Wednesday, November 29, 2006

IP in the News

Two stories worth noting/commenting about and then it's back to work on my Kolab replacement technology... and maybe I'll try to find a job.

First up, the United States Supreme Court heard oral arguments today on a topic near and dear to my heart: obviousness. In order to receive a patent from the United States government an invention must pass a series of tests. They are generally conceived of as: utility, novelty, and nonobvious. At this point utility is pretty much a non-test, as everything has some utility. There used to be a doctrine about public good, but a famous case about those drink dispensers and how they trick you into thinking the juice is fresh (when, in fact, the juice you see is colored water in a continuous cycle) ended any need for public benefit.

Novelty is perhaps the hardest hurdle to cross, because any prior art can nullify your patent. Of course, there is no easy way to access prior art and because trade secret is such a big thing in the technology sector, a lot of prior art is never widely published.

Which leaves us with obviousness. Under the statute, a patent is not to be granted to an idea with someone of "ordinary skill" in the same field could have come up with it. The point being that just because you were first to come up with something anyone could have done does not mean you should have exclusive rights. However, the statute was pretty much eviscerated by the Federal Circuit when they observed that such inquiries have a "hindsight" problem. Essentially, when the court tries to consider the obviousness it does so in the context of the inventions existence. It's obvious because it's already be done. But the Federal Circuit wanted to know if it was obvious at the time of invention.

The Federal Circuit's test on this is odd and I'm not going to get into it because I don't really understand it. Justice Scalia is quoted to have declared it "gobbledygook" and "meaningless." Sounds about right. It's also worth noting that the Supreme Court usually reverses the Federal Circuit if it bothers to take the case, which means the test will likely be rejected and replaced with something better. Which is a good thing.

In the past I have argued the reversal rate reflected a fundamental disconnect between the Federal Circuit and the Judiciary itself. However, my Circuit Court research from last spring makes me doubt that claim. Unlike the regional circuit courts, which can split on the same question, the Federal Circuit holds sole initial appelate jurisdiction over patent claims. Thus there is no such thing as a circuit split in the area of patent law. I suggest this is a bad thing, as it leads to ossification and reduced experimentation, but the Federal Courts Improvement Act of 1982 disagrees with me on this point.

Much of what the Supreme Court does is pick winners in circuit splits, which means one circuit usually gets upheld and the other gets overturned. But in the Federal Circuit context, if the Justices agree with the the Fed Circuit, it's easier and quicker to simply deny cert. The only time they need to bother with a case is when they want to consider overturning a decision. Following the logic, we would expect the only time the Federal Circuit to be upheld is when four justices disagree (enough to grant cert) but can't find a fifth to form a majority. Since most patent decisions are 7-2 or better, we rarely see this situation.

In other news, the first report of a major university selling it's professor's fair use rights has emerged. Apparently Cornell University has entered into an agreement with Association of American Publishers (think RIAA for books) which will significantly constrain the ability for professors to distribute learning materials to students without paying a royalty. Now, I'm not going to say the issue isn't tricky, but this is no Napster situation. Professors are not stealing anything... they are teaching students. Considered by some to be the most noble of all professions.

The heart of the issues is §107 of the Copyright Act, which codifies fair use rights. The act has a four item list which are considered non-exclusive factors to be used in determining a fair use. Since it is a non-exclusive list, there are other factors, but these are the big four. The very first one reads
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
So, as you can see, the professors might think that their teaching falls under the nonprofit education purpose fair use exemption.

The publishers counter that they produce educational materials for the purpose of making a profit. If the very people who are supposed to be buying these products (teachers and students) can just get them for free, then there is no money to be had and it's time to get out of the business. Which is as good an argument as any.

Of course, for decades (if not centuries) professors would have books placed on reserve at the university library where students could access the book for free. Online reserve, which is at the heart of the agreement, is just a natural extension of the old concept, right?

The article first caught my attention because of the inflammatory headline: "Professors get 'F' in copyright protection knowledge." Which I thought was pretty extreme, given the difficult legal questions at issue. But the article redeemed itself way at the bottom when it recognized that not all matters are legal. Even if the publishers are 100% correct, they are essentially biting the hand that feeds them... the professors they are seeking to limit are the very professors who write the material in the first place. Here's the quote from the article.
At Harvard University, in Cambridge, Mass., Chris Dede, a professor of learning technologies at the Graduate School of Education, says the Internet may let faculty members publish their own material and cut the book industry out of the picture.

"If publishers push too hard, faculty may just decide they no longer need a middleman who collects all the profits in each direction," Dede says.
Which just goes to show you... you might have the best legal argument in the world, but if it doesn't hold up outside of the courtroom your just chasing short term victories in your long plunge off the cliff.

Tuesday, November 28, 2006

Echoes of History

I've been reading pretty much every article that has anything to do with defining the current conflict in Iraq. The big debate, for those not obsessed with language politics, is whether Iraq is in a "civil war" or a state of "sectarian conflict." The stakes are quite high for the Bush Administration. With public support already low, the perception that the Iraq conflict is an internal issue will feed public support for troop withdrawl and signal the final defeat of the Bush Doctrine.

As any good war of words, this one focuses on how you define them. The question of what constitutes a "civil war" is key. There are a number of good articles with lots of academic commentary out there, but here is one for your reading that is as good as any. The Administration's line is "you have not yet had a situation . . . where you have two clearly defined and opposing groups vying not only for power but for territory." Thus no civil war.

The comparisons with the United Stats Civil War are also frequent... some in the Administration have gone so far as to require both sides don uniforms to qualify. Not sure if urban warfare requires color coordination, but the point is interesting. See, President Lincoln refused to recognize the Civil War as a civil war. It was a rebellion. He refused to recognize the Confederacy as anything more than upstart political rebels. Of course, history disagrees with Mr. Lincoln. I suggest that regardless of how the current war of words plays out, history will disagree with Mr. Bush as well.

Curse you Kolab

This weekend I began a colossal undertaking. I was going to install Kolab, the much praised open source groupware solution developed by the Germans. It was going to revolutionize my life... network enabled calendars, contact lists, journaling, and more reliable email. Brilliant.

Today, 72 agonizing hours later, I have totally abandoned my efforts. Oh, I'm sure it could work... eventually. But even I have limits on how many times I'm willing to run full speed into a brick wall. Eventually you remember that it hurts when you do that.

I think the biggest difficulty with the project was the shear number of components that I just simply didn't understand. Kolab combinds a lot of big technology to work its magic. Things like LDAP, SMTP, IMAP, and SASL are just the big acronyms you need to know. Then you have to deal with the particular implementations of those technologies: openLDAP, postfix, cryus, and sasl2. Throw in things like DNS, apache2, and php4 & 5 (technologies I know, but not very well) and you've got a real party.

In the end, the deadweight of all those impenetrable technologies got the better of me. I began to feel like I was tossing stones down a well and using the resulting sounds to not only decide what was down the well, but how to throw the next rock such that whatever was down there would magically convert into an Saturn V Rocket.

But there is a valuable lesson here, the same one the Iraq War is teaching the neo-cons. Understanding a few of the parts is not enough when dealing with interdependent systems. Once you've gone through your old tricks, tried and true though they may be, you are left with a vast network of unknowns, left pulling at various strings in a desperate game of trial and error. After my defeat at the hands of Kolab I was able to purge the entire project, losing nothing more than a few days of productivity. Iraq may prove a different story...

Saturday, November 25, 2006

What They Don't Tell You About California

It's cold here. Don't believe me... read this article from the Santa Cruz daily paper. When I got here I put all my heavy tops (sweaters, sweatshirts, etc) way on the top shelf, boxed up all my winter gear, and superglued my heater's temperature dial to off.

Now it's getting to be 30° below and I have to wear socks in the house. What happened to my beach weather? I thought California was a perpetual summer paradise.

I'm demanding my money back.

Tuesday, November 21, 2006

Putting a Price on Political Tresspass to Chattels

Let me start this post off with a valuable terminology lesson. A chattel, which looks a lot like cattle and even covers livestock in its definition, is essentially any kind of property which is not real property. Better stated, a chattel is anything you can own and move.

Having said that, take a look at this article in the Seattle PI about the New Hamshire Democrats suing the Republicans for $4.1 million on a tresspass to chattel theory. Here's a quick summary: Democrats and Republicans in a big fight over a House seat in the 2002 election (yes, four years ago); Democrats spend an estimated $8.2 million on a phone bank get-out-the-vote (GOTV) system; Republicans pay a telemarketer to place "hang up" calls to the phone bank, effectively blocking outgoing calls from the phone bank; Republican incumbent wins 2002 race; bunch of Republicans are sent to jail for their involvement.

It's all well a good that people are being thrown into jail for this behavior, but the Democrats are looking for financial reimbursement. See, the race is lost and there isn't much that can be done about that (although, one wonders if this could have been the deciding factor...), but what about 2004, or 2006, or 2008? Certainly, the Republicans should have to restore the Democrats to the position they would have been but not for their tortious behavior.

Well, that's what this case is about. See, the Republicans are arguing all they owe is $4,974 (the actual cost of the disrupted telephone service and rental costs). Essentially, the only costs the Democrats can show "on paper." Wherease the Democrats are asking for enough money to be able to run the phone bank again. So, whose right?

If the Republicans are right, heaven help us. Because that is the green light to the party (any party) to engage in clearly tortious activity with actual1 loses as the only penalty. If I may pant an analogy... if I run into your car and it blows up, the Republicans would argue I only owe you a new car. But what if, as a result of your car blowing up, you miss an important business meeting and lose out on a million dollar deal? Or, let's say you suffer serious physical injury that prevents you from certain kinds of valuable work? In those cases, within the realm of foreseeability, the defendant must compensate the plaintiff.

The Republicans acted indefensibly, criminally, and knowingly. It's not enough that those responsible are being thrown in jail... the injured party must be fairly compensated. Shutting down a GOTV system on election day is worth more than $4,974.

1. Actual damages, just the harm immediately suffered, as opposed to special damages, which cover the rest of the kinds of harm.

Friday, November 17, 2006

Important Update

Today I received unofficial word (official word to arrive via United States Postal Service) that I passed the California Bar Examination. Now all I need is to be found a moral person and I'm in the club.

Here's a pretty picture of my unofficial notification

Click to enlarge

Watching Us (Them?) Lose From Afar

I think one of the hardest parts about being away from Seattle is watching student politics and knowing that (a) I can't do anything about it, and (b) even if I could, I shouldn't. Case in point, today the Seattle Times is running an article about the UW's new approach to extending the Student Conduct Code. Besides mistakenly identifying the Eric Godfrey, newly appointed Provost for Student Life, as the "the UW's longtime vice provost for student life," the article seems accurate. Essentially, the administration is preparing to back an extension of the conduct code... and apparently the students are going to go along with it.

The fight to keep the conduct code on campus has been raging since I was a junior, but picked up serious steam in 2004 after "riots" in Greek Row. Of course, those "riots" were mostly non-students, but the residents of the area tend to lump all "young people" into the same group. Action was demanded and Rep. Murray (now Sen. Murray) took the task to the legislature. Since then the ASUW has fought to protect the civil rights of its membership and been quite successful. The bill never once got out of committee.

This year seems to be the year we finally lose that battle. I suppose it ought to be they, not we. I'm not a student any more... but detaching from something so tied up with who I am is proving difficult. I'm not saying I'm gonna write the ASUW President a letter, but I sure wish he wouldn't lie down before the fight. There are lots of angles on this, and just because the administration is changing its position doesn't mean the legislature is ready to do the same.


In an update to a story I posted Wednesday, the White House has nominated Benjamin Settle to the Tacoma seat on the U.S. District Court for the Western District of Washington. Settle's chief qualification seems to be his involvement with former Sen. Gorton (R) election campaigns. Senator Murray, Senator Cantwell, you know what have to do.

Thursday, November 16, 2006

The New Seven World Wonders

Folks over at the NewOpenWorld Foundation have decided to name seven new world wonders. For those not "in the know" six of the seven world wonders have failed the test of time. To name a new seven the organization started with 200 and paired it down the 21 now up for public vote. Feel free to participate.

I voted for the following: I tried to be geographically diverse, but favored older structures over newer structures. The Syndey Opera House, by far the most modern on my list, was not chosen for its location in the Southern Hemisphere so much as I think it's really cool looking. The Eiffel Tower and the Statue of Liberty can be listed once they've stood up for another thousand years. I don't see how The Great Wall wasn't already part of the original World Wonders... perhaps my vote didn't get counted the first time.

Wednesday, November 15, 2006

White House Messing with a Good Thing

Seattle Times had a headline running on the front page today reading "Political motives suspected as jobs on bench go unfilled." I first thought... oh no, the Democrats are going to go through with their threats of blocking every Bush judicial appointee until after 2008 when we can get someone blue into the White House. And then I actually read the article. Turns out Democrats aren't the problem.

For better or worse, when it comes to District Court appointments (as opposed to Court of Appeals or the Supreme Court), the Senators from the state in which the District Court resides are king. If the nominee is rejected by one of the Senators the appointment is not confirmed. Of course, that gets tricky when the state elects two Senators from different parties as Washington did during much of the 1990s (Sen. Murray (D) and Sen. Gorton (R)). To resolve this problem the two Senators, with the involvement of the Clinton White House, developed a non-political merit process for reviewing and recommending names to the White House for nomination. An ingenious system that, using local lawyers and judges to select the best federal judges for appointment.

For those who don't know, a District Judge is about the least political kind of judge in the Federal Court system. They do not decide law in the way you hear about activist judges doing... that authority is the province of the Appeals Judge. No, the District Judge is a singular entity, usually presiding in court alone, and holds tremendous power of the litigants in an individual case, but that authority does not extend beyond the courtroom. While that may insulate them from the political aspect, it does raise the spector of judicial bribery. Of course, we have a Federal Judiciary, in part, to reduce that possibility, so it's great that Washington uses this open, non-partisan process to select new Federal Judges.

Well, it turns out that doesn't work for the Bush White House. Recommended names have been either rejected or simply ignored. Apparently the White House feels they are better situated to know what is best for the Western District of Washington than, say, the people whose lives (and livelihoods) actually depend on the court's decisions. Hopefully Murray and Cantwell stand up for the process and refuse any nominee not endorsed by the merit review process.

Tuesday, November 14, 2006

Linux, Games, and Techno Babble

I discovered a significant limitation to binary releases last night: they don't really stand the test of time. What is a binary release, you ask? Well, when a software developer writes a program s/he does so in source code format. That source code is then compiled into object code, also know as a binary ('cause it's all, like, ones and zeros). Almost every bit of code you Windows and Mac users download come in the form of binary releases. Linux, however, is different... the source is available (hence, "open source").

But not everything for Linux is available that way. Last night I decided to bust out the one and only commercial Linux game I own: Sid Meier's Alpha Centauri (affectionately know as SMAC). The company who ported the game, Loki, went out of business years ago; as did its support network. This wouldn't be a problem, except that many of the libraries that the game relies on have changed significantly since then.

If the game were released in source form, the problem could be resolved by a simple recompile. But the source is gone... probably held by whoever gobbled up the assets of the now defunct Loki.

So, what's a gamer to do? Turns out the fine folks over the Gentoo Wiki have already resolved this dilemma. They have unearthed the original libraries designed to run with SMAC and provided the necessary voodoo command to get everything working.

So, to all those folks looking to resolve this needle in a hay stack problem, here are the libraries in question and the magic incantation is as follows:
LD_LIBRARY_PATH=/path/Loki_Compat/ /path/Loki_Compat/ /path/AlphaCentauri/smacx.dynamic
Of course, you will also need the latest patch, which was none-to-easy to find. And applying said patch also required some magic, since it also relies on a broken binary releases. However, you can just unpackage the archive with the --keep flag, edit out the patch verification code (which is what breaks the patch), and then run it just fine.

Public service announcement over.

Monday, November 13, 2006

Post Election Thinking

Welcome back after our Election Week hiatus. Not exactly planned, but the break did provide me the opportunity to sit back and reflect on the politics of a Democratic Congress. First, a brief pause to enjoy the fall of Senator "Split the 9th Circuit" Burns and Senator "I Hate Gay People" Santorum. I realize that several radical House members have also ridden off into the sunset, but as senators these two pushed policies especially divisive to those of us on the West Coast. Good riddens to bad rubbish.

Next up, quick review of initiatives. Washington State proved to be wiser than originally expected by failing the "give property owners more rights than citizens have over their bodies" initiative and the "rich dead people's heirs are more important than poor people" initiative. Here in California, the state adopted a slew of bond measures designed to upgrade the state's infrastructure (a decidedly unsexy topic), rejected a parental consent for abortion initiative, and adopted yet more draconian sex-offender policies (hello GPS trackers!).

Santa Cruz, notable bastion of liberal politics, soundly rejected Measure G, a proposal to raise the minimum wage an additional $1.25 over the already $1.75 increase approved by Sacramento this year. Like I've already said, I'm not opposed to minimum wage increases, but it has to be done with more study on the economic impact. Policy decisions of this scope should not be made on feelings alone. Hopefully the sponsors of G will come back in a few years with numbers on the State-wide change and we can go from there.

Now, onto the big news... a one seat majority in the Senate and a confirmed 11 seat majority in the House (10 seats remain undecided... but many will end up breaking Republican). I've been reading a lot about the Democrats policy proposals and how they want to govern. It all sounds very good, in abstract... but I wonder how well their ideals will fair once the minority remembers it can use open governance to help position the party to reclaim the majority in 2008. Will ideals prevail over politics?

Of course, now the Democrats have to carry the burden of governing in a divided country. The liberal wing of the party is going to be out for blood, just as the conservative wing of the Republicans have been since '94. Of course, many blame the Republican loss on the conservative wing... I imagine the Democrats are just as susceptible. So, how does one govern to appease their base yet mindful of America's delicate political balance?

Anyone who thinks that question is an easy one has another thing comin' to 'em. Look back at the Vietnam War and see how the Democrats, who held the Congress and the White House, tore itself apart trying to appease both the anti-war faction and the pro-war faction. How exactly are the Senate Democrats going to accomplish anything on the war with a one seat majority where that one seat is held by Senator "Bush is Right on Iraq" Lieberman? And let us not forget the Republican filibuster remains a potent tool.

In other words, I'm not convinced the "American nightmare" is over. The nightmare is not Republican control... it is a bitterly divided body politic, many of whom cannot stand the other side. Fighting over seats in the Congress is important, but it's not going to heal the divisive politics of the Bush Administration. I'm not saying the cure is a Democrat as President, but a President who tries to lead from the center (instead of the extrems) would go a long way.

Monday, November 06, 2006

The Problem with Republican Moderates

There has been a lot of ink recently (original appeared in the NY Times, but no longer available for free) about how the 2006 mid-term elections have a real possibility of making the moderate Republican extinct. I'm the first to acknowledge that, in theory, this is a bad thing. Up in Washington State the moderate Republican has long been extinct. It's a shame really, because many in the GOP are unwilling to vote for a Democrat, regardless of how moderdate they may be, so they cast their vote for the local conservative nut job.

But here's why I'm not going to be shedding any tears on Tuesday if the Ds take the House and the moderate Republican goes the way of the Dodo. As a rank-and-file House Member there is one, and only one, vote that really matters: your vote for Speaker. The Speaker has nearly unchallenged authority to control floor votes thanks to House rules and norms. Which means if the guy you vote for cast his vote for a hardline conservative who is tied to the President's hip it doesn't matter how moderate they are... they won't even get the chance to vote on your issues.

The moderates in the House Republican Caucus continue to support Speaker Hastert (maybe because the alternative in the Republican Caucus would have been worse). Which means sending a moderate to the House only furthers conservative domination. This isn't such a problem in the Senate, where the Majority Leader has far less control and individual Senators wield greater influence.

So go ahead moderates, elect a moderate Republican (like McCain or Specter) to the Senate if you like, but if you want a more moderate House you're going to need to send a Democrat and hope they keep their promises of returning to the fair and open rules abandoned by the House Republican leadership after the '94 elections.

Friday, November 03, 2006

Santa Cruz Wildlife

Some of Sarah's family came over this weekend and we went touristing to some of the big Santa Cruz sites. I uploaded a bunch of wildlife photos so you can see what you are missing.

Click the image to see a bigger version where you can actually see the butterflies.
Our first stop was Natural Bridges State Park, where every year in October the monarch butterfly flock in masses for the winter. The numbers get up into the 100,000's! The park has a nice viewing area, but my camera is really not up to the task of effectively capturing the little guys. View more photos.

Later we visited the Municipal Wharf where the sea lions congregate. There are some sea level viewing platforms attached to the wharf where you can get right up close and watch 'em. It still haven't personally seen one of these guys jump up from the water onto the planks, but others have and say it's fairly incredible. View more photos.

Wednesday, November 01, 2006

My Public Service Announcement

(or, A Miserable Life: Conclusion)

First, thanks to all those who contacted me, both privately and publicly, to wish me the best as I struggled through my throat problems. It meant a lot that people were concerned.

Second, the problem seems to have resolved itself... or, at least become so unnoticeable as to no longer register. My throat definitely feels different than before and I am more aware of its, er, configuration at a conscience level. After what I did to it, is it really any wonder that it would be a little sore?

I really have no idea if it was a popcorn hull or not. For a while the throat pok[ey|i]ness gave way to more of a hair sensation... which would sometimes feel like it was on my tongue (although I could never see it), on the roof of my mouth, and even in my sinuses for a day or two. It was all pretty miserable, and I'm glad that it's over.

I guess my advice to anyone who stumbles upon these posts looking for answers is simple: figure out a way to get to sleep (NyQuil works wonders) and just let your body deal with it naturally. Anything else just increases the torment. Oh, and stay away from the throat cancer bulletin boards.