Bad Idea

It is beyond argument that the Internet is the most transformative development in information technology in, let’s say, the last 100 years.  You could make the case to change “the last 100 years” to “in history,” but let’s not quibble.  The Internet gives everyone in the world with a network connection access to an unprecedented quantity of information–and some of it is even worthwhile–and the ability to communicate to a global audience.   The Internet achieved this status because of its design, because of the way in which it transmits information, and because of protocols like HTTP that enable information to be linked in a seamless web.  Why, then, do smart people talk about screwing it up, about changing its fundamental nature?  Federal judge Richard Posner proposed recently that the declining fortunes of the newspaper industry could be addressed in this manner:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion. (Emphasis added)

This is a horrible idea.  I care a great deal about newspapers–my parents met while working at The Hartford Courant and the Courant’s comic section was my first reading primer–but shackling the ability to access and link to copyrighted material would not save newspapers and would transform the Internet.  I will subscribe to print until its demise, but I am not representative of the younger generation(s) (there are many behind me, unfortunately) of Internet users.  If their chosen online news sources stops carrying links to articles in The New York Times they will not start paying for a print edition; they will obtain their news from other sources.  “Aha!” you say.  “There will not be other sources if these users don’t pay to finance news-gathering operations!”  Wrong.  Blogging, Twitter (as much as I bemoan it), RSS feeds, Citizen Media, and other things I’ve not thought to name or that are as-yet uninvented are transforming the nature of news-gathering.  Don’t try to reverse technological development.  Acknowledge what is being left behind and figure out how to embrace what’s in front of you..

Right versus Wrong?

I’m preparing to teach Current Topics in Law and Ethics in the graduate business program this summer, which I have not taught before.  I have two syllabi from colleagues but  I’m trying to reinvent the wheel by reducing the law and increasing the ethics content.   One thing about ethics discussions and ethics advice:  they can provoke passionate disagreement.  I often find The Ethicist column in the Sunday NYTimes magazine irksome, and its advice provokes rants in a good friend.  Today Rushworth M. Kidder’s How Good People Make Tough Choices* drove me to write this post as a reality check.  In Chapter 3 “Right Versus Wrong: Why Ethics Matters,” Kidder offers three cases as typical of the approach to ethics that focuses on right versus wrong (as opposed to the more problematic right-versus-right ethical dilemmas).  The premise of each is that they distinguish between the legal and ethical, in that none involve breaking a law.  One involves a part-time receptionist at a property-management company who is instructed to lie to elderly tenants who complain of inadequate heat that the boiler is broken, when the owner has turned down the heat to save money.  The receptionist does not want to lie to the tenants but fears losing her job if she tells tenants the truth.  Another involves a person interviewing for a job that requires conducting survey interviews in a crime-ridden part of town.  Two previous employees left the position after one day and the third was mugged and physically injured.  The question is whether the supervisor conducting the interview should inform the candiate of the previous employees’ experiences.    The third involves a manufacturer and mail-order seller of automobile master keys, who sells the keys to anyone who wishes to buy them “even though it was obvious that some of the purchaser might be automobile thieves.”  Kidder asks whether the seller is responsible for the consequences of selling master keys.  The answer in each of these cases, he writes is  “one side is wrong.”  Kidder writes “the world presented in these cases is not one of great moral complexity.  It fairly quickly reduces itself to a black-and-white, right-versus-wrong world.”

Whoa.  I agree that it is wrong not to disclose to a prospective employee that prior employees either couldn’t handle the job after one day, or were injured while performing it.  Failing to disclose such danger could also expose the employer to negligence liability, for failing to notify the employee about the job’s potential for harm.  I agree that it is wrong to lie to tenants about the cause of inadequate heat.  Failure to provide adequate heat may well violate the state’s health code for rental residential dwellings, and could endanger the physical well-being of tenants, especially elderly tenants.  I also sympathize with a receptionist torn between telling the truth and losing her job.

I flatly disagree with his characterization of the third case.   It poses the rhetorical question, “is it any worse  . . . to sell keys by mail . . . than for mail-order houses to sell guns that might be used for murder?”  That’s a manipulative way to ask a valid question.  Here’s how I ask the question:  “is it ethically wrong to sell any item that can be used for both legal and illegal purposes?”  If it were ethically wrong, what could one sell?  Is it ethically wrong to sell DVD burners that can be used to unlawfully copy copyright-protected music and movies?  Is it ethically wrong to sell video equipment that can be used to create child pornography?  Is it ethically wrong to sell duct tape that can be used to bind the wrists of kidnap victims?  Is it ethically wrong to sell Slim Jims, tools that can be used to open locked car doors?  Rushworth Kidder must never have locked his keys in the car.

Of these three cases Kidder says ‘[t]hey may even provide useful examples to present to individuals whose ethical baromter you would like to read:  [their responses]  . . . will shed light on their moral stance.”    You now know that in his world my moral barometer is falling.

*Which, perversely, I think of as “When Tough People Make Good Choices.”  I’d read that.

My Favorite Things

I am a sucker for many things–beautiful women, ice cream, dogs, lake swimming, chocolate, rhythm, and baked goods with cinnamon come to mind without breaking a sweat.  “Baked goods with cinnamon” is a proxy for “baked goods with cinnamon and sugar,” because cinnamon by itself would not make me walk across a room.  Mix cinnamon with sugar in yeast dough and I’ll follow you anywhere.  This morning I decided to do something with a carton of buttermilk with an April 17 sell-by date that was still good.  A recipe for easy cinnamon buns was the answer.  An hour later they were baked, glazed, cooled, and ready to eat.


Recently, in Internet law . . .

Here’s the First Commandment for the Study of Internet Law:  What the Internet was is not what the Internet shall always be.  A few more stories echoing the last post’s theme:

  • France’s Constitutional Council rejected the legislature’s attempt to thwart digital piracy by terminating Internet access for alleged illegal downloaders.  Under the legislative proposal “a newly created agency, acting on the recommendations of copyright owners, would have been able to order Internet service providers to shut down the accounts of copyright cheats who ignored two warnings to stop.”  The Council held the proposal violated French constitutional principles including the presumption of innocence and freedom of speech.
  • The on-again, off-again Italian trial of four Google executives on criminal defamation and privacy charges arising from Google’s failure to remove a YouTube video of the bullying of an autistic boy in Turin started again this week–and then stopped after one day, when a translator failed to appear.  The prosecution claims “that Google should have acted to prevent the broadcast of the footage and that by failing to do so it breached the disabled boy’s privacy.”  Google, in turn, claims it has no legal liability to monitor content posted by third-parties and that “seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open internet.”  The charges, which carry potential prison terms of three years, underscore the profound difference between U.S. and European Union privacy law and the importance of ISP liability immunity provided by Section 230 of the Communications Decency Act.
  • NetChoice published its Internet Advocates Watchlist for Ugly Laws–“iAwful” to publicize “ the top ten worst proposed laws affecting ecommerce and open communications. . . . [The list’s] primary focus is on laws that will affect business, particularly by increasing taxes or dictating standards and practices that the group thinks are unworkable.”

Green Dam

Despite domestic and international opposition (e.g. “China Faces Criticism Over New Software Censor“) China is proceeding with its requirement that the Green Dam Youth Escort content-filtering software be installed on, or included on a compact disc accompanying the purchase of, all new computers sold in the country as of July 1.  The name “Green Dam Youth Escort” conjures an image of a responsible elder guiding a youngster through a landscape dotted with levees holding back reservoirs of Internet yuckiness–or perhaps an image of an escort service that caters to minors.  China’s ostensible purpose is to stem exposure to violent and pornographic content.  Some critics fear the software is a vehicle for greater government monitoring of and control over dissident or other politically-unacceptable speech.  Manufacturers are concerned the new software won’t play nice with operating systems and other software.  The Beijing News reported the software is both over- and under-inclusive, blocking content it should permit and permitting content it should block.  Computer scientists have said the software contains flaws that third parties could exploit.  China, nevertheless, continues to say that July 1 compliance deadline is firm.

I’m following this story because it is interesting on its merits and because of what it says about the state of Internet law.  I’m pointing my Internet law course in a new direction for the coming academic year, reducing its emphasis on theories of regulation.  Current events, like this story, reflect powerful forces contending over the future of the Internet.  I want students to understand these forces and what is at stake.  “Code is law” continues to be an important message, but the playing field of 2009 is far more complex than that of a decade ago.

Thanks. I appreciate that.

I like atta-boys as much–or more–than anyone, which makes me a sucker for the Class Gift Program’s Certificates of Appreciation from graduating seniors.   Participants donate cash to the Program in an amount determined by their year of graduation, e.g. $20.09, and designate someone–faculty, staff, administrator, another student–to receive a certificate acknowledging the giver’s appreciation for whatever it is the giver appreciates.  Such sentiment could include “I appeciate that I’ll never again be subjected to your horrible voice and warped sense of humor at 9:30 on Tuesdays and Thursdays.”  I’ve been fortunate to receive acknowledgements from a number of students over the years.  I am grateful for every one.

Students accompany their gifts with a brief note, which are delivered separately from the Certificates.   Yesterday I visited my mailbox and picked up this year’s note cards.  I am thankful for all the sentiments expressed, in styles as diverse as the personalities of the students who expressed them.  To the student who said I was “an inspiration and a riot”–thank you for making me laugh aloud.  It is good to know someone enjoyed my sense of humor early on Tuesdays and Thursdays.

Fathers Day 2009

In spite of the crap weather Father’s Day was particularly enjoyable.  Dock installation was complete.  The weather was damp and misty but did not rain–for most of the day.  I had wonderful conversations with Samuel from Miami and Joshua from Fort Gordon, GA,  Judy cooked me breakfast, and Nathan led me through a Deck of Cards Workout.  The Workout’s rules are simple.  Shuffle a deck of playing cards, place it face down, turn over the top card, and perform either the displayed number of pushups(for black cards) or situps (for red cards).  If the top card is the 7 of spades you do 7 pushups.  If the next card is the jack of clubs you do 11 pushups.  If the ace of hearts follows you do 14 situps.  And so on, until you’ve run through the entire deck.  You math majors will have calculated this workout requires completing 208  situps and 208 pushups.   I switched from standard (on toes) to modified (on knees with calves raised and ankles crossed) pushups and varied the style of situp, but Nathan did, too.  I was pleased to complete all 416 reps.  Once you reach a certain age if you aren’t pushing your physical limits then you are losing gound.  There is no equilibrium.

Sign of Summer

Regular readers know that I measure the seasons by installation and removal of my Maine dock.  The dock cannot stay in the lake year-round because it’s the law (don’t ask for the citation) and because winter ice would crush and destroy it.  The dock consists of eight 4′ x 8′ sections of pressure-treated wood which are connected and sit on 2″ galvanized pipes of varying lengths.  Installation requires wrestling the heavy dock sections into the water, placing them on floats, moving them into position, lifting one end to rest on brackets attached to the previous installed section, gingerly attaching clamps to the opposite end and winching it out of the water, placing galvanized posts in the leg brackets and driving them into the lake bottom, leveling the section, tightening leg-bracket set-screws to secure the section, and then repeating all of the above with the next section.  Removal requires undoing all of these steps.  This is my twelfth installation since building the first, smaller iteration of the dock in 1998.   Do the same thing every year for almost 1/5th of your life and it becomes a ritual.  Most of those installations have been solo which, if everything goes well, I can complete in a day or day and a half.  I installed the dock this weekend because Nathan, just back from Italy, volunteered his young, strong self to the task.

Here is the result.


Summer has begun.  If only we could install summer weather.  June has been unusually cool and wet.  It is 59 degrees and raining, with rain forecast for most of the week.  The lake is so cold I’ve not begun my other summer ritual, the early-morning swim.  Last week some Scottish folks, from Glasgow, who Nathan met traveling this spring came to our house for dinner.  They were to spend this pask weekend in Kittery, Maine;  I’m sure the weather made them feel at home.


Minnesota music file-sharing defendant Jammie Thomas-Rasset yesterday completed her new copyright infringement trial.  Unfortunately the result was about eight times worse than October 2007’s trial, in which a jury found her liable and awarded the RIAA damages of about $240k.  This time the jury found her liable for infringing 24 song copyrights and awarded the RIAA damages of $80k per son, or $1.92 million.  Last year’s verdict, Thomas-Rasset’s appeal, the trial judge’s subsequent criticism of his pro-RIAA jury instructions that making copyrighted songs available for sharing constituted infringement, and the just-completed retrial received considerable notice, if you pay attention to these things.  (See prior posts here, here, here, here, here, and here.)  Thomas-Rasset’s response to the damage award was “good luck trying to get it from me . . . it’s like squeezing blood from a turnip.”  The RIAA reiterated its willingness to settle, an offer on which Thomas-Rasset has passed.

Ars Technica reports (see first linked article) there were ample grounds for the jury’s verdict:

The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer’s Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her “tereastarr” username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Something in the evidence turned the jurors against Thomas-Rasset.  In 2007 she lost big.  This week she lost huge.  She says she plans an appeal, a stance aided by her pro-bono counsel.  I don’t know what grounds she would have for appeal.  Copyright infringement law is not on the side of file-sharers, no matter how many Harvard-trained lawyers they have.  I agree the law needs changing, and that for many the RIAA is a particulary unsympathetic plaintiff, but if Iwere representing a file-sharing defendant I would think deeply about the reasons for the jury’s decision.


Recently we returned from 12 days in northern Italy.  Our various stays provided little Internet access and I did not post as-I-was-there trip updates.  I will make up for that over the next few days.

I’ll start with our initiation into driving in Italy.  Our trip took us from Milan’s Malpensa Airport (“mal” as in bad or evil, “pensa” as in thought or idea, which may explain why the Airport is located on the wrong side of Milan) to Crema, about 50 km southwest, where our son Nate has been living since last September.  After three days in Crema we went to Venice for three days, then Canazei in the Dolomites for three days, then back to Crema.  We could have managed these connections by train and bus but wanted the flexibility of a car, so rent a car we did.  I had not driven in Italy before and felt trepidation at the start, but at least Italians drive on the right side of the road.  We brought our GPS from home, freshly loaded with European road maps, picked up our six-speed manual transmission rental at the airport, and followed the voice prompts for Crema.

Tolls presented the first problem.  Cruising along the A4 we encountered a toll booth stretching across the autostrada, and our first decision:  which lane should we use?  Eliminating the obviously-wrong Telepass lane helped just a little.  I drove into a lane marked Carte, where a gate and the cars behind blocked my forward progress in each direction.  I hoped to find a human being to whom I could hand Euros. Instead I found an electronic display showing the amount due, and a slot for a credit card.  I inserted Judy’s credit card into the slot–once, twice, three times–without success.  The drivers behind grew restless.  I tried my credit card.  Failure.  I tried again.  Success!  The gate opened and we drove through with relief and confusion, not understanding why our cards failed the first four attempts.

A few kilometers further we came to another toll.  Unfortunately, I was so focused on choosing a more idiot-tourist-friendly lane that I missed the GPS prompts for our exit, located a hundred yards before the toll.  I picked up the toll ticket spit out by the machine and drove through, looking for the next exit to reverse direction.  That exit came in a few miles and required another lane-selection decision.  Unfortunately I saw just a millisecond too late that I made the wrong choice, arriving in the Telepass lane.  Its gate prevented me from driving forward.  Three cars prevented me from backing up.  I looked around.  No place to insert cash, a credit card, or prayers.  Only a single button labeled “Help” below an intercom grate.  I pushed the button.  “Help” I said.  “Allo?” “Help!”  “Allo?”  “Help!!!”  “Allo?”  I turned to Judy, who has been taking Italian language lessons for a few years.  She started shouting something in Italian.*   “Allo?”  I looked at the driver of the car behind.  He lit a cigarette, inhaled, and leaned back in his seat.  I yelled “I can’t get through the gate!” “Allo?”  The temperature was in the 80s, the sun beat down, and sweat soaked into my shirt.  No one likes coming face-to-face with their stupidity; I like it less than most people.  This Kafkaesque scene could have dragged on for much longer but someone spared us.  In my peripheral vision I noticed the gate was open.  Immediately I shifted into first, engaged the clutch, and lurched through the opening.

The GPS, I discovered later in the week, was programmed to avoid U-turns and direction reversals, so instead of sending us back to the autostrada exit I had missed we headed off into the Italian countryside between Milan and Crema, on barely-labeled secondary and tertiary roads that in any event we could not have located on our map because of its scale.  We were driving blind, guided by the GPS ladyand her incomprehensibly flat American pronunciation of Italian road names.  On this drive we navigated our first roundabouts, or what we call rotaries in Massachusetts.  I came to be a fan of roundabouts, which erase the need for traffic lights, but my first two dozen roundabouts challenged to the limit my ability to pick the correct exits.  There are many Italian roundabouts I know well, from circling them two or three times.

We completed the 90 minute (if no traffic) drive from Aeroporto Malpensa to Crema in about 2 hours, 15 minutes.  It felt like double that time.  Nate saved us from wandering lost through Crema’s maze of medieval one-way streets by waiting for us at an intersection.  I have rarely been happier to get out of a car.

*A few hours later Judy realized that her Italian language skills had deserted her in this moment of need.  She had been shouting “what can we do to help you?” into the intercom, a phrase not likely to solve our immediate problem.