Author Archive | David Post

The Hall of Fame

As it happens, I have a more-than-the-usual-passing interest in the goings-on at the Baseball Hall of Fame this year.  My oldest friend (I say we met in kindergarten, though he seems to think it was 1st grade), Eric Nadel, who has spent the last 30 years or so down in Texas as the voice of the Texas Rangers, is being given the Ford Frick award — in essence, selection to the broadcaster’s “wing” of the HOF.  A really terrific honor, putting him in some very illustrious company, including Mel Allen, Red Barber, Vin Scully, Lindsey Nelson, and other icons of our youth, and I’ll be heading up to Cooperstown this July (along with about 100 or so of Eric’s friends and family) for the festivities.

So I paid some attention to the recent news about this year’s inductees on the ballplayer side: Tom Glavine, Greg Maddux, and Frank Thomas, and I stumbled across Tom Boswell’s magnificent piece on Maddux in the Wash. Post.   Maddux is surely one of the most interesting ballplayers ever.  He seems to be one of those people who has the kind of internal constitution that would have enabled him to be really, really great at anything to which he devoted himself.  He figured pitching out:  hitters can pick up the spin of the ball, and the location of the ball, but they cannot pick up the ball’s relative velocity (without cues from spin or location).  So then he worked and worked and worked and worked to implement that simple principle — making all of his pitches, in Maddux’s own words, look “like a column of milk” – surely one of the best sports similes ever coined by a ballplayer.

And Boswell tells this story at the end.  Maddux’s father, who worked as a dealer in the [...]

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Our Ridiculous Copyright Regime, Cont’d: Part 239

A federal court in Illinois has recently decided that Sherlock Holmes — or, more precisely, the characters and incidents in the Sherlock Holmes stories published prior to 1923 — have, indeed, finally fallen into the public domain.  Not, mind you, anything post-1923 – but, via the complex workings of the Copyright Act, the pre-1923 stuff is free for all.

Sir Arthur Conan Doyle was born in 1859.  He is as distant a figure from my students, say, as Charles Dickens is to me – from, literally, another age.  I can understand and even celebrate a copyright system that enriches Mr. Doyle a-plenty for the wonderful contributions that he made to our shared culture.  But I cannot understand – and no rational person could possibly explain or justify, in my view – a copyright system that continues to transfer money from other creators and readers and viewers of movies to Mr Doyle’s great-great-great-great-grandchildren, on account of those long-ago contributions.  It is ridiculous and an embarrassment to us all.

[Correction: I initially wrote that Doyle was born in 1879, whereas it was actually 1859 – making it even more ridiculous . . . ] [...]

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The front page of today’s (print edition) New York Times has the following lead headline in the upper right:

Christie Faces Scandal on Traffic Jam Aides Ordered”

That strikes me as a very odd headline.  “Facing” a “scandal” is not a reportable fact – is it?  Where, exactly, is this scandal?  The answer, of course, is: it’s in the rest of the article.  The article is in fact helping to create the scandal, detailing all of the recent charges and counter-charges involving Christie, while the headline says it’s already out there, somewhere.  Very, very peculiar.


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Aereo, and the Strange Case of the “Public Performance” Right in Copyright Law

As you can see in this very informative infographic and blurb, there’s been a LOT of activity recently, with a good deal more on the way, involving the question of whether Aereo’s technology (or that of a copycat service, formerly called “Aereokiller” and now “FilmOn”) constitutes a “public performance” of the underlying copyrighted TV shows.  [In a nutshell:  the technology involves assigning a tiny antenna and a portion of disk space to each subscriber, which allows the subscriber to record and subsequently to view over an Internet connection, anything he/she has recorded from the over-the-air TV broadcasts.  See my earlier blog posting, here].  Is this a “public performance” of the copyrighted programming (in which case Aereo is infringing, unless it obtains a license)?  Or is it a (large) number of private performances, one for each subscriber, in which case it’s not an infringement and no license is necessary.

The issue has the TV industry up in arms – a few months ago, a Fox Broadcasting spokesman indicated that if Aereo’s early victories in the courtroom (in the 2d Circuit) were not somehow overturned, that it would seriously consider getting out of the broadcast business entirely.

It’s a very, very complicated little issue of statutory construction.  The basic problem is this:  the statute defines a “public performance” of a copyrighted work to include “transmit[ing] . . . a performance . . . of the work . . . to the public, by means of any device or process . . .”  The broadcasters say – not implausibly – that that is exactly what Aereo is doing: transmitting a performance of copyrighted programming to the public.  No, says Aereo:  we’re not transmitting “a performance,” we’re transmitting thousands of performances, each one of which goes only to a single subscriber [...]

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The History of the Internet, Typography Division, Cont’d

As regular readers know, I have the proverbial bee in my bonnet in regard to the necessity for retaining the initial capital “I” when writing about “the Internet.”  I think it actually matters a good deal — see here and here if you’re interested in my reasons for thinking so.  But in any event, my particular obsession makes me alert to typographical variations in the word, and I recently came across a particularly nice one.

The US v Morris case from back in the late ’80s/early 90s was, for those old enough to remember, a particularly significant cultural moment in the history of the Internet.  Robert Morris, then a young grad student in computer science at Cornell, had — apparently somewhat unwittingly — unleashed the first Internet “worm,” and it put him (and “the Internet”) on the front page of newspapers all around the country.  He was ultimately convicted of violating the then-fairly-new Computer Fraud and Abuse Act (though that didn’t stop him from having a rather distinguished career in computer science, leading to his current position as Professor at MIT).

The Second Circuit upheld his CFAA conviction, in an important opinion written by Judge Jon Newman (US v. Morris, 928 F.2d 504, CA2 1991).  I had read the opinion years ago, but re-encountered it for a class several weeks ago, and noticed the really unusual way Judge Newman uses the term “Internet.”  (Newman happens to be a wonderful prose stylist, and someone who is careful about his use of words; not only did he, coincidentally, go on to become the 2d Circuit’s pre-eminent voice in copyright matters, he also seems to be the kind of person who would be interested in these typographical and semantic matters, having himself co-authored, with his father, an authoritative geneological re-construction of the [...]

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Ominous Developments on the “Internet Governance” Front

The future of Internet governance is starting to look more and more worrisome, and that should concern anyone interested in the Net as a platform for free and open global communication.  This past week brought us a Declaration by the major Internet standards-setting organizations — ICANN, the Internet Society, the Internet Architecture Board, the World Wide Web Consortium, among others – expressing “strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance,” and calling for “an ongoing effort to address Internet Governance challenges . . .  towards the evolution of global multistakeholder Internet cooperation” and for “accelerating the globalization of ICANN and [Internet numbering]  functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.”

There’s a fair bit of complicated background and subtext here amidst the gobbledygook of international bureaucratese.  Milton Mueller, over on the Internet Governance Forum,  describes this as “the core Internet institutions abandoning the US government” – which may be something of an exaggeration, but captures some features of what is happening.

But this is more than just blowback from the Snowden revelations and push-back against the US’s prominent position in many of the major Internet governance institutions.  As it happens, I’m all for accelerating the “globalization” of Internet governance, and have said as much for decades; I think that policy-making for the Net — Internet-wide rulemaking binding on all Internet users (as opposed to, say, rule-making processes applicable only to US users, or French users, or Brazilian users, etc.)  — can only be accomplished legitimately by institutions that collectively have some claim to represent the people of the world, all of whom will be affected by Internet-wide rules.  We are, after all, all created equal, and each [...]

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What the Hell Happened? The Campaign Against (and Defeat of) SOPA

I trust that most of you remember the rather astonishing events of late 2011/early 2012, during which something resembling an Internet insurrection helped stop the Administration’s proposed “Stop Online Piracy Act” (SOPA) dead in its legislative tracks.  [I was pretty actively involved in the efforts, and blogged about the events on a number of occasions – herehere, here, …]

A few months later, after the dust had settled a bit, I began a talk about the death of SOPA with:  “What the hell happened?”  It sure felt like a tidal wave of opposition to the bill — it certainly felt that way to the politicians in the White House and Congress, who couldn’t disavow their prior support for the bill fast enough, once the heat was turned up (to mix my metaphors).  Where did it come from, and what did it mean?

Yochai Benkler and colleagues at the Berkman Center (Hal Roberts, Robert Faris, Alicia Solow-Neiderman, and Bruce Etling) have published a rather remarkable study that sheds some really interesting light on those questions.  It’s a study of the public debate on the Net leading up to the “mass mobilization” against the bill, using, in the authors’ words, “a new set of online research tools . . . combining text and link analysis with human coding and informal interviews to map the controversy over the relevant 17 months” to analyze “the shape of the networked public sphere engaged in this issue.”  It’s a fascinating picture — actually, a series of pictures, chronologically organized, showing the development of the controversy as websites moved in, or out, of the central focus of discussion.

The data suggest that, at least in this case, the networked public sphere enabled a dynamic and diverse discourse that involved both individual and

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Our Extremely Messed Up Copyright System: Item 137

Sometimes, it is difficult to explain to people the very substantial downside of a copyright (or other IP) regime.  Paul Heald’s new study, reported on here (“The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish”) should help on that score.  As the Atlantic’s headline puts it:  “A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.”

“Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

[The] data  [obtained from a random crawl of the databases] reveals, shockingly, that there are substantially more new editions available of books from the 1910s than from the 2000s. Editions of books that fall under copyright are available in about the same quantities as those from the first half of the 19th century. Publishers are simply not publishing copyrighted titles unless they are very recent.

Worth a look, if you’re interested in these issues


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My Summer Vacation, part 1

I have — really! — been doing productive work this summer; more on that later.  But I have also spent prodigious amounts of time learning alternate-bass fingerpicking on the guitar, something I’ve longed to be able to do for 30 years or so.

[If you don’t know what “alternate-bass fingerpicking” sounds like, listen to the master, Mississippi John Hurt — here or here.  Thirty seconds or so and you’ll get the idea – though I can’t imagine why anyone would want to (or could) stop listening to John Hurt after thirty seconds. ]

It’s a rather amazing thing, alternate-bass fingerpicking.  It solves a profoundly difficult musical problem in a way that one would think is impossible, except that guys like John Hurt are able to do it so fluently.  The problem is this:  How, if you’re a solo guitarist, do you get music — harmony, melody, and rhythm –  out of one instrument?  The answer, ordinarily, is:  your left hand is in charge of harmony (i.e., the chords of a song); your right hand is in charge of the rhythm, and your voice is in charge of the melody.  It’s fiendishly difficult to get it all working together, but that’s what good guitarists can do.

Hurt invented (at least, I think he’s the inventor of) a different system.  He splits his right hand – his fingerpicking hand – into two parts, with the thumb in charge of the rhythm and the other fingers the melody.  Or rather, the other fingers play a melody, with a second melody line in the vocal.

I know of nothing where the difference between (a) how difficult it appears to be, and (b) how difficult it really is, is as great.  You can try it at home to get the idea.  Pick a simple [...]

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Rot at the Court!

An interesting new article by Raizel Liebler & June Liebert in the Yale J. of Law and Technology on “link rot” in Supreme Court opinions finds that almost 30% of the Internet URLs cited in Supreme Court opinions since the first such citation in 1996 (!) no longer work.  It’s not the end of the world, I suppose, but it’s a pretty troublesome little problem; citations are the tendons that hold our legal system together, in many ways, and the inability of scholars or others in the future to have access to information that the Court relied on in some way in making a decision is potentially a serious matter. [...]

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And Onto More Important Matters . . .

My fears that we were facing a summer without top-class futbol have proven unfounded.  The Confederations Cup tournament, now underway in Brazil, has been a nice reminder that in just over a year or so, there will come a moment when 30 or 40 percent of the world’s population will be simultaneously engaged in the same activity – watching the World Cup final.  (And you heard it here first:  Spain v. Argentina.) If there is a wisdom of crowds, surely this is telling us something about the species, no?

The Confederations Cup is a weird and interesting tournament.  It’s held every 4 years, one year prior to the World Cup, in the host country – it serves as a kind of tuneup for the Big Show, both in terms of seeing whether the logistics (tickets, transport, field conditions, etc.) are all working well, and also to give the national team a first-class workout.

[This is a strange feature of the World Cup qualifying process.  The host team — Brazil, in this case – gets the home field advantage in the tournament, of course, which, in soccer, appears to be an even-more-prevalent phenomenon than in other major sports.  But they suffer a serious disadvantage as well:  Because they don’t have to qualify for the tournament (they’re given an automatic spot as the host), they don’t have to go through a hard-fought qualifying campaign, a grueling series of high-pressure games that all of the rest of the world’s countries are now going through.  It can make it very, very difficult to forge a team — or even to figure out who should be on the team — when it hasn’t played in any tough matches with the pressure turned up.  So the Confederations Cup is designed to alleviate that problem a bit.]

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SCOTUS: Genes (in their Natural State) Not Patentable

The Supreme Court today issued its much-awaited decision in the Myriad Technologies case.  At issue in the case were Myriad’s patents on  the BRCA1 and BRCA2 genes — genes which are important genetic markers for determining susceptibility to breast cancer.  Myriad discovered “the precise location” of the two genes (on chromosomes 17 and 13), and sequenced the two genes to determine the precise nucleotide pattern in each.  That information, in turn, enabled Myriad to develop medical tests that are useful for detecting mutations in a patient’s BRCA1 and BRCA2 genes and thereby assessing whether the patient has an increased risk of cancer.  Because of the patents, Myriad claimed the “exclusive right to isolate an individual’s BRCA1 and BRCA2 genes” — that is, the exclusive right to perform these diagnostic tests, because isolating the gene in any individual constituted an  infringement of their patent.

Myriad also had patents covering the so-called “cDNA” — composite DNA.  These are nucleotide strands derived from the genes, but not identical to them; the cDNA for the BRCA1 gene consists of only those portions of the gene  (the “exons”) that are used during the process of protein production, and it omits the non-coding portions of the original gene (“introns”).

The Court (9-0, opinion by Thomas) invalidated Myriad’s patents on the genes themselves, because Myriad had not “created” anything but had rather  “discovered” the naturally-occurring characteristics (location and sequence) of the genes in question:

It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them. Nor did Myriad create or alter the genetic structure of DNA. Instead, Myriad’s principal contribution was uncovering the precise location and genetic sequence of the

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Still More on Justice Scalia’s Footnote

Eugene has a somewhat different take on Justice Scalia’s now-infamous footnote than I did . . . He writes

[M]y sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

Well, I certainly agree with that “useful rule” — always decode abbreviations just in case you’re reader doesn’t know them.  If you’re talking about the DMCA, or ISPs, or SOPA, or the VAT, or NSAID drugs, or the POSITA, or . . . tell the reader what you mean.

But I do think that an abbreviation in a party’s name calls for relaxing that rule – unless for some reason it actually matters for the case.  WRKO, Inc. v. FCC — would we expect the [...]

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Dumb footnote, cont’d

So I received a few interesting responses from readers to my post on Justice Scalia’s silly footnote in City of Arlington v. FCC.  First, Jacob Gershman over on writes:

To be fair, though, it’s not exactly obvious what CTIA stands for. Yes, the group was originally called the Cellular Telecommunications Industry Association. But before changing its name to CTIA-The Wireless Association in 2004, it was called the Cellular Telecommunications & Internet Association.  So it’s a bit unclear whether the “I” stands for “Industry” or “Internet.”

Fair enough – though inasmuch as this is neither here nor there — last I looked, they can call themselves pretty much whatever they want to and it will surely have no bearing on the case — I hardly think this calls for Scalia’s response.
And here’s an interesting take on this matter from Seth Tillman:

Isn’t it unethical for a judge or his staff to engage in research (beyond the record) about parties (as opposed to the law)? And would not that extend to their names (where the record does not clarify their names)?

I responded:
Hmm … I hadn’t thought of that angle, to be honest; but this is hardly a case that raises any real ethical concerns, I wouldn’t think.  I would not think that it would be inappropriate for a Justice to consult a dictionary, or a book on English grammar, before submitting an opinon; nor is it inappropriate to take “judicial notice” of everyday events.  I would think a judge could write, in a case in which, say, Time-Warner Inc. was a party, something about the large office building T-W owns at Columbus Circle in New York, even if that fact were not in the official record of the case.  If the party’s name bore the SLIGHTEST significance
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