Saturday, 30 October 2004

Grand Canyon: A Questionless Inquiry

Last year, the National Park Service began distributing a book by Tom Vail, a veteran tour guide at Grand Canyon National Park and head of Canyon Ministries. The book, Grand Canyon: A Different View (available online at the Institute for Creation Research) argues that the eponymous gorge was formed quickly — Diluvially, in the Noachian flood — and not gradually, by millennia of erosion.

After a (relatively anemic) public outcry, President Bush promised that his administration would "review" the sale of the book at national park gift shops. According to Public Employees for Environmental Responsibility (PEER), the review was discarded the moment the public had turned its attention elsewhere. The book is still on sale at the park, where the administration has also reinstalled bronze plaques bearing bible verses at scenic overlooks (from which they had previously been removed, on the advice of Interior Department lawyers). PEER's press release has more details. PEER also claims to have compiled numerous other examples of what it has dubbed Bush's "faith-based parks" agenda.

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Topics: Civil Liberties, Politics, Science, Skeptical Inquiry

Sony BMG Music to partner with Grokster?

This morning, SiliconValley.com posted a San Jose Mercury News article ("Sony ready to join music file-sharing") claiming that Andrew Lack, President of Sony BMG Music has been negotiating quietly with Grokster "for more than a year to hammer out a distribution agreement with the file-sharing networks that have allowed millions of people to illegally download copyrighted songs." Let us hope something productive comes from this — i.e., something useful and valuable for consumers that is not overhwelmed with DRM. If so, let us also hope it does not whither in the light of day. (Via GigaLaw Daily News)

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Topics: IP, P2P

Friday, 29 October 2004

CLE credit for blawging?

Discussed here by Stephen Nipper at The Invent Blog. Not a bad idea — and not unlike the proposal for academic credit for blogging. (via Tech Law Advisor)

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Thursday, 28 October 2004

"Hobbits" in Indonesia

This week excavators announced they had found human ancestor remains on the Indonesian island of Flores in 2003 and dated them to 18,000 years ago. The adult female, nicknamed Hobbit, was about three feet tall and had a skull about the size of a grapefruit. The working theory is that it descended from homo erectus, which is known to have inhabited the region. News reports: Wired, ABC, Illawarra Mercury. Read on.

This is being hailed as the most exciting anthropological discovery in 50 years. It is fascinating: human ancestors this short and with such small brain cases were believed to have died off about 3 million years ago. This find shows how bizarre-seeming evolutionary effects can occur when an island separates from larger land masses and its ecosystem is "suddenly" isolated for a long time. Australia's marsupials teach the same lesson, but they have become clichι.

Despite the mistreatment I am sure this discovery will receive in the Bible Belt, it reinforces the theory of evolution and highlights one of the key shortcomings of creationism and intelligent design. Evolution describes a process of mutation, adaptation, and natural selection and does not, under any circumstances, predict what morphologies should result from isolating an ecosystem for a long time. Sometimes it can, however, predict what morphologies can result from this kind of isolation.

To the extent that evolutionary theory does predict the future or posdict the past, it does so by examining a known starting point, the constraints within which change is possible, and the relevant environmental pressures. Contrast this with creationism, which states its conclusion before hearing evidence from more than one source and leaves no room for new data. Intelligent design similarly states its conclusion in advance, but at least it attempts to predict and postdict. However, its predictions and postdictions have been, thus far, uniformly wrong.

Notice that the "hobbit" skeleton looks pretty much like what you would expect of a humanlike creature of small size. From what little of the remains we have to examine, its features appear to have generally humanlike proportions. As the theory of evolution would predict, the creature does not have wings, fins, gills, or other features radically different from its close evolutionary relatives. Nothing about this find suggests supernatural or alien influence. (Although archaeologist Peter Brown joked, "I would have been less surprised if my colleagues had found an alien spacecraft.") This creature is simply an animal that was genetically isolated from its closest relatives for a few hundred thousand years. As the Wired article explains, isolation on an island like Flores typically puts selective pressure on human-sized animals to grow smaller — which is exactly what appears to have occurred in this instance. The too-common refrain from the creationist camps that evolution fails to make falsifiable predictions is, again, demonstrably wrong.

Correction (29 Oct.): The remains have been dated to sometime between 12,000 and 18,000 years ago. I stated the latter as if it were firmly established. Fortunately, however, this gives me an excuse to link to more news and commentary coverage: Nature's Special Report, Tech Central Station, The Australian

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Topics: Science, Skeptical Inquiry

Wednesday, 27 October 2004

Obituary: Richard M. Schmidt, Jr.

Sadly, yesterday I heard that Richard M. Schmidt, Jr. had passed away on the 17th. First Amendment buffs will remember Schmidt as a champion of the free press and counsel for the Miami Herald in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). In that case, the Supreme Court struck down a Florida "right of reply" law that forced newspapers to publish responses to critical editorials. Chief Justice Burger wrote this memorable passage:

The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as [Tornillo] contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available. […]

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate. […]

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.(Id. at 256–258 (citations omitted))

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Topics: Civil Liberties

Saturday, 23 October 2004

Credibility of Internet articles in the Federal Circuit

For some time, bloggers have been discussing the reliability of Internet-based resources for legal research and as a basis for legal conclusions. (See, e.g.,: 1, 2, 3, 4) Last week, a panel of the U.S. Court of Appeals for the Federal Circuit made an interesting observation in In re DSS Environmental, Inc., 2004 U.S. App. LEXIS 21994 (Fed. Cir. 20 Oct. 2004) (unpublished). (via Patently Obvious) Read on....

In DSS Environmental, a trademark examiner for the U.S. Patent & Trademark Office (PTO) rejected a trademark application for the word DUALSAND as "merely descriptive" when used in connection with "water and wastewater filters." DSS, the applicant, argued that the term was suggestive, not merely descriptive. The examiner disagreed, citing the usage of nearly identical terms in two utility patents and 13 articles she found on the Internet.

In the final office action, the examining attorney refused to register the proposed mark. Relying on 13 articles found on the Internet, she concluded that "'dual sand' is a term-of-art in the wastewater and water treatment industry used to describe a specific filtration process." In reaching that conclusion, the examining attorney cited four articles to show how the terms "dual sand filters," "dual sand filtration system," and "dual sand filtration process" are used in the wastewater treatment industry. The examining attorney also refused to consider the list of third-party registrations that DSS submitted, because DSS did not provide copies of the registrations in order to make them of record. Id. at 3.

The Trademark Trial and Appeals Board (TTAB) affirmed the rejection — relying, in part, on the term's usage in the same two utility patents and 13 articles the examiner had found on the Internet. The Federal Circuit, in turn, affirmed the TTAB, calling this "substantial evidence" of mere descriptiveness. Id. at 6.

Having lost on its main argument, DSS attacked the credibility of the 13 articles on the basis that they were found on the Internet. The Federal Circuit rejected this reasoning because of the particular use made of the references. The examiner had relied on them to establish the usage of a term of art, not for the accuracy of a fact:

DSS argues that the articles in the record lack credibility because their source was the Internet. However, the examining attorney was not relying on the articles for their accuracy, but merely to ascertain how the term "dual sand" is used in the context of water wastewater filtration. In making such a determination, the examining attorney may obtain evidence from "any competent source, such as dictionaries, newspapers, or surveys." [In re Bed & Bath Breakfast Registry, 791 F.2d 157, 160 (Fed. Cir. 1986)], citing Northland Aluminum Prods., Inc., 777 F.2d 1556, 1559 (Fed. Cir. 1985); see also Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638, 641 (Fed. Cir. 1991) ("Evidence of purchaser understanding may come from direct testimony of consumers, consumer surveys, dictionary listings, as well as newspapers and other publications."). The Internet articles in this case, including on-line copies of newspaper articles, fully satisfy that requirement. Id. at 8–9

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Topics: Miscellany

Monday, 11 October 2004

Massachusetts settles first state CAN-SPAM lawsuit

CNet reports that Massachusetts has settled its lawsuit against DC Enterprises and its principal owner, William Carson of Florida. This was the first suit brought by a state under the CAN-SPAM Act (pdf). According to CNet, the settlement calls for a $25,000 payment and a promise not to violate CAN-SPAM (or Massachusetts' mortgage-broker and advertising laws) in the future.

Contrary to public sentiment, the state does not appear to have requested that the alleged spammer be drawn and quartered.

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Topics: Spam

Saturday, 9 October 2004

Political Science II

Anyone who reads DTM :<| knows what I think about President Bush's manipulation of science for political and religious ends (see, e.g., 1, 2, 3) and John Marburger's sale of his professional soul. (To be fair, there have been occassional, but unfortunately small, bright spots.) In this week's e-Skeptic, the editors of Skeptic Magazine have put together a summary of major events in this saga. See: "The Politicization Of Science in the Bush Administration: Science-As-Public Relations" and "'Political' Science."

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Topics: Politics, Science, Skeptical Inquiry

Wednesday, 6 October 2004

Interesting Patent Collection

A few months ago, I started compiling a collection of interesting patents. By interesting I mean patents that claim foundational inventions, that have funny drawings, that were obtained to prove a point, or that otherwise catch my fancy. I have some pretty good ones, and I am looking for more. I would appreciate suggestions from readers about interesting patents from any country.

Here are a few from the collection:

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Topics: IP

Blogging For Jobs

This New York Times article caught my eye because it captured my experience when I was interviewing for jobs last year: "Need a New Job? Check Out a Blog." (Via beSpacific)

I started writing DTM :<| last October, when I was looking for my first job after law school. (I had meant to mention my first blogiversary on Sunday, but I ran out of time.) Last November I had some correspondence with an editor of the Journal of Internet Law, who had read one of my posts on the CAN-SPAM Act, and he asked me to write a paper [pdf] for his journal. As soon as I finished writing the paper, I started using it as my writing sample when I went to interviews. It was a lovely gimmick — asking the lawyers across the table not to circulate my essay because it would soon be published. This would always get them to ask for the story behind the paper, so I got a chance to talk about my blog. About half of them took a look at it after I left.

When I started working for my firm, a few people mentioned that they had skimmed through my blog. A few months later, we hired a new associate. On his first day, he mentioned that he had seen my web site and read some posts in my blog. Thus, in a very short span of time, I was on both sides of the table. Although I was not directly involved in the hiring process for this new associate, he had gone to the trouble to check me out. Not a bad idea, I suppose — we work together a lot now.

When I have time to write a lot for DTM :<| (not so much in the last few months, regrettably), it reflects pretty well the things I think about on a daily basis. That sort of information is hard to convey in a cover letter, resume, and job interview.

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Topics: Technology



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