Friday, April 29, 2005

LTE Never to be Published

The Daily ran an opinion piece yesterday about overturning the Senate Filibuster. I wrote a letter to the editor that was not published in today's edition. As Friday is the most likely time to get these things published, I think its unlikely it will ever see the cold crisp pages of our local circular. Maybe my argument was too high brow! Even so, the letter can live on here, among my clutter of thoughts. Maybe someone will pick up the term "Elephant in a China Shop" and make it famous.

Grasping the Subtleties

The United States Senate is a complicated legislative body.  It is the embodiment of federalism central to American democracy.  The only rule handed down to the Senate by the Constitution is that the Senate, independent from all other branches of government, shall decide what that federalism looks like.  We elect Senators to help shape American federalism.  Maybe a fluke of history, or perhaps intentional and structured, our Senators decided that an aspect of federalism means that if 2/5th of the states want continued discussing of an issue, discussion continues.

Is it obstructionist?  I'm not convinced.  During Clinton's term the Republicans held up numerous appeals court nominees in committee.  It's a rule, devised by our Senators, that allows a minority of Senators (ten, to be exact) to prevent a nomination from reaching the floor and that all important up or down vote.  Is that rule obstructionist?  Is that rule unconstitutional?

I suggest the rules are one in same.  If it is unconstitutional for 40 senators to hold up a nominee, than it is equally unconstitutional for 10 senators to hold up a nominee.  The Senate is a subtle body, designed to represent the complexity of American federalism.  Declaring the filibuster unconstitutional and questioning centuries of American tradition over a small handful of appointees is a bit too much like the elephant in the china shop for my tastes.

The Final Word on WIPO

Past week has been kind of interesting on the WIPO Internship horizon. As I wrote earlier, I was selected as one of two finalists whose names were forwarded on to WIPO for final consideration. All was well and good in the land of milk and honey. But then things went sour.

First indication of badness took the form of an e-mail from a WIPO employee who shall remain nameless. The e-mail originated from a non-WIPO e-mail address, was horrendously terse, and didn't even say whether the individual was a WIPO employee. After confirming the name was legit with my UW contact I forwarded on my resume and phone number (which she should have already had) and awaited a phone call. The call, unfortunately, came while I was indisposed in the library. So I e-mailed her that night saying I would call her at 12:30 PST and if that wasn't a good time to let me know.

Well, turns out it wasn't a good time... but she didn't bother to tell me until I called her. That resulted in a rather unfortunate conversation where I lost a lot of respect for the professionalism of WIPO. I later had my actual factual interview that included such insightful questions as "have you ever worked for an international organizations before" (uh... don't you think it would be on my resume) and "how did you learn about WIPO" (hmmm... maybe I study IP at Law School). Following the grueling interview she essentially said I wouldn't like the internship and unless I had my housing situation completely worked out that I should just let them know so they could offer the position to someone else.

Today I did just that. Having decided that going to New York for 10 weeks, unpaid, without housing, and working for what struck me as a hugely unprofessional organization who really didn't want me in the first place is not my idea of a good time. Granted, my legal career is not going to really benefit from the alternative of staying here and doing legal research (although the topic sounds cool... more on that later), but at least I won't end the summer with HUGE credit card and personal debt.

But for a brief moment there I thought something really special might have happened... but apparently it just wasn't in the cards.

Monday, April 25, 2005

More on the Filibuster

As a procedural scholar, this is some of the most interesting stuff that has ever happened in my lifetime. Today I had something of a flash of personal insight that makes this situation even more clear on the side of the Democrats.

Consider the following two rules of the Senate: One, debate is unlimited absent a cloture vote; Two, there is no floor debate unless a Senate Committee favorably recommends the legislation or appointee. During Clinton's term the Republicans held a majority in the Senate and thus controlled the Judiciary Committee. The Judiciary Committee sat on a many of Clinton's judicial nominees.

The Republican Leadership's legal argument is that the filibuster contravenes the Constitutional mandate that the Senate provide advice and consent to presidential appointments. By allowing for unlimited debate, the rule violates that constitutional directive that the Senate provide that advice and consent through an "up or down vote." If we grant that, how do you distinguish the rule from the one that allows committees to stop appointees from ever getting a vote? The Committee represent a minority of the Senate (even smaller than the 45 filibustering Democrats). If the Republicans are academically honest, how can one distinguish the filibuster rule from the committee rule?

Of course, that's the whole damn problem. Only the majority can pull off the "rule change" stunt currently proposed, so the minority cannot strike against the Committee rule. And since the majority already controlls the committee, there is no reason for them to bring it up.

Saturday, April 23, 2005

Terms of the Filibuster Debate

Here are two leadins for articles appearing in this weekend's papers
Washington Post
The White House intervened in Congress's bitterly partisan debate over federal judges, as Vice President Cheney vowed to break a tie vote if necessary to change Senate rules and ban filibusters of judicial nominees.

New York Times
The vice president said he supported changing the Senate rules to stop the Democrats from blocking judicial nominees.

Both of them say the Republicans are going to "change the rules" to stop Democrats from using the filibuster. But that's hardly accurate. Rule changes require 2/3rds approval within the United States Senate. Its been that way since the beginning of time. This is different from the House were rule changes can be made with a simple majority. What the Republic Caucus is planning to do is declare a particular rule unconstitutional.

Here's the general plan. A judicial nominee is brought up for debate, some basic level of debate will undoubtedly be allowed, and then some Republican Senator will move to vote, followed by a Democrat making a point of order that he or she has more to say and a cloture motion has not been approved. A cloture motion is required to end debate in the Senate Rules. At this point the President of the Senate (or possibly the Senate Majority Leader... but I think the ceremonial task will fall to the President) will declare the rule unconstitutional as applied to the Executive Calendar (where Presidential Appointments get listed... distinct from the Legislative Calendar). A Democrat will then challenge the ruling of the Chair. At this point it will take 50 Senators (plus the Vice President Cheney) to uphold the ruling of the Chair.

There are two interesting aspects of this plan. First is a matter of language. This is not a true rule change, it is a rule stripping. But cloaking it as a "change" as if it is a normal course of business is probably helping the Republicans sell it to the American People. I think that's why its taking them so long to actually execute the plan... they are biding their time until the perception changes from a massive departure of Senate precedence to an average, every day rule change.

The second aspect is whether or not this will actually make a difference. The only way to end debate in the Senate is through a cloture motion, requiring a 3/5th approval. A filibuster is not an actual thing so much as it is a lack of cloture. If they rule the cloture rule unconstitutional as applied to the Executive Calendar, what exactly is left? As I would interpret it, debate would remain unlimited and there would be no mechanism left to end that debate. Maybe I'll look up the actual rules and see if there is something I am missing.

Even so, if the Senate does go through with this, the Democrats can take their case to the Supreme Court who may decide that the rule is not, in fact, unconstitutional and reinstate it. This may seem like a violation of the separation of powers... but in fact it is a rule necessary to maintain that separation. If the majority party can declare whatever it wants unconstitutional without judicial review it places the majority as the final arbiters of our constitutional rights and gives them an unstopable tool to wield against the minority.

Friday, April 22, 2005

A Sort of Patent Reform

This past week my Legal Protection of Software course has been instructed by T. Andrew Culbert, Microsoft's Associate General Council for patents. This is not the guy who secures patents (known as patent prosecution), he is the guy who does the litigation (both defense and plaintiff work). It has been a really illuminating experience and given me a lot to think about in regards to software patents.

In the past I have been majorly opposed to software patents. I've even written a nationally syndicated article about the how stupid they are. I'm not alone in my opposition. Just a few days ago India revised its new patent statue to exclude software patents and the European Union continues to struggle with the proposal. But I'm beginning to develop a more nuanced appreciation for software patents thanks to the past few weeks.

Mr. Culbert's perspective is one where corporations are the only actors, which isn't exactly how the world works... but its not too far from the truth. Given his assumption, software patents aren't really all that bad. See, patents have this interesting ying-yang property. If a patent is really broad then it has a greater chance of stiffling future invention, but it also has a great chance of being invalidated on prior art. Other the hand, if a patent is really narrow, it has a greater chance of validity, but covers fewer inventions.

One of the classic examples of this is the Amazon One-Click patent. Oh sure, its a stupid patent... how can someone patent doing something with one click?! But then again, what's really the big deal? The only way to keep the patent valid is to narrowly construe its terms to cover only systems with one-click, leaving two-click systems outside of the scope. Barnes & Noble easily designed around the problem with a nifty little pop-up asking "are you sure?" Done, no more problem. Suddenly the value of the software patent plummets and its no longer worth all of the legal expense necessary to take out a patent in the first place.

Indeed, that is exactly the behavior we have seen. Fewer software patents and business method patents are being taken out. Those patents that are filed face daunting prior art challenges, leaving only truly innovative ideas that might never have been developed without the promise of exclusive control. But this where we come crashing back into reality... the only way to bring a successful prior art challenge is to be a giant corporation with lots of money.

The assumption becomes even more tenuous when you add in cross-licensing behavior. Instead of suing one another to invalidate the giant arsenal of acquired software patents, corporations cross-license them at no cost. Essentially, the only people with the resources to challenge the patent are allowed to use them free from the threat of suit. This leaves the "little guys" to fend for themselves. They face two primary challenges: 1) developing technology that is covered by an issued, but probably invalid, patent and 2) successfully bringing suit to enforce one of their patents.

Which brings me pretty much full circle. I think I'm still opposed to software patents, but not for the same reason as I started out. Innovation deserves to be rewarded if that's what the developer wants in exchange for their work. But, the nature of the software industry, the size of the players, and the ability (and desirability) of having small players appear on the scene with minimal capital counsel against allowing existing companies to lock up future development with scare tactics and large legal teams.

Wednesday, April 20, 2005

This is City Politics?

Roughly six months ago I started attending the City of Seattle's Broadband Technology Task Force as part of a clinic at the law school. The Task Force was created by a Resolution of the City of Seattle charging it to recommend means to bring broadband technology to Seattle citizens. One part of the Resolution asked the Task Force to look into legal issues surrounding any possible proposal. Since my clinic's faculty member, Prof. Covington, served on the Task Force, he felt it would be an excellent task for a clinician to help out with.

These meeting take place at 7:30 in the morning and were all sorts of stuffy. But that's okay, I support the goal, and this is how government works. What frustrates me is as the proposal developed their interest in the surrounding legal issues wained. Today they finalized that proposal, in all of its mediocre glory, with the blessing of the City Council member who drafted the original resolution.

What is so upsetting is the indifference to the legal issues surrounding the proposal. Regardless of how modest the proposal, I believe Comcast, Verizon, or Quest is going to sue to enjoin. They may not have a winning legal argument, but they may have a winning argument in the court of public opinion. So it strikes me that the City should have a complete sense of what legal challenges might be brought so it can weigh the challenges it may face in court. But the Task Force Staff disagrees.

The Staff had a paralegal review the issue and determine that there were no legal issues. Ridiculous... my analysis says there are all sorts of possible ambiguities in the law that a challenger could bring. Only the most favorable reading of the law turns in the City's favor... and while I think they have a really good case, its certainly not as locked up as the paralegal would have them believe. But even that's okay, because I figured that the office that will oversee their proposal would look into the surrounding legal issues.

Those hopes were dashed today when I finally got a hold of the Task Force recommendation. Buried among the numerous detailed recommendations in the 56 page report are four instances of the word 'legal'. Three of them appear within the resolution creating the Task Force directing them to evaluate the legal issues. The other appearance is part of a recommendation that the office investigate "legal, economic, and technological issues" and then gives several examples of economic and technological issues. No legal issues were mentioned. There was another section that said the office should look into applicable laws and regulations, which is good, but made no mention of the contracts at issue, which is where the real problem lies. So, I figured I would speak up and recommend the word 'contract' and at least give the new office a fighting chance of doing its proper legal research. Wouldn't you know it... the staff tried to shoot me down again! They claimed it was "implied" in the report. This is a report that made well of 50 recommendations that are all pretty much the same. If the report was based on implication it could have been summarized in five sentences. Thankfully cooler heads prevailed and the word will appear in the report.

But in retrospect, its really a very minor victory. The Task Force failed to do its job to investigate legal issues. It even failed to direct the office towards the issues, concentrating more on the marketing aspects of the proposal. Now the City Council is going to do one of two things: adopt the proposal without knowing the full legal issues OR ask why no one looked at the legal ramifications. Either way, the City loses.

Saturday, April 16, 2005

Letter of Recomendation

Asking someone to write a letter of recommendation has always been a big deal for me. You are essentially asking someone to vouch on your behalf to total strangers. Your actions will reflect on their credibility. Some of my professors guard their right to recommend quite fiercely. The standard response if someone doesn't want to write you a letter is that "they don't know you that well," but I once I got a full on rejection. Since then I've been more careful with whom I request.

All of this took a sharp turn a few days ago when a former Senator asked me for a letter of recommendation for his application to the Peace Corp. Knowing him as I do, I felt he was a natural person for the job and would excel in that kind of environment. Little did I know what I was agreeing to.

The Peace Corp's online form presents the recommender with three options. One of which was "I do not feel qualified to recommend this individual," so that was out. That left me a set of form questions to respond to, or a drafted letter. I figured that the form questions would be more helpful to the Peace Corp than my own personal rantings. This option also had its failings, like a character limit of 250 per question!

But that's not what got me. What got me is how the questions brought out some of the reservations I felt about this individual. So I was faced with a choice: give the honest answer and possibly ruin his chances of getting in, or lie and just say great things. The question seemed worthy of a bit of cost/benefit analysis.

The Lie:
  • Better chances of the individual getting accepted (plus)
  • Personal disappointment with lying (minus)
  • No one would ever associated me with him, should he fail as a volunteer (plus)

  • The Truth:
  • Less chance of individual getting accepted (minus)
  • Personal feeling of good for telling the truth (plus)
  • No one would ever know that I was being completely honest (minus)

  • Based on that, it would seem I should lie. The only detriment to lying was a personal one, and the same went for the benefit to telling the truth. Is it worth my own personal satisfaction to jeopardize this individuals hope after they asked me to recommend them?

    In the end I resolved to tell the truth. Its not like I said anything awful about the person, and I did check "on the whole I recommend this person" (a step below "I recommend this person without reservation" and above "I do not recommend this person"). As an overarching rationale I believe the letter of recommendation says something about both the recommendee and the recommendor. Its a societal contract issue. I sincerely hope that all of the people who have recommended me over the years follow the same principle. I would hate to get a job because someone lied for me.

    Am I a Copyright Holder?

    I was informed yesterday that I may one day see royalties from LegSim. There are two odd aspects about this discover.

    First, I never really expected royalties. I have kind of operated under the assumption that this has been a work for hire. As a work for hire, the employee gets handsomely paid and the employer gets all of the rights created by that employee. I have certainly been handsomely paid over the years. (UW lawyers reading this post: I consider the statement by Prof. Wilkerson that I own my work to be solid evidence that it is NOT a work for hire and that any further work on my part to serve as evidence of estoppel). I justify my wage through a combination of mediocre programming skill and an excellent grasp of how students think about simulations. These two skills, combined with Prof. Wilkerson's initial idea and continued guidance, have generated an incedible piece of software that has real potential.

    The second, stranger issue is the idea that I hold a copyright in LegSim and a beneficial interest. My legal/political persuasion says that the world is better served if I release those rights unto the world. This would allow the rest of the globe to improve upon the software and make it better. But then here's the rub. I'm not convinced that this software is the kind that would be improved with global distribution. My perfect vision of the world has software with widespread use in the public domain, while paid software developers continue to work on niche software. The hope is that developers who are paid will devote some of their free time to work on unpaid works, but that's decades away.

    In the mean time, I have to figure out whether my personal morals are going to be too upset if I end up receiving royalties. LegSim is niche software... right?

    Wednesday, April 13, 2005

    Fixing Student Democracy

    I wrote earlier about how ATN! slipped through the cracks of student government last year to get on the ballot without proving their organizational capabilities. Since then I have been thinking up ways to avoid the problem in the future and believe I have a workable solution.

    The current idea popular with people I have spoken to is requiring ATN! to undergo a yearly audit. That is all well and good, but ultimately doesn't serve the purpose of instilling trust into the organization. The average student is not equipped with the time or the expertice to understand what the audit is saying. The audit, as a stand alone solution, does nothing but add expense (paid by student dollars) and frustration.

    It has been suggested that the University will tell us if the audit comes back negative. Okay, sure, we could ask the University to solve all of our problems for us. Or instead, we could take some personal responsibility and do it ourselves. I propose setting up a joint ASUW/GPSS Commission that would review the books and transparency policies of any group receiving direct student funding (currently only ATN! and WashPIRG). The Commission would issue a recommendation each quarter to be put on the website where students decide if they want to donate money. The Commission would either certify them as trustworthy or not certify them. If you wanted to know why, there would be a link. They would also provide a more detailed report prior to the student vote to keep them on the list to ask for money. But ultimately the individual student would make the determination to donate or not, but they would have access to information provided by other students. Web of trust sort of stuff.

    Now I need to figure out how to sell the student governments on the idea.

    Tuesday, April 12, 2005

    Political Trademark

    Washington State remains something of a maverick when it comes to politics. For more than 40 years the Evergreen State used the blanket primary system to select candidates for the general election. The blanket primary is unique because it allows voters to vote for different parties in different races, which is great if you don't have strong party identification.

    Of course, if you're a political party, you hate the idea... so they took the system to court and had it struck down a few years ago as a violation of 1st Amendent freedom of association. The State Legislature responded by passing a top-two system, where the top two vote getters in a primary, regardless of party, would move on to the general. In other words, two Republicans could end up running against eachother in the general without a Democrat to be seen. This was line-item-vetoed by the Governor and left us with a closed ballot primary, where you designate a party and have to vote that party in every race, ensuring a Democrat and a Republican for each race.

    The voters were not too thrilled with that plan, having used the blanket primary for so many years. With the same progressive spirit that gave us mutliple independent executive officers and elected judges, the state voters approved an initiative reinstating the vetoed top-two system.

    This system is likely to upset the parties once again, but its going to be hard to get a freedom of association argument through the courts. So what are the parties going to do?! How will they ever survive the trying behavior of the Washington State electorate?! One individual close to the subject matter has suggested that the parties will switch over to conventions and use trademark to protect their identities. Didn't win the Democratic nomination but running as Democrat? Excepted to be served with a nice cease & desist order from you local party chair.

    This raises a whole host of interesting policy issues. Is this what trademark is really for? Its justification has always been an economic one. Do quasi-state actors like political parties have the right to exclusionary trademarks? As a private club, maybe... but the parties are a great deal more than that in our society. And what of free speech rights? If they can stop me from identifying myself as a Democrat, what else can they restrain?

    I think the parties would have been better off keeping their mouth's shut back when we had the blanket system... but I guess this is what happens when everyone tries to enforce their rights to the maximum extent allowed by law instead of working through systems of political compromise.

    Monday, April 11, 2005

    Copyright Observation

    I read this great webcomic called A Modest Destiny that is drawn by this real pompus guy named Sean Howard. Sean's a bit of a webcomic drama queen. He's taken on all the big names at one time or another, earning himself quite the reputation. Most of the issues surround what he defines as protection of his intellectual property. This past week he got into another squabble, although this time the evil perpetrator is a small time webcomic by a some kid.

    While Sean's claim of copyright infringement is tenuous given difficult questions of originality (its pixel art... only so many ways to express a given image with a limited number of pixels), that is not what is interesting. Traditionally when Sean gets upset he takes down the site and throws up a big tirade ordering his minions to flood the infringer with e-mails (nothing like web vigilantes). This time was no different, until yesterday when the comic was put back up by the site administrator noting that they had advertising dollars coming in so they needed to comply with those contracts, even if the dastardly infringer was still at large.

    Now isn't that interesting? Mr. Howard, who believes his IP rights give him unquestioned authority over what happens to his work, was taken down by a simple contract and a few hundred dollars in advertising revenue. It illustrates that the IP debate isn't actually about destitute authors or oppressed singers... it is about a whole lot of money and who, when the tech revolution has settled down, is going to get a piece of it.

    WIPO Update

    I heard today that I am one of two finalists for the WIPO Internship in New York! The other finalist is a great person who is in my Clinic, so I know that the UW will be well represented either way. I'm supposed to find out by the end of the week.

    Failure of Procedural Democracy

    The UW's Daily reports that Affordable Tuition Now! (ATN!) has thousands missing from its checking account, and that it may be as much as $50,000! Every penny going to that organization comes from student donations, $2 a pop, collected over many years. Its a sizable chuck of change to be just missing, and there are allegations of outright theft.

    But what does this have to do with procedural democracy and its failure thereof?

    Last year ATN! had to go through the renewal process to be listed on StarMan (yeah, its not StarMan anymore... but I still think of the man who would talk to me on registration day). Only two groups are listed, so only two have to go through renewal. WashPIRG is currently going through its renewal process (its a four year deal). WashPIRG goes through the direct democracy process, gathering signatures to be placed on the ballot and then facing a vote of the student body. ATN! went the indirect way, petitioning the ASUW Board of Directors to put it right on the ballot without any effort. But at least ATN! has to go through the student body vote, right? Well sure, but when those of us concerned about ATN! asked questions to help inform the voters, we were told that only members of ATN! could know such things like "how much money they have?", "what they are spending it on?", "what their future goals are?".

    Come election day, a few of us put together a catchy anti-ATN! statement and tried out best to kill ATN! then and there, but it was difficult without hard facts. In the end ATN! squeaked by with a 32 vote majority, out of nearly 5,000 votes! And yet, it would seem now that the majority got in wrong. ATN! was mismanaging the money, as had been asserted earlier, but the voter apparently put more stock in a great name like Affordable Tuition Now! than the ramblings of our anti-ATN! statement.

    Which is why I say the ATN! renewal is a failure of procedural democracy. Putting something up for a popular vote does not absolve anyone of their sins. The only way we can trust voting is if the voters are properly informed and have all the facts available. An educated populous with diverse media sources is essential to having democracy actually mean something.

    Far too many student government types (this includes ALL of the advisors) believe that everything is solved by an election... "just ask the students, they tell us." I think the ATN! incident teaches us a valuable lesson that elections are not infallible and that factual disclosure is the best way to ensuring good policy making.

    Sunday, April 10, 2005

    Applying to WIPO

    On Thursday I sat down to interview for an internship at the World Intellectual Property Organization. WIPO is based in Geneva, Switzerland but as a part of the United Nations they also have facilities in the New York UN Building. The internship is, unfortunately (or perhaps fortunately) not IN Geneva, but in New York, but I'm getting ahead of myself.

    The position is dedicated to a UW Law Student thanks to the efforts of Prof. Takenaka, a master patents professors/litigator/prosecutor. I took patents from the professor in the Fall of 2004 and had a great time. That's not to say the two of us didn't fight like cats and dogs. See, if its not already apperant from the name of the blog, I'm a bit of a copyleftist. Unfamiliar with the term? Never fear, you'll learn about it as you read future posts, so let's leave it at that for today.

    Anyway, she is big on patents and I think that, maybe, we've gone a bit too far. But it would seem that I made a good impression on her, because she decided to be my reference for the internship. That her assistant is the one conducting the interviews makes it all the more interesting. But interview I did, and we had a great 30 minute chat about how I'm going to keep my views on IP out of my business with WIPO, proud employer of the world's IP apologists. That's not to say that I don't share a lot of common beliefs with WIPO, but the debate has become so fracture and extreme that I would probably be considered a radical in their eyes.

    The candidate pool started at 12, paired down to 4 interview candidates. By next week they will send just two names to WIPO for their final determination. And what does the finalist get from this process? A ten week internship in New York City, no expenses paid. You read that right, no funding. But dammit, I'm gonna go one way or another! Even if I spend nights on friends couches, this trip will become a reality.

    More forthcoming when I find out.

    Wednesday, April 06, 2005

    First Post Inauguration

    I've done Blogs before.

    Way back during my Junior year in college (2001) I was majorly into blogging. But that was before blogging even became something normal people did. Sure, there was Slashdot... but beyond that it just wasn't popular. I really didn't even think of it as blogging until years later. All I did was take humorous stories in the lives of my friends, write a paragraph about it, and post in online. People could read it and see what had happened. I even wrote the software that made the blogs run. Starting with raw HTML, I later developed a flat file technique and then my last few blogs were database driven. I still have those posts, flat files, and Dbases lying around, the question is whether I have the software that knows how to read them?

    This blog marks the third time I have tried to start a real law school blog for myself. I had one named Contras Pacem Regis ("Against the Kings Peace") for the first few months but didn't really keep up with it. Later I flirted with Live Journal, but I found the interface intolerable and just didn't click with it. I think I only made 2 posts on Live Journal.

    The grand hope is that Blogger will be the magic ticket. We'll see though... what with its lack of inane smiley face options, I may have a difficult time properly expressing my deepest emotions in digital format :)