Egad! Maltese Falcon totally stolen! It is impossible to contemplate this set of events without absolutely glowing. This is a falcon in pursuit of which Bogart got punched in the neck by a cop and went right on talking. I hope they find it… in Istanbul. In the possession of the fat man, immediately following a mysterious harbor fire. Via BoingBoing.

About 3/4 of the way through, the host challenged Mike Doughty to draw the line between artistically-acceptable “ganking” of a progression or a hook from a song in order to expand on it in a work of your own, and unethical infringement/plagiarism. Mike elided the question, and Siva Vaidhyanathan backed him up by saying that we’re at the point in early 21st-century copyright questions where case-by-case determinations of when an “artist” goes to far are really the only credible way to determine whether sanctions are required. He didn’t say the words “I know it when I see it,” but he came pretty close.

For those who don’t make a hobby of reading up on obscenity law, “I know it when I see it” is Justice Potter Stewart’s infamous formulation of the legal test for how to separate obscene texts from non-obscene ones. In the legal community it’s become a semi-notorious example of a legal standard that’s so vague as to be useless to any person who isn’t Potter Stewart. It turned out to be extraordinarily difficult to apply,¹ and ended up being replaced by the not-much-better “community standards” test.

If the “I know it when I see it” test is the exemplar of judicial unworkability, then what do we make of Siva’s diagnosis that that’s exactly where we are in the copyright infringement space? After a short period of despair, I realized that the IKIWISI terminology is useful to the extent that it helps move the copyright conversation away from our traditional conception of copyright as property and towards a liability rule. After all, if copyright owners understood that what they had was not an absolute right to control the work, but a right to try to convince Potter Stewart that the use was unjustified, we might see fewer of the behaviors we view as abusive. Compare this to the situation in obscenity law, where we were concerned not with the payment of a royalty, but with the prior restraint of entire texts. The vagueness of the Potter Stewart test seems a lot less troubling in that light.

Oh, I’m back, by the way. And I am aware of each of the following:

1. I have not posted anything in almost six months.
2. There are around 10,000 comment spams cluttering the site.
3. Bill Haydon just died

¹ It also led to the bizarre scene of the Court watching allegedly-obscene films in a special screening room, and the even more bizarre (and possibly apocryphal) tale of a clerk having to narrate the on-screen action to his nearly-blind boss.

C and I arrive in Alexandria on or around September 9, so keep an eye out for us. Tomorrow we leave for Minnesota and wedding bells. Part of my duties there will be take pictures on the Minolta X-700 I inherited from Dad. As preparation, I have started to take some interest in photography. Check it out over on our Flickr account. More later.

By the way, this posting is full of spoilers, so stop now if you don’t want to see discussion of some major plot points in Dune. It also only covers the first three books of the Dune Chronicles. Frank Herbert wrote three more after this, and his son co-wrote three more after Herbert’s death.

Dune (1965), Dune Messiah (1969), and Children of Dune (1976), by Frank Herbert.

While Tolkien resisted critics’ attempts to find political lessons in Lord of the Rings,¹ Frank Herbert hoped that Dune would help develop some planetary consciousness in a public that was (and is) unfamiliar with the idea that human agency has global effects. Actually, in the universe of Dune, the Atreides’ manipulation of Arrakis’s ecosystem affects the whole planet and politically realigns an entire galaxy.

A major plot point in Dune, and here I’m speaking of the first book particularly, was the revelation that the Fremen had a secret 500-year plan to shift Arrakis’s desert ecosystem into something a lot more hospitable to humans, with surface water, green plants, and the like.² In Dune Messiah, Paul Atriedes’ ascension to the Imperial throne made it possible to vastly accelerate that plan. And in Children of Dune, Leto II, Paul’s heir, came to realize that the unintended consequences of this terraforming would be the extinction of the sandworms and exhaustion of the galaxy’s only source of the vitally-important drug melange (which the sandworms produce).

It’s impossible to read Dune without being impressed that billions of fates turn on the ecological management of Arrakis. But Dune is not Silent Spring (published three years before). There’s no discussion in Dune of non-intentional effects on the planet, through pollution, construction, overharvesting of melange, etc. Herbert’s ideology is that of the steward, not the conservationist. In fact, at the end of Children of Dune, Leto II decided that to save human lives (long-term), it was necessary to radically accelerate the conversion of Arrakis’s environment, driving the sandworm straight into extinction and giving himself a political stranglehold on the only Imperial stockpiles of melange.³

For Frank Herbert, planetary ecology was something to understand, but it was also something to husband, use and, if necessary, destroy. This kind of stewardship ethic is popular in political discourse today, where it is both attractive and extraordinarily dangerous. Pretty much every character in Dune makes management decisions based on a desire to properly steward Arrakis’s primary natural resource, melange, but all except for Leto II make catastrophically wrong choices leading only to violence and destruction. In particular, Alia (sister of Paul and regent during Leto II’s infancy) attempted to irrigate Arrakis, not appreciating the threat to melange production. This ultimately led to political destabilization and contributed to her fall. Alia and others failed because they either couldn’t see or wouldn’t confront the Big Picture—the full environmental and political consequences—implicated in natural resource stewardship. Only Leto could see the Big Picture and properly husband Arrakis’s ecology. But Leto had superhuman prescient powers.

This is the source of Dune’s overall skepticism. The only person who could effectively husband Arrakis’s resources without destroying himself or, worse, the human race, was basically a superhero. Everyone else—even those with the very best intentions—failed.

The real world doesn’t have a kwisatz haderach—a superbeing like Leto II. Thus, Dune can be read as a polemic against interference with planetary systems. In the absence of complete understanding, unintended consequences are rife.

The characters most idolized in Dune are the Fremen, who typify human honor and dignity throughout the series. Fremen accepted the brutal realities of Arrakis and comported their lifestyle to the planet rather than vice versa. As Arrakis transformed, so did the Fremen, becoming soft, avaricious and cowardly. When we transform our environment, what is left of us?

¹ Tolkien’s foreword to Lord of the Rings famously denied that LOTR was allegory for World War II or the beginning of the atomic era.

² This plan was actually developed by an off-world “planetologist” who came to live on Arrakis and became a Fremen himself. I mention this because “planetologist” is a great word and deserves revival.

³ It’s a brutal political calculus; this is the kind of thing Herbert is famous for and to understand it, you’ll have to read the book.

This is just a quick reminder that the Internet can really be quite nice.

It's become fashionable in the tech policy community to self-identify with environmentalists. You see it most when people talk about cultural environmentalism. But as a very green friend of mine told me on his way to Lawrence Lessig's class, the analogy doesn't seem very productive in its current form. Terrestrial environmentalism, after all, gains its strength not only from aesthetic concerns, but also straight human health issues. Cultural environmentalism, on the other hand, seems untethered to meatspace concerns and so comes off as very ivory tower.

Earthjustice has these great ads. I can't find one now, but they have normal folks standing in t-shirts that say "plaintiff." I love the ads because they encourage the viewer to consider how he himself is harmed when we drill in ANWR, or poison rivers, or drive Hummers. They take the issues out of the ivory tower and bring them to ground.

Last month I got a notice from AT&T that they had "clarified" their privacy policy to make it "clearer" that they own all my data and will use or release it as they see fit. Made me mad, but since my DSL was part of a six-month package, I can't drop AT&T without incurring termination charges. Every one of AT&T's customers is in the same boat, more or less. So I'm damaged by AT&T's action, but lack the wherewithal to do much about it on my own. This is a great opportunity for a well-fought class action. I, and most of AT&T's customers, would probably care less actually recovering our damages in this case than just sending a signal to AT&T that this kind of thing has very real costs.

The net policy arena is full of these small-damages, widely-spread kinds of claims. Vigorous class action prosecution could really defuse egregious corporate behaviors that don't quite cross the threshold of unlawfulness. And it's not just privacy policies--class actions are a potential mechanism to get companies to take security of customer information seriously, too. This year C and I have received three notifications that laptops with our personal information were stolen from various corporations entrusted with that infromation. Knock on wood, our actual damages from this are very slight--but each one of these breaches involved hundreds of thousands of people. Classic class action stuff. And increasing tiering of the net could give rise to class action type relief as well.

I imagine there is some private litigation going on in these areas. But there is an obvious space for one of the big ideology groups to step in and inject some high level coordination, as well as impressive resources and skill, into moving things to the next level. EFF? CDT? ACLU? Think about it.

There are thirty days until the California bar exam.

When I speak to California attorneys about their experience with this exam, almost all have used the word "stamina." It reads on this exam in two ways.

First, the exam itself a three-day siege. A certain amount of physical and mental endurance is necessary in order to avoid gibbering on day three.

Second and more importantly, exam prep (administered, for about 95% of law school grads, by Bar/Bri) itself is a challenge. 8–10 hours a day, 6–7 days a week, for just under two months. For me, for now, this is the more difficult stamina challenge.

It's very difficult to feel any sense of accomplishment from bar study. One day pretty much blends into another, and benchmarks of progress are few and far between due to the very large number of subjects under analysis. The process can really start to grind. Last night, I ended up walking the streets at midnight, listening to Sigur Rós, in order to recover perspective. "What is the point?"

"You can't learn everything" is repeated endlessly to applicants. But the expectation that you will try to learn everything is equally well-communicated. Our most recent practice tested us on exceptions to exceptions to rules--issues that have never appeared on a bar exam, but that do reflect settled law. Could it be tested? No one knows. Maybe, I guess. Maybe it will be tested, and I'll get it wrong, and I will fail. Better make a flash card right now.

At dinner the other night, David said that the bar exam's gotten harder just because there's so much more law now than in the past. I guess that could be true but of course it doesn't change the price of Bar/Bri books in China.

I have concluded that the only thing to do is to draw lines around each subject area, denoting the depth to which I am willing to study, and hold myself to those depths. Any deeper, and the cost/benefit of the dive no longer balances. I have a marriage to consider, and a move to the East Coast. Some of my classmates have infant children. Others are working full time jobs. For me, and for them, we just have to draw a line and rely on ourselves.

That's inconsistent with the Bar/Bri mindset. Their paced study program recommends up to twelve hours' study every day. That might help me pick up some extra points, but would turn me into a shell. To that extent, the Bar/Bri program is bad and unhelpful. It's guidance, of a sort, but it's not realistic or consistent with maintaining the stamina actually required.

So that's where I am right now.

If you follow Mac news/reviews at all, you've probably heard or will hear about the Procrastinatr fiasco. The brief recap is that Brian Sutorious, a college kid, posted a hot new "app" called Procrastinatr, that promised to help Mac users organize their lives better. Somehow it got picked up at TUAW, that's the above link (Procrastinatr.com is dead now), and a whole bunch of well-meaning Mac users, probably productivity geeks, downloaded it. The only problem was, Procrastinatr was a trojan. When you ran it, it used AppleScript to move all your iCal events back a week. And Procrastinatr didn't prompt for an Admin password because iCal files, like most user-created files, are in ~/.

Good joke? Bad joke. But a wonderful cautionary tale; a whole bunch of Mac users willingly installed and ran Procrastinatr (I confess, I visited the site and considered downloading it); now everyone is reminded that the net is basically Deadwood.

Is the Mac a secure computing platform? I guess it is resistant to true viruses. But security means being an active, thinking net user. "Files Are Not For Sharing" is a joke, but "Look both ways before you double-click" is not.]]> http://www.courtney5.us/rob/archives/2006/06/procrastinatr_a.html http://www.courtney5.us/rob/archives/2006/06/procrastinatr_a.html Tech Policy Wed, 21 Jun 2006 17:39:06 -0500

I've been waiting for the other shoe to drop on the net neutrality issue for some time. The whole thing seemed too easy. On the one side, plucky proponents of neutrality (the Good). On the other, greedy advocates of traffic discrimination (the Bad).

Over at the Weekly Standard, Andy Kessler has has identified the Ugly--and it is our stagnant market in information carriage.

Net society's no longer satisfied with a high-penetration network; we want it to also get faster and faster, forever. Kessler points out that the only ones in a position to make that happen--the telcos and cablecos--lack incentive. It's way more profitable for AT&T to just keep charging out the wazoo for international calls than to build out. And it's more profitable for Comcast to charge you $100 every month for the same TV. Companies like these might (maybe) make infrastructure investments if there were a really big carrot before them, like the opportunity to extract rents from the big companies doing business online; if they're prohibited from doing so by net neutrality rules, then there's no carrot and the likelihood of real infrastructure investment goes to zero.

Talk about a Hobson's choice. Either you give up on neutrality, and hope that in their graces, the telcos/cablecos decide to become aggressively pro-consumer (*cough*), or you embrace neutrality and resign yourself to a lifetime of watching "Lost" in 320x200 on your giant plasma.

Unfortunately, having done a great job identifying the problem, Kessler doesn't do a great job identifying any solution. Carrots aren't working, he says, so let's try a stick. His proposal is to maybe threaten a government takeover of the entire infrastructure--that'll put the fear into ’em, he thinks. Personally, I doubt that that would work. But Kessler's thinking about the problem in the right way.

A better stick? I'll take a shot: Aggressive public--federal, state, municipal, whatever--subsidy of mesh networking. Get these things out there using whatever moneys you can find, get them fast, and get them working. If they need access to the backbone, give it to them at public universities and other government-owned facilities. Whatever you do, give the telcos/cablecos no influence over the project--no connections to the backbone, no IP assignments, nothing. If you need space to put the repeaters, use eminent domain to get them up on the telephone poles for added "in your face"-ness. Encourage startups to come up with new (and, initially, low-bandwidth) uses for these things, probably with an initial emphasis on locally-oriented content. Then start looking for ways to get the bandwidth higher.

Once the telcos and cablecos start seeing a potential lunch-eater right in their own back yard, spurred forward with public money but not quite publicly-operated, they might get a reality check and really innovating on their networks even in an atmosphere of neutrality rules.

Remember those stories about how much AT&T hated packet-switching in the early days, and it was only because of DARPA and the public universities and a few key startups that anything happened to get AT&T off its butt and innovating? That's where we are now. We're not trying to move to publicly-owned information carriage, just private operation that's got the right kind of incentives. It just takes a little bit of guts, in the right places. Where have you gone, J.C.R. Licklider?

Erik Schmidt is a 2L at Santa Clara Law School; like me he loves OmniOutliner for law school. Erik has taken it all the way, though, and is rocking a full-on kGTD system. Check it out for another view of the cathedral.]]> http://www.courtney5.us/rob/archives/2006/06/more_on_omniout.html http://www.courtney5.us/rob/archives/2006/06/more_on_omniout.html Legal Academe Tue, 20 Jun 2006 08:47:04 -0500

You can take the California bar by hand if you want to, but after three years' hard PowerBooking my handwriting has become pretty much illegible. People like me have to use laptops.

You can't use a (G4) Mac though.[1] To promote security and discourage in-test peeks at notes and outlines, California requires installation of a program called ExamSoft.

My non-expert understanding of this program is that you install it with Administrator rights on a PC running Windows. Then, on test day, you can load up ExamSoft and have it reboot the machine in "Exam mode". What ends up happening is that upon reboot, ExamSoft takes over your boot routine so that you don't get Windows as you're accustomed to it--you get ExamSoft's test-taking software, and nothing else. By taking over the shell, ExamSoft is able to stop the user from accessing any of his other files or running any other programs. You take the test, and ExamSoft saves your exam encrypted on the drive.[2] Then you reboot out of ExamSoft, back to your normal computer.

You won't be surprised, Reader, to learn that this system is not without critics. There are reports of it crashing in exams, which really is a terrifying prospect. But more then anything it seems a G– – d– – systems maintenance nightmare. Even if the software works, and doesn't crash on the exam, the thought of installing this thing, knowing that it's going to be rewriting boot routines, etc., gives me the heebie jeebies.

On the other hand. people will cheat on this exam unless prevented. The stakes here are high enough for even the most honorable among us to be tempted. Either the bar exam needs a soup-to-nuts reconsideration to take that into account,[3] or some stop-gap is needed.

So I'm giving this solution to ExamSoft: port your app to Linux. License Red Hat or roll your own distro, and distribute the product on CDs or by direct download ISOs to applicants. Then, on exam day, just have everyone boot off the CD. We applicants will gladly pay the price; ExamSoft can get a controlled operating environment--no more system conflicts from people installing Bonzo Buddy or running otherwise non-standard OS installations[4]--and the bar gets the satisfaction of insulating the profession from digital reality for a few more years. And the best part? Linux runs on just about any processor architecture. So those of us with old G4s could play, too.

What do you say, ExamSoft? It's too late for me of course; I've gritted my teeth and installed ExamSoft on a ThinkPad borrowed from my Dad (Happy Father's Day!), and come July I'll be engaged in any number of pagan rituals in the hope that they'll keep my computer from crashing on those three magical days. But future generations could really benefit from a little progressive thinking now. And it would convert ExamSoft from a systems integrity scofflaw to a cutting-edge innovator in one swoop. Win-win.

I hesitate even to post anything, but I did pretty well on my Con Law practice questions, so what the hey. I am pleased to announce that there is a new way to access this blog! You can get to it the old-fashioned way, through good old courtney5.us or, if you're feeling sassy, through the brand-new domain unique-identifier.net.

It's the exact same content, delivered on the exact same schedule--i.e., intermittently, if at all--accessible with one less mouseclick. Joy!

Sorry about the delay here folks... maybe go and get a snack or something, ’cause it might be awhile. It turns out California has this exam you have to take to be a lawyer and hooo! is it hard. I think I should take some time thinking this over.

Quick hits, if you require them:

• Graduated from Stanford Law School
• Purchased and watched Top Secret!
• Have been playing Katamari Damacy like it was 2004. We even got the soundtrack, Katamari Fortissimo Damacy
• Apparently Bruce graduated from Bowdoin
• Suryo came to visit
• Have now watched all of "Lost"; thinking of moving on to "Deadwood", "Buffy", or maybe "Six Feet Under".

Okay, seriously I have to go work now.

David Wong at PWOT spent the days after E3 updating his critique of the game industry, Life After the Video Game Crash. Wong is an interesting guy, he has great and incisive ideas, and he also comes up with a lot of novel profanity. This article features the phrase "foppish wide-brimmed a– –hat", in bold type; you have been warned. Still, Wong is more on-target than almost anyone else analyzing the industry.
]]> http://www.courtney5.us/rob/archives/2006/05/what_is_wrong_w.html http://www.courtney5.us/rob/archives/2006/05/what_is_wrong_w.html Games Sun, 14 May 2006 20:19:02 -0500

The new trailer for Metal Gear Solid 4 [100MB, BitTorrent] is worth seeing. Too bad about the $600 price tag.