AUTHOR: Dan TITLE: Lorem Ipsum STATUS: Publish ALLOW COMMENTS: 2 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Miscellany CATEGORY: Miscellany DATE: 10/04/2003 12:36:17 PM ----- BODY: Since the 16th century, publishers have used lorem ipsum as dummy text to arrange and test typset. Why should my DTM :<| be any different? Credit for this particular text is due to the Lipsum generator. ----- EXTENDED BODY: Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Integer suscipit viverra tellus. Aliquam massa. Sed mollis est nec arcu. Curabitur pellentesque, diam vitae venenatis vestibulum, velit massa tincidunt lorem, sed imperdiet dui lacus volutpat odio. Donec fringilla erat nec est. In augue tortor, lobortis sit amet, posuere ac, egestas vitae, ipsum. Donec commodo. Phasellus auctor, massa eu malesuada aliquam, tellus diam posuere nulla, sed vulputate leo wisi ac odio. Aenean cursus sapien ac elit. Etiam ut dui at sem imperdiet cursus. Donec adipiscing. Duis pharetra cursus ante. Maecenas mauris quam, pellentesque nec, adipiscing eget, tempus non, diam. Nullam ligula nunc, mattis eget, posuere id, luctus sit amet, lectus. Donec dapibus. Sed fringilla eros non augue. Phasellus viverra nonummy augue. Sed in mi. Praesent erat massa, nonummy sit amet, adipiscing et, scelerisque eget, sapien. Mauris cursus tincidunt massa. Suspendisse quam dolor, congue non, egestas quis, molestie ac, velit. Nam tincidunt feugiat est. Morbi elementum neque ut nibh. Aenean tortor. Suspendisse aliquam. Aenean sodales volutpat mauris. Mauris feugiat, arcu et ornare egestas, ante lectus dignissim ante, eget aliquam libero ante eu neque. Maecenas id velit. Vestibulum ante ipsum primis in faucibus orci luctus et ultrices posuere cubilia Curae; Nulla tortor mauris, blandit et, accumsan non, viverra sed, erat. Suspendisse dictum. Pellentesque vel ligula id metus sagittis aliquam. Mauris hendrerit, ipsum ac eleifend accumsan, nulla neque vestibulum mauris, vitae scelerisque nunc ipsum in tellus. Ut in neque nec lacus consectetuer rutrum. Etiam iaculis, libero id varius scelerisque, erat sem fermentum enim, vel laoreet velit ligula et ipsum. Aliquam in dolor et velit molestie laoreet. Praesent sollicitudin sapien at tortor. Fusce non felis non felis consequat condimentum. Aliquam sollicitudin mi nec nunc. Ut in leo. Aliquam odio tortor, euismod ac, aliquet vitae, sodales at, tellus. Donec id dui nec neque pretium vehicula. Morbi dapibus. Morbi vestibulum elementum dolor. Pellentesque nec nulla. Nulla in metus at pede laoreet eleifend. Donec imperdiet, justo vitae vehicula blandit, leo sapien sollicitudin enim, sit amet molestie mi ipsum id pede. Vivamus dapibus mattis tortor. Integer fringilla lacus id sem. Nulla facilisi. Donec elementum cursus velit. Pellentesque vulputate, nisl sit amet vulputate pellentesque, tortor est rutrum sapien, in pellentesque urna diam eget pede. Fusce tristique dolor ut nulla. Mauris scelerisque lectus nec dui. Phasellus facilisis gravida libero. Vestibulum ante ipsum primis in faucibus orci luctus et ultrices posuere cubilia Curae; In metus velit, fringilla vel, interdum id, aliquet sed, orci. Mauris metus nulla, scelerisque scelerisque, vulputate et, sodales et, risus. Phasellus tortor. Mauris sollicitudin dolor et erat. Maecenas in metus. Donec et erat. Praesent massa. Nam lobortis tellus vel velit. Mauris tristique purus id tortor. Fusce quam elit, ornare in, cursus sed, dapibus in, erat. Donec et purus. Integer lacinia tristique purus. Cras quis sapien ut libero bibendum eleifend. Mauris et massa nec justo molestie hendrerit. Aliquam malesuada adipiscing ipsum. Maecenas quis erat at sem placerat elementum. Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas. In sit amet diam. Curabitur faucibus scelerisque massa. Nam quam lectus, ultrices sed, volutpat a, gravida in, mauris. Etiam massa augue, bibendum vitae, tincidunt quis, pharetra vel, ipsum. Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Cras sem. Suspendisse vel dui. ----- EXCERPT: ----- KEYWORDS: ----- COMMENT: AUTHOR: Testing EMAIL: IP: URL: DATE: 10/11/2003 05:44:01 PM This is a test of Movable Type's scripts for posting comments. If all goes well, I believe I have finished configuring the software. ----- -------- AUTHOR: Dan TITLE: Do Condoms Cause AIDS? STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Skeptical Inquiry CATEGORY: Skeptical Inquiry DATE: 10/11/2003 04:42:50 PM ----- BODY: Do condoms cause or contribute to the spread of HIV and AIDS? The Catholic church has concluded that they do — in the face of overwhelming epidemiological and public health evidence to the contrary. Two days ago, the news agency Reuters reported that the Catholic church has announced a "clinical" finding that condoms are responsible for the fast spread of AIDS throughout the world. Cardinal Alfonso Lopez Trujillo, president of the Vatican's Pontifical Council for the Family, explains that condoms are not 100% effective at blocking sperm and that the HIV virus is 450 smaller than sperm. HIV can permeate the condom's barrier more easily than sperm, so condoms are ineffective at blocking HIV. Meanwhile, Trujillo argues, experts promote condoms as an effective tool for blocking HIV infection, inspiring false confidence in the public and causing more people to become sexually active than would otherwise have sex. When their condoms fail to block HIV transmission, these people become infected. What is wrong here? ----- EXTENDED BODY: The World Health Organization (WHO) has studied the epidemiology of HIV/AIDS perhaps more than any other entity on this planet, and its research has repeatedly reaffirmed the scientific basis for condoms' effectiveness in combating the spread of the disease. WHO has initiated or promoted condom distribution programs in many developing countries, where HIV has reached epidemic levels of infection. Why? Because it has determined that condoms are a singularly effective tool for fighting the spread of the disease. Responding to the Catholic Church's position, WHO called it "dangerous when we are facing a global pandemic which has already killed more than 20 million people, and currently affects at least 42 million." While condoms do occasionally break and can permit the passage of semen, they reduce "the risk of infection by 90 percent and [are] certainly secure enough to prevent passage of the virus if not torn." (Source) True, this is not 100% effectiveness, but it is far better than zero. What does the Catholic church get out of this? To be sure, the church has never been shy in its opposition to artificial contraception of all kinds. Traditionally, it has grounded this position in religious and moral reasoning (the merits of which I cannot discuss as a good skeptic). Now, however, the church purports to advance a scientific — or at least empirical — basis for its position. Unfortunately, Trujillo's argument on behalf of the church does not address the root cause of its opposition to condoms. This opposition most likely remains rooted in an interpretation of scripture, not modern science. That scripture was fixed in rougly its current form centuries ago, in a manner that prevents it from growing and adapting to modern scientific findings that cast doubt on its teachings. (This says nothing, of course, of the church's ability to reinterpret scripture in light of modern knowledge or international politics — something the current Pope has shown more willingness to do than his predecessors.) All that said, the Catholic church may be softening its stance on condoms. Although this week's announcement seems to be an attempt to bolster the church's traditional position with science, it may also represent a fundamental shift in what the church perceives as the rules of the debating game. The church may finally be prepared to debate public health issues properly in terms of science, rather than scripture and morality. While reasonable people may disagree on the implications of most scientific studies, it is important that the church has finally joined the rest of the world at the debating table. We should take the church seriously on this issue and, to the extent that it continues to speak the language of science, on other issues as well. Having set the terms for public health debates, perhaps now we can work on the church's data interpretation skills — which have much room for improvement after this week. While this may be a good first step, we must be wary of a possible attempt by the church to "cherrypick" science — that is, to adopt data it likes for political or religious reasons and ignore data it dislikes for those reasons. Time will tell. ----- EXCERPT: ----- KEYWORDS: ----- -------- AUTHOR: Dan TITLE: Capitals lose a close one STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Hockey CATEGORY: Hockey DATE: 10/11/2003 08:52:46 PM ----- BODY: If football is a game of inches, then hockey is a game of seconds. The Washington Capitals opened the 2003-2004 season on Thursday, decimating the New York Islanders, 6-1, in front of a boisterous crowd at the phone booth. Rooky-sensation-to-be Boyd Gordon launched his NHL career on the top line with Jaromir Jagr and Kip Miller — and registered an assist on his very first shift. The Capitals' other teenage rookies played better than expected, too. Tonight the Capitals took the ice for game #2 against Atlanta. The Thrashers have not made the playoffs in the club's five-year history, and the team is still mourning the death of Dan Snyder (and the severe injuries of Dany Heatley) in a tragic car accident last week. You can never count out any team in the NHL, but tonight was should have been easier for the Caps than it seemed via the radio. Boyd Gordon scored his first NHL goal tonight, just over three minutes into the game. Sergei Gonchar looks like he is in midseason form already, tallying on the power play early in the next period. The rest of the game, unfortunately, belonged to Atlanta. The Thrashers scored four goals in the first two periods and held the Capitals at bay for most of that time. I cannot complain about the Caps' defense — they limited their opponent to 19 shots, after limiting New York to 18 shots on Thursday. (If this trend continues, the future looks very bright!) Meanwhile, the offensive effort cannot be faulted, either. The Caps took 30 shots tonight and 37 shots on Thursday. The main difference seems to be in their ability to finish. So why is hockey a game of seconds? Because Jagr brought the Capitals to within one goal with less than three minutes to play, and the team pressed hard for the final two minutes. Thrashers' goaltender, Pasi Nurminen, may have aged 120 days in those 120 seconds. With 2.7 seconds to play, the Capitals took their timeout after forcing a faceoff deep in the Thrashers' zone. The puck squirted back to the point at which point the MSNBC feed of the radio broadcast inexplicably cut off! Reading the post-game accounts, I learned that the final shot hit the post. Lucky for MSNBC, else I might have written something rather nasty in this space. ----- EXTENDED BODY: ----- EXCERPT: ----- KEYWORDS: ----- -------- AUTHOR: Dan TITLE: Google's reliability in question STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Technology CATEGORY: Technology DATE: 10/12/2003 12:14:18 AM ----- BODY: The word "Google" has long since become synonymous with "search" in the Internet context. I used to believe whole-heartedly that this moniker was richly deserved by the king of search engines because the quality of its product — search results — was unparalleled. When Google bought the most extensive usenet archive in existence from Déjà and applied its search technology to it, the usenet community relished having a more reliable and efficient search form for the archive. Google has grown so important to the Internet community that otherwise-honorable businesses engage in shenanegans (and occasionally outright scams) to boost their "rank" in the search engine's hit list. Before this backdrop, serious questions about Google's reliability have been raised in recent weeks. ----- EXTENDED BODY: In one notable example, Google misreports the number of pages in its index that match certain search criteria. One particular series of searches reveals a systemic flaw in Google's reporting. On 30 September 2003, a search for the keywords "quote dog cat stone" (without the quotes) yields the following reported result: "Results 1 - 10 of about 75,600." On that same day, a search for the keywords "quote dog stone" (again, without the quotes) yields the following reported result: "Results 1 - 10 of about 48,700." Note the difference between these two searches. The first query had four keywords, and the second had three — the word "cat" was removed. Google's default boolean operator is AND, meaning that when you search for more than one word, Google automatically looks for documents containing all of your search terms. You can change this behavior by typing "OR" or some other operator between the words. The default, however, should always produce more results when there are fewer keywords. It seems likely that many pages on the web will have at least one of our keywords, since quote, dog, cat, and stone are all relatively common words. But how many will contain two of the words? Cognitively, dog and cat go together, but it is easy to imagine many pages devoted to dogs that do not mention cats at all. Similarly, how many pages devoted to Craig Venter's poodle will mention "quote" or "stone"? This number will be even lower if we look for pages that contain all four words. In sum, the fewer keywords we use in the query, the more documents we should retrieve. However, Google's reported results were the opposite of what we expected: 75,600 hits for the four-word query and 48,700 for the three-word query. Meanwhile, very few documents were actually returned for these searches — fewer than ten documents for each. Why does all this matter? First, the public trusts Google to return search results reliably and impartially. Some civil libertarians fear that Google's position in the Internet search industry may eventually grow into a monopoly. Imagine having only one search engine available: it could, for example, direct everyone to its advertising partners, as opposed to the web pages that are really the best matches for the queries it gets. (A Machiavellian future, to be sure, but a possible one.) Second, researchers rely on Google. This is simultaneously the easiest and the hardest example to understand. Everyone has experience searching for information in an Internet search engine. When you do your research, you rely on the search engine to return accurate results. On top of this straightforward problem, consider the dilemma of the linguists in alt.usage.english. These academics and amateur enthusiasts rely on Google's reported results to determine how widely words and phrases are used. If, for example, 1 million web pages contain the word "cool" but only 10 thousand contain "groovy," this is evidence of a change taking place in our language. This technique also extends into demographic research. Google reports 1,490,000 documents containing "Filipino" but only 97,400 documents containing "Pilipino." This has some bearing on the number of people from the Philippines who are publishing information on the web — because they are much more likely than non-Filipinos to use "Pilipino" in English text. We have documented one instance where Google's reported results differ markedly from its actual results, so it is reasonable to suspect that other examples exist. The company guards its search algorithms as proprietary; so it is unlikely that we, the public, will ever know exactly what causes these discrepancies. And it is not always possible to catch Google red-handed. Today, the queries I posted earlier ("quote dog cat stone" and "quote dog stone") yield actual results that appear commensurate with the reported results. The company has evidently heeded the complaints it has received over the last few weeks and taken action to correct this particular problem. You, the reader, must rely on my good word (and that of a few usenet posters) that this discrepancy really did exist at the end of September. Since the largest usenet archive is under Google's exclusive control, the company might conceivably alter its contents to erase all dated posts that mention this problem. Please note that I do not believe such a scenario is likely. Also, I believe that, at this point, the problems I have outlined above remain relatively minor and affect only a small group of Internet users. That said, we should remain vigilant for such problems, to avoid being surprised by even bigger problems in the future. ----- EXCERPT: ----- KEYWORDS: ----- -------- AUTHOR: Dan TITLE: Why does China want to enter the space age? STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Science CATEGORY: Science DATE: 10/12/2003 10:54:47 AM ----- BODY: What should we make of the international ballyhoo over China's first manned space flight, reportedly planned for next week? The Chinese apparently see manned space flight as a prestige thing — a hallmark of a technologically elite nation. Only two other nations, after all, have attempted manned space flight: The United States and the Soviet Union (whose successor, Russia, inherited its equipment and human capital). Perhaps Beijing needs someone to point out that the nearly half-century of manned space flight has been an utter failure by all its stated metrics except for the development of technologies designed to send humans into space. Contrary to popular belief, only a few minor technologies owe their existence to manned space programs. The most famous examples of novel technologies that grew out of NASA's efforts to send humans into space and return them safely are myths or frauds (source: see item #3). See also. So why has China cared so much about manned space flight for such a long time? My answer: Who cares? Let them waste their money sending people into orbit, so long as it prevents them from deploying more nukes. ----- EXTENDED BODY: ----- EXCERPT: ----- KEYWORDS: manned space flight technology tang MRI teflon velcro Columbia shuttle ----- -------- AUTHOR: Dan TITLE: New Orleans meteorite causes craziness STATUS: Publish ALLOW COMMENTS: 2 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Science CATEGORY: Science DATE: 10/12/2003 11:54:33 AM ----- BODY: An entertaining article in today's Washington Post describes the tribulations of Roy and Kay Fausset in the three weeks since a meteorite crashed through their home. ----- EXTENDED BODY: ----- EXCERPT: ----- KEYWORDS: ----- COMMENT: AUTHOR: Mike Feldman EMAIL: IP: URL: DATE: 10/12/2003 05:26:46 PM Will this comment appear? Dan wants to know! Were all those hours slaving over a hot keyboard in vain? OH! The Humanity!! The Hannity! I hate Ann Coulter. But Al Franken's book is #1 again this week. Take that Bill O'Leilly!! Bwahahahaha!! Seriously, though. It's great to be here on Dan's blog. Take my blog..please. Everything seems to be in order. ----- COMMENT: AUTHOR: Greg Hintz EMAIL: IP: URL: DATE: 10/13/2003 10:48:20 AM I am seriously impressed that this works, I am very curious to see if this works, but I have a slight problem in that I am no where near as creative as Mike :( Well Dan, this kicks butt! ----- -------- AUTHOR: Dan TITLE: Shift happens STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: IP CATEGORY: Civil Liberties CATEGORY: Cyberlaw CATEGORY: DMCA CATEGORY: IP CATEGORY: Politics CATEGORY: Technology DATE: 10/13/2003 01:16:27 PM ----- BODY: John Halderman cracked an encryption and DRM system called MediaMax CD3, a product of SunComm Technologies. Why? He is a PhD candiate in Princeton University's Department of Computer Science, writing his thesis in computer security. In classic academic style, Halderman published the resulting paper on the web. In classic cranky-three-year-old style, SunnComm threatened to sue Halderman on several grounds, including a claim under the Digital Millenium Copyright Act (DMCA). SunComm's CEO's quote in the first news cycle since this story broke was precious: "No matter what their credentials or rationale, it is wrong to use one's knowledge and the cover of academia to facilitate piracy and theft of digital property." SunComm backed down from its lawsuit threat within 48 hours — after an enormous public outcry fueled by the blogosphere. This episode is important for two reasons. First, it shows the excesses of the DMCA and underscores how ridiculously overbroad its language is (in addition to being bad policy). SunComm must have interpreted Halderman's paper as either a "device" intended to "circumvent a technological measure that effectively controls access to a [copyrighted] work" under DMCA § 1201(a) or as trafficking in such devices. No person who speaks ordinary English would ever confuse a research paper with a device. Besides, Halderman defeated the system merely by holding down his shift key, so how "effective" could it be? Effectiveness of the DRM system is, after all, an essential element of the DMCA claim. SunComm may have deserved the $10 million decline in its stock-price value the day after the blogosphere picked up this story. Second, it shows the power of the blogosphere. The first Internet publisher to become a legitimate force in American politics was Matt Drudge when he broke the Monica Lewinsky story in 1997 — after the traditional press (namely, Newsweek) declined to print the story. The Internet's role in politics was considered routine barely five years later, when bloggers brought down Trent Lott — again, after the traditional news media dismissed an important story. The SunComm episode clearly shows that Internet publishers' influence has outgrown the first level of the political sphere, where rumor and innuendo are weapons in their own right. This time, bloggers slapped around a software company working for several major record labels — in two industries driven by bottom-line considerations. Blogging tools make Internet publishing easier than ever, and the number of bloggers is growing daily. Their voices are heard by one another — and now by the major media and corporate America. If we can continue to avoid demagoguery, this may be a good thing. ----- EXTENDED BODY: ----- EXCERPT: ----- KEYWORDS: ----- -------- AUTHOR: Dan TITLE: Update on Google's reliability STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Technology CATEGORY: Spam CATEGORY: Technology DATE: 10/13/2003 03:01:14 PM ----- BODY: The Washington Post (and perhaps other mainstream media) has picked up the story of Google's fallibility. This particular article speaks to the problem of result misreporting uncovered by Googlewhackers earlier this month, now being discussed on slashdot. The most thorough discussion of this problem yet published is Seth Finkelstein's paper, "Google Spam Filtering Gone Bad." I have discussed this problem in this space before and will continue to monitor it. ----- EXTENDED BODY: ----- EXCERPT: ----- KEYWORDS: Google reliability result report googlewhack ----- -------- AUTHOR: Dan TITLE: E-lection security in Georgia STATUS: Publish ALLOW COMMENTS: 2 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: eVoting CATEGORY: Civil Liberties CATEGORY: Cyberlaw CATEGORY: Politics CATEGORY: eVoting DATE: 10/14/2003 02:20:52 PM ----- BODY: The issue of election integrity has gained widespread public attention since the 2000 Presidential election debacle. Demagogues have taken up electronic voting systems as the silver bullet to cure all the ills of paper-based elections. While it is true that electronic systems do eliminate some problems, they introduce just as many — which are not solvable with current technology and election laws. ----- EXTENDED BODY: It has been apparent for some time that electronic voting systems lack sufficient safeguards to guarantee their security and integrity. David Dill, a computer science profesor at Stanford, has been pointing out these flaws for over a year now. For example, the companies that produce "touch screen" voting machines guard their equipment (both hardware and software) as trade secrets. Very little information about the equipment (beyond marketing literature, of course) is available to the public or to local election authorities before they enter contracts with these companies to provide products and services. The methods of keeping ballots physically secure and safe from hacker-tamperers are proprietary information in this burgeoning industry. In other words, the public is not permitted to know how their elections are being kept secure. Furthermore, there is ample opportunity for deliberate tampering with election results from the inside. No balloting machine currently on the market creates a hard copy of a ballot as it is cast. This would require installing a printer in each machine, which would increase the machine's cost, or connecting each machine to a central printer, which would destroy the secrecy of the ballot. Either way, the local jurisdiction must absorb the additional costs of printing (paper, ink, and maintenance on the printers). So why is a paper trail necessary when the point of these machines is to decrease costs while improving accuracy? Because the balloting machines' software is proprietary, nobody outside the company that manufactures it knows what it is doing. A first-year programming student could write a program that displays input from a keyboard on a screen while recording different information on a disk. A voter might press the button for Gray Davis and see his name on the screen, but Arnold Schwarzenegger's name could be recorded. If the voter cannot see a paper record to verify his vote, there is no way to ensure that the proper votes are being recorded. These paper ballots would be verified by each voter in the polling booth, then secured in a locked box in much the same way that paper ballots are stored now. Without paper records, it is impossible to link individual voters to individual ballots after the election, if tampering is suspected. Paper ballots remain intact long after the election, making investigations and hand recounts possible. It is a long-shot that anyone would ever fix an election in the U.S., you say? Maybe. But this is a live issue right now. Diebold Election Systems had its software certified by Georgia's election commission in advance of that state's 2002 gubernatorial election. Diebold then altered the software before the election without telling anyone! Diebold seems to have made the changes in response to reports that its machines were insecure and unreliable. Perhaps, but the move was awfully suspicious, considering that the election resulted in an upset and was decided by a very slim margin. Only a few votes would have to be altered to change the outcome and, without a paper trail, those few votes would be impossible identify. Wired News reports this story here. ----- EXCERPT: ----- KEYWORDS: ----- COMMENT: AUTHOR: Mark Fingerman EMAIL: IP: URL: DATE: 10/21/2003 05:26:48 AM "It is a long-shot that anyone would ever fix an election in the U.S., you say? Maybe." Are you kidding? Fixing elections in the United States has been a time-honored tradition since before Nixon. Take a look at the number of people who rose from the dead to vote in Chicago mayoral elections. Stroll down the hall to your nearest American History professor and ask for a dissertation on the background of the $2 bill in US election history. ----- -------- AUTHOR: Dan TITLE: Standing questions in Newdow may prevent a ruling on the merits STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Civil Liberties CATEGORY: Civil Liberties CATEGORY: Politics CATEGORY: Skeptical Inquiry DATE: 10/15/2003 12:57:00 AM ----- BODY: Yesterday the U.S. Supreme Court granted certiorari to the Elk Grove Unified School District in its dispute with Michael Newdow. In lay terms, it agreed to hear the case. Newdow indirectly sparked a firestorm of national protest last summer, when the U.S. Court of Appeals for the 9th Circuit ruled that a 1954 act of Congress that inserted the phrase "under god" into the Pledge of Allegiance violated the first amendment to the constitution. While some of the debate has been intelligent and productive (1, 2), some of it has been invective and immature. As the parties and government-intervenors prepare to argue before the Supreme Court, suggestions have been raised that the Court should "dismiss" the case on "procedural grounds." While the laymen journalists have gotten the terminology wrong, they may have the substance right. ----- EXTENDED BODY: Article III of the U.S. Constitution begins, "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish." Section 2 of Article III establishes the subject-matter jurisdiction of the federal courts — that is, the types of cases that the courts are empowered to hear. That section reads, in part:
The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects.
Together, these provisions give rise to the five-or-so (depending on how you count) sub-doctrines of justiciability: actual case or controversy, standing, ripeness, mootness, and political questions. These doctrines are complex in their detail, but their basic outlines are easy to understand. The long quote above from § 2 has been interpreted to require an "actual case or controversy" between two or more parties before a federal court can exercise the judicial power of the United States. The dispute must be a real one, not merely hypothetical, and the courts cannot issue "advisory opinions." The sub-doctrine of standing arises from this requirement. To have standing to assert a claim, a plaintiff must show that he has incurred some injury, that the injury has been caused by the defendant, and that the court has the power to redress the injury if it rules in the plaintiff's favor. In this context, "injury" is defined broadly as prejudice to any right or interest that the plaintiff is legally entitled to assert. This covers everything from physical/bodily injuries to loss of money or property and harm to the plaintiff's reputation. After the 9th Circuit ruled last summer, the school district and the federal government moved to disqualify Newdow as a plaintiff, arguing that he lacked standing to sue in this case. Their arguments revolved around Newdow's relationship with his daughter and her mother, Sandra Banning, whom Newdow never married. When Newdow filed the suit, Banning had sole legal custody of her daughter — meaning that Newdow arguably did not have a legal right to give input into her upbringing. Newdow has since obtained a revised custody order in a California state court that clarifies his rights with respect to his daughter. Under that order, Newdow has a clear, legally-cognizable interest in his daughter's upbringing. The standing doctrine, however, recognizes the plaintiff's status only at the time he filed the federal lawsuit. The Supreme Court has asked the parties to brief and argue the issues of whether Newdow had such an interest when he filed the present lawsuit three years ago and, if not, what should be done with this case. The Court's critics argue that it may use the standing issue as an excuse to shirk its duty to rule on the merits of the case. They are probably right, since the Court has clearly gained a sense of its political status in the wake of Bush v. Gore (the 2000 Presidential election case), Lawrence v. Texas (the Texas sodomy case), and Gratz v. Bollinger and Grutter v. Bollinger (the University of Michigan affirmative action cases). The facts of the Newdow case permit only one outcome — legally — but the Court will probably reach the opposite result for nonlegal reasons. The present Supreme Court is more conservative than any in recent history, and it would be highly entertaining to see it try to squirm its way out of its own precedents to find the Pledge constitutional in its current form — especially after Justice Scalia recused himself from this case. However, as an honest man, I could not profess respect for the First Amendment without showing an equal respect for the rest of the Constitution. Although the First Amendment codifies the most basic liberties of our society, it coexists with other provisions of the Constitution as equals. Those other provisions, while not as morally compelling as the First Amendment, are equally demanding of our respect. Serious questions exist as to Newdow's standing in this case. Those questions will require a detailed examination of family law in California, which is the final arbitor of Newdow's legal rights with respect to his daughter. If the Supreme Court decides this case on Article III (standing) grounds, I will be the first person to leap to its defense. If it reaches the merits of the First Amendment dispute by shortchanging its analysis of the federal courts' jurisdiction, I will be the first to pen an editorial against it. I do hold out hope, however, that the Court can resolve the Article III question in Newdow's favor and reach the First Amendment question legitimately. The worst harm that can come out of this situation will be for the Court to rule that Newdow lacks standing and dismiss the suit for that reason, then for supporters of the pledge in its current form to hail that decision as a ruling on the pledge. So let us try to avoid such misdirection, shall we? ----- EXCERPT: ----- KEYWORDS: ----- -------- AUTHOR: Dan TITLE: Iraq "war:" What's the point? STATUS: Publish ALLOW COMMENTS: 2 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: Politics CATEGORY: Politics DATE: 10/15/2003 08:23:51 PM ----- BODY: Stars and Stripes, the newspaper for American servicemen, has completed the most extensive survey yet conducted of American troops stationed in Iraq. Not surprisingly, the Bush administration's glurgy picture of troops' morale is not entirely accurate. In fact, it could be fairly described as wholly lacking basis in fact. About one-half of respondents described their morale as low. Approximately one-third characterized their mission as having "little value" or "no value at all," and about the same number reported that they believed their mission(s) in Iraq were "not clearly defined" or "not at all defined." Furthermore, over 40% reported that they have no training for their present duties. Pain perdue, anyone? True, the survey had serious methodoligical flaws. David Mazzarella, the newspaper's editorial director in Washington said, "We conducted a 'convenience survey,' meaning we gave it to those who happened to be available at the time rather than to a randomly selected cross section, so the results cannot necessarily be projected as representing the whole population." However, the results support what many already suspected. David Segal, a military sociologist at the University of Maryland at College Park, told the Washington Post that the new data bolster the conclusions he has drawn from other research. "I am getting a sense that there is a high and increasing level of demoralization and a growing sense of being in something they don't understand and aren't sure the American people understand," he said. How will President Bush respond? His people will eviscerate the survey's methodology, as well they should. Big Media has already picked up this story, but the articles fail to mention the methodoligical flaws until 15-20 paragraphs in — long after the average reader has stopped reading. The White House will not, however, address the (admittedly limited) substance of the survey's findings. After France, German, and Russia abandoned demands for a greater U.N. role in the reconstruction of Iraq, President Bush's ego may be just large enough that he believes that painting a rosy picture enough times can make it smell like roses. ----- EXTENDED BODY: ----- EXCERPT: ----- KEYWORDS: ----- COMMENT: AUTHOR: Mark Fingerman EMAIL: IP: URL: DATE: 10/21/2003 05:17:46 AM Of course the Bush White House will ignore the report. And inasmuch as the methodology of the study is flawed, even if it is thrown up in their faces, they have a buil-in escape. There are two possible scenarios depending on just how deeply seated your paranoia is planted. The first is, there will shortly be a change in the reporting and editorial staff at S&S for letting this "survey" get out in the first place. The second scenario should make the conspiracy fans happy. The survey was never meant to be released, but only leaked. Once leaked, the White House spin doctors have the methodology to point at and remind us all that the UN Security Council voted unanimously to help Iraq. They will ignore the number of countries that opted not to back their vote with silver or soldiers. They will also ignore the tirade of disparaging comments made against the UN due to its failure to join in on Operation Iraqi Liberation. The fun fact of the day is the name of the war was changed to Operation Iraqi Freedom. Did someone notice the acronym of the original name was rather revealing? ----- -------- AUTHOR: Dan TITLE: Copyright Liability Insurance: A Response STATUS: Publish ALLOW COMMENTS: 2 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: IP CATEGORY: IP DATE: 10/20/2003 11:31:39 AM ----- BODY: Steven Wu of Lawmeme has suggested a system of copyright liability insurance to protect file sharers from the risk of being sued by RIAA. The newly-organized P2P Fund is designed to serve a similar purpose, folded into a compulsory-licensing system. Ernest Miller has responded, arguing that such insurance is a bad idea. I find the idea intuitively appealing, and I think Ernest's criticisms are answerable. That said, I have reservations about the suggested implementation of the insurance scheme that must be resolved before it becomes workable. ----- EXTENDED BODY: As Steven Wu explains, self-insurance (where each person pays his own way) can be prohibitively expensive. If a sufficient number of file sharers buy into an insurance market, each one can pay a small premium and be protected. He compares this to patent infringement liability insurance, which is "professional liability insurance for manufacturers, users and sellers accused of infringing a patent holder's rights." 1. Critical Mass & Self-Selection Steven acknowledges the first major problem, critical mass, but he underestimates its size. An insurance company lives or dies by the number of people it can attract as customers. Steven treats this as merely a problem of getting the word out to file sharers ("people will join it out of self interest, which is always more reliable than altruism: the price is worth the peace of mind."). However, he gets to this point through a general economic analysis of insurance, comparing the economic advantages that an insurance market holds over self-insurance. Unfortunately, he ignores the concomitant problem of self-selection. The people most likely to buy into an insurance plan are those most likely to need its payout — in this case, the most active file sharers (which I shall call "heavy users" of file sharing networks). RIAA has stated publicly that it will at first sue the heaviest users, people who share over 1,000 copyrighted songs. "Light users," those who share a smaller number of songs or who share none at all, are less likely to pay into a system from which they are less likely to need a payout. Self-selection works against the viability of an insurance system, but it is not insurmountable: the system can account for varying degrees of risk. Life insurers do this routinely, charging different premiums or offering different payouts based on such factors as age and smoking, which affect a person's risk of developing health problems. Similarly, the copyright liability insurance policy could peg each person's premium to the number of files he shares, the number of hours per week he is logged onto the network, and other factors that affect the risk of attracting RIAA's ire. The identity of the insured's ISP may also be a valid risk factor. While Verizon and SBC have challenged DMCA subpoenas, others have complied without a fight. Heavy users would pay higher premiums, giving them a disincentive to buy insurance. On the other hand, this scenario gives light users a strong incentive to buy insurance. Light users would be footing a smaller percentage of other people's legal bills and paying a small monthly premium, so they may be likely to join. This, in turn, will raise the insured base and permit the insurer to charge lower rates to heavy users after a time. The net effect of these incentives is hard to predict in advance, but the insurance industry has good economists and actuaries working for it. Someone should be able to pin down a good set of risk factors and prices. 2. Discovery & Disclosure Ernest argues and Steven acknowledges that RIAA will likely change its litigation strategy if such an insurance system arises. I agree. However, finding out who is covered may not be as easy for RIAA as Ernest suggests. Federal Rule of Civil Procedure (FRCP) 26 requires automatic disclosure of some insurance policies. Rule 26(a)(1)(D) requires disclosure of "any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment." The language of the rule plainly contemplates insurance policies that will pay judgments against a litigant, not settlements. Most insurance policies will pay out for both, because they are designed to insure against types of claims that are frequently resolved by either judgment or settlement. In this particular market, however, RIAA has repeatedly stated to the press that it wants to settle its claims against file sharers, and no claim against an individual file sharer has yet gone to trial, let alone to judgment. An insurance policy could be written to reflect this reality and insure against settlements but not judgments, thereby sidestepping FRCP 26. If there is caselaw interpreting FRCP 26 as requiring disclosure of all insurance policies (and not just those insuring against judgments), I did not find it in a brief search. 3. Insurance as Evidence of Willfulness? Ernest further argues that the purchase of a copyright liability insurance policy is "likely to be considered evidence of willful infringement, which" would permit RIAA to seek higher statutory damages. I think he is wrong for two reasons. First, he does not explain why copyright insurance would be viewed with more suspicion than any other form of insurance. Do courts view doctors' and lawyers' purchase of malpractice insurance as evidence of negligence or willfulness? I have yet to see evidence of open season on patients and clients. Second, Federal Rule of Evidence (FRE) 411 prohibits the admission of evidence of liability insurance for this purpose. The rule reads, in relevant part, "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully." Under FRE 411, then, RIAA could not use the proposed copyright liability insurance against file sharers in court to prove willful infringement. The file sharers therefore have a colorable argument that insurance is irrelevant to the cause of action, should RIAA ask for that information in discovery. This is a valid ground to object to questions in depositions, documents requested for production, or facts requested for admission. The insurance may be relevant (and therefore discoverable) for other purposes if the defendant makes particular arguments — e.g., if he denies having shared files, owning a computer, or some other fact that is material to RIAA's claim. In such a case, RIAA would be able to use the insurance to prove ownership, control, or knowledge — but still not wrongfulness. Once RIAA learns through discovery that a defendant has purchased an insurance policy, it can use that information for whatever purpose it likes during settlement discussions, even if a court would bar it from using it for the same purpose at trial. Therefore, RIAA could learn of and use the insurance policy against defendants who deny certain aspects of RIAA's case but not against defendants who admit infringement. This is a problem that remains to be solved before this idea goes mainstream. 4. Conclusion So what should we make of copyright infringement insurance? The basic idea appeals to me. Would I buy it? Sure, if the price is right and these problems are worked out. The problems are real, although not as insurmountable as Ernest implies. This debate is a good first step to solving them. ----- EXCERPT: ----- KEYWORDS: copyright liability insurance policy RIAA discovery disclosure FRCP 26 FRE 411 file sharing ----- COMMENT: AUTHOR: Ernest Miller EMAIL: IP: URL: DATE: 10/20/2003 07:50:30 PM Dan Fingerman has some interesting responses to my claim that copyright liability insurance is a bad idea (Copyright Liability Insurance: A Response). The "insurance" he proposes only covers "settlements" but not "judgments." Thus, he argues, this "insurance" escapes the requirements of insurance discovery under Federal Rules of Civil Procedure (FRCP) Rule 26. It is an interesting argument and a truly bizarre form of insurance. I'm not so sure how many people would be interested in something that only protected them so long as they didn't go to judgment in court. Whatever the potential popularity of such a policy, unfortunately, Dan's distinction doesn't hold up. The problem is that a "settlement" is a type of judgment. It is, in fact, an "Offer of Judgment" under FRCP Rule 68. His second claim is that I am incorrect in my argument that purchasing insurance would lead to a higher probability of being found to have willfully infringed. He makes two counter-claims: 1) that this sort of insurance should raise no more suspicions than other forms of insurance, such as malpractice; and, 2) Federal Rules of Evidence (FRE) 411 prohibits the admission of evidence of liability insurance for this purpose. Counter-claim 1 contradicts counter-claim 2. The whole purpose of FRE 411 is to keep evidence of liability insurance from the jury because of its presumed prejudicial effect. Claim 2, however, is much stronger. Nevertheless, Dan does acknowledge that evidence of liability insurance can be admissible to show other elements of a case, such as ownership, control, or knowledge. This is precisely my point ... evidence of liability insurance bears directly on the question of knowledge: did the defendant know that use of P2P can lead to copyright infringement? If you have knowledge, then it is much easier to show willfulness. Now, there may be cases where such evidence would be insufficient to show willfulness, but that does not mean the evidence is inadmissible or doesn't bear on the question. ----- -------- AUTHOR: Dan TITLE: Copyright Insurance: Further Discussion STATUS: Publish ALLOW COMMENTS: 2 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: IP CATEGORY: IP DATE: 10/20/2003 09:39:30 PM ----- BODY: This article continues the discussion on copyright liability insurance, proposed (separately) by P2P Fund and Steven Wu of LawMeme. Ernest Miller posted some criticisms of the idea, to which I responded. Ernest has posted his reply, highlighting the weaknesses of my response. ----- EXTENDED BODY: Ernest points out that the insurance policy I suggested would be unusual: it would cover settlements but not judgments in copyright infringement suits. This may seem bizarre, but it is necessary for two reasons. First, it is an attempt to dodge the required disclosures under Rule 26 of the Federal Rules of Civil Procedure (FRCP). If the policy does not cover judgments, it does not fall within the literal language of the rule. If push comes to shove, a court might see it for what it is (an attempt to dodge the rule) and assess sanctions for failure to disclose. I would not recommend this litigation strategy for most people, but someone interested in setting precedent (EFF? ACLU?) might be interested. Second, Ernest mentions that most people would want an insurance policy that covers them for judgments as well as settlements. I do not think I argued to the contrary in my article. However, I believe that some people would make this trade-off to make the system workable and to keep prices reasonable. A culpable file sharer would be liable for at least $750 per song after judgment. Since RIAA is currently suing only people who (allegedly) share at least 1,000 copyrighted songs, an adverse judgment on all counts would incur liability of at least $750,000. Any commercially viable insurance product would require high premiums to cover such payouts — especially considering the self-selection problem and risk factors I discussed in my previous article. Few, if any, people would be willing to pay enough for the insurance to make it commercially viable. All that said, RIAA has filed over 450 file-sharing lawsuits this month. It cannot possibly intend to take them all (or even most) to trial and judgment. Settling the vast majority quickly is an integral part of RIAA's litigation strategy, and most of those settlements have been for amounts between $2,000 and $15,000. An insurance market can cover payouts of this size without exorbitant premiums, so buying settlement insurance is a reasonable counter-strategy for most people. The next point is one that we should perhaps ask of an experienced litigator. I suggested that settlement insurance would be outside of the disclosure requirement in FRCP 26 because it would not involve a "judgment." Ernest responded that a settlement is really an "offer for judgment" under FRCP Rule 68. My understanding is that an offer for judgment under that rule is a unique species of settlement offer. The rule requires the "losing" party after trial to pay the "winning" party's legal costs that are incurred after an offer for judgment if the eventual adjudicated judgment is nearly the same as the offer. The rationale is to encourage parties to settle and to economize judicial resources. Certainly, other forms of settlement offer exist. One common settlement structure entails voluntary dismissal of the complaint, mutual release of all claims, and (usually) some money or property changing hands. There is no reason for a settlement to require a judgment in many cases. (Notable exceptions are class actions and cases where extended judicial oversight of some aspect of the settlement is required.) That is the beauty of settlements being contracts — they can be whatever the parties want them to be. Finally, I believe Ernest misunderstands my argument about Federal Rule of Evidence (FRE) 411 and the admissibility of evidence of liability insurance to prove wrongful conduct. The Rule expressly forbids the admission of such evidence for this purpose. When I wrote that evidence of insurance is admissible for other purposes such as proving ownership, control or knowledge, Ernest jumped on knowledge as an element of wrongfulness. This argument has some intuitive appeal, since knowledge is an element of willful copyright infringement. However, in the context of FRE 411, "knowledge" means something different — it generally means that a person knows what is being done with her property. Proving ownership, control, or knowledge would likely be done in a case where the defendant argues that RIAA has mistaken her for someone else. The case of Sara Ward is illustrative. RIAA sued this 66-year-old "computer neophyte," alleging that she made over 2,000 songs available for sharing through Kazaa. Later, it came to light that most of the songs she is alleged to have shared would appeal to someone in a much younger demographic group — e.g., "I'm a Thug," by the rapper Trick Daddy. Furthermore, she owns only a Macintosh and no PC, and there is no Macintosh version of Kazaa. She appears to have compelling defenses against the lawsuit. However, if RIAA later discovers that she purchased copyright insurance, this would be strong evidence that she really does own a PC or that she knows someone is trading files through her ISP account, or that something else fishy is going on. This is what the FRE mean by "ownership" and "knowledge." Other media stories in recent weeks have highlighted the problem of children sharing files without their parents' knowledge. These parents might defend a lawsuit based on a lack of knowledge, and evidence that they purchased copyright insurance would eviscerate such a defense. I see no difference between the proposed copyright insurance and any other kind of liability insurance. I can buy copyright insurance to defray the cost of defending myself against a lawsuit without admitting wrongdoing, just as I buy car insurance to protect myself against the improbable event that I negligently cause an accident or that someone else hits me and has no insurance to cover my injuries. I have never driven carelessly, and no would-be plaintiff could introduce my insurance policy as evidence of carelessness. When a doctor purchases malpractice insurance, he does not use it as an excuse to deliver substandard care or deliberately harm his patients — he uses it to defray the costs of defending himself against rare lawsuits by disgruntled patients and even rarer payouts for settlements or judgments. Similarly, I trade many files via Gnutella that are not copyrighted, that I have permission to distribute, or whose copyrights I own. Occasionally, for fun, I rename files as "NOT [songname].mp3" in a deliberate effort to confuse RIAA. This practice may well land me in court some day, if RIAA does not believe those files are really "NOT" what they are named. Additionally, with the cases of obvious mistaken identity that have come to light in the last two weeks, there is even more reason for innocent file sharers — who are not infringing copyrights — to worry. Copyright liability insurance would be designed with this audience in mind. Are they likely to be its biggest consumers? Probably not. Is that a bad thing? I am not sure where I stand on that. ----- EXCERPT: ----- KEYWORDS: ----- COMMENT: AUTHOR: Ernest Miller EMAIL: IP: URL: DATE: 10/21/2003 05:51:24 AM Fingerman responds: Ernest points out that the insurance policy I suggested would be unusual: it would cover settlements but not judgments in copyright infringement suits. This may seem bizarre, but it is necessary for two reasons. First, it is an attempt to dodge the required disclosures under Rule 26 of the Federal Rules of Civil Procedure (FRCP). If the policy does not cover judgments, it does not fall within the literal language of the rule. If push comes to shove, a court might see it for what it is (an attempt to dodge the rule) and assess sanctions for failure to disclose. I would not recommend this litigation strategy for most people, but someone interested in setting precedent (EFF? ACLU?) might be interested. I remain skeptical that one can dodge the required elements of Rule 26 with this ruse. However, even if one does dodge the required disclosure under Rule 26, that does not mean they don't have to disclose. It just means that disclosure isn't automatic. To the extent that the public policy behind Rule 26 mandates automatic disclosure of insurance policies, I would expect that Rule 26 would encourage disclosure of insurance-like policies that cover "settlements" in response to a specific discovery request. You could fight the discover request, I suppose, but I'm not sure that would win you many points with a judge or the plaintiffs. And who exactly would litigate the issue anyway and on who's behalf? Which raises the issue of whether it is proper for representatives of this "insurance" company to represent the interests of those it insures. Normally, an insurance company's lawyers are allowed to represent the insured in court because it is assumed that the insurance company and the insured have interests that are quite similar - the lawyers for the insurance company will fight as hard as if they were directly employed by the insured. Why is that at all the case here? If anything, the lawyers for the "insurance company" in this case have every incentive to press for a judgment of any sort, thus eliminating any requirement for the "insurance company" to pay out. I wouldn't want a lawyer with such a mismatch of incentives to represent me ... heck, I'm not even sure it is ethical. Dan next agrees with me that insurance for judgments would cost too much. He notes that the RIAA would prefer to settle claims rather than litigate them. However, the point for the RIAA is not to litigate or settle, but to discourage people from file sharing - the current settlements are part of that strategy. To the extent that permitting this insurance business to operate would undermine this strategy, the RIAA will push forward to litigation where necessary. In such a case, if you are buying insurance because you are worried about the consequence of a lawsuit, the fact that the RIAA can push forward with litigation to "judgment" (at their discretion) leaves you as unprotected as if you didn't have any insurance whatsoever. So, why would people pay for this protection that is no protection whatsoever? Dan then notes that there are a variety of settlements and not all of them will be considered "judgments." This is true, and I should have been more clear. The point is that the RIAA can basically insist that the defendant make a Rule 68 offer or no settlement, and a Rule 68 offer is a "judgment." What is a defendant going to do? The RIAA says, "make us a Rule 68 offer of $3,000 and this case goes away, otherwise we take you to trial where you will be liable for a minimum of $750,000." If the defendant is so concerned about such an outcome that they are taking out insurance in the first place are they going to say "no"? What would be the point? And why wouldn't the RIAA insist on a Rule 68 offer? Because otherwise the defendant will insist on going to trial? Knowledge and Willfullness Dan argues that evidence of liability insurance can't be brought in as evidence of willfullness under FRE 411. True, but it can be brought in for a number of other purposes (such as knowledge), including those that would more likely result in a finding of willfullness. Dan insists that the knowledge provision applies only to knowledge of what is being done with a person's property. I disagree, I believe that it can be used to show knowledge that file sharing programs can infringe copyright. Furthermore, even if that isn't permitted, it certainly would be permitted to rebut the credibility of a defendant who denied knowledge that file sharing programs can infringe copyright. Basically, buying insurance will significantly reduce your ability to claim "innocent infringement" and make it much more likely that willfullness will be found. One of the first questions the RIAA's lawyers will ask defendants who don't settle is whether or not they knew that P2P could be used to illegally file share. If they say, "yes", you are well on your way to a finding of willfullness. If they say, "no", then the evidence of insurance can be instroduced to rebut or cast doubt on their veracity. Dan postulates a defendant who sometimes names files "NOT [songname].mp3" in order to trick the RIAA into an attack. Bad, bad idea, if you are actually file sharing files that are copyrighted by the RIAA. According to the RIAA, they are actually downloading songs from the individuals they target in order to verify that a representative number of songs are actually copyright violations. If this is this case, and you are also sharing files simply to taunt the RIAA, you are definitely looking at a finding of willfullness, whether you buy insurance or not. If the RIAA sues someone by mistake, and they can prove it, then the insurance evidence may not be relevant. But, really, are people so afraid of being mistakenly sued by the RIAA that they are going to buy insurance that only covers settlements? ----- COMMENT: AUTHOR: Serguei Osokine EMAIL: IP: URL: DATE: 10/21/2003 09:26:00 AM Gentlemen, Maybe you can tell me if the following twist changes this whole situation: suppose P2PFund has no idea who its customers are - and this is not a theoretical point, there is a technical way to achieve exactly that. So P2PFund cannot be forced to disclose anything, since all it knows is a bunch of account numbers that cannot be tracked back to real people. It would seem to me that this approach completely prevents the possible "sue the people with money" strategy by RIAA. However - when the subpoenaing phase is behind us, RIAA has a user in its sights, and this user knows that she is the P2PFund customer (but P2PFund is not technically capable of confirming or denying it, since it has no clue!) - so can this user be somehow forced to disclose her relationship with P2PFund? I mean, let's say she says 'no' - what could be the possible penalty for her 'forgetfulness'? ----- COMMENT: AUTHOR: Dan Fingerman EMAIL: IP: URL: DATE: 10/21/2003 10:17:25 AM Responding to Ernest: At this point, I think we have highlighted the major problems with the insurance proposal. I suggested a few things that I thought might alleviate those problems, in an effort to explore whether such a system is workable. You have shown convincingly that my suggestions are far from complete answers. You did an especially good job of making me less sure of my FRE 411 argument than I was yesterday. I still think the basic idea has merit — if people sufficiently expert in copyright, insurance and litigation resolve the problems we addressed. I admit that I could be wrong in the end. But I hope you agree that the insurance idea was at least interesting to begin with. ----- COMMENT: AUTHOR: Dan Fingerman EMAIL: IP: URL: DATE: 10/21/2003 10:42:30 AM Responding to Serguei: This is one question that Ernest and I have been discussing. The Federal Rules of Civil Procedure have a process called "discovery." Discovery is a mandatory part of litigation, in which the parties are required to share information with one another. Common discovery tools include depositions (where the parties ask questions of one another, under oath, with a court reporter present), interrogatories (written questions that require a written response), and requests to produce documents (which the other party is required to copy and turn over). There is also Rule 26, which requires parties to disclose some insurance information immediately, so that the other party does not have to ask for it via a discovery mechanism. Rule 26 is designed to make litigation more efficient. Since every litigant is going to ask for that information in the course of discovery anyway, everyone saves time by simply handing it over at the beginning. To answer your other question, yes, there may be penalties for parties' refusal to turn over information during discovery or disclosure. The court may impose sanctions ranging from holding a party in contempt (fines, jail time) to deeming that party to have admitted the fact that the other party sought to discover. A court would have a hard time believing that someone merely "forgot" about an insurance policy, if it finds out through some other means that the person is "lying." If RIAA can establish sufficient doubt about the veracity of the defendant's answers, there may even be grounds for RIAA to get a hold of the defendant's bank and/or credit card records in an effort to prove a payment to P2P Fund. These are hard problems for a defendant to work around. That is why I tried to come up with a creative way to keep the insurance policy outside the language of the automatic disclosure rule. Ernest has made clear that this is extremely difficult and risky. We may never know if it can work until some brave person bites the bullet and tries it. If the first person fails, someone else may be brave enough to try again. But these are awfully big risks to take, since the downside is a judgment of at least $750,000. ----- COMMENT: AUTHOR: Serguei Osokine EMAIL: IP: URL: DATE: 10/21/2003 11:46:48 AM Dan, thank you for an answer! Two quick comments and a question: 1. "...the downside is a judgment of at least $750,000" - that's exactly why the user might want to keep this information secret until the settlement is done. She'd probably prefer to pay a $2,000 settlement (paid by P2PFund anyway) than to risk RIAA "going for the jackpot" and refusing to settle for less than the full balance of the P2PFund bank account. 2. "...there may even be grounds for RIAA to get a hold of the defendant's bank and/or credit card records in an effort to prove a payment to P2P Fund" - there might be ways to hide that, either. The same payment anonymizer mechanism can work both ways. But I completely agree - this is something that would be more prudent to avoid. And now, the question: P2PFund is *not* the insurance business, and has little hope of becoming one, because of all the insurance regulation requirements. And as this discussion shows, it probably would be better off if it does not even try. Does this make any difference for the court? Or the judge can say that P2PFund is de facto insuring people and thus should be subject to all the relevant discovery laws? ----- COMMENT: AUTHOR: Dan Fingerman EMAIL: IP: URL: DATE: 10/21/2003 06:02:01 PM Serguei, Despite what you might guess from my postings here, I really know very little about the laws and regulations that govern insurance. From a litigation perspective, however, I suspect that P2PFund's self-identification as "not an insurance company" would make little, if any, difference. The rule that we have been discussing, Rule 26(a)(1)(D) of the Federal Rules of Civil Procedure, requires each party to disclose "any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment." If P2PFund has nonprofit status or takes some other measures to keep itself outside the federal and state laws that govern insurance, there is room to make the following argument: P2PFund is not "carrying on an insurance business," therefore the defendant is not required to disclose the insurance policy because the rule requires disclosure only if the insurer is "carrying on an insurance business." This is very similar to the argument I made earlier, when I said that the insurance policy could be designed to pay out for settlements but not "judgments" — because the rule mentions "judgments" but not "settlements." Both scenarios fall outside the literal language of the rule, but a court might still sanction a defendant for failing to disclose the insurance policy. This whole exercise is, after all, an attempt to avoid the spirit of the rule. Whether our argument succeeds may well depend on something as capricious as how sympathetic the judge is. ----- -------- AUTHOR: Dan TITLE: CDT report on broadcast flag STATUS: Publish ALLOW COMMENTS: 0 CONVERT BREAKS: __default__ ALLOW PINGS: 0 PRIMARY CATEGORY: IP CATEGORY: Civil Liberties CATEGORY: Cyberlaw CATEGORY: IP CATEGORY: Politics CATEGORY: Technology DATE: 10/21/2003 08:33:57 PM ----- BODY: Today, the Center for Democracy and Policy (CDT), Public Knowledge and Consumers Union (publisher of Consumer Reports) issued a 31-page report entitled "Implications of The Broadcast Flag: A Public Interest Primer" [pdf]. The report has an excellent description of the background of the broadcast flag and explains how the issues affect the television and film industries, the government, and the public interest with remarkable clarity. This is a must-read for anyone interested in the most active area of debate in copyright law for the next three years. The report's three most important findings (in my opinion) are: