Copyright Law and Political Ads

The Seattle Times has an editorial today that has finally pushed me into writing something about the intersection of copyright and political advertisement. For those of you who don't wish to read the article, it's a piece from the Times' Editorial Board calling on Darcy Burner to renounce an ad put out by the DCCC. The add uses a snippet from a TVW broadcast where Rep. Dave Reichert (R) said sometimes he listed to the GOP leadership and sometimes he doesn't. Unfortunately for him, he said it such that a little pruning makes it sound like he's a GOP waterboy.

But the Editorial is not just upset about the careful choice of words, they are upset because it infringes upon the copyright of WTV. So the obvious question is, does it? I haven't done a ton of research on the topic, but my gut says copyright is not an issue here.

First, the footage is being used in a political ad, which means it has ample First Amendment protection (in fact, as political speech it has the most First Amendment protection of all other speech). Second, while TVW isn't a governmental entity, it is a 501 (c)(3) non-profit corporation (meaning it has to be for the public good) and it receives nearly 100% of all funding from the Washington State government. Third, the footage is of a public official making public commentary, which means his words and appearance are newsworthy. There has always been an exception to copyright when the news is at stake (see INS v. AP... although the law is muddled here).

There was a Washington Post editorial a few years back about how President Bush rarely gives press conferences, choosing instead to do one-on-one interviews with private news outlets (CBS, NBC, ABC, FOX, etc). As a result, historical snafus on camera become the private copyright of the company which can be forced out of circulation by the White House by threatening to never grant another exclusive interview.

Thankfully Bush has been giving more press conferences of late, so this issue never really matured. But imagine, for a moment, if it did. Would the courts actually uphold a copyright infringement case against a political organization for using footage in an effort to broaden political discourse? I'm fairly certain that was not the purpose of copyright law.

In fact, the Times' Board shot itself in the foot with the following line.

Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.

The purpose of the copyright is to ensure those who take the effort to make the copy are properly compensated. To say that the owner of the copyright would refuse the request, even if properly compensated, means the copyright law is being abused.

...and I'm not even going to talk about fair use.

One more thought on this topic regarding YouTube. I've been reading some election blogs which have taken to distributing political ads, and their unique commentary, via the popular video sharing service. This is often the only way to see footage of ads which have been pulled from the air for reasons like embarrassing the candidate, provoking public outrage, spreading untruths, being stupid. These ads live on via YouTube, reviewed and distributed among the political junkies.

Are they legit? First analysis says it's copyright infringement. They aren't copying a few seconds, they are taking the whole kitten-kaboodle. No obvious fair use defense here. But it is political commentary, so it has the whole political speech component. Also, you've got the fact that the distribution is done by private individuals, so the initial producers (the one who pulled the ad in the first place) can claim its not their fault while continuing to get a little bang for their buck on an ad they were forced to pull off the air.

Which means that politics and market forces are going to be more important than the law, but it's still an interesting question.

Because I Already Said It

Slate has an article up, linked from slashdot, saying something I said 15 days ago. Which just goes to show you, you can get better, more up-to-date news and information by talking with your friends who are experts in the subject than you can by reading traditional news outlets.

It's just like Brother Ze says.

Bad Reporting

Some days you've got to wonder how much thought really goes into reporting. As evidence, I humbly sumbit the following Seattle Times article. It's in reference to an individual working at the State Department who is resigning to go teach at George Washington University.

Which is all fine and well.

What is not fine and well is all the extra stuff they tacked onto this article which I assume must have come from a press release. There are two fundamentally misreported facts here.

Miller, a Republican, represented the Seattle area in Congress from 1985 to 1993, serving on the House International Relations Committee.

Which makes you think, wow, a Republican representative from Seattle!? He must be pretty moderate to have been elected to the 7th. Ah, but a little research shows he was in the 1st... which was a socially conservative district until about a decade ago when they started electing Democrats. Hmmm... a decade ago... like, 1993? Strikes me that describing the 1st as the "Seattle area" is somewhat disengenous.

Then we have the truly unforgivable mistake. First, let's take a look at language from a nearly identical Seattle PI article.

He later chaired the Discovery Institute before joining the State Department in late 2002.

Which is a fine statement about his involvement in the ultra-conservative thinktank going around the country pushing "intelligent-design." But, now let's take a look at the Times' version.

He later chaired the Discovery Institute, a nonpartisan public-policy think tank conducting research on technology, science and culture, economics and foreign affairs, before joining the State Department in late 2002.

I took the liberty of emphasizing the new words in case they didn't leap off the page and slap you across the face.

Like I said above, the Discovery Institute is hardly just a nonpartisan public-policy think tank. It is the christian conservative thinktank in this country leading the charge on topics like intelligent design. I don't know why this press release, err, newspaper article, is trying to make this guy look like a moderate... but his public track record suggests anything but.

California Elections

Having posted far too often about my health recently, it's time to get back on topic with a little discussion about the upcoming California state election.

First up, this year is a state executive office year, which has all the biggies up for grabs: Governor, Treasurer, Secretary of State, Lt. Governor. We even get to vote for the Board of Equalization, which is the nation's only directly elected tax oversight authority. Having just recently moved here I don't know beans about most of these candidates, so I'm sticking with the blue team for this round.

The one situation where I took pause was Governor. As you may have read in the papers, California is home of the one, and only, Governator. As shocking as this may sound, I debated voting for the man. Whether or not the Democratic party is willing to admit it, Arnold has done many good, progressive things for this country and done so without drawing too much flack from the Republican controlled national government. A Democrat in his position could not have done as much, in my opinion. That being said, I have high hopes for a serious change in the national government this year. I'm also a little upset that when presented with the opportunity to give the world's 6th largest economy universal healthcare the man in the Mansion broke out the veto pen. So I'm casting my ballot for the other guy.

But the real kicker when it comes to the 2006 ballot isn't the candidates, it's the initiatives. There are five state wide measures, eight state wide propositions, and five Santa Cruz city measures. That's 18 major policy decisions decided by the voters. It's no secret I strongly dislike the initiative process... there simply isn't the infrastructure to properly consider complex issues like sex offender policies (because throwing them into prison for longer terms is not the answer people!).

I'm voting yes on most of the bond measures, no on pretty much everything else. But one no vote I'm casting with particular loudness deals with Santa Cruz Measure G, which would increase the City's minimum wage to $9.25. Let me go on record I am in no way opposed to minimum wage laws. They are an excellent way of addressing known inequalities in barginning power between low-skilled labor and big companies.

There are two things wrong with G. First, the State is already increasing the minimum wage this year from $6.25 to $8 by 2008. The impacts of this change alone will be significant and should be studied before any bigger increases are mandated.

Second, the measure would only impact the City of Santa Cruz, creating what the opponents of G have termed an "Island Economy." Essentially, any company who would benefit from operating outside of the economic zone and has the means to do so, will. It's not like when the state increases the wage... it's hard to move out of such a large jurisdictions. But Santa Cruz is tiny, and several major job providers have already stated they will pick up and move down the road to Watsonville should G pass.

So, I'm voting no. I'm also voting no on a parental notification requirement for an abortion by a minor... look folks, if these kids felt safe talking to their parents about this topic, they would do so of their own volition.

116 Squats!

Today marks the beginning of week six of my 90 day (approximately 13 week) exercise program. My most faithful readers will remember I embarked on a similar journey last year. That attempt was cut short by an uptake in school commitments, personal injuries, and my Grandmother's health. This time, without any school or work or social life to speak of, there is nothing getting in my way!

What is exciting about this day, as opposed to all the other days I've been working out, is that I advanced from Program 1-2 to Program 3-4. It's essentially the same routine as the first one, but with many more repetitions and a whole additional set of targeted exercises (including one where I get to pretend to be Superman). But here's the kicker, at the end of the final round you do "Max Upper Body" and "Max Lower Body," which is essentially as many pushups and squats are your body can handle.

I'm proud to report that when you include all the pushups and squats done during the earlier rounds I completed 116 squats and 87 pushups. On an unrelated note, my arms, having fallen off, are no longer attached to my body.

... also, I've lost over 10 lbs, but am starting to pickup up the weight in muscle. Oh, and a throat update will be forthcoming in the next couple of days... some interesting developments!

Update on a Miserable Life

Well folks, the throat issue continues! I call it an issue because I'm not 100% certain it is a popcorn hull. Could be any number of things. Take a look for yourself. The most common alternative to my symptoms is throat cancer, so I'm still praying that it's popcorn related.

In consultation with my mother, I attempted another bout of forced vomitting. I tell ya, there is nothing stranger than sitting down for a meal you have (a) no interest in eating and (b) no intention of keeping down. My mother recommended rice, so I made myself a giant pot of the stuff and prepared for the worse. Here, I kept a log for your review.

• 8:30: starting making rice
• 9:04: completed making rice, began eating rice
• 9:21: finished eating first "bowl" of rice
• 9:22: entered bathroom
• 9:26: emerged from bathroom, difficult to induce vomiting, after limited success I cannot tell if the hull has dislodged
• 9:29: starting eating second "bowl" of rice
• 9:50: finished eating the last of the rice... still cannot tell if the hull was dislodged from the first go
• 9:51: decide to return to the bathroom... if for no other reason that I ate all of this rice>
• 9:56: bigger success with the vomiting... throat now very sore, no way to tell if hull is gone or not because of the soreness
• 10:55: definitively determined hull still in place

No luck there. I then took some internet advice and did a little exploring with a directional lamp and a butter knife. Couldn't see anything back there.

My final decision then is to just live with it, if you call this living. I'll continue to drug myself at night so I at least get some sleep and if nothing improves after another 7 days (for a total of 14 since first signs) I will make an appointment with an ear, nose, and throat doctor (which, incidental, I will have to pay out of pocket).

Now I'm going to finish my tea.

A Miserable Life

Okay folks, I don't usually blog about these sorts of subjects, but it's 3:26 am in the morning, I can't sleep, and poor Sarah is worried sick of me. About four days ago I ate some popcorn, and ever since then I have had this feeling like something was stuck in the back of my throat.

The first few days I assumed it was related to the cold I was getting over, so I medicated it with some good old NyQuil. Works every time. Yesterday I started thinking this wasn't cold related and starting thinking about what, exactly, could be causing the sensation... that's when I remembered the popcorn.

Turns out this isn't an uncommon problem. Look, someone has even blogged about it before. What's funny about this persons post is that it is a near identical story to my trials and tribulations... drinking tons of fluids, gaggin, scraping, gargling... induced vomiting. Pretty much anything I can think of. So far nothing works.

The only thing that gives me hope is a comment on the blog from a self-identified speech therapist. S/he writes

Everyone has a little flap in their throat that is connected to the very back base part of the tongue. This is called the epiglottis. The epiglottis together with the base of the tongue creat[sic] a little V-shaped groove just as you come over the back of the tongue. Food can get caught here, especially if the food is dry, small or oddly shaped (the hull of a popcorn kernel). Usually it will go away with time or drinking liquids.

My guess is that it did dislodge sometime through all your efforts to clear it. It likely sat there for a little while, which may cause a small irritation. That combined with you hacking, digging, and gagging likely irritated it more, creating a sensation that somethings there. Worse case senario[sic], the kernal permanently planted in your throat and is going to sprout popcorn babies!

So, there you have it... I've (a) made it worse, (b) may grow popcorn babies.

I looked through some of the original posters stuff, she complains about the kernel for several posts until this fateful message.

So now what?

Constitutional Succession

The Washington Post has a frightening piece of Constitutional reporting today. Seems the House rules provide for a secret line of succession should something happen to the Speaker. The Speaker, as it would turn out, is the third in the line of succession for the Presidency should something happen to the both the President and the Vice President. The 25th Amendment provides a means for appointing a Vice President (who could then become President), but no way for appointing both a Vice President and a President as the VP must be appointed by the sitting President.

Enter the Presidential Succession Act of 1947. This act provides for the famous Cold War line of succession that was designed to give faith in our government. I know nothing would give me more confidence during a nuclear holocaust than knowing we had a properly, er, designated chief executive. This is the law that says the Speaker follows the Vice President. It does so with the following legalese.

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

So, to be clear, if George and Dick fall over dead tomorrow, Denny would resign from the House and assume the Presidency.

The question the Post raises is what if the same callamity that takes out the dynamic duo also strikes the big guy on the Hill? The Act has the following to say on the topic.

If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.

Clear, right, if there is no Speaker than the President pro tempore of the Senate takes over.

Now, all the lawyers in the audience will have noted my emphasis of the word no. What exactly does it mean to have no Speaker. The 108th Congress House Rules shed some light on the subject. Here is the text from Rule I, §8(b)(3)

(3) (a) In the case of a vacancy in the office of Speaker, the next Member on the list described in subdivision (b) shall act as Speaker pro tempore until the election of Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

Here, the magical words are Speaker pro tempore, such authorities of the Office of Speaker, and lastly necessary and appropriate to that end. This language is far from perfect, but I think it's clear the Post is wrong. First, the language makes clear that this unknown individual does not assume the Speakership. His or her title is quite clearly Speaker pro tempore. You'll remember the Presidential Succession Act designated the Speaker, not the Speaker pro tempore.

But wait! What about "authorities of the Office of Speaker" and "necessary and appropriate?" Here's my take. The Act says the Speaker must resign his position and then assume the Presidency. It could be argued that this resignation-assumption process is an authority of the Speakership. But such power can only be used when it is "necessary and appropriate to that end." Which end? The end of being Speaker.

The purpose of the clause is to ensure there is a Speaker, not to ensure there is a President. The member who takes over as Speaker pro tempore pursuant to Rule 1 §8(b)(3) may not then use that power to become President because that's not why they became Speaker pro tempore in the first place.

My final conclusion? If George and Dick and Denny all bite the big one, the country is still safe in Ted's hands.

Truth in Technology Law

I keep meaning to write something about my thoughts on North Korea... but I can't seem to bring myself to do it. So here are a few words about something less important.

Two big developments to report in the world of internet joojoo. First, a Florida jury awarded a Florida women an $11 million defamation award against a Louisiana woman who posted mean things about her business online. This case is interesting for a couple of reasons. First, it's a default judgment, which means the defendant never showed up in court to fight the claim. As a result, we have some jurisdictional issues here. The Florida courts do not, be default, have authority over those in Louisiana. You either have to file in Louisiana or opt for Federal Court. It is possible the defendant waved jurisdiction, but I assume for purposes here that she not an idiot.

Based the article all she did was post defamatory messages about the Florida women's business in an online community. Are these acts sufficient to establish contacts with the forum state? Under the standard International Shoe test for jurisdiction, I'd have to say no. The defendant did not avail herself of the benefits of the forum state and it sure doesn't conform to my notions of fair play.

Which brings me the reason the Florida women sued in the first place... she wanted to send a message. See, the defendant can't pay the judgment. She couldn't even pay a lawyer. The suit was brought to scare her, and others, away from the internet. But this sort of award should never have happened if there were equal parties in the proceeding. Yes, the message has been sent, and the message is wrong and damaging for communication on the internet. The ability to speak should not be limited to those who can afford lawyers.

Second big news: GooTube. But in less than a day after the announcement comes a flood of analysis saying Google is going to get its pants sued off. The theory goes that most (cough, cough) of the YouTube content is copyrighted. Let's assume that's true. Up until now, content holders have tolerated YouTube's infringement because even if you sue and win, YouTube has shallow pockets... which means no actual award payment... which means no incentive to sue.

But now, cry the pundents (and Microsoft's Ballmer), the holder of YouTube has cash. Lot's of cash! So here come the lawyers. Which is probably true... lots of people will sue with hopes of reaching a settlement with the Google giant.

That being said, I don't think Google will spend a dime on settlements with these content vultures. First, Google has shown a willingness to stand against copyright abuse with their book scanning project, the legality of which is something of intense debate. Second, and more importantly, a plain reading of the law shows Google isn't infringing any copyrights. See, under the Digital Millennium Copyright Act, a service provider (such as YouTube) is not liable for infringement by its users provided it has a reasonable means for rights holders to take down the violating copy.

Now, maybe a Grokster style complaint can be won against Google... but the Grokster decision was based largely on the intent of the company. Essentially, the court felt Grokster was encouraging copyright violation in its business plan. YouTube is quite different and we've seen an explosion of user driven content flourish there. I don't think Groskter sticks.

At this point, two days since the announcement, every single newspaper I read has run a story about the legal pitfalls for Google, so it'll be interesting to see how this plays out in the courts, the public, and the market.

Power Lies with the U.S. Senate

The recently adopted Homeland Security Appropriations Act contains a bunch of things. Its most famous, and yet probably overrated, provision is the construction of a 700 mile fence along the United States-Mexico boarder. For an excellent analysis of the fence's likely effectiveness, I suggest watching this episode The Show with ZeFrank.

Less know, yet far more important, the bill contains provisions for the reworking of the Federal Emergency Management Administration (FEMA), long the bad guys in X-Files who were going to strip of our constitutional rights, and most recently the bad guys in real life who let people die on rooftops.

The provision provides specific criteria by which future FEMA Directors are to be judged. I was expecting to provide a link here, but since there are only two qualifications, I'll just include the in their entiretiy for the record.

QUALIFICATIONS- The Administrator shall be appointed from among individuals who have--
(A) a demonstrated ability in and knowledge of emergency management and homeland security; and
(B) not less than 5 years of executive leadership and management experience in the public or private sector.

Now, not surprisingly the President is displeased. And for once let me say, Bush is right.

Not to the extent that the director of FEMA shouldn't have those qualifications... or that years of judging Arabian horses is a sufficiently life-learning qualification. Where he's right is what the law says about Presidential appointments.

First, it is worth noting that the law on this isn't 100% clear... there is lots of ambiguity with things like independent commissions (i.e. FEC, FDA, FCC, etc). But when someone is a clear executive officer, and I don't believe anyone is claiming FEMA is otherwise, the law is clear. In those cases the authority of who is nominated lies solely with the President.

It's right there in the Constitution, Article 2, Section 2. Doesn't say anything about Congress getting to put limits as to who can, and cannot, be nominated. Now, the Congress does get a say when the position is a so called "inferior officer", like a mailman. But the big dudes report directly to the President and do not answer to Congress.

Of course, the founders weren't so stupid as to provide unchecked authority. The appointment power so cherished by Bush is balanced against the Senate's confirmation power. You'll find it right there in the same line of the Constitution that talks about the appointment. A majority of the Senate must approve the appointment for them to take office and exercise all those fancy powers.

The question we should be asking is whether the confirmation process has been broken by partisan intertwining of the White House and the Senate? Consider the following: President Bush nominates Mr. Guy to be the next FEMA Director. Mr. Guy is a donnor to the party, or maybe a former party official, doesn't matter. What matters is that if Mr. Guy falls short of the criteria passed by the Congress, the only people who can actually do anything is the United States Senate, the one with a majority of Republican Senators who for the past six years have staked their political future, and their party's, to the President's vision for America.

What is the realistic chance that the Republicans will vote against the nomination of the President? Will they really give a hoot about the statute? I don't think so. Maybe the Democrats will try to make some political noise, but the only real tool they have is the filibuster, and we all know how filibustering political appointees has worked out in the past.

See, although a majority of the Senators may have adopted that law, they are not bound to uphold it. The laws of the United States do not control the authority of the branches of Congress. If the Senate is serious about adopting standards for political appointees it has to do so with a change to the Senate Rules. Until they start limiting themselves, instead of the President, this is all just smoke and mirrors.

Taste Like Feet

I've been working out regularally since I arrived in Santa Cruz (although my current bout with the cold has knocked me out). Regardless, after every workout I make myself a delicious and nutritious smoothie with my trusty blender. A little bit of sorbet, yogurt, orange juice, frozen fruit (usually banana), and a few heaps of vanilla flavored protein powder. Life's been good.

A few days ago Sarah and I visited Staff of Life, a sort of locally owned Whole Foods near our apartment. They have a separate store that only sells herbal medicines, cosmetics, and assorted therapies. I've been buying my protein powder in bulk from the main store, but at the separate store they have a truly giant selection of various powders.

Among the many options I found 100% Greens & Whey: Vanilla Flavored. Being a man of many flavors, I decided I'd see what all those kids are raving about and picked up a single serving package for sampling.

I find a visual is necessary to fully communicate my feelings about this, er, beverage.

Good lord! I couldn't get down more than three sips. I still have a headache from the quasi-nausea inflicted by this awful concoction. Sarah, my local healthnut, wouldn't even try the stuff. My poor blender will never forgive me for the absolute horror.

Consider yourself warned.

Yet More Cool Information About the World

Hot after my posting about the Congressional power ranking data, I have just heard about Gapminder. (No, not like the "mind the gap" comment you hear on the Tube.) This is a flash based statistics visualization software using data from the 2005 Human Development Report produced by the UNDP.

For some of the cooler visualizations, check out "7. Trends" on the main flash jigger there on the front page.

A New Way to Share

Hot off the launch of my wiki (wiki.probonogeek.org), I am proud to announce a new webservice thanks to my mighty server. Behold:

http://gallery.probonogeek.org/

Right now I only have beach photos up for viewing, but I'll have more as I decide what I do, and do not, wish to share with the general public. I apologize if downloading is a little slow. Comcast isn't the greatest when it comes to sustained upload.

Neat Congressional Info

One of the cool things about working with LegSim is I find out about neat academic work on Congress. Today I was pointed in the direction of Congress Power Rankings.

Essentially, the system ranks each member of the House and Senate using objective factors to determine power within their respective chamber. Once you know each score you can do all sorts of cool things... like find out who is most/least powerful within a particular state delegation. Check your your elected representative and see just how powerful you are in Congress.