people understand," he said.

How will President Bush respond? His people will eviscerate the survey's methodology, as well they should. Big Media has already picked up this story, but the articles fail to mention the methodoligical flaws until 15-20 paragraphs in — long after the average reader has stopped reading. The White House will not, however, address the (admittedly limited) substance of the survey's findings. After France, German, and Russia abandoned demands for a greater U.N. role in the reconstruction of Iraq, President Bush's ego may be just large enough that he believes that painting a rosy picture enough times can make it smell like roses.

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Standing questions in Newdow may prevent a ruling on the merits

Yesterday the U.S. Supreme Court granted certiorari to the Elk Grove Unified School District in its dispute with Michael Newdow. In lay terms, it agreed to hear the case. Newdow indirectly sparked a firestorm of national protest last summer, when the U.S. Court of Appeals for the 9th Circuit ruled that a 1954 act of Congress that inserted the phrase "under god" into the Pledge of Allegiance violated the first amendment to the constitution. While some of the debate has been intelligent and productive (1, 2), some of it has been invective and immature. As the parties and government-intervenors prepare to argue before the Supreme Court, suggestions have been raised that the Court should "dismiss" the case on "procedural grounds."

While the laymen journalists have gotten the terminology wrong, they may have the substance right.

Article III of the U.S. Constitution begins, "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish." Section 2 of Article III establishes the subject-matter jurisdiction of the federal courts — that is, the types of cases that the courts are empowered to hear. That section reads, in part:

The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects.

Together, these provisions give rise to the five-or-so (depending on how you count) sub-doctrines of justiciability: actual case or controversy, standing, ripeness, mootness, and political questions. These doctrines are complex in their detail, but their basic outlines are easy to understand. The long quote above from § 2 has been interpreted to require an "actual case or controversy" between two or more parties before a federal court can exercise the judicial power of the United States. The dispute must be a real one, not merely hypothetical, and the courts cannot issue "advisory opinions." The sub-doctrine of standing arises from this requirement.

To have standing to assert a claim, a plaintiff must show that he has incurred some injury, that the injury has been caused by the defendant, and that the court has the power to redress the injury if it rules in the plaintiff's favor. In this context, "injury" is defined broadly as prejudice to any right or interest that the plaintiff is legally entitled to assert. This covers everything from physical/bodily injuries to loss of money or property and harm to the plaintiff's reputation.

After the 9th Circuit ruled last summer, the school district and the federal government moved to disqualify Newdow as a plaintiff, arguing that he lacked standing to sue in this case. Their arguments revolved around Newdow's relationship with his daughter and her mother, Sandra Banning, whom Newdow never married. When Newdow filed the suit, Banning had sole legal custody of her daughter — meaning that Newdow arguably did not have a legal right to give input into her upbringing. Newdow has since obtained a revised custody order in a California state court that clarifies his rights with respect to his daughter. Under that order, Newdow has a clear, legally-cognizable interest in his daughter's upbringing. The standing doctrine, however, recognizes the plaintiff's status only at the time he filed the federal lawsuit. The Supreme Court has asked the parties to brief and argue the issues of whether Newdow had such an interest when he filed the present lawsuit three years ago and, if not, what should be done with this case.

The Court's critics argue that it may use the standing issue as an excuse to shirk its duty to rule on the merits of the case. They are probably right, since the Court has clearly gained a sense of its political status in the wake of Bush v. Gore (the 2000 Presidential election case), Lawrence v. Texas (the Texas sodomy case), and Gratz v. Bollinger and Grutter v. Bollinger (the University of Michigan affirmative action cases). The facts of the Newdow case permit only one outcome — legally — but the Court will probably reach the opposite result for nonlegal reasons. The present Supreme Court is more conservative than any in recent history, and it would be highly entertaining to see it try to squirm its way out of its own precedents to find the Pledge constitutional in its current form — especially after Justice Scalia recused himself from this case.

However, as an honest man, I could not profess respect for the First Amendment without showing an equal respect for the rest of the Constitution. Although the First Amendment codifies the most basic liberties of our society, it coexists with other provisions of the Constitution as equals. Those other provisions, while not as morally compelling as the First Amendment, are equally demanding of our respect. Serious questions exist as to Newdow's standing in this case. Those questions will require a detailed examination of family law in California, which is the final arbitor of Newdow's legal rights with respect to his daughter. If the Supreme Court decides this case on Article III (standing) grounds, I will be the first person to leap to its defense. If it reaches the merits of the First Amendment dispute by shortchanging its analysis of the federal courts' jurisdiction, I will be the first to pen an editorial against it. I do hold out hope, however, that the Court can resolve the Article III question in Newdow's favor and reach the First Amendment question legitimately.

The worst harm that can come out of this situation will be for the Court to rule that Newdow lacks standing and dismiss the suit for that reason, then for supporters of the pledge in its current form to hail that decision as a ruling on the pledge. So let us try to avoid such misdirection, shall we?

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Tuesday, 14 October 2003

E-lection security in Georgia

The issue of election integrity has gained widespread public attention since the 2000 Presidential election debacle. Demagogues have taken up electronic voting systems as the silver bullet to cure all the ills of paper-based elections. While it is true that electronic systems do eliminate some problems, they introduce just as many — which are not solvable with current technology and election laws.

It has been apparent for some time that electronic voting systems lack sufficient safeguards to guarantee their security and integrity. David Dill, a computer science profesor at Stanford, has been pointing out these flaws for over a year now. For example, the companies that produce "touch screen" voting machines guard their equipment (both hardware and software) as trade secrets. Very little information about the equipment (beyond marketing literature, of course) is available to the public or to local election authorities before they enter contracts with these companies to provide products and services. The methods of keeping ballots physically secure and safe from hacker-tamperers are proprietary information in this burgeoning industry. In other words, the public is not permitted to know how their elections are being kept secure. Furthermore, there is ample opportunity for deliberate tampering with election results from the inside.

No balloting machine currently on the market creates a hard copy of a ballot as it is cast. This would require installing a printer in each machine, which would increase the machine's cost, or connecting each machine to a central printer, which would destroy the secrecy of the ballot. Either way, the local jurisdiction must absorb the additional costs of printing (paper, ink, and maintenance on the printers). So why is a paper trail necessary when the point of these machines is to decrease costs while improving accuracy? Because the balloting machines' software is proprietary, nobody outside the company that manufactures it knows what it is doing. A first-year programming student could write a program that displays input from a keyboard on a screen while recording different information on a disk. A voter might press the button for Gray Davis and see his name on the screen, but Arnold Schwarzenegger's name could be recorded. If the voter cannot see a paper record to verify his vote, there is no way to ensure that the proper votes are being recorded. These paper ballots would be verified by each voter in the polling booth, then secured in a locked box in much the same way that paper ballots are stored now. Without paper records, it is impossible to link individual voters to individual ballots after the election, if tampering is suspected. Paper ballots remain intact long after the election, making investigations and hand recounts possible.

It is a long-shot that anyone would ever fix an election in the U.S., you say? Maybe. But this is a live issue right now. Diebold Election Systems had its software certified by Georgia's election commission in advance of that state's 2002 gubernatorial election. Diebold then altered the software before the election without telling anyone! Diebold seems to have made the changes in response to reports that its machines were insecure and unreliable. Perhaps, but the move was awfully suspicious, considering that the election resulted in an upset and was decided by a very slim margin. Only a few votes would have to be altered to change the outcome and, without a paper trail, those few votes would be impossible identify. Wired News reports this story here.

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Monday, 13 October 2003

Update on Google's reliability

The Washington Post (and perhaps other mainstream media) has picked up the story of Google's fallibility. This particular article speaks to the problem of result misreporting uncovered by Googlewhackers earlier this month, now being discussed on slashdot. The most thorough discussion of this problem yet published is Seth Finkelstein's paper, "Google Spam Filtering Gone Bad."

I have discussed this problem in this space before and will continue to monitor it.

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Shift happens

John Halderman cracked an encryption and DRM system called MediaMax CD3, a product of SunComm Technologies. Why? He is a PhD candiate in Princeton University's Department of Computer Science, writing his thesis in computer security. In classic academic style, Halderman published the resulting paper on the web. In classic cranky-three-year-old style, SunnComm threatened to sue Halderman on several grounds, including a claim under the Digital Millenium Copyright Act (DMCA). SunComm's CEO's quote in the first news cycle since this story broke was precious: "No matter what their credentials or rationale, it is wrong to use one's knowledge and the cover of academia to facilitate piracy and theft of digital property." SunComm backed down from its lawsuit threat within 48 hours — after an enormous public outcry fueled by the blogosphere.

This episode is important for two reasons. First, it shows the excesses of the DMCA and underscores how ridiculously overbroad its language is (in addition to being bad policy). SunComm must have interpreted Halderman's paper as either a "device" intended to "circumvent a technological measure that effectively controls access to a [copyrighted] work" under DMCA § 1201(a) or as trafficking in such devices. No person who speaks ordinary English would ever confuse a research paper with a device. Besides, Halderman defeated the system merely by holding down his shift key, so how "effective" could it be? Effectiveness of the DRM system is, after all, an essential element of the DMCA claim. SunComm may have deserved the $10 million decline in its stock-price value the day after the blogosphere picked up this story.

Second, it shows the power of the blogosphere. The first Internet publisher to become a legitimate force in American politics was Matt Drudge when he broke the Monica Lewinsky story in 1997 — after the traditional press (namely, Newsweek) declined to print the story. The Internet's role in politics was considered routine barely five years later, when bloggers brought down Trent Lott — again, after the traditional news media dismissed an important story. The SunComm episode clearly shows that Internet publishers' influence has outgrown the first level of the political sphere, where rumor and innuendo are weapons in their own right. This time, bloggers slapped around a software company working for several major record labels — in two industries driven by bottom-line considerations. Blogging tools make Internet publishing easier than ever, and the number of bloggers is growing daily. Their voices are heard by one another — and now by the major media and corporate America. If we can continue to avoid demagoguery, this may be a good thing.

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Sunday, 12 October 2003

New Orleans meteorite causes craziness

An entertaining article in today's Washington Post describes the tribulations of Roy and Kay Fausset in the three weeks since a meteorite crashed through their home.

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Why does China want to enter the space age?

What should we make of the international ballyhoo over China's first manned space flight, reportedly planned for next week? The Chinese apparently see manned space flight as a prestige thing — a hallmark of a technologically elite nation. Only two other nations, after all, have attempted manned space flight: The United States and the Soviet Union (whose successor, Russia, inherited its equipment and human capital).

Perhaps Beijing needs someone to point out that the nearly half-century of manned space flight has been an utter failure by all its stated metrics except for the development of technologies designed to send humans into space. Contrary to popular belief, only a few minor technologies owe their existence to manned space programs. The most famous examples of novel technologies that grew out of NASA's efforts to send humans into space and return them safely are myths or frauds (source: see item #3). See also.

So why has China cared so much about manned space flight for such a long time? My answer: Who cares? Let them waste their money sending people into orbit, so long as it prevents them from deploying more nukes.

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Google's reliability in question

The word "Google" has long since become synonymous with "search" in the Internet context. I used to believe whole-heartedly that this moniker was richly deserved by the king of search engines because the quality of its product — search results — was unparalleled. When Google bought the most extensive usenet archive in existence from Déjà and applied its search technology to it, the usenet community relished having a more reliable and efficient search form for the archive. Google has grown so important to the Internet community that otherwise-honorable businesses engage in shenanegans (and occasionally outright scams) to boost their "rank" in the search engine's hit list.

Before this backdrop, serious questions about Google's reliability have been raised in recent weeks.

In one notable example, Google misreports the number of pages in its index that match certain search criteria. One particular series of searches reveals a systemic flaw in Google's reporting. On 30 September 2003, a search for the keywords "quote dog cat stone" (without the quotes) yields the following reported result: "Results 1 - 10 of about 75,600." On that same day, a search for the keywords "quote dog stone" (again, without the quotes) yields the following reported result: "Results 1 - 10 of about 48,700."

Note the difference between these two searches. The first query had four keywords, and the second had three — the word "cat" was removed. Google's default boolean operator is AND, meaning that when you search for more than one word, Google automatically looks for documents containing all of your search terms. You can change this behavior by typing "OR" or some other operator between the words. The default, however, should always produce more results when there are fewer keywords. It seems likely that many pages on the web will have at least one of our keywords, since quote, dog, cat, and stone are all relatively common words. But how many will contain two of the words? Cognitively, dog and cat go together, but it is easy to imagine many pages devoted to dogs that do not mention cats at all. Similarly, how many pages devoted to Craig Venter's poodle will mention "quote" or "stone"? This number will be even lower if we look for pages that contain all four words. In sum, the fewer keywords we use in the query, the more documents we should retrieve. However, Google's reported results were the opposite of what we expected: 75,600 hits for the four-word query and 48,700 for the three-word query. Meanwhile, very few documents were actually returned for these searches — fewer than ten documents for each.

Why does all this matter?

First, the public trusts Google to return search results reliably and impartially. Some civil libertarians fear that Google's position in the Internet search industry may eventually grow into a monopoly. Imagine having only one search engine available: it could, for example, direct everyone to its advertising partners, as opposed to the web pages that are really the best matches for the queries it gets. (A Machiavellian future, to be sure, but a possible one.)

Second, researchers rely on Google. This is simultaneously the easiest and the hardest example to understand. Everyone has experience searching for information in an Internet search engine. When you do your research, you rely on the search engine to return accurate results. On top of this straightforward problem, consider the dilemma of the linguists in alt.usage.english. These academics and amateur enthusiasts rely on Google's reported results to determine how widely words and phrases are used. If, for example, 1 million web pages contain the word "cool" but only 10 thousand contain "groovy," this is evidence of a change taking place in our language. This technique also extends into demographic research. Google reports 1,490,000 documents containing "Filipino" but only 97,400 documents containing "Pilipino." This has some bearing on the number of people from the Philippines who are publishing information on the web — because they are much more likely than non-Filipinos to use "Pilipino" in English text.

We have documented one instance where Google's reported results differ markedly from its actual results, so it is reasonable to suspect that other examples exist. The company guards its search algorithms as proprietary; so it is unlikely that we, the public, will ever know exactly what causes these discrepancies. And it is not always possible to catch Google red-handed. Today, the queries I posted earlier ("quote dog cat stone" and "quote dog stone") yield actual results that appear commensurate with the reported results. The company has evidently heeded the complaints it has received over the last few weeks and taken action to correct this particular problem. You, the reader, must rely on my good word (and that of a few usenet posters) that this discrepancy really did exist at the end of September. Since the largest usenet archive is under Google's exclusive control, the company might conceivably alter its contents to erase all dated posts that mention this problem.

Please note that I do not believe such a scenario is likely. Also, I believe that, at this point, the problems I have outlined above remain relatively minor and affect only a small group of Internet users. That said, we should remain vigilant for such problems, to avoid being surprised by even bigger problems in the future.

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Saturday, 11 October 2003

Capitals lose a close one

If football is a game of inches, then hockey is a game of seconds.

The Washington Capitals opened the 2003-2004 season on Thursday, decimating the New York Islanders, 6-1, in front of a boisterous crowd at the phone booth. Rooky-sensation-to-be Boyd Gordon launched his NHL career on the top line with Jaromir Jagr and Kip Miller — and registered an assist on his very first shift. The Capitals' other teenage rookies played better than expected, too.

Tonight the Capitals took the ice for game #2 against Atlanta. The Thrashers have not made the playoffs in the club's five-year history, and the team is still mourning the death of Dan Snyder (and the severe injuries of Dany Heatley) in a tragic car accident last week. You can never count out any team in the NHL, but tonight was should have been easier for the Caps than it seemed via the radio. Boyd Gordon scored his first NHL goal tonight, just over three minutes into the game. Sergei Gonchar looks like he is in midseason form already, tallying on the power play early in the next period. The rest of the game, unfortunately, belonged to Atlanta.

The Thrashers scored four goals in the first two periods and held the Capitals at bay for most of that time. I cannot complain about the Caps' defense — they limited their opponent to 19 shots, after limiting New York to 18 shots on Thursday. (If this trend continues, the future looks very bright!) Meanwhile, the offensive effort cannot be faulted, either. The Caps took 30 shots tonight and 37 shots on Thursday. The main difference seems to be in their ability to finish.

So why is hockey a game of seconds? Because Jagr brought the Capitals to within one goal with less than three minutes to play, and the team pressed hard for the final two minutes. Thrashers' goaltender, Pasi Nurminen, may have aged 120 days in those 120 seconds. With 2.7 seconds to play, the Capitals took their timeout after forcing a faceoff deep in the Thrashers' zone. The puck squirted back to the point at which point the MSNBC feed of the radio broadcast inexplicably cut off!

Reading the post-game accounts, I learned that the final shot hit the post. Lucky for MSNBC, else I might have written something rather nasty in this space.

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Do Condoms Cause AIDS?

Do condoms cause or contribute to the spread of HIV and AIDS? The Catholic church has concluded that they do — in the face of overwhelming epidemiological and public health evidence to the contrary. Two days ago, the news agency Reuters reported that the Catholic church has announced a "clinical" finding that condoms are responsible for the fast spread of AIDS throughout the world. Cardinal Alfonso Lopez Trujillo, president of the Vatican's Pontifical Council for the Family, explains that condoms are not 100% effective at blocking sperm and that the HIV virus is 450 smaller than sperm. HIV can permeate the condom's barrier more easily than sperm, so condoms are ineffective at blocking HIV. Meanwhile, Trujillo argues, experts promote condoms as an effective tool for blocking HIV infection, inspiring false confidence in the public and causing more people to become sexually active than would otherwise have sex. When their condoms fail to block HIV transmission, these people become infected.

What is wrong here?

The World Health Organization (WHO) has studied the epidemiology of HIV/AIDS perhaps more than any other entity on this planet, and its research has repeatedly reaffirmed the scientific basis for condoms' effectiveness in combating the spread of the disease. WHO has initiated or promoted condom distribution programs in many developing countries, where HIV has reached epidemic levels of infection. Why? Because it has determined that condoms are a singularly effective tool for fighting the spread of the disease. Responding to the Catholic Church's position, WHO called it "dangerous when we are facing a global pandemic which has already killed more than 20 million people, and currently affects at least 42 million." While condoms do occasionally break and can permit the passage of semen, they reduce "the risk of infection by 90 percent and [are] certainly secure enough to prevent passage of the virus if not torn." (Source) True, this is not 100% effectiveness, but it is far better than zero.

What does the Catholic church get out of this? To be sure, the church has never been shy in its opposition to artificial contraception of all kinds. Traditionally, it has grounded this position in religious and moral reasoning (the merits of which I cannot discuss as a good skeptic). Now, however, the church purports to advance a scientific — or at least empirical — basis for its position. Unfortunately, Trujillo's argument on behalf of the church does not address the root cause of its opposition to condoms. This opposition most likely remains rooted in an interpretation of scripture, not modern science. That scripture was fixed in rougly its current form centuries ago, in a manner that prevents it from growing and adapting to modern scientific findings that cast doubt on its teachings. (This says nothing, of course, of the church's ability to reinterpret scripture in light of modern knowledge or international politics — something the current Pope has shown more willingness to do than his predecessors.)

All that said, the Catholic church may be softening its stance on condoms. Although this week's announcement seems to be an attempt to bolster the church's traditional position with science, it may also represent a fundamental shift in what the church perceives as the rules of the debating game. The church may finally be prepared to debate public health issues properly in terms of science, rather than scripture and morality. While reasonable people may disagree on the implications of most scientific studies, it is important that the church has finally joined the rest of the world at the debating table. We should take the church seriously on this issue and, to the extent that it continues to speak the language of science, on other issues as well. Having set the terms for public health debates, perhaps now we can work on the church's data interpretation skills — which have much room for improvement after this week. While this may be a good first step, we must be wary of a possible attempt by the church to "cherrypick" science — that is, to adopt data it likes for political or religious reasons and ignore data it dislikes for those reasons. Time will tell.

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Saturday, 4 October 2003

Lorem Ipsum

Since the 16th century, publishers have used lorem ipsum as dummy text to arrange and test typset. Why should my DTM :<| be any different? Credit for this particular text is due to the Lipsum generator.

Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Integer suscipit viverra tellus. Aliquam massa. Sed mollis est nec arcu. Curabitur pellentesque, diam vitae venenatis vestibulum, velit massa tincidunt lorem, sed imperdiet dui lacus volutpat odio. Donec fringilla erat nec est. In augue tortor, lobortis sit amet, posuere ac, egestas vitae, ipsum. Donec commodo. Phasellus auctor, massa eu malesuada aliquam, tellus diam posuere nulla, sed vulputate leo wisi ac odio. Aenean cursus sapien ac elit. Etiam ut dui at sem imperdiet cursus. Donec adipiscing. Duis pharetra cursus ante. Maecenas mauris quam, pellentesque nec, adipiscing eget, tempus non, diam. Nullam ligula nunc, mattis eget, posuere id, luctus sit amet, lectus. Donec dapibus. Sed fringilla eros non augue. Phasellus viverra nonummy augue. Sed in mi.

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