Sunday, 30 November 2003
Freaky food or biotech bounty?
The debate over this technology has become a leading issue in international relations, subject of a huge trade battle. Wall Street is watching anxiously as it presses companies to recoup their massive biotech investments by selling more seeds. Environmental advocates are marching in the streets to oppose the crops. Even the Vatican is weighing the issue, recently opening a debate about which is the moral course.
After reviewing the highlights of the CAN-SPAM Act for my blog last week, I was asked to write a more comprehensive review for the Journal of Internet Law. During my more careful, second reading of the bill, I noticed an inexcusable discrepancy. Early on, the bill defines a "commercial electronic mail message" (its verbose term for spam) as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." § 3(2)(A). A few paragraphs later, the bill states, "It is the sense of Congress that [s]pam has become the method of choice for those who distribute…viruses, worms, and Trojan horses into personal and business computer systems." § 4(c).
This passage shows (1) that the House has no idea what those terms mean or what spam is, and (2) the House has no idea how it defined spam just a few paragraphs earlier!
Four years ago I wrote my senior thesis at Yale, The Futures of e-Politics, in which I complimented several Congressmen and Senators for having done well to educate themselves on digital communications technologies in a relatively short time. Today I may recant that compliment.
I just got around to reading C|Net's coverage of a letter sent last week from several Senators to the executives of several P2P companies. The lawmakers asked the companies to regulate themselves — i.e., to censor their networks for pornography and copyrighted material. C|Net reports (Senators ask P2P companies to police themselves) a quote from Senator Lindsey Graham (R-N.C.) that I did not see reported elsewhere. In a "statement" accompanying the letter, he said (emphasis added):
Purveyors of peer-to-peer technology have a legal and moral obligation to conform to copyright laws, and end the pornographic trade over these networks. These programs expose our children to sexually explicit materials and provide an anonymous venue for child pornographers to hide behind the veil of technology.If we have learned anything from RIAA this year, it is that P2P activity is not anonymous. If you are going to make national policy, or at least pretend to, it is not unreasonable to ask that you pay attention.
Diebold, the very same company being raked over hot coals for its authoritarian response to criticism, now has the ignoble honor of being the first ATM manufacturer to have its machines infected with a worm. (New Scientist: "Cash machines infected with worm")
The controversy over Diebold's electronic voting machines is no longer theoretical (if it ever was). This is a real-world, already-happened, no-excuses problem affecting a Diebold product very similar to its voting machines. How could this happen? Simple — Diebold's ATMs run Windows XP.
Aaron Swartz has an amusing commentary on the role of preconceptions in science. I agree in general, but I would put more emphasis on the difference between science and scientists. See a shining example of this in tomorrow's Washington Post (article: "Monkeys, Dolphin Say 'I Don't Know'"). Note especially the comments of Clive D.L. Wynne (who "dismissed the study as one more unsuccessful effort to bestow greater significance on actions that simply result from environment and training") and Charles Shimp ("I don't think [this experiment] will change the minds of those who are dead set against this proposition.").
Yesterday, local authorities and the U.S. Secret Service announced an arrest in the case of the Wells Fargo's stolen customer data. (San Francisco Chronicle's coverage: "Arrest in Wells Fargo data theft") A few weeks ago, Edward Krastof of Concord, California allegedly stole a laptop computer from the office of a consultant hired by Wells Fargo. The hard drive "contained a treasure trove of customer data," including names, addresses, bank account numbers, and social security numbers. Krastof claims that he had no idea that the information was there — he claims to have stolen the computer to use it himself. Do we believe him? Police also found stole driver licenses in Krastof's house. "He said he manufactures forged I.D. cards and checks," said Sgt. Stephen White of the Concord Police Department. "He's kind of a low-level I.D.- theft guy." The Chronicle article also quotes Benjamin Jun, vice president of Cryptography Research: "it looked like the case of the stolen Wells Fargo data came straight from 'the crooks-are-dumb file.'"
Richard Thompson, a Wells Fargo customer who was among those whose information was stolen, talked to reporters last week. "It's outrageous," he said. "As far as I'm concerned, this is as big a breach as they could have. It's like my money being stolen." Wells Fargo's solution? The bank offered to pay $90 for each customer to join PrivacyGuard, a credit-monitoring service, for a one year. Thompson's response? "My Social Security number is now out. This will affect me for the rest of my life."
Wells Fargo tried hard to keep this story from the public eye. When a financial institution's sensitive customer data is compromised, California law requires only that it notify affected customers "in a timely manner." Wells Fargo sent a letter to affected customers two weeks after the theft. The press reported the story only after irate and fearful customers brought it to reporters' attention. The excuse? The bank wanted to avoid tipping off the thief to what he had taken, in the event that he did not already know. After all, the computer was taken from a small, nondescript consultant's office behind a sports bar — not from a bank branch. For now, Krastof's self-serving "I didn't know" defense gives Wells Fargo plausible deniability.
Even before we have all the facts (keep reading over the next few weeks), this case demonstrates one way in which privacy laws are woefully inadequate. Banks are highly regulated, but there is little or no supervision of banking operations that are outsourced. American businesses share an ostrich-like consensus that clerical or consulting work is safe so long as it stays within the country. Barely a month ago, offshore outsourcing made a brief headline splash when a medical transcriptionist in Pakistan held hostage some patient files from the UCSF Medical Center. She threatened to post the files on the Internet unless she was paid hundreds of dollars.
The Wells Fargo episode proves that outsourcing must be treated with greater care wherever it is done. I am by no means advocating an end to outsourcing. Forcing businesses to do all their work in-house would be terribly inefficient. However, customer data should almost never be let out the door, except where data processing or warehousing is being done. Wells Fargo has thus far refused to say what this particular consultant, Peter Gascoyne, was doing, beyond stating that he is a "'data analyst' [who] has a 'special expertise' beyond what the bank was capable of doing in-house" (quoting from the Chronicle). With a proper database infrastructure in place, data analysis does not require the analyst to keep the data locally.
Ideally, consultants should do their work at the bank or dial into the bank's intranet or virtual private network. At the very least, banks should require their strong privacy protections in their consulting contracts with severe consequences for preventable breaches. How was the breach accomplished in this case? Someone left the door to Gascoyne's office suite unlocked.
Diebold filed court papers on Monday, stating that it would not file copyright infringement suits against people who hosted and linked to the infamous cache of damaging documents. Kudos go to the Stanford Cyberlaw Clinic, which represented two Swarthmore students in their lawsuit against the voting machine manufacturer. Too bad Rule 11 does not apply to DMCA notice-and-takedown letters. You have my best wishes if you sue Diebold under anti-SLAPP laws and for intentional infliction of emotional distress.
This seems to be a first. Charles Booher of Sunnyvale, California has been arrested and charged with 11 counts for threats he made to a company he blamed for sending him spam and causing web popup ads on his computer. Wired News reports ("Man Arrested Over 'Spam Rage'"):
Booher threatened to send a "package full of Anthrax spores" to the company, to "disable" an employee with a bullet and torture him with a power drill and ice pick; and to hunt down and castrate the employees unless they removed him from their e-mail list, prosecutors said.
This case presents a good opportunity to mention a recurring a point about defining classes of speech for legal purposes. I have yet to see a case where this was not problematic, but it is never more so than when the communication of words alone constitutes a crime. Mr. Booher's words (as reported in Wired) clearly threatened physical violence, his intent to make a threat seems clear, and he communicated the threat to the threatened person — satisfying the basic requirements of most threat statutes. Do prosecutors have a slam dunk case? Maybe. But the inquiry only starts there.
It is what Wired failed to report that I find interesting. The article in Saturday's San Jose Mercury News makes Booher look much more sympathetic. (Article: "Spam sends local man into rage") There, we learn that Booher "is a three-time survivor of testicular cancer" and that the overwhelming flood of spam that triggered his emotional outburst was hawking — you guessed it — penile enlargement products. Suddenly, his response is understandable.
Before you send me angry email, note that I do not condone what Booher did. My point here is that it is irresponsible to condemn someone based on a small amount of information. When the condemnation implicates the most basic liberties of any free society, we have to be especially careful. Some of you may remember Jake Baker, the University of Michigan student who wrote a revolting rape/torture/murder fantasy story about a classmate and posted it on alt.sex.stories. Baker was charged with making threats, notwithstanding that he had unambiguously stated that the story was fiction. The subsequent uproar ended with his exoneration of all charges of making threats — a result demanded by the First Amendment. For those unfamiliar with the case, the Electronic Frontier Foundation (EFF) maintains an archive of relevant documents. (If you have a strong stomach, the story is still available online. However, you have been warned: This is pretty sick stuff.)
The House of Representatives approved the CAN-SPAM Act on Friday, by a vote of 392-5. The acronym stands for the not-so-clever moniker, "Controlling the Assault of Non-Solicited Pornography and Marketing Act." The Senate is expected to approve the measure this week, and President Bush has agreed "in principle" to sign the bill.
This bill would have been a reasonable first step to take against spam five years ago, and Congress should be ashamed of itself for dawdling so long. We should be debating the second or third revision of the Act by now. What is done is done, however, so let us explore what the CAN-SPAM act says.
Update, 29 Nov 2003. I have been asked to revise and augment this essay for publication in the Journal of Internet Law. Toward that end, I would appreciate any constructive comments from any reader.
The full text of the bill is available at C|Net. The news agency also gives a bullet-point summary amidst its coverage, and the Institute for Spam & Internet Public Policy (ISIPP) gives a ten-point summary. Finally, C|Net gives this brief summary of the entire bill:
If the measure becomes law, certain forms of spam will be officially legalized. The final bill says spammers may send as many "commercial electronic mail messages" as they like — as long as the messages are obviously advertisements with a valid U.S. postal address or P.O. box and an unsubscribe link at the bottom. Junk e-mail essentially would be treated like junk postal mail, with nonfraudulent e-mail legalized until the recipient chooses to unsubscribe.
First, a few preliminary comments before I get into specific provisions. Spam has been a scourge on the 'net since the early 1990s, when non-academics and non-scientists first logged on in large numbers. The volume of commercial email was low at first but has grown exponentially for years. The result has been frustration for users who drown in the flood of messages, higher costs for service providers who must process all the unwanted email, embarrassment for legitimate businesses whose servers are hijacked by spammers trying to disguise their identities, and the corruption of children whose parents try to shield them from pornography and other sex-based products. The Act does not go as far as many people think it should (which is why Congress's long inaction is so lamentable); but it is, as I said above, a reasonable first step. The House seems to have made a genuine effort not to be heavy-handed with the rights of advertisers. Still, the Act has some sharp teeth for consumers and, if it is properly enforced, has the potential to significantly reduce the burdens caused by spam.
Now, some comments on specific provisions. This is not intended to be a comprehensive analysis of the bill — but rather a few thoughts on the provisions I think are important or interesting.
Update (6pm):Several readers have asked me to insert anchors in my subject headings so they can link to specific pieces of this article. Here they are:
The "false header information" provision is perhaps the easiest part of the bill for non-technologists to grasp, because you can examine the underlying problem even if you do not understand the technology. Spammers often disguise the origin of their advertising to make it more difficult for individuals and ISPs to use automated methods to filter and delete spam. These disguises also induce recipients to open the spam mail and begin reading — by pretending to be legitimate messages (e.g., with a deceptive or misleading subject line). Imagine paper junk mail, delivered by the post office, that comes in an envelope whose return address seems to be from your bank or your doctor. When you open the envelope, you find a flier for hard core pornography.
When spam is disguised as legitimate mail, more people will open the message and read the first few lines before realizing its true nature. This gives the advertiser a better chance of selling his product, be it pornography, generic viagra, or home mortgage services. As more spam is dealt with by human beings (rather than filtered by computers), more advertisements get read, and more products will be sold — even if most people hit the delete key immediately. In paper based "direct mail" ad campaigns, a response rate of one buyer per 100 mailings is generally enough to break even. The cost of sending email is much lower than the cost of sending paper mail, so a response rate of one buyer per 100,000 mailings is likely to earn a profit. The cost of sending email only seems lower to the sender, however, because most of the costs are shifted to the receiver and the receiver's ISP.
Here is how the technology works, in a nutshell. An email's "header" is the addressing and routing information — such as the to, from, and date fields that you see at the top of each message. Most email software hides the bulk of the header from you, unless you take an extra step to have it displayed. This "hidden" information documents where the email originated and the route it took across the Internet to your inbox. Each computer on the Internet has a unique "IP address" consisting of four numbers separated by dots (periods). Each line of the "hidden header" contains the IP address of each computer that touched the email en route and states the action that computer performed. Usually, these intermediary computers simply receive the message and hand it off to another computer that is "closer" to the recipient; after five or six hops, the email arrives at your inbox, and the process stops. Each intermediary computer adds a line to the top of the header, so the very top line always documents your mail server's delivery to you. Each successive line below that will document where each computer got the message from, going all the way back to the original sender. For example, and email I received this morning has these two lines in its header:
Some automated spam filters take advantage of this stamping process by searching the email header for computers that are known to be used for sending spam. The bottom line of the header should be the original sender, and the identities of the biggest spammers are well known, so it should be an easy matter to delete all messages coming from them. Spammers know this, however, so they go to great lengths to forge these headers and route their mail through other people's servers to disguise its true origin. CAN-SPAM's "false header information" provision would make this illegal. The practice is already arguably illegal under a patchwork of existing laws, which could be interpreted to cover this situation. However, there is no substitute for a clear, specific statute directly on point that removes all doubt.
The "resource misappropriation" provision is perhaps the most difficult for non-technologists to understand. Congress borrowed this idea from a line of judicial opinions based on a tort called trespass to chattel. A "chattel" is simply the legal term for an item of personal property — a toaster or a chair, for example. I cannot make toast or sit down when someone else is using my chattels without my permission. That property belongs to me, so the common law allows me to sue the person using it. If I prove my case, I would get money for the damages I suffered from the delay in satisfying my hunger or relaxing my legs, and the court would order the trespasser to stop. The crux of this policy is that a computer is a chattel just like a toaster or a chair. Intuitively, we all understand that if someone else is using my laptop, he is blocking me from using it at the same time.
In the spam context, we must look at the technology on a slightly deeper level than this simplistic first approach allows. The Internet relies on powerful computers called servers, which answer queries from many people at the same time. When I read Yahoo!'s home page, the odds are very high that many other people are reading it at the same time. Yahoo!'s web server can dish out thousands of pages at the same time. However, when the number of readers grows too high, even the most powerful server has trouble keeping up, and users experience delays — or worse, the server "crashes."
A similar phenomenon occurs with mail servers — the computers that process email after it is sent and before it is received. Suppose the average email user sends and receives an average of 20 legitimate messages per day and receives an average of 80 spam messages per day. His Internet Service Provider's (ISP) mail server will spend 80% of its time processing spam and only 20% processing the "real" mail — which is what the user (the ISP's paying customer) wants it to process. Instead of buying the server it wanted to buy, the ISP had to buy one with five times the processing power to accommodate the unwanted extra load. This does not increase the cost of the server linearly (by five times), but it does increase the cost of the server by a measurable amount. Similarly, the ISP has to pay for five times the bandwidth (transmission capacity) that its customers want to use. Even if the ISP filters out spam as a service to its customers, it must still pay for all this extra capacity — to receive each piece of mail, look at the contents of each message, and flag each message for deletion or delivery.
The first case to examine spam from this perspective was CompuServe v. Cyber Promotions, 962 F. Supp. 1015 (S.D. Ohio 1997). CompuServe, an ISP, sued Cyber Promotions (CP) over spam that CP was sending to CompuServe's customers. (CP is no longer in that line of business.) That court built on the analysis written by a California Court of Appeals from a year before in Thrifty-Tel, Inc. v. Bezeneck, 56 Cal. App. 4th 1559, 1567 (1996). The California court had held that "Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action." CompuServe, 962 F. Supp. at 1021. In other words, the electric impulses that computers use to communicate constitute a physical invasion of property when they are sent into a privately-owned system without permission. In Thrifty-Tel, a telephone company had sued the parents of children who engaged in "phreaking" — attempting to crack the company's authorization codes in order to make long distance calls without paying for them. The most famous decision in this line of cases is eBay v. Bidder's Edge, 100 F. Supp. 2d 1058 (2000), which extended the same reasoning to web servers.
Two pieces of the bill — the "working unsubscribe" and "anti-resubscribe" provisions — belong under the same conceptual umbrella, which I call the "meaningful unsubscribe mechanism."
The "working unsubscribe" provision would require each piece of spam to include instructions for the recipient to "opt out" of future advertising. This opt-out mechanism must function for 30 days after the spam is sent, to ensure that recipients have a reasonable opportunity to use it. Otherwise, the spammer could shut it down immediately after clicking send — before most people have received the junk mail.
Some spammers get around states' opt-out laws by removing people from lists when they make opt-out requests, then immediately adding the same person to a new list. This new list has a much higher economic value to the spammer because the addresses on it are "verified" — the spammer knows that each one belongs to and is being actively used by a live person. This formalistic interpretation of many state laws' opt-out requirements is not possible under CAN-SPAM's "anti-resubscribe" provision, which bars the spammer from adding opted-out addresses to other lists.
The "working unsubscribe" provision is the most controversial and troubling provision in the Act. A great controversy surrounds the question of whether spam should be an opt-in or an opt-out enterprise. An opt-in system would forbid unsolicited commercial email by requiring spammers to document that the owner of each email address on a mailing list has requested to be placed on that list. An opt-out system would permit unsolicited commercial email but requires spammers to remove an address from their lists when the person who owns it asks to be removed. The CAN-SPAM bill passed by the House came down on the side of opt-out.
The foundation of American law is the U.S. Constitution, and the First Amendment to the Constitution provides that "Congress shall make no law…abridging the freedom of speech, or of the press." Despite this plain language, the Supreme Court has held that not all speech is equal under the First Amendment. While indecent speech (e.g., ordinary pornography) is protected from most government interference, obscene speech and child pornography enjoy no First-Amendment protection whatsoever. (See, for example, Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) for child pornography and Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. U.S., 431 U.S. 291, 301-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987) for obscenity.) Commercial speech gets an intermediate level of protection. Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 477 U.S. 557, 564-65 (1980).
Since the First Amendment was ratified, it has been axiomatic that "prior restraints" on speech are one of the greatest evils threatening the health of our polity. A prior restraint is a government prohibition on a particular message before the speaker has a chance to communicate it. The freedom of speech and the fundamental liberty of self-expression demand that everyone be given an opportunity to voice his thoughts. Some speech is always socially harmful — such as threats of violence or statements made in the formation of a criminal conspiracy. However, it is simply not possible to articulate in advance a definition of all forms that such harmful speech will take without our definition also encompassing many forms of legitimate speech. Therefore, we only punish speech after it has been uttered, when we can analyze the facts of each case. True, this allows some harms to occur that we might otherwise prevent, but a system of prior restraints would create far more and far greater harms by having a "chilling effect" on socially-necessary speech.
Therefore, everyone must have a reasonable opportunity to stand in a public square, tap passers-by on the shoulder, and say, "Would you like to hear what I have to say?" However, the freedom of speech guarantees a right to speak — not a right to force others to listen. Each listener has the right to say, "No, I find your views offensive, and I do not want to listen to you." Spam may be the 21st century, commercial-speech embodiment of this tap on the shoulder. The mandated opt-out system is the listener's opportunity to decline.
Many people believe that commercial speech should get less protection than it does today. Consumer protection demands it, they argue. How else can we prevent hucksters from selling snake oil through lies and deceit? These arguments do have merit, and I do not mean to dismiss them here; they are just beyond the scope of this blog. However, it would be irresponsible not to note at this point that, in recent years, the Supreme Court has been backing away from the Central Hudson doctrine because it is proving impractical to differentiate commercial speech from other types of speech. In ten years, what is "commercial speech" today may get full constitutional protection.
Spammers employ many strategies to collect email addresses for their spam lists. One common strategy is called "harvesting." Spammers write software that trolls the Internet for character strings that appear to be email addresses. The software scans the text of web pages, chat rooms, message boards, and usenet, recording all the email addresses it finds. The CAN-SPAM Act will make this practice illegal. The very next paragraph of the Act prohibits another common strategy, "randomly generating electronic mail addresses by computer." The combination of these two prohibitions will make it much harder for spammers to get a hold of functional email addresses.
The Act allows states to enforce the act by suing spammers on behalf of their citizens and ISPs to sue on their own behalf or on behalf of their subscribers. This is a common-sense compromise between the factions advocating a private right of action (which would permit individuals to sue spammers for themselves) and those advocating federal enforcement (which would permit only the U.S. Attorney General to enforce the Act).
Both extreme positions carry dangers and benefits. With a private right of action, the courts might be clogged with individual or class action suits, and it would take too long to reach large judgments against spammers for the law to be effective. On the other hand, leaving enforcement in the Attorney General's hands exposes the law to the dangers of under-enforcement and political cherry-picking. First, spam may seem minor compared to violent crimes, which rightfully get prosecutors' prime attention. Spam prosecutions might fall by the wayside. Second, the economic and technological damage caused by any two pieces of spam are identical, but does anyone honestly believe that John Ashcroft would approve the prosecution of inkjet toner vendors if there are any pornography vendors still standing? With finite resources, any Attorney General (like any manager) must set priorities for his office, and I would never fault Ashcroft for setting clear guidelines. However, I frequently disagree with the content of his guidelines; and, in this context, his preferences would probably lead to systematic selective enforcement, which would be untenable under the First Amendment — which prohibits the government from treating different speech differently, based on its content or viewpoint. With all fifty states and hundreds of ISPs bringing spam suits, the danger of selective enforcement declines.
CAN-SPAM expressly "preempts" state laws dealing with spam. The Supremacy Clause of the U.S. Constitution (article 6, § 2) establishes that the Constitution, laws, and treaties of the United States "shall be the supreme law of the land" and that they preempt state laws where they are in conflict (and in certain other situations). California, in particular, has passed several statutes prohibiting spam. California's most recent statute, which will not take effect until January, is far more protective of consumers than CAN-SPAM. All of these laws would be rendered unenforceable by the federal Act.
The House considered drafts of the bill that would have required the Federal Trade Commission (FTC) to maintain a "Do Not Spam" registry, similar to the "Do Not Call" registry that it recently established in conjunction with the Federal Communications Commission (FCC). Spammers would have been required to compare the email addresses in this registry to their own mailing lists and remove any addresses that match. In effect, it would have been illegal to send unsolicited commercial email to any address in the registry. However, the House rejected this provision (which would have required the FTC to create the registry) in favor of one that merely requires the FTC to study the issue and permits the it to create a registry if it sees fit.
Anyone taking odds on what the FTC will do? Before you answer, consider that the bill fails to allocate a single dollar to fund the registry.
By making certain kinds of email illegal, the Act, by implication, renders all other kinds of email legal. However, some spam that Congress intended to make illegal will always slip through cracks in the law's definitions. (This is a fundamental shortcoming of human language, not necessarily a fault of Congress.) Therefore, the bill expressly permits ISPs to devise and implement their own, private email-handling policies.
Without this provision, ISPs would be vulnerable to lawsuits from spammers if they decide to block this slippery spam on their own. By blocking mail that is technically legal, the ISPs would arguably be liable for such torts as interference with business relations (for blocking legal business communications) and defamation (for falsely labelling messages as "spam"). Much like § 230 of the Telecom Act of 1996 (47 U.S.C. § 230), CAN-SPAM's "private mail policy" provision is designed to protect ISPs from an onslaught of litigation that would render them unable to conduct business. If ISPs cease operating out of fear of litigation, consumers would be unable to access the Internet at all.
The law has engendered a lot of interesting folklore through the millennia — usually concerning the content of the law. There is a widespread belief, for example, that most American states permit the use of deadly force to defend property. Wrong! (Whether the law should permit this is way beyond the scope of this blog.)
The myth of the "Twinkie defense" and the case of Dan White rank among the most bizarre in American law.
In 1978 Mr. White killed San Francisco Mayor George Moscone and a homosexual city Supervisor, Harvey Milk, and he was later convicted of voluntary manslaughter. White looked guilty of first-degree murder in the press, so his conviction on the lesser charge engendered an enormous public outcry. Misinformation began to circulate almost immediately after the case was resolved, despite the ready availability of debunkage. Almost none of the debating public properly understood the basis for White's defense. Even worse, the state of California enacted dramatic changes to its criminal law — based, at least in part, on the myth — soon thereafter.
Mr. White suffered from depression, and his attorneys argued that this condition reduced his capacity to form the requisite state of mind to have committed the crime of first-degree murder. A great weight of psychological research and legal authority supported this argument. The defense called several expert witnesses to the stand to provide corroborating evidence, and one of these experts made a passing reference to junk food. The night before the killings, White had eaten foods high in sugar, and the expert briefly stated that a sudden infusion of sugar might have contributed to White's loss of control. White's attorney also mentioned this fact in his closing argument; but it was, at best, a peripheral point in the case.
When the jury refused to convict White of murder, the public was outraged, and the stage was set for one of the great legal myths in Anglo-American history to take hold — the myth of the "Twinkie defense." It seemed plausible, to many people, that White's attorneys had hoodwinked the jury into believing that Twinkies had made him do it. This was never part of the defense team's trial strategy, and jurors from the case who have granted interviews over the years have called it bunk in no uncertain terms. Nonetheless, the Twinkie defense continues to enjoy widespread credulity.
The "Twinkie defense" is so ingrained in our culture that it appears in law dictionaries, in sociology textbooks, in college exams and in more than 2,800 references on Google. Only a few of them call it what it is: a myth. [...]
During the trial, no one but well-known satirist Paul Krassner — who may have coined the phrase "Twinkie defense" — played up that angle. [...]
Several weeks later, Newsweek spread the term. And by September, barely four months later, outrage had spilled over into the Legislature. There, politicians debated the diminished-capacity defense, eventually abolishing it, in large part because of the White trial. In the course of the debate, conservative Democrat Alister McAlister, anxious to make his point, waved a Twinkie in the air. Within two years, the phrase had slipped into popular lingo. Newspapers across the country, including The Chronicle, were tossing around the "Twinkie defense" as if it were synonymous with diminished capacity. [...]
"America loves labels," said Dr. Alan Dundee, UC Berkeley professor of anthropology and folklore. He compares our belief in the "Twinkie defense" to the conviction that George Washington cut down the cherry tree. He didn't. Folklore trumps history. "I don't care if the 'Twinkie defense' has any validity or not," he said. "People think it was a factor. And thinking makes it so."
Wired News (among others: 1, 2) reports that California Secretary of State Kevin Shelley, announced today that he will require all voting machines used in that state to produce a paper trail of all ballots by 2006. (Article: E-Votes Must Leave a Paper Trail)
Beginning July 1, 2005, counties will not be able to purchase any machine that does not produce a paper trail. As of July 2006, all machines, no matter when they were purchased, must offer a voter-verifiable paper audit trail. This means machines currently in use by four counties in the state will have to be fitted with new printers to meet the requirement.
The State Bar of California said at 6pm:
Application Number: xxxx
Registration Number: xxxxxxxxx
Name: DAN H FINGERMAN
The name above appears on the pass list for the July 2003 California Bar Examination.
My response? Woohoooooooooo!
I usually try to avoid political bashing, but occasionally a satire is funny enough that I bend my own rules. The Leader of the Free World!? is the funniest and most novel satire since the 2000 election (requires Flash player).
Congressman and presidential candidate Dennis Kucinich (D-OH) has come out decisively in favor of civil liberties. On his Voting Rights issue web page, he posts excerpts from and links to the memoranda that Diebold has tried so hard to erase from the public hivemind. Thanks to Donna at Copyfight for the heads up.
The Congressman writes:
Stopping False Copyright Claims
Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public’s information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.
Doug also brings up the similarity between this hypothetical case and Brown & Williamson Tobacco Company v. Williams, 62 F.3d 408 (D.C. Cir 1995), where a paralegal working for the law firm representing B&W (a tobacco company) leaked juicy documents to the press and to Congress. In this decision, the D.C. Circuit Court affirmed the District Court's quashing of the subpoena served on Rep. Waxman by B&W. Doug asks, "Can we expect Diebold to send Congressman Kucinich a cease and desist letter, with a takedown notice to the ISP hosting [his web site at] House.gov? I'd like to be a fly on the wall when those arrive."
NBC's local affiliate in Columbus reports that college football fans can buy tickets to the upcoming Michigan-Ohio showdown online in a thinly-veiled attempt to avoid prosecution under Michigan's anti-scalping law. (Article: Auctions Offer 'Free' OSU-Michigan Tickets, Pricey Envelopes) "Internet auction site users are paying hundreds of dollars for hats, pencils or 'a personalized white envelope.' Oh, and the winning eBay bidders get 'free' tickets to Saturday's Ohio State-Michigan football game."
I would not normally cover a story like this. However, it illustrates the problem with legal formalism that I failed to explain here a few days ago. In a previous article, I mentioned Julian Dibbell's customer service adventure with PayPal. That company's Seller Protection Policy covers tangible items but not intangible ones. Julian suggested that intangible goods could be offered as free gifts with the purchase of a piece of paper that has a password written on it. The purchased item — the paper — would therefore fall within PayPal's policy, and the seller would be protected in the event that the buyer tries to renege on the deal. The NBC report highlights the problem with that approach.
Amid the Diebold controversy, it is interesting to take a step back and ponder how we reached this point. Thanks to a post in LawMeme, I found this fascinating history of voting technology in America. The web site was compiled by Rachael Deane, on behalf of Dr. Jeffrey McClurken for a course at Mary Washington College.
Declan McCullagh reports on C|Net that the U.S. District Court in San Jose, California heard arguments in the case brought by students and the Electronic Frontier Foundation (EFF) against Diebold Election Systems. (Article: Students fight e-vote firm's DMCA claims)
As discussed here (1, 2) and elsewhere, Diebold manufactures electronic ("touch screen") voting machines. Students at Swarthmore launched what has since become a widespread electronic civil disobedience movement. Internal Diebold documents indicating mismanagement and a lack of security were publicly distributed, and protesters sought to bring them to the fore of public debate while Diebold sought to repress them, by sending threatening letters under the notice-and-takedown provision of the Digital Millenium Copyright Act (DMCA). There are also other political concerns, which Declan summarizes concisely:
Diebold gave at least $195,000 to the Republican party during a two-year period starting in 2000, and its chief executive, Walden W. O'Dell, once pledged to deliver Ohio's electoral votes for President George W. Bush. Earlier this month, California started an investigation into whether Diebold had improperly installed software into Alameda County's machines that had not been certified.
The Contra Costa Times ran an interesting, yet unsurprising, AP story on Saturday (Music industry mines data from downloads). In a nutshell: "Despite their legal blitzkrieg to stop online song-swapping, many music labels are benefiting from — and paying for — intelligence on the latest trends in Internet trading." That is right, P2P networks are the best tool yet-invented for gathering realtime data on music consumer tastes. By tracking the number of downloads for particular artists and particular songs and the rough geographical distribution of those downloads, the industry can better target its marketing and products.
I would accuse RIAA of batting both ways (like I did H&R Block this morning), but this phenomenon raises an issue more important than copyright law. For the first time in the history of human social interaction, we have the technology to gather realtime information on the thoughts of a cross-section of a nation. P2P file sharing is a specific example, and the Google Zeitgeist is a more general one.
SiliconValley.com reprints a story from the Kansas City Star, reporting a defamation lawsuit filed by H&R Block (H&R Block sues anonymous online critic). Essentially, the accounting firm believes that an employee is behind a series of postings on a Yahoo! message board that criticize the company. The article is a bit sketchy, but apparently both the complaint and company a spokesman said that the message board posts constituted (1) false and misleading statements and (2) improper disclosures of confidential information.
H&R Block is trying to bat from both sides here. If the anonymous poster's statements were accurate, they would prove highly embarassing to the company, and he would have disclosed confidential information. If they are not accurate, they would be defamatory. Either way, H&R Block maintains plausible deniability for long enough to force Yahoo! to reveal the anonymous poster's identity. Ultimately, H&R Block may have a difficult time proving either claim because damages (an essential element of both claims) would be too speculative. The author writes, "The defendant's comments don't appear to have had a material effect on Block stock," and goes on to detail the fluctuation of H&R Block's share price during the relevant time period and concluding that it was a mere penny off its 52-week high shortly after the statements. Proving a link between these statements and any trend in revenue would be exceedingly difficult, if not impossible.
This is a SLAPP — a strategic lawsuit against public participation. After Yahoo! breaches the poster's anonymity, we have no guarantee that H&R Block will pursue the lawsuit. More likely, it merely needed a subpoena to learn whether the poster was an employee — and will promptly forget about the suit after getting what it wants. Better to make an example by loudly firing a wayward employee than to waste time and money on a lawsuit against someone who will not have millions of dollars to pay in damages, in the unlikely event that you win. The last portion of the article begins, "Lawsuits aimed at forcing Internet service providers to provide the names of anonymous Internet users have become increasingly common in recent years." Little question exists as to the effect this is having on the freedom of speech.
The friend I drove to the fair with happens to be pregnant (by her husband, NOT me!) and shares my penchant for jokes, so we got started right away. As we waited out front for some other friends to arrive, we struck up a conversation with the woman handing out fliers at the door. After telling us that she worked at the Institute and had been trained in the psychic arts, she told us that we could have our futures told inside. We asked if she could tell us if "our" baby would be healthy. "Of course!" she replied, "and I can tell that you are very happy in your marriage. You two have excellent communication with one another." Did I mention that I met this friend ten days ago and that I barely know her?
Our first stop inside the fair was a booth for aura healings. A portly gentleman named Howard slowly stroked the air around me for a few minutes while he asked questions and offered suggestions for improving my health. After correctly guessing that I have a brother (low odds on that one, huh?), Howard informed me that my cutthroat competition with my brother was the source of the negative, navy blue energy concentrated around my heart. (I lacked the heart to tell him that we have competed in nothing more serious than a belching contest in the last decade.) Howard helpfully released that negative energy, which allowed the more positive crimson energy he found behind it to expand. Next, he asked how my injury was healing. Huh? "You were in a car accident or broke a bone recently, no?" No. He was puzzled by the dark, murky, green energy that looked like it was emanating from a painful physical injury. It is possible, he admitted, that he was misreading what was really an emotional injury. A recent breakup, perhaps? No. A death in the family? No. Unfortunately, the mystery remains unsolved. (Hours later, I realized that he must have seen the slight limp I have walked with for 11 years — the result of a long-healed knee injury, surgery, and nine months on crutches.)
The other booths sported palmists, tarot card readers, or bold fortune tellers who used no props at all. I had demonstrated cold reading and explained the technique to my friends a few days earlier. They recognized it instantly in each session with these charlatans. The only one who was (temporarily) fooled was told by her palm reader that she should pursue the PhD she was considering. My friend had revealed nothing of her educational plans and was amazed — until we pointed out that her shirt read, "UCLA 2003." (For those outside the U.S., UCLA is the University of California at Los Angeles.)
The day climaxed with a workshop entitled, "The Astral: Where Do You Go?" A panel of three "astralists" led by a moderator, "Reverend" Todd Williamson, promised to examine the aura of a volunteer and diagnose problems with his astral health. The Reverend guided the panel through a few minutes of meditation to ready them for the task. After this dramatic preparation, he called on me as his volunteer. He had not scripted the scenario where his volunteer was wholly unversed in astral theory and lingo. (Like me!) He was knocked off his rhythm when I could not even formulate a proper question for the panel because I had no idea what astral space was. I would have felt bad if the workshop's blurb had not said it was an introduction to the astral plane — which was precisely what I wanted. He recovered quickly, however, and he had the panelists just tell me their first impressions.
Two of them used so much jargon in each sentence that I could not follow what they said. The third took a different tack. He told me simply that I was trying to achieve communion with the supreme being in my dreams but that I was being blocked by some other spirits who were interfering with my astral space. Once I asked him to explain what he meant, he and the other panelists would talk about nothing else. They had found the chief problem with my astral health. I am glad they told me — I might never have known. We ran out of time before I could ask how this related to what the first two panelists had said at the beginning.
At the end, they asked me channel the negative energies of the interfering spirits into a balloon, then pop the balloon by stepping on it. This, of course, would free me from their influence. Unfortunately, the balloon refused to pop when I stepped on it. I am hardly a lightweight, but it took nearly a minute of me jumping up and down before it would pop. The poor, tortured thing kept squishing out from under my feet — even when I stood squarely on it with both feet at the same time. Pesky spirits die hard, I guess.
In a half-hour sample period, I counted 41 readings and 28 aura healings being conducted. An average of eight people attended each hourly workshop while I was present. Each thing required one ticket per person, and tickets were given out at the front door as "free gifts" in return for "donations" of $12 (or three tickets for $30). Multiply that out by two days (seven hours each) and ten workshops, and the Institute took in over $13,000 — not including the additional donations that many attendees gave. Over 80% of attendees that I discreetly polled said their readers or healers had strongly recommended that they take one of the Institute's introductory classes (such as "Meditation," "Women's Intuition," or "Male") to cure some specific ailment or deal with a specific problem that was identified in the session. About one third of these people said they were considering taking the class, yet none could name the tuition price any more specifically than the organizers' common refrain, "an appropriate donation." Polite persistent questioning of several readers failed to uncover a meaningful definition of "appropriate."
The day was fun for all. And they served good coffee — for a dollar per (tiny paper) cup.
Ever since the copyright industry first made noise about the dangers of digital distribution and the need for DRM, pundits have pointed out that "downstream" copying (capturing sound in an analog state, en route from its storage medium to a computer's speakers) could eviscerate any DRM scheme. Today I got curious about just how easy and cheap downstream really is. High Criteria's product, Total Recorder, comes highly recommended for this task, and it costs a mere $11.95. That's it — twelve bucks to foil a multimillion-dollar DRM regime. I also found the company's excellent Primer on PC Audio. This is a good introduction for anyone interested in digital audio technology but without a lot of technical knowledge.
McDonald's reaction to Merriam-Webster's inclusion of McJob in the new edition of its Collegiate Dictionary sparked a wave of commentary and discussion on trademark law. (See my own blog entries: 1, 2; and a few others' comments: LawMeme, The Importance Of, and Moore's Law.) The award for the funniest commentary goes to Randy Cassingham, the publisher of several high-quality electronic publications.
For those not familiar with This Is True (Randy's flagship publication) he summarizes several news stories each week and appends a tagline to each one. Here is his entry on the McJob affair (reprinted with permission):
McANGER: The McDonald's restaurant chain has sent a letter of protest to Merriam-Webster, complaining that its new edition of the Collegiate Dictionary defines "McJob" as "low paying and dead-end work." McDonald's CEO Jim Cantalupo calls the definition "an inaccurate description of restaurant employment" and "a slap in the face to the 12 million men and women" who work in the field. (AP) ...What kind of Mickey Mouse outfit is that, anyway?
This is off-topic for my blog, but I cannot resist using this space to plug Randy's publications. I will be in good company, though: his subscriber list has grown to more than 119,000 readers in 197 countries — due almost entirely to word-of-mouth publicity. And for good reason. Randy relentlessly highlights humor, satires stupidity, boggles at bloopers, and groans at gaffes and goofs around the globe. Although humor is True's bread and butter, he also writes serious stories — but always in an entertaining way that makes us shake our heads or say, "Hmmm...." The best part? True is free! (If you like it, try the premium edition — with more stories each week for a pittance of a price.)
Randy also publishes another newsletter, True Stella Awards (TSA), that will interest many readers of this blog. Inspired by the case of Stella Liebeck (the once-famous "McDonald's coffee plaintiff"), emails began circulating in 1992 that conferred "Stella Awards" upon people who filed frivolous lawsuits. The problem? Most of the cases reported in these circulars were apocryphal — they either never happened, or the facts were seriously misrepresented. (Randy gives a few examples on his web site.) This angered Randy because our justice system does have real problems to address, and these bogus stories were taking attention away from them. Instead of complaining, though, he did something about it. He launched True Stella Awards to comment on true cases that highlight the true problems. As a lawyer, I initially thought TSA would bother me, but I found myself agreeing with 90% of it. Randy is rigorously scrupulous with his facts, and his commentary is always thought-out and well argued, even when I disagree with it.
I thought I had finished this post when I felt guilty about not at least mentioning Randy's other baby, Heroic Stories. I have less to say on this one, though, so I will let its web site speak for itself.
I just learned of a fascinating post in Julian Dibbell's blog, Play Money. (Article: On the Nature of the Intangible: A Dialogue) Thanks go to Donna Wentworth of Copyfight for mentioning it in her coverage of The State of Play conference.
The article contains the transcript of a brief phone call the author placed to PayPal to inquire about his rights under that company's Seller Protection Policy. The policy apparently covers only tangible items — which, in PayPal's reasoning, the seller can prove that he has shipped to a buyer by providing PayPal with a tracking number. The policy does not cover intangible items because no such proof can be provided.
The author was asking about a virtual item from an online game. PayPal told him that virtual items are not covered because they cannot be shipped. Tickets to a football game, on the other hand, would be covered. The tickets, PayPal reasons, are a physical item that can be shipped. The company fails to apply the same logic if the seller writes down the password to an online account on a piece of paper and ships that paper to the buyer in the same manner that he would ship the football tickets. The assets underlying both sales are equally intangible — the right to be admitted to the football game and the right to be admitted to a secured computer. PayPal, unfortunately, cannot see the parallel. One wonders what PayPal would do if the seller advertised the sale of a piece of paper with several characters written on it and offered — as a free gift, with purchase — to transfer all rights to an online account.
Read the full transcript here.
Controversy over the use of radio frequency identification (RFID) chips in retailing has raged for some time. Although I have not covered RFID developments in this blog, I do follow them closely. Yesterday C|Net published a once-over of the newest RFID front, and I want to highlight one important point that the author glossed over too quickly. (Article: 'Smart shelf' test triggers fresh criticism)
Wal-Mart, the world's largest retailer, stopped a small RFID trial in Boston last year, after CASPIAN (Consumers Against Supermarket Privacy Invasion And Numbering) called public attention to it. Wal-Mart tried again last summer, in Tulsa, with a larger group of products. C|Net reports that company "sold, from March to July, Max Factor Lipfinity products embedded with the special tracking chips. A Wal-Mart representative, who told CNET News.com in July that the company had never sold products with chips in them, now says he only recently became aware of the Lipfinity test." In other words: Not only did Wal-Mart hide its activities from the public, it also hid them from its own spokespeople, causing them to deceive the press.
An ethics panel in Alabama ruled yesterday that Roy Moore, the controversial Justice of that state's Supreme Court who placed a monument bearing the protestant ten commandments on the courthouse steps, had violated his profession's canons of ethics. Moore openly defied a federal district court order to remove the monument, known among his supporters as "Roy's Rock." (View image.) The ethics panel emphasized that Moore lacked contrition for his flouting of the rule of law. "Indeed," wrote the New York Times, "just minutes later, Mr. Moore strode out of the courthouse into a crush of his supporters and announced, 'I have absolutely no regrets.'" (Article: Alabama Panel Ousts Judge Over Ten Commandments Monument) Throughout this episode, Moore has characterized the dispute over the monumen as one between the faithful and faithless, Christians and atheists, and Alabamans and "the feds." His comments yesterday underscore the depth of his misunderstanding of the U.S. Constitution.
The venerable Mary Hodder over at bIPlog gives us a terse summary of the goings on in California, with respect to Diebold Election Systems. (Article: Diebold Latest: The Effects of Student Spread Memos on CA Secretary of State) More importantly, I cannot overstate my support for her synopsis of the implications this affair holds for the future of American democracy.
Mary hit the nail on the head when she wrote:
[S]tudents at Swarthmore, followed by students at many other institutions…in spreading the Diebold memos around, have accomplished the goal of causing those with review power over Diebold systems to take another look at Diebold's work. … Even if the review doesn't cause the state to discontinue using Diebold systems or require severe changes (and I'm sure the pressure is enormous TO certify), the fact is the memos raise disturbing issues and the review is very necessary. If companies providing services of this sort feel that they can quash documents out on the Internet by using the DMCA, if Diebold succeeds on this point, we and our democracy will be the poorer for it.
A few minutes after publishing my last piece, I saw this article in today's New York Times: Assisted Living to Viagra: A Dictionary Nod to Aging. It bolsters my argument about dictionaries being a lagging bellwether of commentary and social trends. The article quotes John M. Morse, the president and publisher of Merriam-Webster:
The words being added to the dictionary are a fascinating barometer of what's going on in our society. … When I read the tea leaves in the new dictionary, what I see is, yes, the Internet is the biggest thing in the world. But aging baby boomers may be the second-biggest thing. … What's in the dictionary is important beyond just looking up words. It's a sign — or warning — for advertisers and even politicians who have to appeal to the public. Significant changes in society create significant changes in the lexicon. And a dictionary is telling us where change is taking place.
James Grimmelmann reports on LawMeme that McDonald's is in a tiff over Merriam-Webster's (MW) inclusion of McJobs in the new edition of its Collegiate Dictionary. (Article: Tales of Trademark Abuse: McDonald's Goes After the Dictionary?) The Associated Press (via MSNBC) reports MW's definition: "low paying and dead-end work." (Article: McDonald’s balks at 'McJob' entry) AP writes, "In an open letter to Merriam-Webster, McDonald’s CEO Jim Cantalupo said the term is 'an inaccurate description of restaurant employment' and 'a slap in the face to the 12 million men and women' who work in the restaurant industry." The company's lawyers also noticed the similarity between McJob and McJobs — the trademarked name of McDonald's training program for mentally- and physically-challenged people. James comments, "McDonald's wants to censor the dictionary in order to protect their brand, and they'll use trademarks to do it." He is right, of course, but I am not sure it matters.
Federal trademark law is governed by the Lanham Act. What part of the law might MW have violated? Section 43 of the Act (codified in 15 U.S.C. § 1125) is the chief provision establishing civil liability in the trademark context. While McDonald's arguments in this area may rise above the Rule 11 bar, they are probably not winners in court.
Section 43(a) prohibits one from using a word or other mark "in commerce" in a manner that constitutes a "false designation of origin…or [a] false or misleading representation of fact." This false or misleading usage must be "likely to cause confusion" as to the origin of a product or as to some connection to a third party. Using a mark in "commercial advertising" that misrepresents the nature or characteristics of a product can also trigger civil liability. This is known as the infringement section of the Lanham Act, and it is most often applied where Competitor 1 sells a product under a mark that is confusingly similar to Competitor 2's mark. See Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961). This tort is known as trademark infringement, and § 43(a) provides both a cause of action and a right of action for the owner of the mark (Competitor 2, in my example) to bring an action in federal court.
Did MW commit trademark infringement? There has been no suggestion that MW used the word McJob in any advertisement, to designate the origin of its dictionary, or to make any representation about the dictionary's contents. Can any reasonable argument be made that MW's inclusion of McJob in the dictionary suggests any kind of association, sponsorship, or approval by McDonald's? If so, I would love to hear it. First, the word is only one of approximately ten thousand new words added in the new edition — in addition to the tens of thousands of words already there from prior editions. It might be different if MW had added only a handful of new terms or placed McJob on the dust jacket, as a pithy excerpt designed to market the book. Second, MW's dictionaries contain a host of words that match registered trademarks precisely, such as Xerox, Teflon, and Polaroid. All of these entries mention the relevant trademarks, then define these words in generic terms — the antithesis of what a trademark owner would want. Xerox Corp., for example, is famous for buying advertisements and sending letters by the bushel, urging people to use its famous mark only as a modifier for its brand, not as a generic word. Meanwhile, McDonald's is objecting to a word that is merely similar and not identical to its trademark. The owners of any of those other marks could make a stronger argument than McDonald's can.
However, none of the companies owning these marks are complaining about their inclusion in the dictionary. Trademark law recognizes that some types of speech and writing are socially useful — especially expression that is at the heart of the First Amendment, such as commentary and satire. Dictionaries fall in this category because they disseminate knowledge more than any other type of reference work, and they provide us with the means of communicating intelligibly. Without dictionaries, there would be no standardization in language, and the volume of core First-Amendment activity would be reduced. Such important uses of language are given a wide berth in trademark law.
The other major provision of § 43 is subsection (c), entitled "Remedies for dilution of famous marks." The principal function of trademarks is to designate the origin of products in commerce, so marks become more valuable as they become more well-known. Additionally, the more "distinctive" a mark is, the more it does to distinguish the products to which it is attached from competing products. Therefore, it makes sense that the law would accord more protection to marks that are both famous and distinctive than to marks that are only one or neither. Section 43(c) therefore requires a trademark to be "famous" and that someone use the mark in a manner that "causes dilution of [the mark's] distinctive quality." When these conditions are satisified, the person using the mark without permission (Competitor 1, in my example above) would be liable for trademark dilution.
Few trademarks are more famous than McDonald's McX family of marks, where X can be replaced by many different words. The company has spent enormous sums on marketing over several decades to gain that recognition. The marks are so famous that appending "Mc" to nearly any word connotes the qualities that we generally attribute to McDonald's restaurants. The association between McX and the homogenization of culture and commerce is firmly embedded in the American zeitgeist. McHouses fill cookie-cutter subdivisions typified by Levittown. McMusic is the predictable tunes played by the "boy bands" of the late 1990s.
Thus, McDonald's can establish the "famous" element of a trademark dilution claim. Ironically, however, that fame works against the company because of the equally-famous association between McX and homogenization — notwithstanding that such usage is without McDonald's consent. The public has, over many years, infused McX with a meaning entirely unrelated to the offerings on a restaurant menu. Many acts of dilution by millions of people over many years have impaired McX's ability to differentiate McDonald's entrees from those of, say, Burger King. MW's inclusion of McJob in its new dictionary causes, if anything, only an infinitesimal amount of marginal dilution. As a lexicographer, MW merely reports dilution that has already occurred in American English.
As a side note, I should note that McDonald's might also make an argument about the "tarnishment" of its trademark. MW's definition of McJob is unflattering, and it suggests that McDonald's restaurants' employees are miserable. The law of large numbers suggests that this cannot be true for each of McDonald's 400,000+ employees. However, the tarnishment argument falls to the same rebuttal as the dilution argument. MW is a lexicographer and merely reports any tarnishment that may have occurred over time, as millions of people have spoken or written McJob with the reported definition. Furthermore, the definition is not libelous of McDonald's as a company, nor of any particular employee (because no particular employee is identifiable in the definition). Rather, the definition remains a form of reporting on a public controversy and therefore embodies several activities at the core of First-Amendment protection.
The definition "low paying and dead-end work" shows the commentary-laden meaning that the public has already attached to McX. Unfortunately for McDonald's, that meaning is wrapped up in the controversial economics and politics of globalization. The First Amendment protects political speech more zealously than any other type of speech, and strong trademarks must often yield to free-speech interests in the realm of public debate. As James Grimmelmann noted, McDonald's is trying to remove a word from the dictionary and is using trademark law as its tool. The company may have created a family of words, but that does not give it the right to control its development in perpetuity. The public must have the right to discuss political and social issues.
Prolific blogger Ernest Miller (The Importance Of) discusses the natures of blogging and journalism, en route to ripping a new hole in a fellow named John Simpson. (Who is John Simpson? Journalism, Lawyers and Blogging) This essay (and the bIPlog debate that prompted it) should be required reading for all issue bloggers.
The confession of Gary L. Ridgway, the so-called Green River Killer of Seattle, has lit up the media and the blogosphere alike. I would like to emphasize one oft-overlooked point about this affair that reinforces what the skeptical community has argued for years.
Ridgeway volunteered for — and passed — a polygraph in 1984. Despite the overwhelming evidence (collected in nearly a century of research) that the polygraph and its predecessors are not effective tools for detecting deception, the Department of Energy, Federal Bureau of Investigations (FBI), and Central Intelligence Agency (CIA) still rely heavily on them. The tests do little to protect us because they are so easy to manipulate; yet we continue to expend resources administering them, training staff to administer them, and following up on results. Meanwhile, false "passing" scores give a false sense of security, and false "failing" scores arouse undue suspicion. Ridgeway, for example, admitted to killing people both before and after passing his polygraph.
Could the local authorities have recommitted the resources it wasted on polygraph testing to more effective techniques? Sure. Would that have helped them catch Ridgeway sooner and saved the lives of some of his victims? We will never know.
Pennsylvania State University announced today that it would offer its students a chance to partake in Napster 2.0. The original incarnation of Napster — once synonymous with wanton copyright violation — shut down two years ago, under the crushing weight of a legal assault from the Recording Industry Association of America (RIAA). Sometime thereafter, a small software company named Roxio purchased the defunct Napster's source code and brand, betting that Napster's worldwide name recognition would help it launch a legal music distribution service. Not long ago, Napster 2.0 launched, selling individual songs for 99¢ and monthly "subscriptions" for $9.95. The Nittany Lions intend to fund their new service from the $160-per-year "information technology fee" that its students are required to pay. The university declined to state how much it paid per student in the deal but claims the amount was "substantially less" than Napster's standard $9.95 per month. See the New York Times' coverage: "Penn State Will Pay to Allow Students to Download Music."
After reporting yesterday on the burgeoning business of partnerships among media companies (Media Giants Getting Together), the Washington Post reports today that "Sony Music Entertainment Inc. and BMG Entertainment have signed a nonbinding letter of intent to merge, creating a goliath that would control a quarter of the world's music business." (New Duet in Music World) See yesterday's blog on media partnerships.
The Washington Post has an interesting article about the rise of partnerships in the news media industry. (Media Giants Getting Together) In a field where scoops were once jealously guarded, they are now shared with abandon.
More and more media organizations — newspapers, magazines, television networks, Web sites — are forming globe-spanning, interlocking and often-cyclic partnerships with each other; some paid, others not. In an effort to hold budgets in line while expanding out of their traditional niches, newspapers give stories to each other, print reporters appear on television news shows and Web sites link to newspapers, television networks and magazines.In recent years, civil libertarians have lamented media consolidation with increasing frequency and volume. The more outlets that are controlled by Big Media, they argue, the fewer voices will be heard in the marketplace of ideas. If, for example,
The partnership model is supposed to mitigate this dystopia. No single company could possibly expand fast enough to grow all the businesses mentioned above internally. Therefore, they must either acquire other companies or form partnerships with other companies to extend their reach as far as possible. Mergers and takeovers result in unified control from the top down. Partnerships are more fluid, usually comprising only a small number of specified joint projects and lasting only for limited times. Projects and their durations are specified in advance in contracts between the partners. Partnerships are likely to focus on efforts most likely to deliver a cost-savings benefit or extend the partners' "reach" as far as possible in a short time. As reported in the Washington Post:
"One of the major justifications proffered for broadcast mergers and newspaper/broadcast combos is 'efficiencies' and 'synergies,'" said Andrew Schwartzman, president of the Media Access Project, which has opposed many media mergers. "As these deals demonstrate, it is possible to achieve both without actually purchasing or controlling both properties." [Hyperlink mine] At the same time, however, Schwartzman warned that such partnerships "can be abused as a means of reducing service, especially at the local level."
Would you trust an NBC news report on the latest consumer electronics? Before you answer, consider that NBC is owned by General Electric and has a 50% stake in MSNBC, along with Microsoft. Consider whether NBC has a financial incentive to make people more inclined to buy products made by GE or Microsoft. Now answer the question.
Voyager I, a 26-year-old NASA probe and the most distant man-made object from Earth, may have reached the heliopause just over a year ago. The heliopause is the region of space where the dominant substance is the cool gas and dust left over from ancient supernova. In the words of an Associated Press article published today ("Voyager May Be at End of Solar System"), every star "sends out a stream of highly charged particles, called the solar wind, that carves out a vast bubble around the solar system. Beyond the bubble's ever-shifting boundary, called the termination shock, lies a region where particles cast off by dying stars begin to hold sway."
So how would we know if Voyager has reached the heliopause?
Scientists have long theorized that a shock wave exists where the hot solar wind bumps up against the thin gas of the interstellar medium. A similar shock wave precedes aircraft flying faster than the speed of sound, causing a sonic boom.
In space, the violent encounter slows the solar wind from supersonic velocity to subsonic speed, and causes a pileup of particles.
As they accumulate, the particles increase in temperature. Also, as they skip back and forth across the shock boundary, they are accelerated and energized. Id.
The precise location of the heliopause has long been a subject of speculation. As the first spacecraft to reach the region, Voyager I and its younger brother, Voyager II, are expected to provide valuable data. Measurements taken by the robotic vehicles and sent back to Earth will go a long way toward resolving this particular mystery. This may be the last major scientific contribution by this pair of probes — a fine cap to two stellar scientific careers.
By the way, NASA reminds us this week that Voyager I reached a distance from Earth today of 90 AU. AU stands for "astronomical unit," and it is defined as the average distance of Earth from the sun — or approximately 8.4 billion miles or 13.5 billion kilometers.
California election officials at the state's State Department added fuel to the fiery blogosphere two days ago, when they announced they would halt the certification process for new voting machines manufactured by Diebold Election Systems. The announcement came in the wake of multiple, independent, public revelations that the software running the machines is horribly insecure and Diebold's infamous attempts to squelch public discussion of the issue. (Sources: 1, 2, 3) Amazingly, the blog furor has apparently overlooked one interesting bit. A recent Wired News article mentions the reaction of Diebold officials who attended the meeting where the State Department announced its decision. (Article: Calif. Halts E-Vote Certification) Quoth the article: "Diebold officials, who were attending the meeting, seemed surprised by the announcement and expressed displeasure to several panelists afterward that it had been introduced in a public forum. They were unavailable [after the meeting] for comment."
Is anyone surprised that Diebold's chief concern was the public nature of the announcement and not the problems underlying it?
The New York Times reports that the Massacusetts Institute of Technology (MIT)has "temporarily suspended" its ballyhooed music-on-demand service. (Article: Music-Sharing Service at M.I.T. Is Shut Down) (See my prior blogs on this issue: 1, 2.)
Yesterday the New York Times (NYT) published an excellent overview of the situation that Diebold Election Systems has created for itself. (Article: File Sharing Pits Copyright Against Free Speech) (See my previous blog entries on Diebold: 1, 2, 3, 4.) The crux of the summary:
Diebold Election Systems, which makes voting machines, is waging legal war against grass-roots advocates, including dozens of college students, who are posting on the Internet copies of the company’s internal communications about its electronic voting machines.
The students say that, by trying to spread the word about problems with the company’s software, they are performing a valuable form of electronic civil disobedience, one that has broad implications for American society. They also contend that they are protected by fair use exceptions in copyright law.
Diebold, however, says it is a case of copyright infringement, and has sent cease-and-desist orders to the students and, in many cases, their colleges, demanding that the 15,000 e-mail messages and memorandums be removed from each Web site. "We reserve the right to protect that which we feel is proprietary," a spokesman for Diebold, David Bear, said.
The Washington Post reports a sterling example of how scientific freedom should be preserved in this age of bioterrism. (Article: Engineered Virus Related to Smallpox Evades Vaccine) President Bush has categorized large swaths of research as either classified or "sensitive but unclassified" with the intent of controlling the direction of research and restricting the dissemination of knowledge gained therefrom. For all the reasons already argued in the two-year-old debate on these restrictions, this purported secrecy is doomed to fail and will retard responses to bioterror attacks. The research reported in this article, however, was conducted and disseminated scientifically, without any attempt at secrecy — yet also without compromising national security.
No, I do not suggest that an altered smallpox virus is without national security implications. The lead researcher, virologist Mark Buller of Saint Louis University, explains why he has "absolutely no biosafety issues" with his work:
Although he acknowledged that someone could, in theory, apply similar techniques to smallpox, he said he had no qualms about presenting his data at the Geneva meeting because his team had found two different ways of countering the enhanced virulence with drugs and vaccines, and is close to perfecting a third way.
The Washington Post reports that the Republican National Committee (RNC) and several of its most powerful members have asked CBS for the right to approve the contents of its forthcoming miniseries, "The Reagans," which tells the story of the former President and First Lady. (Article: GOP Wants Review of Reagan Miniseries) The RNC's letter requested CBS to submit the script to "historians to review the program for historical accuracy" so as to "avoid any confusion as to what constitutes treating the President, Mrs. Reagan and the Reagan administrations in an honest sort of way." The RNC apparently heard that the miniseries would portray the Reagans in an unflattering light — but conveniently forgot that its "historical accuracy" is due in large part to the former President's own authorized biography and the First Lady's own memoirs. Not to be overbearing, however, the RNC offered CBS a reasonable alternative to script approval. CBS may, at its option, "inform…viewers via a crawl every 10 minutes that the program is a fictional portrayal of the Reagans and the Reagan Presidency, and they should not consider it to be historically accurate."
I might suggest that the RNC could respond with essays or its own documentary if it finds specific inaccuracies in CBS's work. I won't, however, since this is the same party whose current President believes that the First Amendment should not allow people to discuss him frankly.
Taking a page from the RIAA playbook, agriculture giant Monsanto Corp. has taken to suing farmers to enforce its patent on Roundup Ready® (RR) Soybeans. Monsanto developed the patented soybean seeds (bearing a trademarked name, no less) to resist its best-selling herbicide, Roundup®. The new plants allow farmers to apply more herbicide to control weeds without killing their crops. However, Monsanto does not simply sell the seeds. It licenses them, and the license terms prohibit saving seeds from one season for planting in the next. Never mind that saving seeds has been standard operating procedure in farming for the entire history of human agriculture.
I have no beef with Monsanto licensing its patented technology rather than selling outright the products based on it. However, it has done an inexcusably negligent job of informing farmers of the contents of the form contracts by which it sells RR soybeans. The New York Times (NYT) reports (Saving Seeds Subjects Farmers to Suits Over Patent) that farmers sign the contracts without reading them — believing they are the same standard seed-sale agreements they have signed in previous years. Although some farmers are aware of the $6.50 "technology fee" per sack of seeds, Monsanto appears to have made no effort to call attention to the anti-saving provision. Obviously, many farmers saved some seeds and replanted them in the next season, violating both the contract and Monsanto's patent. The NYT article says that many farmers are fighting the lawsuits, taking them all the way to judgment, and that the first is now up on appeal. It is only a matter of time before we get appellate-level decisions on the enforceability of these contracts under contract-of-adhesion and antitrust law.
Work on Ötzi the Iceman has apparently proceeded at a fair pace. Scientists at the South Tyrol Museum of Archaeology announced this week that they have narrowed the copper-age man's home territory to a 60-kilometer (37 mile) radius in what is now southern Austria and northern Italy. By examining the minerals deposited in Ötzi's teeth and bones and comparing that data with samples collected throughout Europe, they could determine with impressive precision where the man lived during childhood and adulthood. See press clippings: BBC and National Geographic. This National Geographic article addresses the speculation (which looks increasingly like fact, as more work is done) that Ötzi died in battle.
Bob Park, the University of Maryland physicist and publicist for the American Physical Society, got snarky this week in his testimony [pdf] before the U.S. Senate Committee on Commerce, Science, and Transportation. Expressing his concern that protein crystal research is still on the International Space Station (ISS) agenda despite a bounty of research suggesting that the crystals grow identically in microgravity and at 1g (on Earth) — not to mention the Australian crystal fraud [see item 3] — Park was interrupted by Senator Bill Nelson (D-FL) for a question. "And they still haven't grown one crystal that hasn't been grown on Earth?" the Senator asked. "Not one," the physicist replied.
How much of my money are they going to spend chasing leprechauns?