Author Archive | David Post

A Really Dumb Scalia Footnote

Stuart and Jonathan have both commented on the legal analysis in today’s City of Arlington v. FCC opinion from the Supreme Court, about which I have nothing to say.  I want to direct your attention to footnote 1 in Justice Scalia’s opinion for the majority.  He has just introduced one of the parties, “CTIA-The Wireless Association,” and in the footnote he continues:

“This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what itstands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.”

This is a really embarrassing bit of nonsense — smarmy and snarky and extraordinarily stupid.

First:  0.45 seconds of work reveals that CTIA originally stood for the “Cellular Telephone Industry Association.”  It’s not a big mystery, “known only to wireless-service-provider insiders”: that’s what it says on the organization’s Wikipedia page.  So Scalia’s footnote communicates, to me, that he has never heard of “the Internet” and the very amazing things called “search engines” that let you “retrieve information” very, very quickly

And why that snarky remark about how it’s unpronounceable?  Let’s see … can Justice Scalia pronounce “FBI”?  (here’s a hint: “eff-bee-eye”).  DHS?    KLM Airlines?

If this were a student paper, I’d circle this and write something like:  “Really bad footnote – why highlight your own cluelessness in the very first footnote.”  From the Supreme Court, it’s really a bit embarrassing.  Reminds me, again, of what Justice Jackson said many years ago:  We’re not final because we’re infallible, we’re infallible because we’re final.

[Thanks to Peter Shane for the pointer] [...]

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More on the GOP and the Internet

Back last fall, I suggested (here, and here) that there appeared to be some movement among the Republicans to take on the mantle of “Internet freedom/innovation” as a political position, both because it is an issue on which the Democrats, with their hands deep into Hollywood’s pockets and vice versa, are very vulnerable, and because it might be a way of salvaging the votes of an entire generation that they’re on the verge of losing completely.

More evidence that something is afoot:  First, there’s the “Internet governance” bill making its way through the House, containing little more than a simple statement of policy: “It is the policy of the United States to preserve and advance the successful multistakeholder model that governs the Internet.”  The bill was passed out of the relevant Subcommittee on a straight party-line vote, strangely enough . . .

And now Bob Goodlatte (R-VA), chairman of the House Judiciary Committee, has announced that the Committee will conduct a “wide review of our nation’s copyright laws and related enforcement mechanisms,” involving a “comprehensive series of hearings on U.S. copyright law in the months ahead [whose] goal will be to determine whether the laws are still working in the digital age.”  I’m not sure exactly what he has in mind – but if the Republicans are smart, they’ll get on the right side (and the Republican Study Committee itself has provided a good blueprint on that) of this issue.


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Some Important Thoughts About Internet Governance

David Bollier and John Clippinger have an extremely interesting short essay on “The Next Great Internet Disruption: Authority and Governance” that is well worth reading.  They start from Reed’s Law:

When we look back on the past twenty years of Internet history, we can more fully appreciate the prescience of David P. Reed’s seminal 1999 paper on “Group Forming Networks” (GFNs).  “Reed’s Law” posits that value in networks increases exponentially as interactions move from a broadcasting model that offers “best content” (in which value is described by n, the number of consumers) to a network of peer-to-peer transactions (where the network’s value is based on “most members” and mathematically described by n2).  But by far the most valuable networks are based on those that facilitate group affiliations, Reed concluded.  When users have tools for “free and responsible association for common purposes,” he found, the value of the network soars exponentially to 2– a fantastically large number.   This is the Group Forming Network.  Reed predicted that “the dominant value in a typical network tends to shift from one category to another as the scale of the network increases.…”

It’s a little geeky, yes – [and, if you’re interested, I’ve got a somewhat longer and, I think, reasonably intelligible discussion in chapter 3 of  my book, here] — but I’ve long thought and still believe that it embodies a principle of the highest significance in understanding what the Net is and what it might become.  As I’ve said ad nauseum over the years to anyone who will listen, the Internet is, in a most important sense, entirely a phenomenon of large scale;  it is different from the hundreds of thousands or millions of other networks and inter-networks and inter-inter-networks out there in the world solely [...]

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Colin Davis, R.I.P.

British conductor Colin Davis died this past Sunday, age 85.  Davis was an extraordinarily gifted musician – to my ears, the greatest conductor of the last 30 years* (the one possible exception: James Levine).  He holds a special place in my affections because he “taught” me what conductors do, and how important they are.  In ’79 or ’80, my wife and I saw him conduct the Boston Symphony in a performance of Berlioz’ Symphony Fantastique at Tanglewood.  Just coincidentally, 2 weeks earlier, in NYC, I had heard a performance of the same piece by a conductor whose name I won’t reveal — turgid, plodding, and a real snore.  As that was the first time I had ever heard the piece, I (naturally, and stupidly) thought it meant that the piece was turgid, plodding, and a real snore.  Then we heard what Davis and the BSO could do with it.  To this day, it remains the most electrifying orchestral performance I’ve ever heard.  It hit me – that was his instrument! The whole orchestra was his instrument!  He was like a great pianist making a piece come alive, but with an instrument that was 1000 times more complex, with 1000 times more variations in color, and texture, and sound.  He built up a tension over the course of the 40 minutes or so that was damn near unbearable.  I distinctly remember the feeling at the very end – our seats were up towards the front, but somehow you just knew that there were four or five thousand people sitting behind you who were going to erupt the moment the piece was over.  And so it was – it was as though the entire audience had hot pokers applied to their asses at the last chord, every single person in the hall [...]

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Note to Trademark Office: This is Not Trademarkable

ATX Brands LLC, which owns Bikinis Sports Bar and Grill (in Bikinis, TX), has obtained a federal trademark for the mark “Breastaurant” in connection with “restaurants and bars.”  [I was hoping that this Yahoo story got it wrong somehow – but I checked at the Trademark Office site, and indeed, the term has been registered as a trademark.]

It’s a nice, textbook example of something that does not get trademark protection.  There is a fundamental principle of trademark law:  generic terms — terms that define a class of goods or services — can never get trademark protection.

Here’s the article from Yahoo News:

While Hooters, Twin Peaks, the Tilted Kilt and other chain restaurants that feature bodacious waitresses in skimpy outfits have been called “breastaurants” for years, the owner of the Texas-based Bikinis Bar and Grill is the first to make it official.  Doug Guller, CEO of ATX Brands LLC, which owns Bikinis Sports Bar and Grill, announced today he has trademarked the term “breastaurant” through the United States Patent and Trademark Office, meaning his company is the only one who can describe itself with the term.

“We’re really excited about receiving this federal trademark,” Guller said in a statement. “Our team has worked hard over the last seven years to offer a unique experience to our fans. It just further solidifies that Bikinis Sports Bar & Grill is America’s ONLY breastaurant.” . . . 

The trademark is a major move in the “breastaurant” industry. . . . Breastaurants are $1 billion-plus industry, and places like Twin Peaks, the Tilted Kilt, Bone Daddy’s and others are in a heated fight to knock the reigning breastaurant king, Hooters,off its throne.. . . Also competing is Canz, a New York-based roadhouse-themed sports bar that did what many would

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Bribery? Extortion? Political Speech?

Here’s an interesting case:  Someone posts a video on YouTube showing State Rep.Tarah Toohil (R PA) as a young woman smoking what appears to be a bong and about to kiss a woman sitting nearby.  Rep. Toohil acknowledges that she is the young woman in the video, but in  a video response says “I am not that young woman today,” and denouncing this “blatant and personal attack on me as a legislator …”

So far so good.  But next, “Anonymous” posts a video, just before election day, urging Toohil to change her position on legalization of marijuana or else face additional “exposure” of her “secrets.”

It featured an image of an empty suit, with a question mark in place of a head, as well as a montage of the black-and-white Guy Fawkes masks that were popularized by the film V for Vendetta and that have become a symbol for protests such as the Occupy movement.  The 85-second video borrowed the slogan of Anonymous, the elusive hackers who have taken on everyone from the Church of Scientology to banks: “We are Anonymous. We are Legion. We do not forgive, we do not forget. Expect us.” The voice-over, female and British-accented, said the “legions” were disappointed by Toohil’s response to the surfacing of photos showing her with what appeared to be marijuana. The voice demanded she support decriminalizing the drug – or else. “Everyone has secrets,” the voice intoned. “Please do not give us a reason to expose yours.”

The PA State police is investigating this as a possible felony.  The Phil. Inquirer story quotes George Parry, a Philadelphia defense lawyer and former state and federal prosecutor, who said, after reviewing the “secrets” video, that “on its face, it could constitute criminal conduct in that it aims to sway a legislator.


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The Supreme Court’s Small (But Helpful) Step Towards Copyright Sanity

The Court’s opinion in the Kirtsaeng v. John Wiley case, which came out on Tuesday, has some interesting fodder for those looking for glimpses of how copyright law is evolving these days.  The case centered on a hyper-technical question involving three interlocking statutory sections in the Copyright Act (I blogged about it in some detail here and won’t repeat that earlier dissection of the complicated statutory issues) with some quite significant real-world implications.

The basic question was this:  can Mr. Kirtsaeng purchase a copy of a John Wiley textbook that was lawfully manufactured (i.e., with the permission of the copyright owner) overseas, bring that copy into the United States, and re-sell it?  Copyright law clearly permits you to re-sell lawfully-manufactured books purchased here in the United States.  It also (thanks to the Court’s decision in the Quality King case a few years ago) permits you to re-sell books that you may have purchased overseas but which were manufactured here in the US.  The question here was whether re-sale right (the so-called “first sale doctrine”) applies to copies purchased and manufactured overseas and imported into the US.

Wiley argued that it didn’t – that the Copyright Act, which gives the re-sale right (in sec. 109(a)) only to the “owners of copies lawfully made under this title,” (i.e., Title 17 of the US Code, the US Copyright Act) imposes a geographical restriction on the re-sale right.  Copies are “lawfully made under this title,” Wiley argued, if they are “made in territories in which the Copyright Act is law” (i.e., the United States).

The Court – in a utterly brilliant opinion by Justice Breyer, a minor classic of the “here are all the reasons why my arguments are better than yours” school of opinion-writing — rejected Wiley’s argument and refused to [...]

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That Troublesome First Amendment, Michigan Edition

On January 18, 2013, the Circuit Court in Wayne County preliminarily approved a settlement in a class action charging that  McDonald’s had sold non-“halal” Chicken Mcnuggets that had been advertised as “halal.”  A local activist named Majed Moughni was unhappy with the settlement terms (which required McDonalds to pay some money to two local Dearborn charities, along with a hefty fee to the plaintiffs’ lawyers, but nothing for the other class members), so he began a Facebook campaign (“Dearborn Area Community Members”) where he criticized the settlement terms and tried to  organize opposition to it.

So far, so good.  But the plaintiffs’  lawyers filed an action seeking an injunction against Moughni’s Facebook page, asking  that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said).

Unbelievably enough, the court granted the motion and entered a preliminary injunction; finding that  Moughni had made “materially false, deceptive and misleading statements concerning the settlement . . . and concerning the rights of the members of the Settlement Class,” and that Moughni “thereby engaged in deliberate and abusive conduct which has created a likelihood of confusion of class members, adversely has effected the administration of justice and has undermined this Court’s responsibility and authority to protect Class members from such abuses,” the Court

(a) ordered Moughni to remove all statements about the case from his Facebook page and to replace them with the Court’s own expression, and the parties’ own expression, about the proposed settlement, in the form of the preliminary approval order and class notice;

(b)  enjoined him from making any other statements about the case in any other forum—whether in person or electronically, or to the press;

(c)  ordered him to [...]

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Hypercard Redux

[NOTE:  This brief essay comes from my friend and colleague David Johnson [from whom I first learned about Hypercard on our old Mac SE, many years ago)/DP]

Why we need an Open Source Hypercard

By: David R. Johnson

Livecode has launched a kickstarter campaign to raise the funds needed to allow it to re-engineer their latter day version of Hypercard, release it to open source developers, and make it free to everyone for non-commercial use.

You should back this campaign.

As I will explain, an open source Livecode will enrich education, increase interest in science and engineering, teach problem solving skills, and create a new form of literacy,

When Hypercard was first shipped with the newly released MacIntosh computer, millions of people who had never even thought about programming started to use it to create interactive software. Its scripting language was so much like natural English that most people could teach themselves how to build things by simply looking at some examples built by others.

Tragically, Apple didn’t appreciate what it had and withdrew support for its Hypercard program (ceasing to ship it with the hardware). But the “everyone can code” flame was kept alive, barely, by various successor products from other companies. LiveCode, now distributed by Runtime Revolution of Scotland, is a much more powerful, but just as accessible, successor.

The problem is that no one knows about LiveCode. No one teaches kids how to program with it. The large community of Hypercard enthusiasts is aging.  And the fact that anyone can write software, for their own purposes, has been washed away by “computer labs” that think all they need to teach is how to use applications and the presumptively more powerful, but much less accessible, technology of the web. I love the internet. I teach Internet law! [...]

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Copyright Nonsense

In my Copyright Law class, I’m teaching a fairly well-known (in copyright circles) trilogy of cases from the 9th Circuit on the permissible scope of copying of computer software (MAI v. Peak Computer, 991 F.2d 511 (1993), Triad Sys. v. Southeastern Express 64 F.3d 1330, (1995), and Wall Data, v. Los Angeles County Sheriff’s Dep’t, 447 F.3d 769 (2006).  I came across this in the Wall Data opinion; here’s the entire first paragraph at the very start of the “Analysis” section of the opinion [447 F3d 776-7]:

“The 1976 Copyright Act defines a ‘computer program’ as ‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.’  We have long held that a computer program is copyrightable as a ‘tangible medium of expression.’  Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521, 524-25 (9th Cir. 1984).”

That second sentence is really egregious; nobody who knows the first thing about copyright law would write a sentence like that, and nobody who knows the first thing about copyright law would leave it in a document they were writing.  “A computer program is copyrightable as a ‘tangible medium of expression.”  It’s gibberish; I would deduct points from a 1L exam for a sentence like that one.  To anyone who knows the first thing about copyright law, it’s like fingernails on the blackboard.

What the court meant to say was something like:  We have long held that a computer program is a copyrightable work of authorship that receives protection as soon as it is embodied in ‘a tangible medium of expression.’  Not ‘as a tangible medium,’ but ’embodied in a tangible medium.’

It’s not too big a deal for the case itself – the defendant was not really disputing [...]

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Jefferson Lives!

Lots and lots of nice, and nicely-wrought, Jeffersonian echoes, to my ears, in Obama’s speech today.

We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional – what makes us American – is our allegiance to an idea, articulated in a declaration made more than two centuries ago:   “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”   Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. . . .

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still.

That’s a pretty terrific little phrase:  “while these truths may be self-evident, they have never been self-executing.”  Very annoyed I didn’t think of that myself. [...]

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Copyright Unbalanced

Back in November, I made mention of a new book from the Mercatus Center on the Great Copyright Debate(s) — Copyright Unbalanced:  From Incentive to Excess — in which I had contributed a chapter (on the SOPA debacle).  I’m told that today – the second  anniversary of the SOPA “Internet blackout” — the publishers are making the book available for free download here (scroll down to see the free download link).  Nice! Come and get it! [...]

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Facebook, Governance, and Virtual Representation

Governing Online Spaces:  Virtual Representation

David R. Johnson, David G. Post, & Marc Rotenberg

  “The introduction of this new principle of representative democracy has rendered useless almost everything written before on the structure of government . . .”

Thomas Jefferson, August 1816

Facebook recently terminated its commitment to hold a vote on all policy changes that received comments from thirty percent or more of users. In defense of the move, it explained that the system encouraged quantity rather than quality of comments; some defenders of the move also have pointed out that reaching the requisite minimum number, on a platform with almost a billion users, was impossible to achieve in any event.

We believe that this presents an opportunity to rethink the ways that meaningful participation by users in the development of policies that will govern large (and arguably essential) online social spaces can be achieved.  In the online world, website policies, incorporated into their Terms of Service (TOS), “regulate” the activities of large numbers of people during increasingly substantial portions of their lives.  In effect, TOS represent a new kind of law – an amalgam of principles borrowed from property law (and a service provider’s right to impose conditions on access to its servers), contract law (although TOS terms are not the result of negotiations or meaningful acceptance by users, and, indeed, most service providers reserve the right to change the terms that users supposedly accept at any time), tort law (although TOS-law doesn’t generally provide for compensation for any injuries), and criminal law (although TOS-law doesn’t provide for due process or impose external sanctions). Terms of Service govern not merely the relationship between individual users and the online service provider, but the relationships among users.  They matter, and they will matter more and more as more and [...]

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Annals of Crime

The estimable Gene Weingarten of the Washington Post has written a wonderful article about the Jeffrey MacDonald murder case (the subject, originally, of Joe McGinniss’ “Fatal Vision,” and, more recently Errol Morris’ “A Wilderness of Error.”  It’s an extraordinary case — The McGinniss book, which I read when it first came out some 30 years ago, is simply one of the greatest true crime books every written, right up there with Capote’s In Cold Blood and Mailer’s The Executioner’s Song.  Morris thinks that MacDonald was railroaded and wrongly convicted — Weingarten explains very, very persuasively why that’s a lot of bunk.  Highly recommended. [...]

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