30 March 2007

TGIS: Thank God It's Schadenfreude! (108)

This week's joy in the misfortune of others comes courtesy of Kottke.org (from Tuesday, March 27; link good at time of posting):
John McCain is using Mike Davidson's MySpace template (without attribution) and pulling some images directly from Davidson's server, which is a big no-no in webmaster land. So Davidson modified one of his images displaying on McCain's MySpace page to say that he'd reversed his position on gay marriage, especially "marriage between passionate females".

[Previous TGIS]

28 March 2007

You say "Falklands" and I say "Malvinas"/ Let's call the whole thing off

Twenty-five years ago this coming Monday, Argentina invaded the Falkland Islands. Over the next couple of months, three things were firmly established:
  1. The Falklands are British possessions.
  2. Margaret Thatcher is a bad person to underestimate.
  3. Argentina should stick to soccer.

27 March 2007

Some career changes are more drastic than others.

George Washington started off a planter and ended up a president. O.J. Simpson started off a star running back and ended up a published author. I started off an attorney and I'll end up a carnival geek. Notwithstanding, I'd be hard-pressed to think of a career path more odd than that of former Seattle Mariners pitcher Byron McLaughlin. From Michael Atkins' excellent Seattle Trademark Lawyer blog:
The March 19 issue of The New Yorker has an in-depth story about lawyer Harley Lewin’s colorful career pursuing counterfeiters . . . . I was particularly interested to learn there’s a local angle to the story. Apparently, former Seattle Mariner pitcher Byron McLaughlin became something of a counterfeiting kingpin after his lackluster career dried up in the early-1980s. I had no idea.

Here’s what the article says:

“After some nosing around, [Mr. Lewin] figured out that something like half the counterfeit shoes in Mexico could be traced to a guy named Byron McLaughlin, who lived just over the border in a suburb of San Diego. Byron McLaughlin had been a major-league baseball player in the seventies and early eighties — he had pitched for the Seattle Mariners — but in the mid-eighties his career foundered and he started playing in the Mexican leagues. He made a deal with a couple of Korean companies to manufacture cheap counterfeit sneakers — Reebok, Converse, Vans, Adidas — for the Mexican market. By the time [Mr. Lewin] caught up with him, his business was booming: in a good month he would sell around eighty thousand pairs of sneakers for about three-quarters of a million dollars. (As Footwear News reported, McLaughlin pleaded guilty to money-laundering charges but fled the country before sentencing and is believed to be living near Cannes.)”

Well, it's often been said that players only become truly great once they leave the Mariners.

Those Wordy Samuelses Strike Again

My father, Jon Samuels, has recently published an essay at the PublicEducation.org site. In it he draws upon the observations of early America made by Alexis de Tocqueville, who suggested that the new nation's prosperity could be attributed in considerable part to its disdain for class strictures, its support for free movement within the country, and its acceptance of broad public education:
Writing today, de Tocqueville might note the erosion of our public schools and the roles played in that by racism, failed discipline, missing parents, rote teaching and testing gone berserk. But, he would be confident in our defense of public education. He would argue that it was not within the American character to shrink in the face of challenge. He would expect that we would tax ourselves sufficiently to provide for the common educational good.

He would not be surprised when we raised the station of our teachers. He would anticipate our solution of the dropout problem and our reinstitution of discipline and mutual respect in our schools. He would expect that we would use tests surgically to expand an improved curriculum.

He concludes:
I do not support any “choice” that would further impoverish our public school system, that, however unintentional, could result in a few fleeing the problems that affect the many, that could create educational slums to warehouse an overwhelmingly poor and minority population. That would not be the America that enthralled de Tocqueville . . . .

I am sure that those who disagree with me are acting out of the courage of their convictions. I would ask, however, that they also have the courage of the consequences of their convictions.

When it comes to public education concerns, I suspect that there's some daylight between our respective positions, but I respect his willingness, as a board member of Public Education Partners, a local education foundation in Aiken, South Carolina, to tackle difficult issues that have stymied many, many others. After years as a career military officer and a successful businessman, I'm proud that he's brought his considerable skills to bear on a topic of such pressing public concern.

26 March 2007

How many furlongs are in a liter?

Ah, springtime, when a young man's fancy turns to thoughts of divorce . . . Blawg Review #101 hosted by Diana Skaggs at the Divorce Law Journal site, that is. There's a lot of horsepower in this week's edition of the carnival; highlights include judicial ambivalence toward legal scholarship, family dysfunction, and non-fluffy women. From the post to the wire, #101 has things covered. As you run across outstanding legal blogging in the coming days, don't hesitate to declare it, lest it be excluded from next week's Blawg Review #102 at George Wallace's Declarations and Exclusions site.

23 March 2007

TGIS: Thank God It's Schadenfreude! (107)

This week's joy in the misfortune of others comes courtesy of Engadget (from Tuesday, March 20; link good at time of posting):
It could be argued that most people who break the law -- especially the type to commit petty crime, like purse snatching in this case -- aren't especially bright. But you know it's got to be a pretty humbling moment getting caught by a sewer-bot after escaping from the police bare-ass nekkid into a mucky, freezing cold, 3.3-foot wide sewer system. Really, was that little old lady's purse worth the trouble? We hope she was holding the medallion to the staff of Ra or something, because yo ass got busted. Sewer-bot: 1, criminal: 0. (Video after the break.)
[Previous TGIS]

20 March 2007

Unclean Hands

In the wake of Viacom's $1 Billion lawsuit against YouTube and Google, Eric Bangeman of Ars Technica does a bit of digging at Viacom's own iFilm and finds -- unsurprisingly -- copyright infringement:
I talked to Greg Gabriel, a copyright attorney at Kinsella Wietzman Iser Kump & Aldisert, about the issue. He told me that if Viacom isn't willing to take the same steps with iFilm that it wants YouTube to take with copyrighted content, Viacom may have a harder time making its case before the judge presiding over the case.

"It would have some persuasive value with a judge if YouTube says 'look, they're ranting and raving about all this infringement occurring on my site and they're not doing anything about it themselves,'" said Gabriel. "YouTube is testing the limits of the DMCA and Viacom is asking them to do something that the letter of the law does not require. Viacom is really asking the judge to do something extraordinary here."

As written, the DMCA does not require any type of active monitoring on the part of site owners. What Viacom wants is for the judge to "make a new interpretation of the law," as Gabriel describes it. The problem that Viacom will have in making its argument is that there's no precedent for the judge to draw upon. As a result, "Viacom's own conduct with iFilm will likely be a factor that the judge looks at," said Gabriel.

While this sort of finding is entirely predictable but nonetheless awkward for Viacom, another point Bangeman makes in passing caught my eye. In response to an inquiry from Ars Technica, a Viacom spokesman explained that, "Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site."

When it comes to copyright at least, this may put Viacom in a worse position than YouTube, which, to my knowledge, is an essentially automated system with no pre-screening by YouTube/Google personnel. By choosing to screen contributions, it seems that Viacom is taking responsibility for both the adequacy and accuracy of those reviews. In other words, if an infringing video is on iFilm, one could reasonably conclude that it's there with iFilm's (and by extension) Viacom's full knowledge and intent. YouTube/Google could plausibly argue that the DMCA takedown notice is the first prompt for human intervention in their system and that, prior to their receipt of such a notice, they have no knowledge of any specific instance of infringement.

Moreover, what should we make of the "prior to posting" comment in the Viacom statement? On YouTube, users post directly and YouTube/Google act merely as an online service provider, taking advantage of the safe harbor provisions of the DMCA. If the iFilm system requires that iFilm/Viacom employee-screeners post materials after review, doesn't that make iFilm/Viacom the infringing party rather than an OSP vis-a-vis any infringing videos?

Even if they're successful, this could turn out to be the most expensive billion dollars Viacom's ever earned.

19 March 2007

They Say the First Century is the Hardest

Whether you're hoping for a phone call from Willard Scott or pulling for your side at the Cricket World Cup, you can appreciate that a century is a big milestone. On the occasion of its one-hundredth weekly edition, Blawg Review takes a look back and anticipates what's to come.

The Anonymous Editor's outstanding retrospective of the first hundred issues of the weekly carnival of legal blogging is, appropriately enough, carnival-themed. Amongst the first hundred hosts, you'll find ringmasters, daredevils, and clowns, and with each host putting his/her/their stamp on Blawg Review week-by-week, the body of work that is Blawg Review reflects the eclectic nature of the legal blogosphere. The variety of blogs to which these issues link also demonstrates the considerable expansion -- in numbers, philosophy, and geography all -- over the nearly two years since Blawg Review #1's debut at Evan Schaeffer's Legal Underground.

A post from this blog appeared in that first issue and other posts were linked by several early issues; it's hard to express how those links and the e-mails and they generated from Blawg Review readers gave a much-needed boost to my confidence as a blogger. In assisting the Editor to compile the links for the first third or so of the list, I found that several (although fewer than I would have expected) of those early hosts had left the blogosphere. The fact that I'm still blogging on a regular basis is due in no small part to the support I've received from Blawg Review and from the many individual bloggers whom I've "met" through the carnival.

Although the marriage of legal bloggers which is Blawg Review shows no signs of breaking-up anytime soon, #101 will be hosted next Monday by Diana Skaggs at the Divorce Law Journal blog. Think of the children and be certain to tune in.

16 March 2007

TGIS: Thank God It's Schadenfreude! (106)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Monday, March 12; link good at time of posting):
Israel has recalled its ambassador to El Salvador after he was found bound, drunk and nude, a spokeswoman said Monday.

The longtime diplomat, Tsuriel Raphael, has been removed from his post and the Foreign Ministry has begun searching for a replacement, ministry spokeswoman Zehavit Ben-Hillel said.

Two weeks ago, El Salvador police found Raphael in the yard of his residence, tied up, gagged with a ball and drunk, Israeli media reported. He was wearing sex bondage equipment, the media said. After he was untied, Raphael told police he was the ambassador of Israel, the reports said.

Ben-Hillel said the reports were accurate and that Raphael has been recalled although he did not break any laws.

"We're talking about behavior that is unbecoming of a diplomat," she said.

[Previous TGIS]

14 March 2007

I'm Still Colin Samuels

A post I wrote some time ago concerning identity, anonymity, and privacy came to mind this morning when I read an article in the Wall Street Journal (subscription required) describing several new search tools:
[D]irectory companies and several start-ups are offering new people-search services that are more comprehensive and useful than the classic Google search at a fraction or none of the cost of a traditional background check.

The results are drawn from a wider variety of sources, moving beyond paid public-records databases and extracting information and even photographs from social-networking sites, blogs and random Web pages. This means it is now possible to find all sorts of revealing details -- true or not -- about anyone online, raising red flags with privacy advocates who worry the services could be exploited by identity thieves or stalkers.

. . . .

"It is startling how much information is out there," says Kathleen Pierz, managing partner of the Pierz Group of Clarkston, Mich. "Nefarious things can be done with that data in the hands of clever and messed-up people."

The new services stress that they aren't searching for any information that hasn't already been made public.

. . . .

The new online background services are developing ways to better solve common back-end technology problems like how to differentiate between two people who share the same name, using techniques like cross-checking information from multiple sources before they publish it in their search results. They have a broader range of sources to work with as well. As tens of millions of Americans of all ages join networks and groups online, the information is practically falling into their laps.

In my original post, I noted the many different information trails I left to be located and mined by pretty much anyone with access to the internet. Some of these are typical of anyone living in modern America -- driver's license records, credit histories, and images left on surveillance cameras are a few examples. For the most part, this information is just a byproduct of living in the real world. As I mentioned in the post, it might be possible to live "off the grid" in a sense by not driving, working, or interacting with ordinary financial and community institutions, but this would take a tremendous amount of discipline and might in itself attract the kind of attention it was intended to avoid.

Another class of information was, for the most part, less important but perhaps more informative. This class included those voluntary disclosures we routinely make to not just exist in the modern world but to also enjoy it; in my particular case, these included each and every post on this blog (as well as every comment I've left on others') and my Amazon wish list. When I first posted about this topic, some of this information which I chose to disclose might have been unusual -- considering the population as a whole, relatively few people are actively blogging even now -- but what's striking about the Journal article's findings is how both the opportunities and willingness to disclose increasingly sensitive information have developed in the last couple of years especially.

As a person does greater portions of his or her shopping online, the likelihood increases that that person will trade confidentiality for convenience by creating a publicly-accessible account identity or a wish list. Similarly, as greater numbers of people flock to social sites, the "value" of those sites increases and more people willingly create accounts and online personae. As those sites become more polished, they become more adept at harvesting information from and about their users, usually with those users' full knowledge and active assistance.

What's striking to me is that these "concerned users" who are quoted in every article like that in today's Journal (and are thereby indexed and made that much more searchable!) have, by and large, voluntarily traded their information for something they valued more at the time. Any damage they anticipate now results not from the disclosures they allowed but from the capacities of many entities -- both legal businesses doing nothing illegal and "clever and messed-up people" doing "nefarious things" -- to connect the dots by tying together far-flung bits of information to get a more comprehensive picture of a person.

For the most part, I don't see this as a crisis but as the natural results of people letting go of something they value lightly -- here, their personal information -- and regretting that down the line when they see its value to someone else. Should people be protected from identity theft and stalkers? Absolutely. Should people be protected from the legitimate use of their voluntarily-disclosed information by businesses and individuals? Absolutely not. In many ways, this argument confirms my long-held suspicion that the outcry an official effort to elicit information generally causes could be avoided just by sitting back and waiting for people to talk about themselves or hand over their personal information to some random third party in exchange for a few magic beans.

We've been taught time and again that when we hand over our money, we should be mindful of the old admonition "buyer beware". Increasingly, information is as valuable as money and most of us are only now starting to appreciate that fact. Where there's money to be made in exploiting information, that information will be exploited more creatively, completely, and repeatedly as time progresses. Discloser beware.

Viacom Puts Its Money Where Microsoft's Mouth Is

Yesterday, media conglomerate Viacom made good on an earlier threat by suing YouTube and its parent, Google, for copyright infringement. The Viacom claims come close on the heels of a widely-reported criticism of Google's copyright practices by a Microsoft attorney; if the legal community's attention was not squarely on Google before, it certainly is now. Over at the Internet Cases blog, Evan Brown has an excellent analysis of the Viacom complaint.

12 March 2007

He pardoned some Thanksgiving turkeys, but will President Bush pardon this dog?

Last week, what was conspicuously absent from the hundreds of news articles reporting the Libby conviction and dozens of editorial items advocating for, arguing against, or simply speculating about the possibility of a presidential pardon for Libby was a personal reminiscence about the Libby we don't know, the Libby beyond the bright lights of the trial.

Reformed lawyer Matt Barr fills that gap this week in Blawg Review #99, which he hosts at the wonderful group blog Begging to Differ. Barr has trouble accepting that the Libby he knows could really be guilty of the allegations made by Special Prosecutor Fitzgerald. That Libby is, all things considered, a good dog despite her occasionally troubled personal relationship with Muffin, who co-hosted Blawg Review #62.

In addition to coverage of the Libby verdict and a few thoughts about a dog gone wrong, #99 links to some of the best posts in the legal blogosphere over the past week. Highlights include the anniversary of the Dred Scott decision, Sarbanes-Oxley's expansion into child pornography law enforcement, and the potentially-most-expensive stock photograph ever.

Next Monday, we'll see a very special Blawg Review Number 100. Tune in when Blossom, the Anonymous Blawg Review Editor, and Blawg Review Sherpas Kevin Heller and Jen Burke plan an intervention for me after they discover a stash of diet pills, marijuana, illegal firearms, and pirated music in my blogroll [cue music].

OK, it's not that kind of special, but it'll certainly be special nonetheless.

When Lawyers Attack

BBC News has photos of the violent clashes in Pakistan between police in riot gear and lawyers in suits and ties. I've not seen anything like this since an ill-advised practical skills session at a police brutality law CLE. The Beeb's reporters chalk these riots up to "growing tension":
The Bar Association says the court shutdown is total.

"It's a complete boycott of the superior and lower courts by all lawyers," Court Bar Association president Munir Malik told the AFP news agency.

The BBC's Barbara Plett in Islamabad says the clash in Lahore reflects growing tension in the country since President General Pervez Musharraf removed the chief justice from his post on Friday.

The president had received "numerous complaints and serious allegations for misconduct, misuse of authority and actions prejudicial to the dignity of office of the chief justice of Pakistan," the state-run Associated Press of Pakistan news agency reported.

Lawyers, opposition parties, human rights activists and some judges have condemned the move as unconstitutional and a blow to the independence of the judiciary.

09 March 2007

TGIS: Thank God It's Schadenfreude! (105)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Tuesday, March 6; link good at time of posting):
It might have been one of the easiest drug busts in the history of the South Carolina Highway Patrol: A car with 43 pounds of marijuana crashed into a trooper's cruiser, authorities said.

The easy bust happened after two patrolmen parked their cars in each lane of northbound Interstate 95 near Santee early Sunday morning following a series of wrecks that had tied up traffic, Highway Patrol Capt. Chris Williamson said.

. . . .

Officers found two large duffel bags in the trunk with 43 pounds of marijuana in plastic bags, worth more than $150,000, Orangeburg County deputy Warren Pendry said.

[Previous TGIS]

08 March 2007

But if you wait for all the facts to come in, you might miss the lynching.

Observers have said for years that the Sarbanes-Oxley Act probably would have been written differently had lawmakers thought through the financial and other implications of the act rather than allowing themselves to be swept away in post-Enron/WorldCom hysteria. Admitting as much now is former Representative Michael Oxley (from the International Herald Tribune, via Professor Bainbridge):
Was Oxley aware, his questioners asked, that the law that he and Senator Paul Sarbanes, a Maryland Democrat, rushed onto the books five years ago after the collapse of Enron and WorldCom had contributed to a sharp decline in listings on U.S. stock exchanges? And, knowing what he knows now about the cost and effects of the law, would Oxley — who retired in January after 25 years in Congress — have done it any differently?

"Absolutely," Oxley answered. "Frankly, I would have written it differently, and he would have written it differently," he added, referring to Sarbanes. "But it was not normal times."

Professor Marc Hodak, commenting on Bainbridge's site, noted that he had recently given a presentation to international executives: "There I claimed that the only two people left who did not think SOX was a debacle were named Mr. Sarbanes and Mr. Oxley. I guess I have to modify that portion of my talk!"

06 March 2007

Copyright Catfight

Thomas Rubin, Microsoft's Associate General Counsel for Copyright, Trademark, and Trade Secret, delivered a speech today to the Association of American Publishers. His address is being widely-reported as a broadside at Microsoft's rival Google and is the source of much comment in both the legal and technology-interested portions of the blogosphere. The full text of Rubin's speech is available online in the "Press Pass" portion of Microsoft's web site.

Rubin begins by saying, "Thank you, Jack [Romanos, President and CEO of Simon & Schuster], for that kind introduction. Good morning." After that, there's probably very little that Google would not like to rephrase, recharacterize, or flatly deny. In all fairness, though, while it contains several very pointed criticisms of Google's Book Search project, the focus of the address is not only an offensive against Google (or any other rival), but is also a defense of Microsoft's business model with respect to online publishing. All in all, Rubin makes some excellent points which are worthy of further discussion:
  • "[T]hree simple principles can help us make the right choices. The first principle is that new services that expand online access to content should be encouraged. The second principle is that those new services must respect the legitimate interests of copyright holders; put conversely, we must forcefully reject any business model that is based on the systematic infringement of copyrights. The third principle is that even as we follow the first two principles, we must all work together to find consumer-friendly and cost-effective solutions to our shared goal of expanding online access to copyrighted and public-domain works."
  • "To accomplish its book search goals, Google persuaded several libraries to give it unfettered access to their collections, both copyrighted and public domain works. It also entered into agreements with several publishers to acquire rights to certain of their copyrighted books. Despite such deals, in late 2004 Google basically turned its back on its partners. Concocting a novel “fair use” theory, Google bestowed upon itself the unilateral right to make entire copies of copyrighted books not covered by these publisher agreements without first obtaining the copyright holder’s permission.

    "Google’s chosen path would no doubt allow it to make more books searchable online more quickly and more cheaply than others, and in the short term this will benefit Google and its users. But the question is, at what long-term cost? In my view, Google has chosen the wrong path for the longer term, because it systematically violates copyright and deprives authors and publishers of an important avenue for monetizing their works. In doing so, it undermines critical incentives to create. This violates the second principle I mentioned. Google has also undertaken this path without any attempt to reach an agreement with affected publishers and authors before engaging in copying. This violates both the second and third principles."
  • "From the perspective of [the publishing] business, Google’s approach is troubling for another reason. It assumes, in effect, that Google is the only game in town. Google argues that authors and publishers should simply notify Google if they want to preserve their rights in their works. But what if, as is inevitable, other companies around the world start taking the same approach? Should copyright owners be obligated to track down everyone engaging in unauthorized copying in order to preserve their exclusive rights in their works? Presumably, the desire to preserve these rights is why they asserted copyright in the first place. This approach would be absolutely unworkable in practice, which is probably why Congress in enacting the Copyright Act placed the burden on those who want to copy to get the express consent of the copyright owner, rather than the other way around.

    "In essence, Google is saying to you and to other copyright owners: “Trust us - you’re protected. We’ll keep the digital copies secure, we’ll only show snippets, we won’t harm you, we’ll promote you.” But Google’s track record of protecting copyrights in other parts of its business is weak at best. Anyone who visits YouTube, which Google purchased last year, will immediately recognize that it follows a similar cavalier approach to copyright. Since YouTube’s inception, television companies, movie studios and record labels have all complained that the site knowingly tolerates piracy. In the face of YouTube’s refusal to take any effective action, copyright owners have now been forced to resort to litigation. And Google has yet to come up with a plan to restrain the massive infringements on YouTube."
  • "[I]t is important for content owners and technology companies to work together and invest the resources to overcome obstacles that impede the realization of this great opportunity. Briefly, there are several key challenges that remain.

    "First, in order to promote innovation and online access, we need to figure out ways to reduce transaction costs of negotiations between online service providers and copyright owners.

    "Second, we need to preserve the benefits of the Internet’s global reach. While online service providers must be mindful of the territorial rights of publishers, we all need to recognize that enforcing these rights in an online environment adds enormous complexity and cost. We need to work together to reach solutions to this problem that are simple and efficient.

    "Third, we need to address the orphan works issue, an important issue that I have supported in testimony before the U.S. Senate Judiciary Committee. Online providers should make diligent efforts to locate copyright owners, but when they cannot locate the owner, there must be a process or a safety net by which they can move forward without risk of liability beyond payment of a reasonable royalty if the copyright holder later makes herself known.

    "Fourth, and critically, we need to understand and address consumer expectations. For example, most consumers now expect to preview content before they buy it, and this needs to be taken into account in the digital world. DRM tools and other technical restrictions need to be adopted carefully so that they do not frustrate consumers’ legitimate experiences and expectations, or else you risk losing the vast new market that’s before you.

    "Finally, all of us need to be open to adjusting our business models to add value for the book customer."
Granted, many others have addressed these issues over the past few years. It seems, however, that we're reaching a point where the intermingling of technology, art, and law has become so familiar to us that a meaningful and general dialogue about these issues can finally occur -- at last everyone is ready to have an opinion!

The press' takeaway from Rubin's presentation is the "Microsoft versus Google" angle and probably misses the point for the most part. At the publishers' conference, Rubin's audience was a friendly one -- a group desperate to maintain control of their traditional business models in the internet age and receptive to anyone who can offer them a light at the end of the tunnel. The real criticism of the issues raised in today's speech hasn't really begun.

If I were to handicap that coming debate, I think that the weakness in Rubin's plan will prove to be its reliance on digital rights management, or DRM. As Rubin framed the issue, "DRM tools and other technical restrictions need to be adopted carefully so that they do not frustrate consumers’ legitimate experiences and expectations . . . ." That's much easier said than done and touches on two distinct challenges.

One of these is technical in nature -- how do you construct a DRM method which is at once transparent to a consumer, impenetrable to a copyright pirate, and feasible for a businessperson? The will is certainly there -- there's enough money involved to pique anyone's interest, but there's not been a solution yet discovered which satisfies producers, consumers, and regulators all.

Incompatible DRM schemes have plagued consumers of downloaded music for years. Ironically enough, Microsoft's "Plays for Sure" compatibility scheme isn't compatible with its own Zune music player. A similar problem tripped-up Sony a couple of years ago when it launched a Walkman phone that didn't work with its own online music store. Apple's iTunes DRM is compatible only with its own iPod players; its DRM scheme is a legal and profitable one . . . for now. While the profits this closed-system generates are celebrated in Apple's shareholder meetings, those restrictions are broadly reviled in the European Union and proposed legal changes there may herald the end of Apple's iTunes golden age in some respects.

The second challenge is a legal one -- how do we prevent the DRM abuse which restricts our legitimate use of media under existing copyright laws. DRM has the capacity to unfairly shift control to producers just as piracy has the capacity to unfairly shift control to consumers. The objective here shouldn't be to emphasize either consumers' fair use rights or producers' rights to protect and monetize their works; rather the aim has to be to balance those interests in accordance with applicable laws. It's not a purely hypothetical concern; examples abound of questionable DRM restrictions, including (again picking on the Zune) Microsoft's decision to DRM-protect all music transferred between Zune devices, which fails to give any regard to much-greater fair use rights in many if not most of those transferred songs. Consumers who see their use rights whittled away tend to loudly rebel and even governments which are slow to react to reason do tend to react to volume. Regulation begets overregulation very quickly.

Microsoft's Rubin has highlighted several copyright-related challenges in our digital age and, to his credit, has put some skin in the game by championing an approach to solving those challenges. I'm interested to hear what William Patry, an acknowledged expert in these issues, has to say about Rubin's address in the coming days. I'm not speaking figuratively when I say that Patry wrote the book on copyright (all seven volumes of it); he was formerly copyright counsel to the U.S. House of Representatives Committee on the Judiciary and Policy Planning Advisor to the Register of Copyrights; he's also a very highly regarded blogger on copyright issues at The Patry Copyright Blog. All that aside, I think we can safely assume that he'll have an interest in this particular scrap -- he's currently the Senior Copyright Counsel at Google.

05 March 2007

The Secret Word Was "Confusion"

The wife and I recently introduced our daughter to Pee-Wee's Playhouse, which is available on DVD in two boxed sets (see here and here). She's enjoyed the episodes she's seen thus far and it's always a treat for a parent to see something they remembered from childhood (or, in this case, my years of early adult immaturity) afresh through a child's eyes.

In many ways, Pee-Wee's Playhouse was ahead of its time. When it came out, it was one-of-a-kind; now, you can see its influence on numerous cartoon and live action programs on various children's networks. As such, there was a degree of familiarity for her in the craziness in the Playhouse. She readily accepted cowboys and sea captains showing up to play with a grown-up kid in a suit and bowtie. She had no issues with a talking chair or a genie in a jeweled box. The picture phone conversations Pee-Wee had with his friends? Just like video instant messaging on the computer. Nothing there she couldn't grasp or accept.

When the King of Cartoons arrives midway through each episode, however, she'd get a look on her face like the dog does when I meow at him during moments of boredom. The King comes to the Playhouse to show old cartoons; it's not what he's showing that perplexes my daughter, but how.

He announces, "Let the cartoon begin!" and starts a film projector. She doesn't get that. What's film? Where's his DVD player or, if he's really a king, his digital cable with "On Demand" cartoons? If these cartoons are so old, why aren't they on VHS tapes like the most antique movies we have in our house? She has trouble believing that film projectors once existed in our lives. The fact that Mommy and Daddy remember them from classroom days past means that we must be as ancient as Pee-Wee's friend Pterry the Pterodactyl or the family of miniature dinosaurs who live in the Playhouse wall.

Success Guaranteed

After a principled exit from the Dean's World group recently, legal blogger extraordinaire Ronald Coleman has created a new home for his insightful and thought-provoking general interest and political blogging. His new blog, Likelihood of Success will be a complement to his law-focused Likelihood of Confusion blog, which has long had a place on my blogroll of recommended sites. Coleman's co-blogger at Likelihood of Success is David Nieporent, who has already made a splash with his contributions over at the Overlawyered blog. It's undoubtedly a recipe for success.

Two Out of Three R's Isn't Bad for a Monday

Susan McDonald hosts the ninety-eighth edition of Blawg Review at her Legal Research and Writing blog. Highlights abound. No. 98 links to studies of billboard aesthetics, success rates for pro se felony defendants, and fact reporting by judges. One linked post explains how prostitution is like real estate in that it's about three things -- location, location, and location; another post discusses the punctuation implications of the State of Arkansas legislatively-mandating the silent final 's' pronunciation of its name; yet another discusses the proper use of semicolons (ah, if only I'd read that before starting this sentence).

Next week's host will be Matt Barr of the Begging to Differ blog. Sure, it's a great source of legal news and commentary, but even if the BTD folks never wrote another word concerning the law, I'd still religiously check out the blog every Thursday morning for its irreplaceable analysis of the previous night's episode of Lost. Over the next week, we can be certain of two (and perhaps only two) things: 1) this Wednesday, the producers of Lost will reveal next-to-nothing about any of the underlying mysteries on the program; and 2) next Monday, you'll be lost if you miss Blawg Review No. 99 at Begging to Differ.

02 March 2007

TGIS: Thank God It's Schadenfreude! (104)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Thursday, March 1; link good at time of posting):
A man was shot in the hand by his own grandfather when he broke into the older man's home to steal beer and liquor, police said.

Darin D'Marcus Thompson, 18, of Camp Hill, was charged Wednesday with breaking into the home early Tuesday morning. Police said the grandfather, Herbert Miller, did not realize he had shot his own grandson until authorities told him who the intruder was.

Thompson broke in through a basement window and was going through a liquor cabinet when the noise alerted Miller, according to a court affidavit. Miller pursued Thompson into a darkened garage, then shot him, authorities said.

Thompson fled the home and sought treatment at a hospital, at first claiming he was the victim of a drive-by shooting, police said. He later confessed, according to police.

Thompson was charged with burglary, trespassing, attempted theft and criminal mischief.

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