Too Much Information

“In the information age, anything you say can and will be used against you.” Political consultant Hank Sheinkopf, quoted in The Wall Street Journal.

Project Vote Smart, a bipartisan non-profit organization, compiles and maintains a library of information about political candidates, organizing it into five categories: biographical information, issue positions, voting records, campaign finances and interest group ratings. It gathers data from many sources, including a detailed survey it sends to political candidates. Anyone can access the information library via the Internet ( or by calling a toll-free number (1-888-868-3762). In 1996, 72% of the candidates Project Vote Smart approached filled out its voluntary survey of their political positions. This year only 48% of the candidates competed to the survey. Why? According to a Wall Street Journal article, “[m]any are afraid their opponents will use the information against them in attack ads.”

Consider that for a moment: candidates do not want to reveal their political positions because they are afraid they might be used against them. Isn’t one purpose of a political campaign to learn where a candidate stands?

Save the “don’t be naive” comments. I know the response to my rhetorical question. Candidates are reluctant to describe their positions because they fear opponents will use the information against them in ways that mischaracterize their positions. The Project Vote Smart survey, which required “yes” or “no” answers to complex questions, bears some of the blame for the declining response rate. Project Vote Smart has modified the survey to allow respondents to skip up to 30% of the questions, and to answer questions in their own words.

There are many consequences of candidates refusing to define their positions. One is that all information about the candidate becomes a product, rolled out for mass consumption only after marketing consultants have buffed it to a high gloss. Another is that it removes the burden of expecting candidates to actually have positions. Candidates become empty vessels into which positions are poured only after they have been carefully calibrated through focus groups and issue polls. A third is that it lowers our expectations about political discourse while at the same time insulting our intelligence. Candidates use misleading or incomplete information in attack ads because they expect that voters will not seek out more complete information. They also count on voters’ short attention spans and short memory. Voters respond by engaging with issues only as disposable 30-second sound bites. Fear of information feeds a vicious cycle that turns politics into packaging and voters into cynics.

Source: Peter Grant, Politicians Grow Wary of Survey as Internet Spreads Attack Ads, The Wall Street Journal, 25-Oct-06 Page B1 (Subscription required)

Why Buy the Cow?

Because you can’t get the milk for free.

YouTube is cleaning up its act–and it already gives a cold shoulder to copyright-infringing videos.

A few weeks ago Google announced that it will purchase YouTube for $1.6 billion. A week later YouTube, at the request of a Japanese entertainment industry trade group and with considerable press fanfare, removed 30,000 files for alleged copyright infringement. The Japan Society for Rights of Authors, Composers and Publishers notified YouTube of the offending video clips of its members’ TV shows, music videos, and movies and “YouTube quickly removed all the files requested.” (1)

Copyright infringement is a tricky issue for YouTube. It cannot appear soft on copyright infringement, not since it became a pipeline to Google’s incredibly deep pockets. Before the Google acquisition YouTube toed the line when it came to infringing material, giving up the names of users in response to subpoenas from copyright holders seeking their identity for infringement lawsuits.(2) Now, post-Google, YouTube is making an even stronger statement. Comedy Central complained last week about its shows appearing on YouTube; Poof! went clips of “The Daily Show” and “South Park.” (3) Note two things about these YouTube purging stories. First, YouTube is apparently purging en masse in response to copyright infringement take-down requests. I am curious about how detailed are the identifications of infringing material in the rights-holders notices, and how tailored YouTube’s response is to them. Second, the national press is covering stories of the content purges. YouTube isn’t shredding files in the dark at 3:00 AM. It is doing it at Noon in Times Square.

This is the tricky part. While I enjoy videos of a banana spider eating a grub and cat fights as much as anyone, they are not themselves the foundation for a $1.6 billion business. Google bought YouTube’s eyeballs, current and future. Those eyeballs have belonged to YouTube because there they could find what they wanted: Stephen Colbert’s speech at the 2006 White House Correspondents’ Dinner, “Saturday Night Live” Weekend Updates, televised sport highlights: “Type ‘NASCAR crash’ into YouTube’s search engine and it produces nearly 700 videos. ‘NHL fight’ rewards viewers with nearly 600 action-packed clips. And ‘NBA’ produces more than 11,500 offerings, including a 16-year-old fan’s slam-dunk highlight reel that has been watched 1.9 million times.” (4) Much of this copyrighted content is used without the rights’ holders’ authorization. (Ironically, while YouTube removed Colbert’s speech at C-SPAN’s request it is available on Google Video as of this writing.) YouTube must walk the line between deleting infringing content too eagerly and alienating users, and deleting it too slowly and inviting copyright infringement lawsuits.

It walks that line now by responding to requests to remove copyright-infringing material in the manner required by the notice and take-down provisions of the Digital Millennium Copyright Act. That works but is not efficient, requiring constant monitoring by copyright holders for unauthorized use of their copyrighted material. It is a place-holding strategy, not the basis for a business plan. Their interests mesh when the copyright holders license their material to YouTube. Licenses mean that YouTube secures the content it needs to capture eyeballs and rights holders turn a headache into a revenue stream. Indeed, YouTube entered into licenses with Universal and Sony BMG just days before Google agreed to purchase it, sweetening the deal for Google.(5) Expect more such licenses, more rigorous filtering to identify and screen unauthorized postings of copyrighted material, and more publicity over purgings as YouTube enters the mainstream.


  1. Associated Press, YouTube Removes 30,000 Files Amid Copyright Concerns, The Wall Street Journal, Oct-20-06 (Subscription required)
  2. Greg Sandoval, YouTube’s No Friend to Copyright Violators, c/Net 21-Oct-06; Greg Sandoval, YouTube Sued Over Copyright Infringement, c/Net 18-Jul-06
  3. Noam Cohen, YouTube is Purging Copyrighted Clips, The New York Times, 30-Oct-06
  4. Greg Johnson, In Sports Highlights, YouTube is No. 1, The Los Angeles Times, 21-Oct-06
  5. Digital Media Wire Was it a Smart Move of YouTube to Make Labels Partners in Crime?,19-Oct-06

P2P = People to Prison

Five months in prison for copyright infringement. That–plus five months’ home detention, three years’ probation, and a $3,000 fine–is Grant T. Stanley’s punishment for his network-administration role in the Elite Torrents file-sharing service. Operation D-Elite, a federal law enforcement initiative, snared Stanley and two others in May 2005; Stanley pled guilty to these copyright charges last week. The Elite Torrents network (in the words of the U.S. Department of Justice Press Release announcing Operation D-Elite) “attracted more than 133,000 members and, [over] four months, allegedly facilitated the illegal distribution of more than 17,800 titles – including movies and software – which were downloaded 2.1 million times.” The Tech Report, which picked up the story last Friday, contains comments on Stanley’s sentence. (Source: The Associated Press, Peer-to-Peer Charges Net Prison Term, Excite News, The Washington Post, 27-Oct-06)

COPA Trial: Stay Tuned

The trial over the constitutionality of the Child Online Protection Act of 1998 began this week in Philadelphia. COPA requires web site operators to prevent children from viewing material that is “harmful to children” as defined under “contemporary community standards.” Legal challenges to COPA’s constitutionality resulted in injunctions against its enforcement. The trial is expected to last about one month. I’ll post updates on the trial as it unfolds.

Judicial Activism

Saturday’s Wall Street Journal carried an editorial–“No Exit: Judicial Activism is Inevitable” by law professor and blogger Ann Althouse. She received permission to reprint the editorial on her blog: I recommend it to those interested in the role of courts in the legal and social battle over abortion, and to those interested in the role of judges in our system of government. One point she makes is something I tell my students: “judicial activism” is in the eye of the beholder. Many students equate judicial activism with politically liberal judges and judicial restraint with political conservatism. This belief has more to do with pejorative use of “political activism” than with anything inherent in those who practice it. Althouse puts the point this way in the first paragraph of her editorial:

If you don’t like the role the courts are currently exercising, you find a way to call it “activism” and argue that the change you want would be “restraint.” But if the status quo pleases you, you insist that what the judges are doing is not “activism,” rather, nothing more than what the law requires.

She goes on to say that overturning the Supreme Court’s decision in Roe v. Wade–the bugaboo of conservative “anti-activists”–would not end the courts’ role in deciding legal questions relating to abortion. Roe’s disappearance from the judicial landscape would result inevitably in the appearance of new legal questions.

Her dissection of the use of “judicial activism” speaks to a broader point. What passes for political discussion often involves nothing more than applying labels that bypass analysis. Saying that a political candidate is a “tax and spend liberal’ garlands her with negative associations without the drudgery of understanding her actual positions. Ditto “right wing nut bag.” Political shorthand such as this preaches to the choir without advancing public discourse.

Skilling: $205 million/month

The court yesterday sentenced former Enron President and CEO Jeffrey Skilling to 24 years, 4 months imprisonment. Skilling was convicted in May on 19 criminal charges for fraud, conspiracy, and insider trading. Former Enron CEO Kenneth Lay was also convicted on multiple criminal charges in May. Lay died in July and last week the Houston trial court voided his conviction because his death prevents it appeal. Federal prisoners must serve at least 85% of their sentences. If the appellate court upholds the guilty verdict and sentence Skilling must serve approximately 20 years, 8 months. Skilling is 52 years old. The court also announced an agreement by which $45 million, most of Skilling’s remaining assets, will go into a fund for financial victim’s of Enron’s collapse.

The New York Times reported that Skilling’s sentence just missed being a record for the longest given to a white-collar criminal. Former WorldCom CEO Bernie Ebbers’ 25-year sentence still holds the mark. Skilling’s sentence was at the low end of the range of 20.3 to 30.4 years in prison suggested by federal sentencing guidelines. Skilling continues to proclaim his innocence, one factor that explains the difference between his sentence and the six year sentence imposed on former CFO Andy Fastow earlier this month. Fastow pled guilty to conspiracy to commit wire fraud and securities fraud, cooperated with prosecutors, and was the star witness in the government’s case against Skilling and Lay. Their disparate sentences do not reflect disparate culpability for Enron’s spectacular failure. Their actions, and the actions of others, led directly to shareholder losses widely reported at $60 billion or more and job losses for thousands of employees, many of whom also lost their pension savings, and indirectly to incalculable collateral damage such as the demise of accounting giant Arthur Andersen. This took a team effort.

Is Skilling’s sentence fair? Too long? Too short? He is a first offender–but what a first offense. Today’s Wall Street Journal (John R. Emshwiller, Skilling Gets 24 Years in Prison, The Wall Street Journal, Page C1, 24-Oct-06) contains a quote from former federal prosecutor Jacob Frenkel, now in private practice: “Mr. Skilling’s sentence was entirely expected and grossly excessive” and shows “how distorted sentencing in white-collar cases has become.” I disagree. A sentence of, say, 6-7 years would be an insult to the millions harmed by Enron’s collapse. 292 months for $60 billion (conservatively) in financial loss works out to about $205 million/month. Using the same scale of economic harm caused to length of sentence, a non-violent bank robber who walks away with $10,000 should serve a sentence of a little more than an hour–63 minutes, to be exact.

Don’t try that at home.

You’re Not It

The headline of the Associated Press article reads: “Mass. School Bans Playing Tag Over Fears of Injuries and Lawsuits.” The Willett Elementary School, located in a town “south of Boston,” has banned all unsupervised “chase games”–tag, touch football, etc.–during recess.

I’m speechless.

Source: Associated Press, Mass. School Bans Playing Tag Over Fears of Injuries and Lawsuits, Oct-19-06 Reported on

MORE: On October 21 The Boston Globe followed up this story with an article titled “Schools ruling out fun on playground, critics say.” It reports on school rules against hanging upside down by one’s knees on the high bar, jumping off the slide, etc.

No-Show Jurors

Nationally, 20% of those summoned for jury duty fail to show. In Miami the no-show rate is “as high as 90%.” Ninety percent! According to US court challenge: How to corral 12 not-so-angry jurors in today’s Christian Science Monitor, the federal judicial groups have investigate the high rate of no-show jurors. The cause? The Monitor reports that “[o]utdated juror lists, rundown jury rooms that feel like jails, and growing time pressures on Americans are mostly to blame.” The high rate of juror deliquency results in unrepresentative juries which in turn can lead to skewed verdicts. The Monitor quotes jury expert Scott Sundby: “Research shows that death-sentence convictions drop by 30 percent in black-on-white murder cases when at least one juror is a member of the minority group.”

One solution proposed is the one day/one trial system which Massachusetts (and about 1/3 of the courts in this country) use. (I discussed the Massachusetts one day/one trial system in a comment to A Trial by Jury.) Another is more rigorous enforcement of the penalties for skipping jury duty. The article reports a combination of education about the jury system and pursuit of delinquent jurors enabled Massachusetts to cut the no-show rate from 14% in 1996 to 6% today.

I understand why people regard jury duty as an imposition. I don’t agree with it, but I understand it. I’ve learned in the classroom that many people have gross misconceptions about the court system. Students in my Introduction to Law course must spend at least two hours observing a trial court and write a short paper about the experience. Students may drag their feet about going but most find it a revelatory experience. Some go back to court to follow a trial. Students report every semester that judges took the time to answer their questions, that lawyers patiently sat with them to explain what happened in the court room, that court officers served as tour guides/legal encyclopedias/courtroom commentators/big brothers. Students are stunned to see a criminal defendant of their age sent to prison for a long stretch. I know that many students will remember visiting the court long after they’ve forgotten the prima facie case of negligence or the duty of care owed by a gratuitous bailee.

Thanks to Carolyn Elefant and’s Legal Blog Watch for reporting today on the Monitor story.

Prohibition? What was Prohibition?

On October 13 President Bush signed into law the Internet Gambling Enforcement Act (“IGEA”), which prohibits the use of checks, credit cards, and electronic fund transfers for online gambling transactions. The IGEA’s sponsor was Virginia Republican Congressman Robert W. Goodlatte. The law puts the onus for enforcing its restrictions on banks and credit card companies. Congress attached the IGEA to port-security bill legislation to ensure its passage. reported on October 13 that immediately in the wake of the IGEA’s signing, British-based gaming companies Sportingbet PLC and Leisure & Gaming PLC sold their U.S. operations–for $1.00.

Will the IGEA be effective? A Washington Post article on the bill’s signing reported that 23 million Americans wagered approximately $6 billion online last year. The IGEA won’t make those gambling urges and that river of cash go away. If history is any guide they will go underground. Can we expect new back-channel methods to arise to process online wagering transactions, ones that hide the identities of the parties and shield the nature of their payments? Yes, we can, if history is any guide. But why should our elected representatives study history?