Congress is already very close to passing companion bills to censor the internet, the Stop Online Piracy Act (SOPA, H.R. 3261) and the Protect IP Act (PIPA, S. 968). This is in addition to the domain name seizures already underway by Immigrations and Customs Enforcement (ICE).

All of these efforts are terrible ideas. Their supporters don’t understand or care about the internet and are happily willing to break the internet to appease the content industry. It is among the very worst contemporary examples of a government that is of, by, and for special interests, and if it passes, it will be a slap in the face of democracy, free expression, due process, and technological innovation. To top it all? It won’t even do much to stop online infringement.

Fortunately, there may be signs that things are turning our way. I’ll get to that further below.

EFF has a great summary of the several ways SOPA can lead to a site getting shut down. Section 102 deals with foreign sites and is the most all-encompassing, but 103 and 104 are actually easier for rights holders to (mis)use, and they apply to domestic as well as foreign sites, so I’ll start there.

Section 103 allows IP rights holders to go directly to a website’s payment processors and advertisers—and to demand that these third parties cease all business with the website operator. These payment processors and advertisers then have just five days to act. The website operator has the right to file a counter-notice that they are not substantially dedicated to infringement, but (a) they may not get the chance until after the payment processors and advertisers have already cut off payments, and (b) the third parties have no obligation to take the counter-notice as final and re-establish a business relationship.

Section 104 takes this “default=censorship” strategy even further. Everyone in the internet ecosystem—registrars, web hosts, advertisers, financial processors, search engines, etc. etc.—gets near-categorical federal and state immunity for any decision to terminate a business relationship with a site (or even to shutter a site) “in the reasonable belief” that the site is dedicated to infringement. Under Section 103, a rights holder must at least file a claim. Under Section 104, even the intimation that a site is infringing might be enough to get it shut down—and the site would have no legal recourse.

The Administration also gets in on the fun in Section 102, which gives the Attorney General the power to use government-mandated Domain Name System (DNS) filtering to stop Americans from accessing “foreign infringing sites.” A domain name, such as Google.com, is an easy-to-remember way to tell one’s computer to go to a specific numeric address (e.g., 74.125.39.147). It is this number (the IP address) that identifies that site’s server (the computer that hosts the website). Everyone enters the domain name into their browser’s internet address bar, but the numbers would take one to the same site. Click on the numbers above or paste them into your browser to see for yourself.

Under Section 102, if a site were found to be primarily dedicated to infringement, the government could “seize” the site’s domain name. More precisely, the domain name registrar—a company that keeps track of which domain names are attached to which servers—would, if US-based, be compelled to stop sending users to the correct server. All domestic ISPs would also be forbidden to take you to the right server (the number behind the name), and advertisers and banks would be forbidden from doing business with these companies.

If the government found a foreign site to be infringing under these bills, the government would try to make it disappear for US audiences.

If this bill becomes law, we will see the shuttering and/or financial starvation of thousands of websites—which are, of course, a form of speech and/or press. They would be silenced and/or starved based on either an affidavit by a rights holder, a mere suspicion by a business partner, or (at best!) a one-sided court hearing with a low burden of proof. Little wonder then that legal scholars from (my friend and) rising star Marvin Amorri to the legendary constitutional scholar Laurence H. Tribe (pdf) have concluded that the bills are unconstitutional threats to the First Amendment.

By now it should be clear that, if passed into law, SOPA or PIPA would have devastating consequences for innocent actors who are mistakenly identified. The web seizures undertaken by U.S. Immigrations and Customs Enforcement (ICE), beginning in 2010, illustrate this peril all too well. Several websites have been taken down for posting media files that were authorized and even actively shared by the copyright holders or their representatives. Others have apparently been seized merely for linking to allegedly infringing content.

One in particular, DaJaz1.com, has become the cause célèbre of the anti-domain-seizures movement. It was one of a cluster of hip hop websites seized last year. Major voices from Vibe to Kanye to P. Diddy were actively promoting the sites, hardly a sign that they are dedicated to copyright infringement.

Last week, the feds finally gave up on DaJaz1. TechDirt (which has nearly gone all-SOPA, all-the-time) had the headline:

Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details…

Their opening clarifies exactly how unconstitutional this is:

Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

They go on to detail how DaJaz1’s owners were stonewalled, blockaded, and never allowed their day in court by the feds—for over a year—while the feds managed to arrange a court process during which all court proceedings (including several granting extensions that DaJaz1’s owners should have been able to contest) were secret and all the filings were sealed and not open to the site owners.

Once the details of the accusations came out, it turned out that the allegedly infringing songs were given directly to the blog by copyright holders’ agents in the hopes of promoting the music. The RIAA was the source of the original complaint, and one of the songs in question was not even released by an RIAA label.

Another operation using similar methods but for a different goal—seizing sites with child pornography—mistakenly took down 84,000 sites in one shot, resulting in each of those thousands of sites being down for 3 days. Even worse, each domain was redirected to an ICE notice that the website had been seized for trafficking in child pornography. Nearly all of those sites were not dedicated to child pornography, and to my knowledge, ICE never even apologized to them for the error.

Further, it takes little imagination to picture a devastating chill on legitimate sites that make fair uses of copyrighted content. If I run a news and commentary site, I may be less likely to include portions of copyrighted works, even if such inclusion is very likely fair use and crucially relevant to my discussion of the matters at hand.

In particular, media criticism sites would be in grave peril; how long after the bill’s passage would it be before partisan news outlets started using the new law to silence their critics? How long before FoxNews goes after Media Matters for America? Think that’s far fetched? Witness Righthaven’s efforts to sue bloggers for using even brief quotations. And what was on the list of threats they used to scare people into paying licensing fees? Domain seizure. Among other things, these bills would give a hunting license for those who would like to shutter the sites of upstarts, competitors, and critics.

At least these bills will stop piracy, right? Hardly.

Dedicated infringers will still find infringing sites—especially foreign sites that host infringing files with impunity. Remember, the feds are seizing the site name (e.g., Google.com) but not the number behind it (74.125.39.147). All you need is a small program to tell your computer to go to the right number—and, because the bill will forbid your ISP from getting you there, a proxy server in the middle. The same strategies have already proven successful for dissidents behind government firewalls, who still manage to upload and download forbidden information—despite far more active, on-the-fly, and resource-intensive censorship schemes.

Programmers have already developed tools to work around these restrictions. The law hasn’t even passed yet, and already there is a Firefox plugin that would help users work around SOPA-like restrictions.

You might think that at least payment processors and advertiser networks would be scared off of dealing with these sites. If it were that easy—if we could target the banks and advertisers that support internet scofflaws—then spam and other internet evils would have long since been wiped out.

The internet breeds decentralized innovation, and innovators will spring into action to help users circumvent ISP and search engine filters as well. This software will also be considered grounds for legal action—with the goal being to ban the tools, as the 1998 DMCA bans DRM-hacking devices. That’s worked so poorly that multiple free circumvention tools are available for most major DRM systems. There are so many DVD rippers that LifeHacker has a post comparing rippers to help you choose the best.

As if all of the above failures and offenses were not enough, these bills would harm our economy and reduce our competitiveness in the internet age. If SOPA were law when YouTube was getting started, the site probably would have been shuttered. The next YouTube will be much less likely to be born in the US if it can be kicked out of the legitimate portion of the web before it has really grown up. The EFF warns that sites like Etsy, Flickr, and Vimeo would be in danger.

Internet innovation is one of the few bright spots in the economy, and major internet firms have warned that this will increase the cost of regulatory compliance and decrease our competitiveness. Venture capitalists have also warned that SOPA would substantially decrease their willingness to invest in US technology start-ups. Union Square Ventures, just down the street here in NYC, even put this link saying the same thing on their homepage.

Senator Ron Wyden (D-OR) has placed a hold on PROTECT-IP, and he has even vowed to filibuster the bill should it come to the Senate floor. Because of this principled opposition and his long record of standing up for internet freedom, I made a donation to Sen. Wyden’s re-election campaign—even though my wife and I are watching every dollar as we save to buy our first home.

So these bills are terrrrrible, but they enjoy a lot of support in the House and Senate—30 cosponsors in the House, and a whopping 40 in the Senate. This post is derived from an email I sent to my Senators and Representative, and all three wrote back with disappointing notes to the effect of, “Yeah, but we gotta stop internet infringement.” Surely this is unrelated to the content industries having spent far, far more money on lobbying and campaign donations than their opponents on this issue.

Which brings us back to democracy.

In response to these bills, we have seen the swelling of a major internet movement—nearly the groundswell we saw around network neutrality in 2006. Opponents created a campaign declaring November 16—the day of a hearing in the House that was heavily stacked in favor of SOPA—as “American Censorship Day,” a campaign that went viral in a major way. Over 6,000 sites including Wikipedia, Creative Commons, Mozilla (including the default start page in Firefox), Reddit, TechDirt, and BoingBoing, directed traffic to a single action site, AmericanCensorship.org. At the time, the site said that it had generated over 1,000,000 emails and four calls per second to Congress. To date, AmericanCensorship.org has earned over 650,000 Facebook likes and 63,000 tweets.

This is democracy in action. After all, most people don’t support draconian copyright enforcement, and a solid majority of people oppose government attempts to block access to infringing materials. (40% support, 56% oppose; this skews to 33% for, 64% against when framed as censorship.)

If Wyden’s hold and the opposition can stop this fast-moving train(wreck), then perhaps democratic values and majority opinion can actually shape the future of the internet. Just maybe, a public outcry can stop a terrible idea backed by special interests.

If not, we may be in big trouble—and not just because the internet will be broken.

Dear Councilmember Levin,

I am a voter in your district and I am writing to express my deep and utter outrage at the NYPD’s documented mistreatment of peaceful protesters. This is already a long-established and shameful part of NYPD’s legacy, but I am writing in particular to address incidents surrounding the protests during the past week.

The first and most egregious appeared on the Times’ City Room blog, at:

http://cityroom.blogs.nytimes.com/2011/09/25/video-appears-to-show-protesters-being-pepper-sprayed/

I assume this is already on your radar and that, in light of it, you were already intending on demanding an investigation, including the public naming and criminal prosecution of the officer who pepper-sprayed these already-detained women in the face. If this officer is not indicted and tried for this action, I will not be alone in deciding that the NYPD is officially above the law.

As a professor of media studies, I am also particularly disturbed by the apparent willingness of police to treat journalists as protesters and to harass and even arrest them. See photographs showing as much here:

http://davidscameracraft.blogspot.com/2011/09/occupy-wall-street-march-violence.html

In at least two of the photos, the photographer identifies people who were arrested for reporting on the protests—including one who is a reporter for PBS.

We live in a country where the First Amendment right to freedom of speech, of the press, and to assemble peaceably are supposed to be inviolable. These actions leave me deeply concerned that the city is willing to allow (or even, dare I suggest as much, encourage–at least in some quarters) the NYPD to trample on these sacred constitutional rights. No protest of any size could do as much to bring shame upon this city as the NYPD have done in the last week.

If the Constitution means anything to you, sir, I urge you to demand a systemic investigation and, where appropriate, criminal prosecutions–especially when an officer will sadistically injure helpless citizens.

Sincerely,
Bill D. Herman
Assistant Professor
Department of Film & Media Studies
Hunter College, City University of New York

Sure, TV news in particular covers hurricanes with too little data, too little understanding of uncertainty and margin of error, and too much footage of reporters trying to stand upright in strong winds. And yes, they have a vested interest in keeping people tuned in (though WNBC, which is mostly what we watched, went largely or totally commercial-free for large chunks of time). And absolutely, the media definitely could have provided more coverage of decidedly-not-NYC areas (North Carolina and Vermont, in particular) where the storm seems to have had much more severe impacts.

But to the critics who are deriding extensive coverage and thoughtful preparation because the storm wasn’t as bad as it might have been: Shut the hell up.

One such cynic is Toby Harnden of the Telegraph (UK)—which I normally like quite a lot—who derides the “Perfect Storm of Hype.” He derides NJ Gov. Christie for his claims that the storm could cause tens of billions in damage and that his evacuation likely saved lives.

The problem with Harnden’s derision? Both claims were quite true at the time and have proven prescient since. Estimates of property losses are already around $7 billion to $13 billion, and several rivers (including some in NJ) are still rising. Despite many pols’ repeated pleas to stay out of the water, the NYPD still had to fish two kayakers out of the river in the middle of the storm. If more people had “just carried on as normal” as Harnden thinks was appropriate, more rescues like that (though perhaps none involving such utter idiocy) and more deaths doubtlessly would have occurred.

Our next cynic is Daily Beast (again, usually a fan) writer Howard Kurtz and his dismissal of the “Hurricane of Hype.” Among other silly things, he says:

The fact that New York, home to the nation’s top news outlets, was directly in the storm’s path clearly fed this story-on-steroids. Does anyone seriously believe the hurricane would have drawn the same level of coverage if it had been bearing down on, say, Ft. Lauderdale?

He blames any extra coverage primarily (not just in small part, which would be defensible) on the media’s self-centeredness? Really? This storm just hit about 75 million people, or one fifth of the nation’s population, the only storm in my lifetime to do so. This is the worst storm to hit NYC, the country’s biggest city by far (almost 9m in NYC proper and almost 19m in the area), since Agnes in 1972.

Anything big that happens to New York City is a big deal just because it’s New York City. (Any other sports fans sick of hearing about ‘Melo?) When Denver (my home town) shuts down because of weather, that’s local news. When NYC does the same thing, that’s world news.

If this storm had hit the Miami/Ft. Lauderdale area, yes, that would have impacted a few million people. But the NYC area alone has more people than all of Florida, and we are not built to face hurricanes. Sorry, that’s a pretty good, objective set of reasons to give more media attention to a hurricane hitting New York than one hitting Ft. Lauderdale.

Finally, no mindless spout of media blather would be complete without an idiotic bunch of partisan attacks on politicians in general and Obama in particular for sensible preparation for and warnings about a natural disaster.

While they might also be coming from the left at NJ’s Republican Governor Christie, I have yet to see one, while the right-wing hate machine has continued pounding Obama and other Dems with their hurricane-force hot air. People are dead, lives are ruined, and these blowhards are cynically deriding our leaders for trying too hard. Party should play no part in supporting calls for disaster preparedness. I for one thought NJ’s Republican Governor Chris Christie did very well; if there’s one politician you’d appoint to get in front of the microphone and tell people to “get the hell off the beach,” it’s him.

Irene was a major storm that came through the heart of the country’s most-populated area. Could the TV news coverage of Irene have been more thoughtful, useful, accurate, and data-driven? Yes. Erase “Irene” and put ANYTHING there and the answer is yes. (Uh, “crime” anyone?) That’s how TV news works. Off the record, even people who work in TV news will agree. But it actually was a big deal and was covered accordingly. If you want to use Irene coverage as an object lesson in how to do better TV news, fine, but that’s not the criticism I’m seeing.

And for those assaulting politicians for their abundance of caution and attempts to lead the country through a genuine national disaster? Go jump in a lake. I’d recommend Lake Pontchartrain.

This isn’t some quote taken out of context. He says it during this NY Times interview, a follow-up interview at a time when he knows he’s facing a lot of public scrutiny.

Despite not yet having tenure–and prompted by a PSC-CUNY call to action–I decided not to sit idly by but rather to voice my horror in an email to the Chancellor and all twelve Trustees. Here is what I said:

Dear Trustee Schmidt and Chancellor Goldstein:

You are undoubtedly getting dozens or hundreds of form emails. Instead of simply signing that pre-written text demanding a full apology and the granting of Mr. Kushner’s honorary degree (with which I firmly agree), I am taking the time to write a specific message.

Mr. Weisenfeld’s attack on Mr. Kushner was bad enough, but his follow-up answers to a New York Times interview illustrate a profound bigotry that cannot be tolerated from one of the public faces of CUNY. The article is available here.

Here is the relevant excerpt from the article:

‘But Mr. Wiesenfeld interrupted and said the question was offensive because “the comparison sets up a moral equivalence.”

Equivalence between what and what? “Between the Palestinians and Israelis,” he said. “People who worship death for their children are not human.”

Did he mean the Palestinians were not human? “They have developed a culture which is unprecedented in human history,” he said.’

I am ashamed to work for a university whose trustee thinks it appropriate to describe Palestinians as “not human.”
Former Mayer Ed Koch is right: Not only should Kushner get his degree, but Mr. Weisenfeld should also lose his position as Trustee.

I hope other faculty and other New Yorkers will join me.

AT&T can use the extra towers to improve reception in very crowded metropolitan areas, but the decrease in competition and likely resulting increase in price is a big problem.

People who sell a product charge what the market will bear, but if the market isn’t fully competitive—if customers have few options to take their money elsewhere—then customers can’t punish high prices or poor service, and providers charge more for less.

The wireless market is already not competitive for two important reasons. First, providers lock in customers with a combination of contract law and technology. They claim contracts and handset locks are necessary to recoup the costs of subsidized handsets, but why don’t they all charge less for month-to-month service on unsubsidized handsets? (T-Mobile is still alone in offering such a discount.)

Second, the industry is already an oligopoly, with so few major competitors that they already have the power some power to charge inflated prices. The standard measure of an industry’s competitiveness is the Herfindahl–Hirschman Index, or HHI.

To calculate an HHI, you take the square of the percentage of each firm’s market share. A firm with 20% share adds 400 points (20 x 20) to the HHI. According to Department of Justice antitrust guidelines (which, unfortunately, the DoJ and FTC have stopped following), if the HHI is over 1,000,  the market is moderately concentrated—that is, not fully competitive. If the HHI is over 1,800, the market is highly concentrated and thus non-competitive. If a market is already over 1,000, then any merger raising the HHI by 100 points or more is presumptively a problem for competition.

To see how bad things are already, and how much worse they would be after the proposed merger, we should calculate the HHI for the wireless industry, both before and after. First, here are the ComScore market shares for each carrier as of March 2010:

Table 1: Market Concentration in the Wireless Industry, March 2010

This is what a noncompetitive oligopoly market looks like. We already see this in a lot of important ways—suboptimal cell service, attrocious customer service, stubbornly high prices, and charges that are often exponentially larger than the marginal cost.

The prices for text messaging in particular are a great example of “price gouging” and illustrate the industry’s tacit collusion (pdf). The cost for the network provider of handling a text message is virtually zero, since the messages are small enough to fit into the “control channel,” or the tiny bit of data that your phone and cell network are exchanging even when you’re not talking or using mobile data.

In a truly competitive wireless market, a customer would drop a provider who charges up to $20/month for something that’s actually nearly free to provide. Imagine if McDonalds sold hamburgers at their current prices but charged $0.20 for each french fry—or $20 for all the fries you can eat. Potatoes are cheap, so we’d be offended and take our money elsewhere, because the fast food market is highly competitive.

In mobile telephony, however, there almost is no “elsewhere” to take our money, especially if you need reliable nationwide coverage. The number of players is small enough, and customers are locked in enough, that there is little opportunity to punish this price gouging.  (Thankfully, free messaging-over-data via services such as Google Voice allow customers some opportunity for arbitrage, but expensive data plans and technological know-how limit this opportunity to to the most economically and technologically well-positioned customers.)

So the bad news of an uncompetitive market is already here. Now, let’s see what the market might look like after an AT&T/T-Mobile merger. Here’s that table, assuming that all T-Mobile customers stay with AT&T (and most will have to for some time, thanks to their two year contracts):

Table 2: Approximate Market Concentration Following AT&T/T-Mobile Merger

A substantial number of T-Mobile customers will switch to Verizon or Sprint, but the HHI would still be in the mid-2000’s, and no scenario makes this market more competitive than today’s market. In short, customers and regulators should be worried.

Now imagine what happens when it’s specifically T-Mobile that goes away. They have long been the cheapest option, offering the worst service among the big four in exchange for much cheaper prices. They’re the only company that has experimented with discounted pricing for month-to-month customers. Inexplicably, they’re still the only major US carrier to deploy UMA, which allows voice calling over wifi. (I’d love to use my Verizon minutes to make and receive calls over my home wifi router; instead, I’m forced to take the chance that I’ll drop yet another call in my first-floor apartment. Can you hear me now?)

T-Mobile offers several unique features in the otherwise troublesome wireless market, and AT&T is unlikely to keep many if any of them. Ma Bell just wants the customers, towers, and spectrum. If they wanted to sport UMA or cheaper pricing, they could have offered them years ago.

The current cell market is already highly concentrated, so we get service that is overpriced, with limited features and a quality of service that does not justify what we pay. If federal regulators allow AT&T to buy T-Mobile—which, unfortunately, is practically a given—the market will be even less competitive.

This merger means less choice and still-higher prices for something like the service we’ve long since been promised. If you have a lot of stock in the telecom industry, however, it’s a big win.

In light of the revelations that Microsoft has been copying Google’s search results and feeding them into its Bing results, there’s a discussion about whether and how Google might seek a legal remedy. While “sue for copyright infringement” is perhaps a good default answer in internet law, I don’t think it’s the right one here. There may be other good options, though; I discuss one further below.

Senior Google Counsel William Patry knows a lot more about copyright than I ever will, but I’d be shocked if his team went into court with the claim that their search results are copyrightable. Copyright is only granted to creative expressions fixed in a tangible medium. Databases (compilations of data, including the association between various bits of data) are not subject to copyright unless there’s some creative expression involved, and then, only the creative expression is protected.

I think the clearest case law analogy here is Feist v. Rural, in which the defendant acknowledged having copied the plaintiff’s white pages. Still, the SCOTUS found unanimously for the defense. Why? Because there’s no creativity in collecting the data and alphabetizing the list of names. This is true even though several of the names were fake—and appeared in both the original and the copied version. Sound familiar?

The technology is different, but the legal question is remarkably similar. Google doesn’t create the websites to which it links, and it is exceptionally clear that the sorting that happens in the black box is fully automated and governed by complex equations. In other words, it’s like a much more complicated version of alphabetizing.

Imagine similar copying based on a sorting mechanism that is more complicated than alphabetical order but less complicated than Google search rankings—say, NFL quarterbacks’ passer ratings. If I were a sports blogger, I would have no compunction about copying the list of starters ranked by passer rating from the NFL.com site. Why? It’s just a list of which quarterbacks had which ratings, sorted by a somewhat complicated but ultimately mathematical rating. The NFL could sue me, but it would be pointless.

We don’t know how the math behind the search results and rankings work, but we do know that it’s an automatic process. Anybody who knows the formula could apply it and get the same results. This means the results aren’t sufficiently creative to be copyrightable. Even though Google’s search software is much more complicated, it’s probably best described as the legal equivalent of alphabetizing or ranking quarterbacks by formulaic passer ratings. I’m perhaps overstating the case, but on a scale from “Shakespeare” to “phone book,” search engine results are practically tripping on the white pages.

One might object, “But software is copyrightable!” Yes, software written by creative human programmers is copyrightable. This includes the code inside Google’s black box. But Bing didn’t copy the code. That would be infringement, not to mention a violation of trade secrets. Bing just copied the results–and not even whole hog, but as input for their own formula–and the results are not themselves a creative expression.

So where does that leave Google’s legal strategy? I know much less about this area of law, but I think they could go for the other default answer for internet law: “Sue for violating the clickwrap license.”

Here, the case law seems to be much more on their side. One reasonably analogous case is Register.com v. Verio. In this case, Plaintiff Register.com won an injunction against Verio for repeatedly and automatically harvesting subscriber data from Register.com’s site in violation of the terms of use.

The fit here is also not bad. Google’s Terms of Service forbid certain uses, including accessing any services “through any automated means (including use of scripts or web crawlers).” Even though the IE users themselves are not automatons, IE is, and apparently it’s serving as a web crawler, harvesting the data and sending it back to Redmond.

Funny coincidence that I’d pick this case, too. Read the slip opinion here (pdf), and check out the participating attorneys. Guess who was the lead attorney for Register.com, the victorious plaintiff… William Patry. Maybe I’m not so far off base here in predicting a Register v. Verio-based strategy.

Google may well let Bing’s actions speak for themselves and avoid the legal route altogether. That’s a fine PR strategy, and suing also may not be worth the political cost of giving fodder to Google’s opponents on other issues down the road. But if they want to sue, I think copyright is a terrible route, while breach of contract may be a good route.

There are still other legal options, to be sure. But as “Chainsaw” Dan Snyder reminds us, suing isn’t always the best option.

Relatively few people had read the article, “The Cranky Redskins Fan’s Guide to Dan Snyder,” written by Dave McKenna and published on November 19, 2010. It’s a local, alternative weekly paper with circulation of maybe 100,000 on a good week. I love football commentary in general and mockery of Dan Snyder in particular, and even had I picked up the paper or found the link at the time, I would have skimmed it at best.

Now, everybody’s reading it. Judging by the slow load times, I’d venture to say the paper’s website is getting orders of magnitude more traffic than it’s designed for. I read the full article in detail, as well as the publisher’s eloquent response to the lawsuit. I have long since adopted Gregg Easterbrook’s derisive moniker for the meddling football owner, “Chainsaw” Dan Snyder, and even I had no idea how many truly scummy things Snyder has done. Now I have the man’s entire list of foibles in one centralized location. Thanks, Chainsaw Dan!

Snyder clearly has no idea how the media works in general and how the internet works in particular. This is a fantastic example of the Streisand Effect. Snyder wanted the article to go away; instead, he’s helped bring national attention, ensuring that millions more know about his shameful past behavior.

Snyder also has no understanding of First Amendment case law, and his law firm’s willful ignorance on this count is reprehensible. Read the City Paper’s lawyer’s letter to Snyder’s legal team, which is a brief, well-written, and legally sound “Go to Hell.” I hope the judge dismisses the filing as a Strategic Lawsuit Against Public Participation (SLAPP) suit and awards attorneys’ fees (and maybe even damages) to the City Paper.

In addition to accusations based on the article itself, the suit also includes as a basis for action the photograph accompanying the article–an ordinary photo of Snyder, defaced with ballpoint pen-style sketching of bushy eyebrows, a mustache, a pointed goatee, and horns. The style is much like one might find on a subway billboard or in a high school yearbook. As part of the allegation of defamation, the suit claims that this photo is “a blatantly anti-Semitic” depiction of Mr. Snyder, “precisely the type of imagery used historically, including in Nazi Germany, to dehumanize and vilify the Jewish people and associate them with a litany of libels over the last 2,000 years” (p. 6).

Snyder has hit Godwin’s Law at a record pace. The paper specifically addresses the accusation of antisemitism here. Many of the paper’s employees are Jewish, “including staffers who edited the story and designed the cover,” and they certainly didn’t intend or see the drawing as antisemitic.

Also, I find the allegation in the context of this particular legal filing to be deeply troubling. There is no basis in law for suing somebody for deriding a public figure’s religion. We could debate the merits of this until the cows come home, but it’s a policy decision our society has made, and lawsuits have to be structured by current law. Thus, including an allegation of religious intolerance is more than irrelevant; it’s willfully incendiary. The goal is presumably to get the court and the public to hold a prejudicial opinion of the defendants before the matter is even heard before the court.

This lawsuit shows that “Chainsaw” Dan Snyder is even worse at managing his public image and understanding the First Amendment than he is at running an NFL franchise. Which is really saying something.

P.S. Here’s an awesome, heartfelt thank you to Snyder from Washington Post writer Gene Weingarten—a lifelong New York Giants fan. To whit:

I know you are taking some criticism today from carping media types. They seem to think that you are not only behaving like a petty, vindictive bully but also that you are being strategically stupid – by bringing a vast new audience to a three-month-old, otherwise-obscure alternative-media piece, which can be found here.

Amen!

With some very generous Amazon gift certificates from my wife and our families, I got a Kindle 2.0 as a Christmas present last year. I would rather have a new Kindle, of course, but not at $140; the main advantages I crave are quieter buttons and better power management. Despite the drop in price, I don’t feel burned having paid almost twice as much ($260) for one under a year ago. I’ve gotten a lot of value out of it already and will almost certainly hang onto it for as long as it keeps working.

I don’t read much fiction—or at least, I didn’t; we’ll get to that—so I viewed the Kindle more as an iPod for the oodles of digital text files I already have. This is part of what I would describe as a partial marketing failure on Amazon’s part. They envisioned most Kindle users as people who mostly want to buy and read content from the Kindle store. But if you need to read lots of digital files—PDFs, Word files, text files, and so on—and are getting sick of staring at your computer screen, you should also consider buying a Kindle.

My work straddles communication, political science, and law, all fields in which a great deal (but far from all) of the most important scholarship comes out in journals rather than books. This means that I have roughly a bazillion PDF and Word files on my laptop that are in various stages on the potential journey from “should read” to “have read repeatedly and cite regularly.”

Some scholars do several hours per week of such reading on their computer screens. Rarely has such a week passed in my life since I started graduate school–excluding reading done as part of writing specific projects, which is no way to be a complete scholar with a good understanding of one field, let alone several. I do not have the discipline to spend more than a couple hours per week reading journal articles on the same screen that can take me to ESPN, ICanHasCheezburger, and Slashdot. If I print articles, I usually read them, but it’s expensive and feels wasteful, so I do it for fewer articles than the number I’d like to be reading.

This is why I wanted a Kindle. You can email PDFs to Amazon (they give you a private email address), have them converted to Kindle format, and download the attachments to your computer (or over wifi on the newer model) for free. Or you can choose to have them show up on your Kindle over 3G for $0.15 each (up to 1 MB).

Whether store-bought or converted content, you can highlight text, add notes, and even bookmark specific pages. The highlighted text and your notes are kept in a plain text file on your Kindle called “My Clippings” that you can then put on your computer and read, copy, process, etc. (Publishers can limit the percentage of a purchased book that makes its way into this file, but there’s no cap on converted documents.)

At the end of the semester, I’ll have my students email me their papers and final exams, and I’ll convert them to Kindle format en masse and read them on the plane/bus/couch rather than lugging half a ream of paper around with me over the holidays. This will be the 3rd straight semester I’ve done it, and it’s way easier than doing it on paper. I finish in less time than if I did it on my computer with less of a headache afterward.

I’ve also made good progress into the stack of “should read” journal articles on my hard drive. I even find myself re-buying academic books just to have them on Kindle, especially if they’re long and thus the paper versions are quite heavy.

Taking notes is a bit slow. I can write in the margins of a paper book about twice as fast. Highlighting is about 1/3 as fast on a Kindle. The latter forces me only to highlight really key passages, which makes my notes more useful in the end. Both disadvantages are outweighed by those clippings and notes being (a) always with me and always available, and (b) searchable. Also, notes and highlighting are still as legible if done on a bumpy train, bus, or plane.

Finally, I find myself reading a great deal more fiction and other leisure reading. My normal pace has been something like 4 or 5 novels (and a few nonfiction leisure books) per year—almost shamefully low for an educated person. I enjoy fiction

, but I’m on the road a LOT, and leisure books are just too much effort to lug around if I’m also trying to carry “productive” reading with me. Well, now it’s obviously just as easy to have some leisure reading around, so I read a lot more. As a near-daily commuter with a 45-minute round trip on the subway, I read academic books or articles on the way into work and read fiction on the way home, and the train ride flies by.

I’m still not the most avid reader, but I’m reading a novel maybe every three weeks on my Kindle—and about half as much volume in leisure/personal nonfiction, another substantial jump in input. This is in addition to reading of paper books, which is still at roughly the same levels, though the ratio of for-work reading is now an even higher share of my paper books. For somebody who still spends far too much of his reading time in the blogosphere and on sports websites, though, this is real progress.

In short, my bag now weighs a lot less, and I’m reading a lot more things that I’ve been wanting to read, whether work-related, fun, or personal development. Yes, I find it quite doable to make notes on this reading, but the volume of reading is up so much that the comparative pluses and minuses here are almost beside the point.

Despite this unabashedly positive experience, I do admit to a certain degree of iPad lust. I wouldn’t pay for or carry both (who needs yet another device to carry around?), and neither would most people, so while they’re very different machines, I view this as an either-or. Here’s my breakdown of the trade-offs:

*The Kindle is much easier on the eyes. It’s the difference between reading an old-fashioned book and reading off of a computer screen. If you get sick of staring at your computer screen, and you want to do a lot of reading, get an e-ink reader such as a Kindle. It’s nothing like reading on a computer to your rods and cones.

*The iPad is much easier for making notes, highlighting text, and so on. If you’re looking for the touchable reading interface of your Star Trek dreams, obviously the iPad has a big advantage here. Lok is an iPad guy and just loves some of the reading apps he’s discovered here.

*The iPad is more than three times as expensive, obviously.

*The iPad can do an infinite number of things, while the Kindle can help you read and almost nothing else to any meaningful degree. (It has a browser that will make you miss your 56k dial-up, for instance.) If you have self control, this makes the iPad a big winner. If you have little self-control and think the iPad’s multitude of reading apps will win out in a competition with the web and a fistful of games, think again.

Am I glad I got a Kindle? Definitely. Would I recommend that you get one? The more you have in common with me, the more strongly I’d say yes. Are you easily distracted, need to do lots of reading for work, reading a lot of stuff for work that’s already in digital form and mostly text-based (i.e., not complex graphics or equations), and facing endless hours traveling by means other than driving? Then I can’t recommend it strongly enough.

This is a bit about the story of Cereality, a still-in-business restaurant chain that sells cereal. Here’s a Time story about Cereality’s IP strategy that gives some background.

The story is obviously friendly to the Cereality perspective, but you’ll see critiques of their use of IP against competitors farther down. Here’s a good link criticizing Cereality’s patent strategy. Also, look for the first comment at this link.

As a former member of Free Culture, I’m obviously on their side here on the patenting issue. For a more ongoing battle against patents that are, frankly, on more important subjects, see the EFF Patent Busting Project. They just claimed a big victory, getting an initial ruling of invalidity upon reinspection for a VoIP patent.

Back to Cereality. The company’s three patents were ultimately rejected, and while I haven’t done the research to make this claim with certainty, I can only assume that this business model’s obviousness had something to do with the patent being denied. Here’s one of their three patents (patent application # 11/518,374) that got everybody riled up. It’s funny right from the beginning:

A method of providing breakfast cereal in a quick-serve restaurant setting, the method comprising:

at the quick-serve restaurant, displaying to customers retail-sale packages for multiple competitively-branded breakfast cereals, wherein the multiple competitively-branded breakfast cereals are manufactured by at least two different cereal manufacturers;

at the quick-serve restaurant, receiving a request from a customer for a first portion of a first one of the competitively-branded breakfast cereals and a second portion of a second one of the competitively-branded breakfast cereals, wherein the receiving of the request is performed at or near a point of sale device positioned at the quick-serve restaurant;

at the quick-serve restaurant, in response to receiving the request from the customer, combining the first and second portions of the first and second competitively-branded breakfast cereals together in a carry-out container as a to-go order; and

at the quick-serve restaurant, presenting the carry-out container to the customer in exchange for payment.

That’s your invention? Something that belongs alongside the light bulb and the telephone? Really? This may not be the most scholarly comment, but LMAO. The US Patent & Trademark Office agreed, and none of the three patents were approved. (See a bit more in the postscript below.)

One of the criteria for patentability is that an invention be non-obvious, and mixing breakfast cereals definitely counts as obvious. Making a restaurant based primarily/exclusively on this model also isn’t inventive enough to justify a patent.

My first reaction on hearing about this case was: Have they never been inside a college dorm cafeteria? When I was living in Colorado State University’s dorms in 1995 and 1996, combining Frosted Flakes and Cracklin’ Oat Bran–with the milk of my choice, or maybe some fruit-flavored yogurt from the salad bar–was simply “dinner.” Dessert? Add gummy bears. And I was hardly the only student to see this as part of dorm life.

While the patents were a joke (all were given up in process by the filers, presumably because they had no case), I have no problem with Cereality having their trademarks. That includes marks on their brand, slogans, and quirky service characteristics, though I think their enforcement of TM was overzealous. A consumer at CerealCity should know that this is not the same experience as one has at Cereality—though really, the more important trademarks (markers of quality) here are held by the likes of General Mills.

The patent story is hardly a simple happy ending, though. Being threatened with a lawsuit is scary and expensive. At least one would-be cereal restaurant folded up shop in response. Filing a patent and then having your lawyer issue nastygrams can have the intended effect—stopping competitors from competing—even if the underlying patent has more holes than a box of Cheerios.

While I’m an expert in neither patent law nor computer science, I’m glad EFF is on the case, and I suspect the VoIP victory is a big win for all of us. But Cereality is something we all understand, making Cereality a good example of patents, patentability, and part of what’s wrong with our patent system.

P.S. Researching patents is now pretty easy thanks to the magic of the internet, though some of the legal language and the process is still intimidating to those without patent law training.

If you want to look for a specific patent or patents covering a specific area, start with Google Patents.

They’ve turned the publicly available PTO database into something infinitely more searchable, since searching is Google’s core strength.

If a result has a patent number, then it’s been issued. Unfortunately, if it’s still an application, one thing a result won’t tell you is its status. Once you’ve found a patent application, you then have to go to the PTO Patent Application Information Retrieval (PAIR) database.

This is how I confirmed that all three Cereality patent applications were rejected or abandoned. (Abandoning a patent mid-process is common, especially following an initial non-final rejection, after which the applicant decides it isn’t worth the continuing expense for a losing cause.) These are:

Application # 11/119,337, claiming to have invented a method of

providing a menu to a customer in a quick-serve restaurant setting, the menu including at least one menu item that allows the customer to select two different, competitively-branded breakfast cereals from a list of competitively-branded breakfast cereals. …

and application # 11/119,336:

A quick-serve restaurant comprising:

multiple above-counter cabinets having see-through doors;

multiple commercially-recognizable, retail-sale packages for competitively-branded cereals, wherein at least some of the competitively-branded cereals are from different manufacturers, and wherein the multiple retail-sale packages are positioned within the above-counter cabinets for viewing by customers of the quick-serve restaurant. …

These are all fine if obvious ideas. Especially in combination, it’s a clever business. (Sell the part of the dorm cafeteria that keeps the 19-year-old guys eating despite Mystery Meat Tuesdays, and give it a hipper feel and more focused design.) But a clever combination of ideas is not necessarily an invention, especially when all of the ideas individually are transparently obvious.

A Hunter alumnus asked me (on Facebook, no less):

Any thoughts on the most recent “privacy concerns” regarding facebook?

For starters, let’s put it this way: I gave the Diaspora project $25 and will soon proudly be rocking their T-shirt.

Also, you can drop the scare quotes. It should creep everyone out how easy it is to cyber-stalk anybody with a FB profile who doesn’t watch the company’s privacy moves like a hawk. People who joined early and kept everything limited to “just friends” but didn’t update their settings have now had what they thought was private information laid bare for the world to see. This is not just immoral; it borders on fraudulent, and it’s potentially dangerous.

Lokman Tsui, a dear friend and U Penn classmate, killed his FB profile, and I fully support and understand his decision. I’m thinking about doing the same, but the costs and benefits are diminished in my case; my wife will continue updating me about our family and friends, as well as telling the world when we’re out of state.

This issue isn’t going away. In his public statements on the issue, FB chief Mark Zuckerberg is incredibly cavalier and uncaring about his users’ privacy. (Listen to this interview on NPR. The opening exchange is incredibly revealing:

Melissa Block: We’ve been hearing these protests getting louder and louder. There’s a “We’re quitting Facebook” campaign on the net. Did this level of user anger catch you off guard?

Mark Zuckerberg: You know, whenever we launch products, a lot of people like the products, and a lot of people are critical, and I think that’s just something that comes with having more than 400 million people using your service. So what we try to do is we try to build the products that we think are best, and then we listen to what people are saying, how people are talking to their friends about the product, what they tell us, the emails that they send us.

What we heard loud and clear this time was that people wanted simpler controls for how to share their information. We spent the last few weeks building those. It was a pretty big effort, but we really wanted to make sure that we were responding to the feedback that we were hearing, so that’s what we rolled out.

This is an amazingly sketchy dodge of the actual question and the real issue. People were and are mad because Facebook began with a simple privacy policy, simple privacy settings, and privacy as the default. In the years since, they’ve violated the expectation of privacy that they created by publicizing info that was formerly private, by defaulting people into public settings, by making some information (including the list of your FB friends) impossible to hide, and (last and least importantly) making it increasingly difficult to change one’s privacy settings.

For Zuckerberg to describe their moving target of a privacy policy as a “new product” is beyond disingenuous–it’s callous and shows wanton disregard for his users’ wishes and the expectations that he helped create, only to violate.

By the way, I’m still on Facebook for 2 reasons. First, I’ve always tried not to post things I consider truly private. This is because I was a Ph.D. candidate before the service launched, so my friends have always included a large number of colleagues, making me think twice before I post.

Second, and more importantly from a policy perspective, is the problem of network effects; the service is much more valuable than its competitors because many more of my friends and family use Facebook–and they keep using it because their friends and family keep using it, and so on. Walking away from Facebook is basically walking away from the social networking hub.

The size of the network and the centrality it plays in so many people’s lives makes it really scary that somebody with such apparent disregard for users’ best interests is in charge.