The Interocitor

The New Neos

For any of you libertarians who've abandoned the increasingly solipsistic Libertarian Party, there's a new game in town. Check out the Neolibertarians for a wide range of libertarian thought about how to make the real world freer, rather than pretending it doesn't exist. Courtesy of Q and O.

Grokster's Problem

Yesterday, the US Supreme Court held its hearing on the Grokster case. The plaintiffs (Hollywood) assert that Grokster (and by extension all other free file-sharing services) is solely organized for the purpose of stealing copyrighted material. They have a strong case.

But the real question is not Grokster, but the implications that a decision in favor of Hollywood would have, calling into question any technology that could have substantial uses for recording or distributing copyrighted works without permission. Additionally, there is the accurate observation that Hollywood is using the law to suppress alternatives to their business model instead of adapting to changing technologies.

I see three possible outcomes, and I don't like any of them. In order of increasing distaste, these are:

• The Court rules that entities that are exclusively engaged in mediating theft, where all ancilliary uses of such systems are minimal to nonexistant, are liable for their user's infringement, but that a finding of substantial non-infringing design or use is a defense.
  
  I don't like this because it creates uncertainty in the marketplace and may make the creation of such systems and devices more difficult and economically challenging. On the other hand, such a ruling would encourage Hollywood to embrace digital technology to prevent a content vacuum from supporting unauthorized distribution on incidental or awkward channels. Bootleg videotapes could never compete once Hollywood started selling quality versions at reasonable prices.


• The Court rules broadly in favor of the defendants, essentially stating that there is no meaningful copyright protection in the digital age, and that any smidgen of legal use is sufficient to cover for all other uses.
  
  In this situation, Hollywood's only recourse is locking up their content in ways that thwart unauthorized distribution while changing their business methods so that there is little need for services such as Grokster. It is not clear that Hollywood can succeed in this. Nor is it clear that consumers would be willing or able to deal with the protection systems required, further encouraging use of underground networks.


• The Court rules that only technologies whose uses are subtantially non-infringing (the Betamax standard) are immune from liability for misuse.
  
  This would be an absolute horror as Hollywood would be empowered to obstruct, delay, regulate or suppress any technology which might be used to distribute unauthorized material. Hollywood's history is that not only do they do this (having fought television, cable, videotape, audiotape and now computers and digital recording), but that they do this when it is to their economic disadvantage. When forced, they have inevitably found business models that made them far more money than ever, once they embraced the objectionable technology. It is unlikely that devices such as TiVo, iPod or even DVD recorders would have been allowed to see the light of day if Hollywood had this pwoer. The slow rollout of HDTV, crippled by Hollywood mandates, would be the model.

But all of this begs a question. Why is it that there are so few noninfringing uses for Grokster? The answer, of course, is in Hollywood's successful campaign to avoid having any of its works ever enter the public domain. There is no content for Grokster to legally distribute.

Until 1976, copyright law protected works for a maximum of 56 years. Were this structure in place today, all works created before 1950 would be in the public domain, and Grokster's non-infringing uses would be manifest.

But Hollywood wanted to keep control of their audio and video works, so in 1976 "work for hire" compositons had their copyrights extended to 75 years. This would today have the public domain bar at 1930, which is arguably the beginning of the audio-visual recording age. Grokster would have some use, albeit marginal but growing, in distributing this content.

But Sonny Bono and Disney didn't want even that, so in 1998 Congress extended existing and future copyrights another 20 years, making it so that only works created before 1910, or whose copyrights had previously lapsed, are freely distributable. Hence Grokster's problem and the difficulty of its strict defense. The Bono Extension was challenged in 2003 (Eldred v Ashcroft), but the Supreme Court allowed it, as only infinite protection is Constitutionally barred. The Court did not view a 95 year copyright on, say, MS-DOS, as infinite.

While I fervently hope that Hollywood does not prevail in the Grokster case and innovation remains protected, until the copyright act is amended to restore reasonable copyright terms, we are going to see more and more of this, both infringement pressures and attacks on technology capable of infringement. IMHO, copyright terms longer than human lifespans are infinite.

See ScotusBlog, Justin Levine, and Patterico for further commentary.

Moron Alert

This man is a moron, and an angry moron at that. How else do you explain someone who would go to such trouble to create a coaxial trap to filter out one cable channel. Is it Playboy? Al-Jazeera? Reality TV? No, it's Fox News. But let him explain it:

It's not that Sam Kimery objects to the views expressed on Fox News Channel. [Of course not, but read on --ed] The creator of the "Fox Blocker" contends the network is not news at all.

Kimery says he has sold about 100 of the little silver bits of metal that screw into the back of most televisions, allowing people to filter Fox News from their sets.

"I might as well be reading tabloids out of the grocery store," he said. "Anything to get a rise out of the viewer and to reinforce certain retrograde notions."

"The point is not to block the channel or block free speech but to raise awareness," said Kimery, who works in the high-tech industry.

Kimery doesn't use the device; he occasionally feels the need to tune into Fox News for something "especially heinous."

Obviously a budding candidate for the Federal Election Commission.

Sorry Vladimir

Or, "the more you tighten your grip, the more systems slip through your fingers."

Idiot Phishing

Got this today:

Dear eBay Member,
We regret to inform you That During our regulary schedule account maintenance and verification we have lost on year 2004/2005 manny dates of eBay users ,
to recover your possibilites to join eBay update your credit card on file.
To resolve this problems please update your credit card on file and login to your account in order to resolve your account
problems. If your problems could not be resolved your account will be suspended for a period of 3-4 days, after that it
will be again operational. Per the User Agreement, Section 9, we may immediately issue warning...

Sic, including odd line breaks.

Dear Mr Gates, AOL and Yahoo! management: Please stop squabbling get on with the "Sender ID" thing forthwith. The best is the enemy of the good.

Equality is not commutative

"Money is not speech." -- Justice Stevens

"Speech is money, but money is not speech." -- Federal Election Commission

FEC Draft Rule (MORE)

Several more questions are answered in the FEC discussion of the relevant sections. What seems to matter is "who directs the blogging?", "who pays for the hosting?" and "who pays for the equipment?". Unfortunately, the answers bring more questions.

Of the examples below, Weintraub's California Insider would be regulated as corporate-sponsored unless newspaper exemptions applied (not clear as it is not the newspaper's opinion he posts). If he moved the blog to an ISP he paid for, and published the same commentary, it would be exempt. Then again, if it is subject to the SJ Mercury's editorial control, it may still suffer from corporate contamination. Or not. What a mess.

Blogging from a work computer, even to a personal blog, seems to be regulated, since you are being paid for being at work and the workplace owns the computer and network. This makes regulatory sense (if not actual sense) since it would be hard to determine whether the blogging is personal or directed by the employer. In practice, however, this part of the rule is unenforceable without trawling log files, so long as the blog is hosted elsewhere.

Professors Volokh or Reynolds would be considered to be using work computers and/or work-owned internet access even though they are in an educational setting -- their computers are not "public", nor is the network. A personal laptop hooked into a publicly accessible Wi-Fi network might be exempt though.

Then again, the FEC seems to be muddling the whole issue of "computer" -- the blogging process is network distributed in nearly all (ALL??) cases, and we are not told what level of insidious corporate poison is required to run afoul of the rule.

The rule is badly drafted. It seems that the intent is to differentiate paid political speech from other political speech and to regulate only the former. If the idea is to prevent sham bloggers, blogola and corporate or union fronts, they should concentrate the rule on "direction and control" not connectivity and ownership. The Internet is too distributed for that to make any functional sense.

FEC Draft Rule

The Democracy Project has posted part of the proposed FEC Internet regulation. On its face it's better than originally suggested:

No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.

I'm not sure, however, if this covers blogging from work or use of ISP hosting or things like Blogger. The ownership of "services" may cover ISP hosting, but blogging from work looks like a corporate contribution, and free hosting services are not "owned."

It would be nice if someone would publish a link to the entire rule.

UPDATES: Eugene Volokh has similar questions. The full text of the FEC rule is here. Hat tips: Instapundit.

MORE: The questions about ISPs are answered here:

Computer equipment and services within the meaning of this section shall include, but are not limited to, computers, software, Internet domain names, and Internet Service Provider (ISP) services.

Public and educational computers are also exempted. Blogging from work outside an educational setting seems to be regulated, as do corporate blogs. One wonders where California Insider -- a blog hosted at a corporate newspaper's domain -- would fall under these rules.

Terry's Law: A Suggestion

I'm really on the fence with respect to Terry Schiavo -- mainly because I don't know the medical details and suspect that few do (or care). To me, the question is 1) the degree to which her condition is pointless and hopeless, and 2) the incredible conflict of interest in the case on the part of her husband.

So, I'm not going to weigh in on the immediate issue, except tangentially. I propose that the Florida Legislature meet as soon as possible and consider the following law:

Any fund set aside as the result of a judgement by a Florida court for the maintenance and/or treatment of a person in a coma or vegitative state shall revert to the State upon the death of the benificiary.

If they pass it while Terry is still alive, it will at least prevent Michael Schiavo from benefiting. If not, it will still prevent a future situation where a caregiver's motives are conflcited.

When is discrimination OK?

Multiple choice test: Which of the following is permissible discrimination?

1. A Catholic charity firing a bookkeeper who cross-dresses at work?
2. A titty bar refusing to hire a man as a waitress?
3. A public university firing a professor for verbally supporting the country's enemies during wartime?
4. A magazine firing an editor for voting Republican?

Answer here

That's How Prop 13 Happened

Volokh conspirator David Bernstein writes that Virginia authorities are absolutely rolling in money given the DC area's dramatic runup in housing prices and the corresponding runup in property taxes. And that they are, of course, wasting it in ways that will come home to roost if the market ever drops.

Been there, done that. California went through this exact thing in the 1970's. Beginning in 1974, there was a boom real estate market in California. Between 1974 and 1976 the appraised value of my family's house doubled, as did many others. Property taxes were annually reassessed, and also doubled. Retired folks with fixed incomes and paid-off mortgages were hit hard, and everyone was complaining about the tax bill. Meanwhile, the Jerry Brown administration was considering a satellite launch.

Enter Howard Jarvis, Paul Gann and Proposition 13. Of course, by the time it passed, governments had internalized the boom year income stream and had a very hard time going back to their previous level of income. It would have happened anyway (e.g. the recession of 81-83), but with the 1% tax cap and the reassessment rollback, the government had to trim or run deficits -- they couldn't just raise taxes. They chose deficits, of course.

Wouldn't surprise me if we see more Prop 13s soon in places like Virginia.

Teddy Kennedy's VW

From the Interocitor bookshelf comes this phony 1973 ad, by way of National Lampoon's Encyclopedia of Humor. Volkswagen sued over the use of their logo and the book was pulled from the stands and reissued without the offending page. The logo has been censored here, in deference to VW. No deference to Teddy is expressed or implied.

There is a house in New Orleans

There is a house in New Orleans
they call the Rising Sun.
It's been the ruin of many a poor girl,
and me, O God, for one.

--Traditional lyrics

For generations, the song has been almost an anthem for New Orleans, famously redone by the Animals in the Sixties with somewhat different lyrics. But no one knew if the place had actually existed or where it had been. Apparently the Rising Sun has been found, completely by accident. According to the LA Times:

This winter, a nonprofit organization called the Historic New Orleans Collection decided to expand. The organization, which runs a museum and research center, owned seven buildings in the heart of the French Quarter but needed another to serve as a vault. The group bought a one-level, ramshackle parking garage on Conti Street — pronounced KAHNT-eye — and announced plans to tear it down.

The purchase was serendipitous. If just about anyone else had bought the lot, no study would have been conducted. But the organization — dedicated, after all, to Louisiana history — wanted to know the story behind its property. It asked a scholar at the University of Chicago and a New Orleans archeology firm called Earth Search to perform an excavation and document search.

The archeologists, who plan to launch a more exhaustive study on Tuesday, found that a hotel called the Rising Sun appeared to have operated on the site from the early 1800s until 1822, when it burned to the ground.

About 2½ feet below the surface, the researchers discovered a large number of liquor bottles. Alongside them was an unusually dense collection of rouge pots. The distinctive jars were painted sea green or blue and designed to hold makeup. They were heavier on the bottom than the top; that way a woman could sweep her fingertips across the rouge when she needed a touch-up without tipping the pot or stopping to pick it up.

No word on whether the historic society still plans to build their museum there.

Official Notice

If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.

(see Patterico for more on this)

SF Judge Seeks Re-Election

The LA Times and their East Coast namesake both have stories on San Francisco Judge Richard Kramer's ruling that the California constitution requires the state to certify same-sex marriages. As xrlq points out, there is no basis for this decision. The only thing that Judge Kramer proved is that Superior Court judges are elected, and Judge Kramer knows his electorate.

Now, unlike many of my Bear-Flag friends, I believe that same-sex marriage is inevitable and reasonable public policy. What I don't believe, however, is that it is required by any constitution. There is utterly no argument based on original intent, state or federal. Doesn't pass the laugh test. There are several compelling reasons for heterosexual marriage that do not, without extreme contortion, present themselves in the same-sex case. While the "right to pursue happiness" seems to me enough argument for enabling legislation, until there is a vote explicitly adopting such a provision any "living Constitution" assertion by pointy-headed judges is simple judicial activism of the worst kind. Even if the words seem to require such an outcome, the intent was never there, everyone knows it, and there is still a majority of public opinion against it.

Stupid. Stupid. Stupid.

It is so stupid in fact, that only those in oppostion to gay marriage should applaud this decision, as it will inevitably lead to an initiative amendment next election, rebuking the court and setting back marriage rights for gays a decade or more. Not to mention invite the Legislature to pass more of the execrable "marriage-lite" laws, which are the real threat to the institution of marriage.

It is so stupid, in fact, that one wonders if the motives of those who pushed it were to create a backlash in order to keep gays resentful and in the ghetto, lest they lose a power base.

UPDATE: Eugene Volokh explodes the "intent" argument by pointing out that when ERA foes said that the ERA would require homosexual marriage, the ERA proponents thought it an hysterical and extreme reading of the proposed Amendment. Yet the Court today finds (as did the one in Massachusetts) that the state Constitution's mini-ERA in fact requires such an outcome, never mind how ludicrous it seemed only 30 years ago.

Instapundit Record

I was looking around this morning at archived blog accounts of 9-11. A lot of very interesting stuff, and far too much to link to. One of the wonderful things about blogs is how they reflect the history of the moment, and not the history we're used to. I suspect that in the future, historians are going to have a field day with blog archives. But this one thing stuck out, from Instapundit on 9-13-01:

TRAFFIC yesterday hit yet another new record, breaking 4200 readers. I'm glad you're finding this worth reading.

I think Glenn gets 4200 readers a minute now.

The Captain Dares to Speak

Over at the Captain's Quarter's Ed Morrissey posts an open letter to Senators McCain and Feingold, demanding his right to free speech in the face of the proposed anti-blogger rulings they have demanded of the Federal Election Commission.

The effect of this would have been to force me to shut down my blog, or convert it to something else. In fact, it would have caused me less legal heartache to convert my site to a porn blog and do nothing but post hard-core pictures all day long. In the twisted environment of the McCain-Feingold Act, that kind of website would enjoy greater First Amendment protection than my political speech, a result for which every single Senator should feel shame and outrage.

As they say, read the whole thing. My comments on the issue are below.

Further into Fantasy?

Drudge reports that ABC is planning a new presidential drama, "Commander in Chief", with Geena Davis as "the first female president." Considering Ms. Davis' political leanings, one would guess that her character will be a liberal Democrat.

Which brings us to the question: "Can TV support two fantasy Democrat Presidents at the same time?" Or is Vinnick going to beat Santos?

Condoleezza Rice For President

The above statement may soon be illegal, so I'd better say it now.

Oh, yes, and the incriminating link.

The Irony of McCain-Feingold

The McCain-Feingold campaign finance law was designed to prevent the "monied interests" from monopolizing political speech. As Justice Stevens so clearly stated in affirming an earlier campaign finance law:

Money is property; it is not speech.

But there were loopholes in those earlier laws. Money somehow was managing to get to politicians despite the limits. All you had to do was wink and nod and pretend it wasn't aimed at any particular campaign. In short, water runs downhill. So, Senators McCain and Feingold proposed limiting all money to candidates. Further, they began to count non-monetary contributions, too.

The Congress passed this rubbish after years of debate, the President signed it for no good reason, and the Supreme Court -- which still views pornography and flag-burning as inviolate speech -- accepted that these further limits were needed to save the nation for democracy. One Justice openly asked for more.

Yet, still, somehow, money keeps getting into campaigns from every possible source. Billionaires, filmmakers, veterans, crooked network anchors and ad hoc non-profits of all sorts -- all seemed to be able to fund the nastiest, dirtiest presidential campaign in recent history. All within the law as the FEC saw it (and as the Supreme Court reviewed it).

Now, the Good Senators (and you should be in awe of their Goodness) are pressing the FEC to ban all internet speech that could be construed as providing a monetary benefit to a political campaign.

Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Let's recap. We started out saying "money is not speech." But what do we do when we find that speech doesn't take money? Or worse, that speech makes money? Apparently, if a blogger gets an income from his blogging through ads, those same ads are used to value his speech. Further political speech that supports a candidate is then charged as a campaign contribution, and too much speech may be subject to fine.

So, in order to prevent the plutocrats and their minions from controlling what we see and hear, we are going to have to shut down the only method of free communication that exists. Creating a blog takes a few hours and very few dollars, possibly zero. Pure free speech as this nation has never seen. It's value is measured not by what it costs, but in how well it is accepted, so more popular speech is valued higher. And is most dangerous, according to the crusading Knights of Rightousness.

So, we arrive at the obvious conclusion. It is not the money that is the problem, it is the speech. Those who dare to speak out of turn will be silenced, and the official speakers will have a clear field.

And of course, it won't end there -- water still runs downhill. More here

Redistricting Initiative Site

The web site for the "official" redistricting initiative is up. They've got the petition request form here. Courtesy of People's Advocate, the folks that brought you the recall. This is the version endorsed by Schwarzenegger.

Kleagle Byrd and Minority Rights

Senator Byrd makes much of minority rights in his defence of filibustering judges. He likens the Republican threat of limiting confirmation debates, requiring only 51 votes instead of 60, to Hitler's emasculation of the Reichstag. Odd, as I don't think they filibustered Hitler much.

It is hypocritical of Byrd, who once filibustered the Civil Rights Act of 1964, to invoke "minority rights." People like him kept Jim Crow running for nearly a century. I wonder what his opinion of Hitler was in 1936 anyway. He would have been 18 and donning his first hooded sheet.

The "Luck" Meme

When the Soviet Union fell, after a decade of determined effort, the Democrats went out of their way to avoid giving any credit to that idiot Reagan and his ilk. Even today you will find people who claim that it wasn't Reagan's doing at all -- it was an inevitible failure. The Revolution was betrayed. Never mind that these are all people who bitterly opposed Reagan's resumption of the Cold War and had nothing good to say about the prospects of winning. Not one of them said "The Soviets are bound to fail anyway." Instead they called for subsidies.

Now we are in the middle of a similar grand effort, again by a Republican president, to overturn centuries of horrid governance in the Middle East. At each and every point, the Left has opposed Bush. If he was for sanctions, they were against them and suggested force. If he used force, they recalled sanctions. If he committed to the one problem, they pointed somewhere else with pressing urgency. And throughout it all they asserted that the effort was doomed. Democracy could never flourish in the Middle East. Arabs didn't want it.

Amazingly, however, Bush's policies seem to be working, from Palestine, Afghanistan and Iraq to Lebanon and Ukraine and beyond. One can almost hear the mullacracy in Iran crumble. Most Muslims, like people everywhere, seem to want freedom and self-rule. And the ripples grow.

And what does the Left say? They're trotting out the "just happened" theory once again:

I think the way to look at it is, they can't credit for every good thing that happens, but they need to be able to manage it. I think what's happening in Lebanon is great, but it's not necessarily directly related to the fact that we went into Iraq militarily.

Or worse:

Well, there's still Iran and North Korea, don't forget. There's hope for the rest of us...There's always hope that this might not work.

Amazon Prime

A few weeks ago, Amazon introduced a new shipping offer. For an annual $79 fee, they'd ship any Amazon order by UPS Blue (2 day) for free. For another $4 per order, they'd ship it UPS Red (next day). One annual fee per household. Before this, to get free shipping, you'd have to order $25 or more, and accept slower fulfillment and the US Postal Service's whims.

Probably not for everyone, but my last American Express bill had 17 Amazon items on it, and that was fairly typical for my household. So, I figure, I'd be paying maybe $0.30 per order for 2 day shipping, no minimum. Not sure how Amazon will make any money on me with this, but I signed up the day it was announced.

And it works. For a few items, it has taken a day extra to fulfill, and they don't count weekends, but everything has arrived the day they promised. And I don't have to deal with my local post office which is not among the USPS's most efficient.

I find that I'm ordering single paperbacks and DVD's more casually, instead of ordering $30 at a time. Probably will spend more, but they're sending about twice the number of packages, second day. If they don't have an extremely good deal with UPS, they're going to lose money on me.

Not that that's particularly my problem as a consumer. But as a stockholder, I do wonder....