A Reasonable Outcome on Grokster

The Supreme Court today announced their opinion reversing a summary judgment for Grokster. I'm not displeased with the outcome. They made no reference to Aimster's willful blindness doctrine (which I thought should control the case), but came to a similar conclusion, finding the demonstrated intent of the defendants to be the key to their determination. As I stated back in March, consideration of intent is a necessary addition to Sony without which Sony is easily gamed and unmanageable. Here it was clear by the defendants' actions in aggressively recruiting Napster users and promoting infringing material available on their networks (actions that were curiously absent from the discussion in the 9th Circuit decision) that it was their objective to profit from the infringment of copyrights. Sony could not stand if it was read to protect such actions.

One of the most interesting questions of the case, whether Grokster and Morpheus had substantial noninfringing uses, was not decided by the Court and was argued at length in the concurrences. Justice Ginsburg (joined by Rehnquist and Kennedy) wrote a concurrence arguing that they did not have a substantial noninfringing use, while Justice Breyer (joined by O'Connor and Stevens) argued that they did have substantial noninfringing uses. I agree with Breyer's arguments for a low bar on substantial noninfringing uses, particularly in conjunction with consideration of intent as in this case and Aimster. To have a high bar for substantial noninfringing uses that sets some sort of a cutoff based on the percentages of use creates a real problem for developers of new technologies who cannot accurately predict how exactly their technologies will be used. There would be a definite chilling effect on technological innovation. Policing intent should provide a sufficient avenue for nailing bad actors.

Thanks for Nothin'

I wanted to highlight this story by Columbia Journalism Review on the much-publicized $674m in "additional aid" to Africa (credit to Howard Kurtz for pointing it out). I've often noticed a huge gap between Americans' perceptions of our foreign aid programs and the reality. Dirty tricks like this are at least partly to blame...

Dear Lord Above

Some days I just love the internet. Unbelievable.


Osama bin Squirrel

Open Source and the Law

Slashdot has a large discussion of a very small article on a number of Florida judges who are disregarding the results of breathalizer tests because the manufacturer refuses to disclose the source code. It's an interesting idea. I think there may be other areas (black box voting systems) where this is more appropriate, but I like the general principle. In this particular situation, I wonder if there aren't other ways that the accuracy and reliability of the devices could be established, and whether that would satisfy the basic inquiry. A little more detail in the article would have been nice...

The Mobility Myth

As a follow up to the CSM class mobility story posted a couple weeks back, Michael Kinsley has a good Washington Post column today discussing social mobility and recent coverage of the topic in the Wall St. Journal, New York Times, and LA Times.

A Cool Response to the PATRIOT-ACT

Slashdot pointed out this story about a feature coming soon to a library near you: anonymous library cards. Instead of giving the library your personal information, you'd just a make a cash deposit that would serve as collateral for any books you check out. Slick, clever, sticks it to the Man. I like it.

The Larry Lessig Boys Choir Story

Wow. Like Sleepers, but for real...

The Bush PR Strategy

From slate: "See, in my line of work you got to keep repeating things over and over and over again for the truth to sink in, to kind of catapult the propaganda."—George W. Bush, Greece, N.Y., May 24, 2005

Real Damage from Prisoner Abuses

There were a trio of interesting articles on CSM today. First, this story on the marked decline of class mobility in America. A troubling trend that underscores, again, the danger in relying on capitalism to deliver social justice. There tends to be an implicit assumption that in a free market everyone gets what they deserve. If there are structural barriers to class mobility, that assumption becomes less valid.

The next story, a happy one for a change, discusses various much-needed efforts at reforming the jury system. As the article notes, there is a great deal of variation among the states (and some are doing nothing at all). Hopefully some of these programs will prove successful and spread to other states.

The story I most wanted to comment on, however, discusses the frightening perceptions among Arabs of our treatment of prisoners in the war on terror. The story focuses on recently leaked pictures of Saddam in his underwear. It also comments on the Newsweek Koran flushing story and the recent NYT story on abusive treatment leading to the deaths of two prisoners, as well as the light sentences and lack of high level accountability for Abu Ghraib. While the Newsweek retraction provided a high profile opportunity for the scoring of political points, I hope that we haven't lost sight of the very real problem that our cavalier treatment of prisoners is creating. These are not isolated incidents. University of Miami law professor Michael Froomkin has been keeping a watch for torture stories on his blog. A sampling:

- U.S. takes hostages to coerce relatives into surrendering
- Guantanamo prisoner claims to have suffered violent sexual assaults and near drowning during his captivity.
- Guantanamo prisoner claims that Gitmo tapes would be as explosive as the Abu Ghraib photos
- Guantanamo prisoner claims innocence, details physical mistreatment
- Guantanamo prisoner claims prisoners were handcuffed naked and attacked by dogs
- 15-year-old Guantanamo detainee claims abuse
- Pentagon inquiry confirms use of sexual tactics in interrogations
- Military lawyers at Gitmo try and fail to end physical abuse of prisoners.
- Afghan prisoner, left exposed to the elements by the CIA freezes to death.
- Gitmo prisoner claims torture, assault, near-suffocation
- Mother Jones story details many claims of torture at hands of U.S.
- Navy disgusted by abusive treatment at Gitmo.
- Terror prisoners claim to have been beaten and abused at New York's Metropolitan Detention Center.
- Iraqi prisoner hung from the wrists until dead (Abu Ghraib related)

These are stories that may not get much play in the U.S., and to be fair, many of them are unconfirmed allegations. However, they almost certainly draw attention from Al-Jazeera and other Arab outlets. As the CSM story notes, U.S. treatment of prisoners is having a strong impact on Arab public opinion. It is difficult to believe that high level decisions (such as the DoD memos exposed after Abu Ghraib) within the administration are not fostering such treatment. Unless I've been grossly misinformed, these sorts of actions do not typify American treatment of prisoners in past conflicts. Moreover, it is difficult to see what we gain from all of this. There have been few claims that we've gained critical intel from this abuse, and many claims to the contrary. I simply don't understand why we aren't doing anything about this. Abu Ghraib never got any real reaction within the administration or the DoD, and all of these stories roll by without attracting any significant attention. Aside from the fact that this treatment is shameful in view of Americans' generally shared values of human rights and human dignity, it seems ruinous from a strategic PR standpoint. But no one in the administration, and few in the press, are paying attention. Whatever stupid things Newsweek may have done, that's the real story here.

Re: The Military Spending Debacle

Thanks to Joe for pointing out the continuing profligacy of US government spending, in particular on defense. I would also add that we could get rid of the failed/untested missle defense system. The Bush administration has already spent some $30 billion on this with more increases in spending requested. As Joe points out, however, who would be opposed to spending more money on the security of our nation? Worded as such, the answer is obvious. The problem of course is that government spending seems completely dissociated from the individual American. If Congress spends an additional $50 billion on defense, do I notice its impact on me? Perhaps a program elsewhere will be cut (in the ideal world) or perhaps the continuing debt will destabilize the dollar and eventually the economy. Yet I will have difficulty drawing the connection between the two. We need some mechanism to tie the effects of government spending to the individual American. If you raise my gas price by 10 cents per gallon, I would probably take notice. It is wishful thinking on my part that such an obvious link would ever be made by Congress or that they might impose spending restrictions (e.g. tying budget increases to inflation).

In the bigger picture, I worry about the ever increasing cost and size of our government. It reminds me of Windows and the ever-increasing amounts of code added without simplifying the existing code first. Inefficiency and waste only grow in this scenario. Are we reaching a point where government operations become compromised by their own complexity?

The Military Spending Debacle

CSM has an article with a broad discussion on current military spending and various proposed changes. It's really a fairly absurd situation. The article notes that we will spend $667b in the next year. It mentions that the Task Force on a Unified Security Budget proposes $53b in cuts, and $40.5b in additional spending. It also discusses the proposed base closings. In inflation adjusted dollars, we are spending more on defense than we have since WWII. Adding to the absurdity of the situation, Donald Rumsfeld does want to make cuts (as per the base closings) to manpower at a time when Iraq and Afghanistan have stretched manpower perilously thin, thus leaving Congress in the position of opposing the one budget-slimming measure of an otherwise aggressively spending administration (not to mention the always pork-barrel sensitive matter of base closures).

I think any analysis of the defense budget needs to start from the recognition that the U.S. military is light-years ahead of any other in the world. Our nuclear arsenal itself is enough to ensure that U.S. will never be attacked by any nation-state. And there is not a conventional military on the planet that the U.S. could not steam-roll over. In light of these things, Rumsfeld's plans for a lighter, slimmer military make a lot of sense. However, it doesn't seem feasible to make these cuts while we are digging deep into the reserves and National Guard to keep enough troops in Iraq.

But it seems there must be places to cut, given that we had 500,000 troops in south-east Asia with a lower defense budget than we have now. Perhaps there is something to the quote in the article that we're doing a very poor job of getting reasonable prices from defense contractors (on whom our military has grown increasingly reliant). Certainly there seems to be a disturbingly incestuous relationship between the public and private military sectors (starting in the VP's office). Some of the big ticket programs (nuclear bunker-busters) seem wasteful and unnecessary as well.

Unfortunately the current politics of national defense are such that neither party could feasibly propose any significant cuts. Moreover, it is difficult to see how this could change any time soon. There was no significant focus on fiscal problems in 2004 by either side, and it seems that budget deficits would need to take an immeasurably higher profile in order to compete with the terrorist-mania that governs politics. There is a very real argument that our fiscal situation poses a greater threat to American dominance and security at the present time than terrorists, but I don't see that as a politically salable idea. It's a bloody mess, no doubt about that.

Disaster!! ShunTV Nailed

Bastards. "The MPAA says it wants to encourage legitimate download sites instead." I'm sure you did all of the nonexistent legitimate download sites a ton of good. Thanks.

Buh-Bye to the Broadcast Flag (for now)

Just wanted to update a story mentioned here a couple months back. On Friday the D.C. Circuit shot down the FCC's broadcast flag requirement. (decision here) The court had ruled to give the challengers (library associations and the EFF) additional time to demonstrate that at least one member of their group had standing to sue in their own right. The library associations satisfied the court on this point, and the court denied the FCC's request for Chevron deference, stating that the agency had never been delegated authority to regulate hardware devices except to the extent they are incidental to transmitting the TV signal. Noting that the TV's work just fine on unencrypted signals with the demodulator turned off, clearly the demodulator is not involved in the actual transmission. The flag order imposes regulations on what the devices do after the transmission has been received, which is outside the FCC's delegated authority. As per the WaPo story, the MPAA is pissed, and I'm sure this is not the last we'll hear of the broadcast flag.. But for now, hurray for the good guys!

A Brief Moment for Ethics

I'd like to note how deeply I'm enjoying the Delay scandal. Not just because he's a scumbag and deserves it, but because it makes me happy to see the Congress concerned with ethics, even if they're only doing it to score political points. Already various Congresspeople are rushing to get their records in order. There are a lot of good lobbyists in Washington (take, for example, the Center for Democracy and Technology), but by and large the Congress-lobbyist network is a cesspool of corruption. The Republicans have threatened to retaliate by exposing ethical lapses of Democrats (Nancy Pelosi's name has come up a few times). I say more power to them. Although the partisan infighting of it may be distasteful, I would find bitter partisanship palatable in a contest of ethical purity. It might not make the politicians actually become ethical, but at least forcing them to follow the formalities of ethics guidelines would be a step in the right direction.

Time Warp

Following politics recently, I'm starting to feel that we've been time warped back to August, 2001. As you may recall, at the time, after passing a flurry of bills that he had campaigned on, President Bush had largely stalled out, and Republicans were beginning to wonder if the President's critics were right. Bush spent the next three years riding support for his anti-terror agenda. But at this point, the public has gotten the sense that the war on terror will be a long, hard (and often dull) slog. The insurgents in Iraq are back in full force after a post-election lull. Global terror attacks are up significantly in the past year. The new Iraqi government has been slow moving and is mired in conflict.

With foreign policy no longer providing a safe refuge, Bush has had to return to domestic policy. He's now simultaneously trying to prop up Tom Delay against ethics charges, support his nomination of John Bolton, push his social security program, and back Senate Republicans in eliminating the filibuster, all issues on which he has little public support and on which Democrats feel they can capitalize. Add to that the failed and unpopular gambit to intervene in the Schiavo affair, and the Bush presidency appears to be a key setback or two from descending into irrelevance. His party is wavering and beginning to drift. This looks much more like Bush the bumbling amateur politician of mid-2001 than Bush the avenging war hero of more recent times.

Undoubtedly the Bush team still has a few tricks up their sleeve. In political cycles it's a long time until 2008 and Bush will have ample opportunity to try to reinvent himself. I can't even speculate which direction he might turn, but it does seem that much of his difficulties are related to his stubborn, hard-line approach to policy and his close relationship with the Religious Right, and I have a hard time picturing him compromising on either point. Time will tell. Perhaps the best hope of the administration at this point is that the Democrats will fumble the ball, as they did in the election last year. I can't say I have a great deal of confidence in them, but the Democrats can't screw up all the time. They'll get it right eventually. Everything is set up for them right now. All they've got to do is bring it home. I've got my fingers crossed..

Is It Paternalism When You're Right?

This interesting (but factually thin) article on CSM on Americans' bad investment choices puts me in mind of our frequent paternalism discussions. The author aptly comments at the end that the problem isn't really that people couldn't be good investors, but they don't bother to do it. I'd add that it probably isn't a matter of sheer laziness, but that there are a hundred other common areas where people fail similarly, and they have only so much time and attention to go around. And, of course, there's the factor that economists have been known to be spectacularly wrong from time to time as well...

Bad Blood

I'm overdue to post something on the ongoing tiff between China and Japan which is being followed very closely by a certain member of my household. Japan has never repudiated the atrocities they committed in WWII the way Germany has and this has been a continuing source of tension between Japan and Korea (North and South) and China. While post-war Japan has emerged as a major donor nation, with much of their contributions targeted to nations harmed by them in the war, they have been careful to characterize those payments as donations rather than reparations, and Japan has consistently glossed over their wartime atrocities in their textbooks and historical accounts. China and Japan have never been particularly close, and this insult is one that China is not willing to drop. The recent discussions of UN reform, with the strong possibility of Japan gaining a permanent Security Council post, has brought things to a head. Japan does need to own up to their past, but I'm not sure the U.S. will care to push that point. Tension between the two nations hardly hurts us, allowing the U.S. to act as mediator, deepening Japan's dependence on the U.S. for military and diplomatic support, and strengthening U.S. influence in the region. It will be interesting to see if they can move past this, as China and Japan could both profit greatly in many regards from closer ties. The pull of profit seems to be slowly healing old wounds between China and Taiwan, and it may do the same between China and Japan.

Re: A Critique of Social Science (Hank's Response)

I just wanted to draw to the Board's attention a comment on one of Henry's posts, by someone posting as "vox humama" (was that meant to be "humana"?). It reads:

I am out here in the hinterland with the rest of the "rational" population, so reading this was the equivalent of mental weightlifting. I am happy to state that I not only got it done but actually feel stronger for it. As a member of the over 50 age group, my eyes were not well served by the experience. (BIGGER PRINT WOULD BE APPRECIATED!)
It would be hard for me to make any comments of a sufficient intellectual rigor to feel worthy of this discussion. But my question would be, Is the academic world, particularly or especially the "disciplines" of the social or soft sciences, engaged in this kind of discussion? Or is it the elephant under the proverbial rug?

I will give Joe or Henry the first shot at a substantive answer, but I agree with the commenter that we should consider making the default setting a little easier to read (note, however, that one can always change the text size in the browser). I am happy we have a reader beside ourselves!

Re: Federal Courts

I don't know whether a survey of the empirical evidence would demonstrate the number of appellate court cases has increased relative to the number of cases the Supreme Court hears, though my observation matches Joe's. Yet I do not see that trend--if there is one--as posing a problem to the stability of the system. The courts of appeals are certainly aware of decisions of other circuits (the parties make sure of that) and the courts are, as a general matter, hesitant to create a circuit split unless the reasoning of another circuit is really flawed. To the extent that circuits disagree, the Supreme Court can step in to resolve the controversy after the courts have had a chance to work it out themselves. I think the system is sufficiently dynamic to respond to the increased reliance upon courts of appeals. In my view the existing structure could only be characterized as broken if people believed the courts of appeals were unable to handle the added burden, but in my view they are doing just fine.

My two cents.

Federal Courts

CSM has a decent article up summarizing the state of the federal appeals courts as it pertains to the nomination battles. The commentary is fairly worthless, but numbers are interesting. In particular I wonder how sound the system is where the Supreme Court, which supposedly provides appellate review of all the circuit decisions, only handles about 0.1% of the number of cases handled by the circuit courts (that doesn't even take into account state cases that SCOTUS may also review). My understanding is that the caseload of the Supreme Court has been in decline for some time now, even as the size and caseloads of the circuit courts have been increasing. The obvious implication is an increasing balkanization of the federal legal system as the unifying influence of the Supreme Court on the circuits wanes. It's a topic I've never read about or heard discussed in class, so it's hard for me to assess how problematic this is (if it's a problem at all), but I find it curious and may have to poke around and see what's out there (I would be surprised if there isn't a fair amount of literature on this)...