WNYC Should Stop Repeating Lie About Birth Control Mandate

[An email I just sent to WNYC:]

Greetings,

I am a sustaining WNYC member who is sick, sick, sick of hearing the currently running promo for The Takeaway. It contains the patently untrue assertion that the Obama administration’s new birth control mandate would cover abortion-causing medication. This is patently untrue. The mandate would cover the morning-after pill, which IS NOT an abortion pill. See:

http://www.factcheck.org/2012/01/gingrichs-baloney-filled-attacks-on-romney/

That the show would accept a guest who will propagate this deliberate lie is objectionable enough; that the station is continually airing this claim as the show’s promo is shameful.

Those who work for the media have an ethical, professional obligation NOT to repeat lies, half-truths, and misleading information. The repetition of a claim, true or false, makes the information seem more true over time for audiences. This is true even when the claims are presented as false! See, e.g.:

http://papers.ssrn.com.proxy.wexler.hunter.cuny.edu/sol3/papers.cfm?abstract_id=532202

Your station is better than this. The Takeaway is better than this. Be good journalists and good citizens, and pull this ad ASAP.

Sincerely,

Bill

[Didn’t want to bog down the email, but here’s what I think is a better and more foundational citation for the “repetition creates truthiness” results:

Repetition and Rated Truth Value of Statements
Marian Schwartz
The American Journal of Psychology
Vol. 95, No. 3 (Autumn, 1982), pp. 393-407]

RIAA Chief Needs Better Understanding of Fairness

Some people will use every single under-handed tactic in the book to win—and then, if they lose anyway, complain that the game was rigged.

In a New York Times op-ed yesterday, RIAA head Cary H. Sherman whines that his side lost the latest round of the copyright wars because, in his eyes, the opponents of SOPA and PIPA acted unfairly.

For those who have been following the copyright debate for longer, this claim is so laughably ironic as to need no rebuttal. That the Times ran it, however, suggests that a broader historical context is needed.

Among other groans, Sherman rails against the anti-SOPA crowd for describing the bills as “censorship,” which he describes as “a loaded and inflammatory term.” He says he would rather have “respectful fact-based conversations” using “reason, not rhetoric.”

Yet in the same essay, Sherman continues the content industry’s decades-long history of using every loaded and inflammatory term they can think of in describing infringement.

Sherman repeatedly eschews the more accurate term “infringement,” choosing the morally loaded (and inaccurate) term “theft” instead. He compares sites accused of online infringement to “stores fencing stolen goods.” He accuses SOPA opponents of “supporting foreign criminals,” “misinformation,” and “demagoguery.” He even wonders how many of the bill’s opponents may be among the members of Anonymous who engaged in retaliatory online attacks against his group.

These accusations against the moral rectitude of their opponents are a tried-and-true pattern for the content industries. Now Sherman is upset that SOPA opponents used a morally loaded term? Anybody who has paid any attention to the debate over copyright should laugh out loud.

In addition to being on the wrong end of the accusation of rhetorical hyperbole, Sherman is also on the side that has a far less sound record of making accurate factual claims and of including all relevant details.

In this very essay, Sherman plays fast and loose with the truth. He claims that the bills were “carefully devised” and were proceeding after policymakers had “studied the problem in all its dimensions, through multiple hearings.” This could hardly be farther from the truth.

The bills were written in blatant disregard of a veritable library worth of skeptical input and proposed amendments from the tech sector, civil society groups, internet engineers, legal scholars, and the public. Rep. Lamar Smith, the lead sponsor and Judiciary Committee chair, was trying to ram the bill through on the House side after a single hearing in November that was so stacked in favor of the bill—five supporters to just one opponent—that the very even-handed group Open Congress described this sham of a hearing as a “lovefest”.

During the markup in December, the bill’s House opponents practically begged Smith to hold more hearings to hear more of the technology and civil society sectors’ concerns about the bill. Smith was unmoved and tried to move forward anyway. That is hardly studying the problem “in all its dimensions,” to say the least.

Next, Sherman defends the legislation’s proposals to shutter accused infringers, saying it wouldn’t be censorship because these sites would only be shut down after a court had undertaken “a thorough review of evidence.” First, the claim that these one-sided hearings would be “thorough” is, um, generous; the operator of the accused website would not only not have any right to contest the charges in court, they would not even be notified until after it was over! In nearly all cases, the site would be shuttered before the operator knew what happened.

Further, this misleadingly implies that sites would only be affected based on a court proceeding, which is patently untrue. Under Section 103 of SOPA, a letter from a coypright holder would be sufficient to compel payment processors and advertisers to stop doing business with a site. This sets up a more extreme version of the DMCA’s notice-and-takedown provisions, except rather than nudging behavior by creating a safe harbor for sites that comply (and thus creating such strong incentives to comply that a takedown notice is almost compulsory), it actually compels companies to obey these letters from the content industry that have never seen the inside of a courtroom.

Of course such a system will be subject to both human error and genuine malfeasance. We know this for a fact because of the many examples of fraudulent, mistaken, and abusive takedown notices under the DMCA.

Of course, these are just the inaccuracies in the article itself. In general, on the count of circulating misleading information, the content industry and their allies in the government are so guilty as to have few peers in DC.

Their estimates of how much infringement costs the US economy are an especially rich source of whoppers. These estimates have varied wildly, but they have consistently been so high as to be laughable. You may have heard the figures of $250 billion and 750,000 US jobs bandied about on a regular basis (though, granted, this is an estimate for all IP infringement). It turns out this figure is literally made up out of thin air, but it has been cited endlessly by IP zealots of all stripes.

When will Sherman begin admitting what the Government Accountability Office found in its 2010 report (pdf), which describes all of the major problems in all of the industry-funded studies of copyright infringement? (The GAO concluded that it is “difficult, if not impossible, to quantify the economy-wide impacts” of infringement.)

Where is Sherman’s outrage about the MPAA’s laughable estimate that infringement costs the movie industry $58 billion/year? (For some perspective, that’s a figure larger than the GDPs of 10 different US states.)

Sherman (who, by the way, earns an annual salary of over $3m) has also made incredibly inaccurate and misleading statements on other matters, even doing so in person in Congress. For instance, in a 2004 hearing on proposed DMCA reforms, he contended:

Second, there has been an impression created that the DMCA disallows fair use. In fact, it allows consumers who legally acquire a copy to make a fair use copy and you have a triennial review process to provide even further assurance that fair use rights are not lost.

The DMCA only prohibits companies from selling black boxes to strip away content protection for any purpose.

Not only is this patently untrue, if Sherman was honest with himself, he knew it was untrue as he was saying it. Section 1201(a)(1) of the DMCA actively prohibits circumvention of access-controlling DRM (including, e.g., the protection on DVD discs), which makes it illegal for consumers to make fair use copies of the media they legally acquire. To say the DMCA “only” regulates devices is, ahem, incorrect.

Further, his reference to the Copyright Office-administered triennial review process is also disingenuous at best. In the 2000 and 2003 DMCA hearings, consumers and consumer advocates had twice asked for the right to make fair use personal copies of encrypted media such as DVDs, and twice the Copyright Office had told them no. As Oscar Gandy and I demonstrate, those proceedings were marked by the Copyright Office giving as few exemptions as possible under as narrow a set of terms as possible with little regard to consumer welfare. This has improved a bit in the years since, but Sherman’s claim would still be false today.

I fully support a rational, fact-based discussion about the future of copyright. Unfortunately, the content industries have spent at least the last three plus decades polluting the discursive waters with loaded rhetoric. Remember which technology it was that MPAA chief Jack Valenti invoked the Boston Strangler to damn? That’s right, the VCR, and he did so in 1982. They have also spent at least the last decade trafficking in skewed, inaccurate, and downright-made-up statistics to support their claim that the post-internet sky is falling.

Setting aside Sherman’s radical hypocrisy on loaded and inflammatory terms and misinformation, there’s a deeper critique here: For far too long, copyright law has been decided in a nearly-private discussion between the affected industries and select policymakers with little public input. Jessica Litman makes a very persuasive case that this was true throughout the 20th Century.

Since then, as I show in my forthcoming book, the EFF has gotten heavily involved in copyright advocacy, and Public Knowledge has become a respected on-the-Hill counterweight to the industry’s clamoring for ever-stronger copyright enforcement. These groups have also helped persuade the tech sector to stop acquiescing to the kinds of compromises that let technology-shackling acts like the AHRA and DMCA sail through in the 1990s. Thanks to these changes, it has been much more difficult for Big Content to write new changes to the copyright statutes.

Still, until late 2011, the details of a proposed bit of copyright legislation had never really penetrated into much of the public conversation. In November, over a million citizens expressed their opposition, and even this was not enough to make an impression on Congress. The content industries have been playing the lobbying game to a masterful degree for decades, and when those kinds of relationships and campaign donations are on the line, calls from angry constituents can be ignored—at least until there are so many calls that it melts the phone lines.

Last month, of course, everything changed, and now Big Content is outraged. MPAA chief Chris Dodd, as part of his own personal lashing-out (which as far exceeded that by Sherman), made far too transparent the nature of this game. On January 20, he went on Fox News and said:

Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.

Dodd, a former Senator, may actually have crossed a legal line here, making explicit the implicit exchanges that characterize the systemic corruption that Lessig describes as DC’s “gift economy” of trading favors. Regardless of whether he could be prosecuted, however, is almost immaterial. Rather, it highlights the profoundly unjust and immoral way that copyright law has been made up until this point.

It was an unexpected development, to say the least, that so many of the world’s leading websites chose to act together to bring greater public attention and scrutiny to this important issue. I definitely count it as a blow for democracy and against the way of lawmaking that moves along without even the fear of substantial input from the voting public.

Whenever both RedState and MoveOn think a bill is bullocks, the odds are high that the proposal is not just imprudent, but that it is being advanced in a profoundly anti-democratic way.

If Sherman wants more fairness in policymaking, he should lobby for systemic reforms instead of railing against a genuinely democratic movement.

(10:25 pm: Edited b/c I accidentally posted the whole thing in twice. Whoops.)

Stop Online Piracy Act: Terrible Law. Great Example of Internet Mobilization?

We’re in trouble. The future of the internet is in danger, and if that danger comes to pass, it’s both unhealthy for and a very bad indicator of the health of our democracy.

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.

NYC Pols Must Rein In Police: A Letter

Here’s a letter I’ve just sent to my city councilmember, Stephen Levin, and Mayor Bloomberg:

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

On Hurricane Coverage and Disaster Preparation

In many spots along the mediascape, we now have a bunch of genuinely thoughtless criticism of media coverage and politicians, all centered around allegations that these people hyped up and tried to cash in on this natural disaster.

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.

Why CUNY Trustee Jeffrey Wiesenfeld Needs to Go

Some of you may have heard about how CUNY Trustee Jeffrey Wiesenfeld’s slander of Pulitzer prize winner Tony Kushner kept Kushner from getting an honorary degree from John Jay. What hasn’t gotten enough traction, IMO, is that Weisenfeld is a straight-up bigot who considers Palestinians as not even human.

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 [sic] 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.

[Updated Sep. 3, 2014, to correct the spelling of Mr. Wiesenfeld’s name. The typo was also in the letter I sent, so I have left that unedited but added “[sic]” to the first such instance in the text. Unfortunately, the URL will retain the misspelled version.]

AT&T/T-Mobile Merger: Less Competition, Higher Prices

I was dismayed to learn that AT&T is trying to buy T-Mobile for a whopping $39 billion.

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

Carrier Share, % Share Percentage, Squared
Verizon 31.1% 967
AT&T 25.2% 635
Sprint 12.0% 144
T-Mobile 12.0% 144
Tracfone 5.1% 26
Totals 85.4% 1916

 

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

Carrier Share, % Share Percentage, Squared
AT&T plus T-Mobile 37.2% 1384
Verizon 31.1% 967
Sprint 12.0% 144
Tracfone 5.1% 26
Totals 85.4% 2521

 

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.

 

Google v. Bing Lawsuit? Not for Violating Copyright

(As always: I’m not a lawyer, I’m definitely not your lawyer, and nothing herein is to be taken as legal advice.)

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.

Redskins Owner Dan Snyder Sues Critic: Streisand Effect, Anyone?

In a suit filed yesterday, Washington Redskins owner Dan “Chainsaw” Snyder has accused the Washington City Paper of libel and defamation and asked for $2 million. This is the worst move he could have made.

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!

How I Use My Kindle

Via Facebook today, I had yet another cause to discuss how I use (and why I love) my Kindle. This isn’t a Gizmodo-style tech lust blog by a long shot, but other folks—especially other academics—often want to know if this device can improve their lives. The short answer is: Maybe. For me, Continue reading

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