kottke.org posts about legal
A group of children and young adults are suing the United States over climate change.
The young plaintiffs, who range in age from 9 to 20, allege that climate change violates their constitutional rights to life, liberty, and property by causing direct harm and destroying so-called public trust assets such as coastlines. The case argues that climate change is worsened by the aggregated actions of the federal government in permitting fossil fuel development, subsidizing the fossil fuel industry, and many other such actions. Further, the children and their lawyers say these government actions are willfully prioritizing short-term profit, convenience, and the concerns of current generations over those of future generations. The plaintiffs state that the government and these companies have continued to prioritize these short-term gains for more than five decades with full knowledge of the extreme dangers they posed.
Last week, federal district court judge Ann Aiken in Oregon ruled against the federal government’s motion to dismiss, an important hurdle to clear for the lawsuit to move forward. Aiken wrote:
I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress. … To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.
You can donate to their effort on their website.
The NY Times has released their first video game editorial in the form of an Oregon Trail spin-off by GOP Arcade highlighting how the Republican Party engages in voter suppression tactics, especially in areas with many voters of color. In the game, you can play as a white programmer from California, a Latina nurse from Texas, or a black salesman from Wisconsin. As might expect, it takes somewhat longer to finish the game as some of these players versus others.
On Nov. 8, a new generation of Americans will make their own heroic journeys — to the polls. Some paths will be more intrepid than others, particularly for blacks, Latinos and pretty much anyone who brings the kind of diversity to our polling places that they have historically lacked. Thanks to laws passed by Republicans to fight the nonexistent threat of voter fraud, the perils will be great. Long lines and voter ID laws, not to mention pro-Trump election observers, will try to keep these voters from the polls.
More on voter suppression at Vox.
Today’s Google Doodle honors the 100th anniversary of the birth of legendary newsman Walter Cronkite.
Today would be the 100th birthday of the man known widely throughout the ’60s and ’70s as “the most trusted man in America.” Walter Cronkite, the legendary broadcast journalist reported, served, and comforted a nation during its most trying times, including World War II, Watergate, the Vietnam War, and the assassination of JFK, to name a few.
Walter perpetuated an objective reporting style rooted in justice and integrity: “Press freedom is essential to our democracy, but the press must not abuse this license. We must be careful with our power. The free press, after all, is the central nervous system of a democratic society.”
Since I missed most of Cronkite’s career as a TV news anchor (I was 7 when he retired), I mostly associate him with the coverage of the Apollo 11 Moon landing and the early web meme Walter Cronkite Spit In My Food.
It was an unbelievable account of a drunken Walter Cronkite raging at a honeymooning couple in a restaurant. It included an obviously faked video clip of Walter Cronkite spitting and a fuzzy photograph of a man who looked vaguely like Cronkite.
Google’s honor is a bit ironic given that Cronkite favored tougher libel and slander laws for “would-be writers and reporters on the Internet”:
I am dumbfounded that there hasn’t been a crackdown with the libel and slander laws on some of these would-be writers and reporters on the Internet. I expect that to develop in the fairly near future.
as well as legislation against anonymous expression online:
I favor legislation that requires people to stand by their words by identifying themselves on the Internet. They should not be permitted to operate anonymously.
He was clear that he was not after censorship:
I hope to make it clear that I did say that I am opposed to any form of censorship. This is identification… forced identification by those who use the Internet. Not censorship. It is simply requiring them to take the same responsibility that people in print and in broadcasting have to take.
Brendan Dassey, who was one of two men convicted for the murder of Theresa Halbach, may be released from prison soon. A federal judge issued a ruling overturning his conviction today:
Concluding the 91-page decision, Duffin found that investigators made false promises to Dassey during multiple interrogations.
“These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments. The Wisconsin Court of Appeals’ decision to the contrary was an unreasonable application of clearly established federal law,” Duffin wrote.
Prosecutors have 90 days to decide to retry Dassey or release him. It was fairly clear to me, having watched Making a Murderer, that Dassey was innocent (or at the very least, was not given a fair trial).
Last night, I finished OJ: Made in America, ESPN’s 8-hour documentary series about OJ Simpson. Prior to starting the series, I would rather have poked an eye out than spend another second of my life thinking about OJ Simpson; I’d gotten my fill back in the 90s. But I’d heard so many good things about it that I gave it a shot. Pretty quickly, you realize this is not just the biography of a man or the story of a trial but is a deep look at racism, policing, and celebrity in the US. OJ: Made in America is excellent and I recommend it unreservedly. From Brian Tallerico’s review:
Ezra Edelman’s stunningly ambitious, eight-hour documentary is a masterpiece, a refined piece of investigative journalism that places the subject it illuminates into the broader context of the end of the 20th century. You may think you know everything about The Trial of the Century, especially if you watched FX’s excellent “The People vs. OJ Simpson: American Crime Story,” but “OJ: Made in America” not only fills in details about the case but offers background and commentary that you’ve never heard before. It is an examination of race, domestic abuse, celebrity, civil rights, the LAPD, the legal process and murder over the last fifty years, using the OJ Simpson story as a way to refract society. Its length may seem daunting, but I would have watched it for another eight hours and will almost certainly watch it again before the summer is over. It’s that good.
The only real criticism I have of the series is that the treatment of women in America should have been explored more, on the same level as racism and celebrity. A.O. Scott picked up on this in his NY Times review:
It is hard not to notice the predominance of male voices among the interview subjects, and the narrowness of the film’s discussion of domestic violence. This is not to say that the issue is ignored: Mr. Simpson’s history of abusing Nicole is extensively and graphically documented, as is the fact that most of his friends ignored what was going on at their Rockingham estate. But the film, which so persuasively treats law enforcement racism as a systemic problem, can’t figure out how to treat violence against women with the same kind of rigor or nuance.
A fuller discussion of domestic violence in the US and misogyny in sports would have provided another powerful, reinforcing aspect of the story.
In 1974, Studs Terkel published a book called Working: People Talk About What They Do All Day and How They Feel About What They Do. One of the people he talked to for the book was Chicago police officer Renault Robinson. Robinson is African American and offered up his views to Terkel on how blacks are policed differently…here are the relevant bits of the interview. On traffic stops:
“About sixty percent of police-citizen conflict starts in a traffic situation. It’s easier to stop a person on the pretext of a traffic violation than to stop him on the street. It’s a lot easier to say, “Your tail light’s out.” “Your plate is dented.” “You didn’t make that turn right.” You can then search his automobile, hoping you can find some contraband or a weapon. If he becomes irritated, with very little pushing on your part, you can make an arrest for disorderly conduct. These are all statistics which help your records.
Certain units in the task force have developed a science around stopping your automobile. These men know it’s impossible to drive three blocks without committing a traffic violation. We’ve got so many rules on the books. These police officers use these things to get points and also hustle for money. The traffic law is a fat book. He knows if you don’t have two lights on your license plate, that’s a violation. If you have a crack in your windshield, that’s a violation. If your muffler’s dragging, that’s a violation. He knows all these little things….
So if they stop the average black driver, in their mind the likelihood of finding five or six violations out of a hundred cars is highly possible…. After you’ve stopped a thousand, you’ve got 950 people who are very pissed off, 950 who might have been just average citizens, not doing anything wrong - teachers, doctors, lawyers, working people. The police don’t care. Black folks don’t have a voice to complain. Consequently, they continue to be victims of shadowy, improper, overburdened police service. Traffic is the big entree.”
And on the type of young white male that the job was attracting at the time:
A large amount of young white officers are gung ho. It’s an opportunity to make a lot of arrests, make money, and do a lot of other things. In their opinion, black people are all criminals, no morals, dirty and nasty. So the black people don’t cooperate with the police and they have good cause not to. On the other hand, they’re begging for more police service. They’re over-patrolled and under-protected.
The young white guys turn out to be actually worse than their predecessors. They’re more vicious. The average young white policeman comes from a working-class family, sometimes with less than a high-school education. He comes with built-in prejudices. The average young white cop is in bad shape. I think he can be saved if a change came from the top. If it could be for just eight hours a day. They may still hate niggers when they got off duty. They may still belong to the John Birch Society or the Ku Klux Klan. So what? They could be forced to perform better during the eight hours of work.”
Reading about this stuff, I keep going back to the 9 principles of policing drawn up by London’s Metropolitan Police in the 1820s in which the power of the police comes from the people, force is to be used minimally, and the efficacy of policing is judged on the absence of crime, not on the number of arrests or people sent to jail.
Redditt Hudson served as a police officer in St. Louis during the 1990s. He shared his perspective on race and policing with Vox last year: I’m a black ex-cop, and this is the real truth about race and policing.
It is not only white officers who abuse their authority. The effect of institutional racism is such that no matter what color the officer abusing the citizen is, in the vast majority of those cases of abuse that citizen will be black or brown. That is what is allowed.
And no matter what an officer has done to a black person, that officer can always cover himself in the running narrative of heroism, risk, and sacrifice that is available to a uniformed police officer by virtue of simply reporting for duty.
AI chatbot lawyer sounds like a SNL skit, but the DoNotPay chatbot has successfully contested 160,000 parking tickets in London and New York.
Dubbed as “the world’s first robot lawyer” by its 19-year-old creator, London-born second-year Stanford University student Joshua Browder, DoNotPay helps users contest parking tickets in an easy to use chat-like interface.
The program first works out whether an appeal is possible through a series of simple questions, such as were there clearly visible parking signs, and then guides users through the appeals process.
The results speak for themselves. In the 21 months since the free service was launched in London and now New York, Browder says DoNotPay has taken on 250,000 cases and won 160,000, giving it a success rate of 64% appealing over $4m of parking tickets.
Having spent a shitload of money on lawyering over the past few years, there is definitely an opportunity for some automation there.
Reporter Shane Bauer went undercover as a guard in a Louisiana private prison for four months. Mother Jones devoted their entire recent issue to the story.
In class that day, we learn about the use of force. A middle-aged black instructor I’ll call Mr. Tucker comes into the classroom, his black fatigues tucked into shiny black boots. He’s the head of Winn’s Special Operations Response Team, or SORT, the prison’s SWAT-like tactical unit. “If an inmate was to spit in your face, what would you do?” he asks. Some cadets say they would write him up. One woman, who has worked here for 13 years and is doing her annual retraining, says, “I would want to hit him. Depending on where the camera is, he might would get hit.”
Mr. Tucker pauses to see if anyone else has a response. “If your personality if somebody spit on you is to knock the fuck out of him, you gonna knock the fuck out of him,” he says, pacing slowly. “If a inmate hit me, I’m go’ hit his ass right back. I don’t care if the camera’s rolling. If a inmate spit on me, he’s gonna have a very bad day.” Mr. Tucker says we should call for backup in any confrontation. “If a midget spit on you, guess what? You still supposed to call for backup. You don’t supposed to ever get into a one-on-one encounter with anybody. Period. Whether you can take him or not. Hell, if you got a problem with a midget, call me. I’ll help you. Me and you can whup the hell out of him.”
He asks us what we should do if we see two inmates stabbing each other.
“I’d probably call somebody,” a cadet offers.
“I’d sit there and holler ‘stop,’” says a veteran guard.
Mr. Tucker points at her. “Damn right. That’s it. If they don’t pay attention to you, hey, there ain’t nothing else you can do.”
He cups his hands around his mouth. “Stop fighting,” he says to some invisible prisoners. “I said, ‘Stop fighting.’” His voice is nonchalant. “Y’all ain’t go’ to stop, huh?” He makes like he’s backing out of a door and slams it shut. “Leave your ass in there!”
“Somebody’s go’ win. Somebody’s go’ lose. They both might lose, but hey, did you do your job? Hell yeah!” The classroom erupts in laughter.
Fusion has a summary of Bauer’s reporting, which you really should actually read in its entirety. America’s prison system is shameful; its reform is one of the biggest issues facing our nation in the future.
In the latest Slow TV experiment, the Norwegian Consumer Council is doing a live read of the terms of service for a number of different apps, including Instagram, YouTube, Kindle, Spotify, and Snapchat. It’s in Norwegian and it looks like they’re on the last app, but the total time elapsed so far is 1 day, 7 hours, 49 minutes. (via @Rudien)
Update: The live reading is over, and there was wide variation in reading times. The iTunes TOS took almost 200 minutes to read while those for an app called Vipps took only 3 minutes. The terms for Candy Crush, which is just a game, took more than an hour and a half to read aloud. Absurd.
The possession of certain prime numbers is illegal in the US. For instance, one of these primes can be used to break a DVD’s copyright encryption.
Body cameras, dashboard cams, and bystander videos all offer different views of police officers doing their jobs, which underscores the importance of perspective in skewing our perceptions of what’s happening. For instance, body cams can tend to put you in the shoes of the wearer.
These details were not captured by the police body camera, though, revealing another important point: Body cameras prioritize the officer’s point of view.
“When video allows us to look through someone’s eyes, we tend to adopt an interpretation that favors that person,” Professor Stoughton said, explaining a psychological phenomenon known as “camera perspective bias.”
Thanks to Reed for sending me the link and pointing out the connection to how film directors use the camera to tell stories effectively:
The importance of composition in cinematic storytelling and “What a film director really directs is the audience’s attention.” What are these law enforcement surveillance cameras inadvertently directing our attention to?
A huge cache of data has leaked from a Panama-based tax firm that shows how some of the world’s politicians and the rich hide their money in offshore tax havens. The video above, from the Guardian, is a quick 1:30 introduction on how these offshore havens work.
The documents show the myriad ways in which the rich can exploit secretive offshore tax regimes. Twelve national leaders are among 143 politicians, their families and close associates from around the world known to have been using offshore tax havens.
A $2bn trail leads all the way to Vladimir Putin. The Russian president’s best friend — a cellist called Sergei Roldugin — is at the centre of a scheme in which money from Russian state banks is hidden offshore. Some of it ends up in a ski resort where in 2013 Putin’s daughter Katerina got married.
Among national leaders with offshore wealth are Nawaz Sharif, Pakistan’s prime minister; Ayad Allawi, ex-interim prime minister and former vice-president of Iraq; Petro Poroshenko, president of Ukraine; Alaa Mubarak, son of Egypt’s former president; and the prime minister of Iceland, Sigmundur Davíð Gunnlaugsson.
Here is an important bit:
Are all people who use offshore structures crooks?
No. Using offshore structures is entirely legal. There are many legitimate reasons for doing so. Business people in countries such as Russia and Ukraine typically put their assets offshore to defend them from “raids” by criminals, and to get around hard currency restrictions. Others use offshore for reasons of inheritance and estate planning.
Are some people who use offshore structures crooks?
Yes. In a speech last year in Singapore, David Cameron said “the corrupt, criminals and money launderers” take advantage of anonymous company structures. The government is trying to do something about this. It wants to set up a central register that will reveal the beneficial owners of offshore companies. From June, UK companies will have to reveal their “significant” owners for the first time.
There is much more here, including Lionel Messi’s involvement.
Update: The Panama Papers have claimed their first political victim. The now-former prime minister of Iceland has resigned because of his family’s offshore investments.
On the most recent episode of Last Week Tonight, John Oliver argues against many US states’ anti-abortion laws. This was super funny and also made me really angry.
President Obama announces a ban on the use of solitary confinement for juveniles in federal prisons.
How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.
Here’s Obama’s Op-Ed on the topic.
“It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” That’s a quote on solitary from John McCain from an old New Yorker piece from Atul Gawande: Hellhole. (via nextdraft)
This account of serving on a jury during a murder trial is fascinating, from the racial issues of the jury selection to the social dynamics in the jury room during deliberations.
There’s a handwritten confession that the defendant claims he didn’t write. He says he signed a blank page that appeared later containing a confession. In the months since the arrest, changes have been made to local precincts that now allow them to record all interrogations on video. In this case, no video was taken.
The suggestion of a police conspiracy is laughable to the prosecutor, and, I will learn, to many of my fellow jurors. I suppose this is why every black man was eliminated from the jury pool. If it’s biased to presuppose police officers are corrupt, it should be considered equally biased to presuppose that they always act lawfully. Instead, it’s considered ridiculous. The presumption of innocence is dangerously misplaced.
I keep thinking of Walter Scott, whose uniformed murderer is seen on camera shooting him while he runs away, and who plants a weapon on his freshly killed corpse. While doing all this, the officer reports over police radio that Scott attacked him.
A group called Kurzgesagt, in collaboration with author Johann Hari, made this video about taking a new approach to understanding addiction. You’ve probably heard of the experiments where rats in cages were given access to drugs. The rats quickly became addicted to them and used them heavily until overdosing. But perhaps the problem is not the drugs but the cage. Later experiments showed that if rats were given plenty of alternate activities, freedom, and room to roam, they were not likely to become heavy drugs users or overdose.
Human studies are more difficult to come by, but it still appears that when available, living life, family, and friends are more addictive than heroin. And so, according to Hari, who wrote a book about all this, what we should be doing is not isolating those who become addicted to drugs, alcohol, and other things. Instead, we should build a society that reconnects people to each other so that the drugs become unnecessary.
In addition to the video and the book, there’s an interactive version of the video as well as an article by Hari on Huffington Post. (via @gavinpurcell)
Amazon has garnered an enormous share of the book market, and their “activities tend to reduce book prices, which is considered good for consumers.” But hundreds of writers (including Philip Roth and V. S. Naipaul) are trying to convince the Department of Justice that — regardless of the lower prices — Amazon’s monopoly is hurting consumers. From The New Yorker’s Vauhini Vara: Is Amazon creating a cultural monopoly?
About the time Katrina struck, New Orleans was the jail capital of America, incarcerating people at four times the national average. Since that time, the city has reduced its local inmate population by 67%. What was the trick? First, they stopped treating jailing like a business. And second, they built a smaller jail. No really. That was a key factor. And get this; during the period New Orleans stopped jailing so many people, there has been an overall reduction in crime. Smaller jails. Less crime. Jazz hands.
[This item is syndicated from Nextdraft, but I had to add a little something about induced demand. Like building bigger roads resulting in more traffic (not less), building bigger jails means you want to fill them with criminals. Kudos to New Orleans for building a smaller jail and finding ways to adjust to the reduced supply of jail cells. -jkottke]
After a night of riots in Baltimore, schools are closed, games have been postponed, at least a thousand National Guard soldiers are roaming the streets, and America is left once again to ponder issues of race, inequality, law enforcement, and civic unrest.
InFocus: Images of unrest in Baltimore.
WaPo’s Michael A. Fletcher on the murder, drugs, and poverty that plague Freddie Gray’s Baltimore:
Most of these problems are confined to the pockmarked neighborhoods of narrow rowhomes and public housing projects on the city’s east and west sides. They exist in the lives of the other Baltimore of renovated waterfront homes, tree-lined streets, sparkling waterfront views, rollicking bars and ethnic restaurants mainly through news reports. The two worlds bump up against one another only on occasion.
Vox: In Freddie Gray’s Baltimore neighborhood, half of the residents don’t have jobs.
Last night my mom wondered aloud why we still don’t seem to know many of the details when it comes to Gray’s death. Well mom, the answer is LEOBoR, or the law enforcement officers bill of rights. From The Marshall Project: Blue Shield.
After the end of World War II in Europe, homosexual prisoners of liberated concentration camps were refused reparations and some were even thrown into jail without credit for their time served in the camps. From the United States Holocaust Memorial Museum:
After the war, homosexual concentration camp prisoners were not acknowledged as victims of Nazi persecution, and reparations were refused. Under the Allied Military Government of Germany, some homosexuals were forced to serve out their terms of imprisonment, regardless of the time spent in concentration camps. The 1935 version of Paragraph 175 remained in effect in the Federal Republic (West Germany) until 1969, so that well after liberation, homosexuals continued to fear arrest and incarceration.
After 1945, it was no longer a crime to be Jewish in Germany, but homosexuality was another matter. Paragraph 175 of the German Criminal Code had been on the books since 1871. An English translation of the earliest version read simply:
Unnatural fornication, whether between persons of the male sex or of humans with beasts, is to be punished by imprisonment; a sentence of loss of civil rights may also be passed.
In Germany, homosexuality was considered a crime worthy of up to five years of imprisonment until Paragraph 175 was voided in 1994.
Update: I missed this while writing the post: Paragraph 175 was amended in 1969 to limit enforcement to engaging in homosexual acts with minors (under 21 years). (thx, eric)
In light of the ongoing policing situation in Ferguson, Missouri in the wake of the shooting of an unarmed man by a police officer and how the response to the community protests is highlighting the militarization of US police departments since 9/11, it’s instructive to look at one of the first and most successful attempts at the formation of a professional police force.
The UK Parliament passed the first Metropolitan Police Act in 1829. The act was introduced by Home Secretary Sir Robert Peel, who undertook a study of crime and policing, which resulted in his belief that the keys to building an effective police force were to 1) make it professional (most prior policing had been volunteer in nature); 2) organize as a civilian force, not as a paramilitary force; and 3) make the police accountable to the public. The Metropolitan Police, whose officers were referred to as “bobbies” after Peel, was extremely successful and became the model for the modern urban police force, both in the UK and around the world, including in the United States.
At the heart of the Metropolitan Police’s charter were a set of rules either written by Peel or drawn up at some later date by the two founding Commissioners: The Nine Principles of Policing. They are as follows:
1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.
3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.
4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.
5. To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.
6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.
7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.
As police historian Charles Reith noted in 1956, this philosophy was radical when implemented in London in the 1830s and “unique in history and throughout the world because it derived not from fear but almost exclusively from public co-operation with the police, induced by them designedly by behaviour which secures and maintains for them the approval, respect and affection of the public”. Apparently, it remains radical in the United States in 2014. (thx, peter)
Photographer David Slater wants Wikipedia to remove his photograph of a monkey taking a photo of itself but Wikipedia has refused, saying that as the monkey was the photographer, Slater has no right to the copyright to the photo.
The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained to Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.
But shouldn’t Wikipedia take it down anyway because they don’t have the monkey’s permission to release the photo into the public domain? (I mean, probably not…monkeys don’t have any rights under the law, yes?) (via @capndesign)
Update: A previous version of this post stated that Wikipedia said that the monkey held the copyright. They said no such thing…that was my poor paraphrase. In the US at least, monkeys obviously can’t hold copyrights. From the Compendium II of Copyright Office Practices, section 202.02(b) states:
The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.
Interesting phrase, “owe its origin to”…perhaps Slater has a point. (via @stvnrlly)
Update: According to a recent 1000+ page document produced by the US Copyright Office, a photograph taken by a monkey is “unprotected intellectual property”.
The US Copyright Office, in a 1,222-page report discussing federal copyright law, said that a “photograph taken by a monkey” is unprotected intellectual property.
“The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy state that the work was inspired by a divine spirit,” said the draft report, “Compendium of US Copyright Office Practices, Third Edition.”
Update: PETA has filed a lawsuit on behalf of the monkey photographer, seeking to award the copyright and any sales proceeds to the monkey. Alt headline: PETA Thinks Famous Monkey Photographer Is Too Stupid To Manage Own Money.
Hi, everybody! Tim Carmody here, guest-hosting for Jason this week.
On Monday, I tried to list some reasons why OKCupid’s self-acknowledged experiments on its users didn’t seem to be stirring up the same outrage that Facebook’s had. Here at the end of the week, I think I was largely right: fewer people are upset, the anger is more tempered, and that has a lot to do with the reasons I gave. But one reaction I didn’t expect is that some people took it as saying that I wasn’t upset by what OKCupid did, or that people shouldn’t be as upset by it.
What OKCupid did has actually made me madder and madder as the week’s gone on, but for reasons that are different from other people’s. I think this is pretty important, so I’m going to try to explain why.
Let’s start with the Facebook “social contagion” study. Most Facebook critics focused on the people who were the subjects of the study, for good reasons. Did these users give consent? Can terms of service count as consent for an academic study? Should they have been informed of the study afterwards? Is Facebook responsible for any harm these users might have suffered? Is an increase or decrease in engagement really a sign that users’ emotions were affected? How else has Facebook attempted to influence its users, or might try in the future? These are all good questions.
But what if you flip it around? What if you weren’t one of the subjects whose moods Facebook was trying to study, but one of their friends or family? What if you were one of the people whose posts were filtered because your keywords were too happy, too angry, or too sad?
I think there’s no way to know whether the Facebook study may have harmed people who weren’t being studied. And even though the TOS basically says that users give Facebook permission to do whatever they want not only with the users’ data, but all of their friends’ too, you can’t call that consent with a straight face. (This is just another reason that software terms of service are a rotten legal and ethical basis for research. They just weren’t built for that reason, or to solve any of those problems.)
So Facebook didn’t just mess around with some of its users’ feeds, hoping to see if it might mess around with their feelings. It used some of its users’ posts in order to do it. Arguably, it made them complicit.
To be clear, filtering posts, giving preference to some and not others, is how Facebook’s newsfeed algorithm always works. Facebook users have been complaining about this for a long time, especially brands and news organizations and other companies who’ve built up their subscriber counts and complain that hardly anybody ever sees their posts unless they pay off Facebook’s ad department. And Facebook makes no guarantees, anywhere, that they’re going to deliver every message to every user who’s subscribed to it. Readers miss posts all the time, usually just because they’re just not looking at the screen or reading everything they could see. Facebook isn’t certified mail. It’s not even email. All this is known.
We all buy in to Facebook (and Twitter, and OKCupid, and every other social media network), giving them a huge amount of personal data, free content, and discretion on how they show it to us, with the understanding that all of this will largely be driven by choices that we make. We build our own profiles, we select our favorite pictures, we make our own friends, we friend whatever brands we like, we pick the users we want to block or mute or select for special attention, and we write our own stories.
Even the filtering algorithms, we’re both told and led to assume, are the product of our choices. Either we make these choices explicitly (mute this user, don’t show me this again, more results like these) or implicitly (we liked the last five baby pictures, so Facebook shows us more baby pictures; we looked at sites X, Y, and Z, so we see Amazon ads for people who looked at X, Y, and Z. It’s not arbitrary; it’s personalized. And it’s personalized for our benefit, to reflect the choices that we and the people we trust have made.
This is what makes the user-created social web great. It’s the value it adds over traditional news media, traditional classified ads, traditional shopping, everything.
We keep copyright on everything we write and every image we post, giving these services a broad license to use it. And whenever the terms of service seem to be saying that these companies have the right to do things we would never want them to do, we’re told that these are just the legal terms that the companies need in order to offer the ordinary, everyday service that we’ve asked them to do for us.
This is why it really stings whenever somebody turns around and says, “well actually, the terms you’ve signed give us permission to do whatever we want. Not just the thing you were afraid of, but a huge range of things you never thought of.” You can’t on one hand tell us to pay no attention when you change these things on us, and with the other insist that this is what we’ve really wanted to do all along. I mean, fuck me over, but don’t tell me that I really wanted you to fuck me over all along.
Because ultimately, the reason you needed me to agree in the first place isn’t just because I’m using your software, but because you’re using my stuff. And the reason I’m letting you use my stuff, and spending all this time working on it, is so that you can show it to people.
I’m not just a user of your service, somebody who reads the things that you show it to me: I’m one of the reasons you have anything that you can show to anyone at all.
Now let’s go back to the OKCupid experiment. Facebook didn’t show some of its users posts that their friends wrote. But at least it was a binary thing: either your post was shown, just as you wrote it, or it wasn’t. OKCupid actually changed the information it displayed to users.
You can pick nits and say OKC didn’t change it, but rather, just selectively repressed parts of it, deleting photos on some profiles and text on others. But if you’ve ever created a profile on any web site, you know that it’s presented as being a whole ensemble, the equivalent of a home page. The photos, the background, the description, the questions you answer: taken altogether, that’s your representation of yourself to everyone else who may be interested. It’s the entire reason why you are there.
Now imagine you’re an OKCupid user, and you strike up a conversation with someone or someone strikes up a conversation with you. You assume that the other person has all of your information available to them if they’re willing to look at it. That’s the basis of every conversation you have on that site. Except they don’t. The profile that OKCupid has implicitly promised they’ll show to everyone who looks at it has been changed. The other person either doesn’t know what you look like (and assumes you can’t be bothered to post a photo) or doesn’t know anything else about you (and assumes you can’t be bothered to write anything about yourself.) Both of you have been deceived, so the site can see what happens.
This is why I question the conclusion that OKC users who were only shown profiles with pictures are shallow, because their conversations were almost as long as the ones who were shown full profiles. This is how I imagine those conversations going:
Rosencrantz: So what do you do?
Guildenstern: Um I work in marketing?
Rosencrantz: That’s great! Where did you go to school?
Guildenstern: I went to UVA
Guildenstern: Wait a minute are you some kind of bot?
Rosencrantz: What makes you say that?
Guildenstern: You keep asking me questions that are in my profile, did you even read it
Rosencrantz: I’m looking at it right now, why didn’t you answer any of the questions
Guildenstern: lol I guess you can’t read nice pic though goodbye
That’s a high-value interaction by the OKC researchers’ standards, by the way.
This is also why I don’t have much patience with the idea that “The worst thing could have happened [with the OkCupid testing] is people send a few more messages, and maybe you went on a date you didn’t like.” (Rey Junco told this to ReadWrite to explain why he thought Facebook’s study was worse than OKCupid’s, but you see versions of this all over.)
First, going on “a date you didn’t like” isn’t a frivolous thing. It definitely incurs more material costs than not seeing a Facebook status. And bad (or good) messages or a bad or good date can definitely have a bigger emotional impact as well.
More importantly, though, don’t make this just a question about dates or feelings, about what somebody did or didn’t read and what its effect on them was. I don’t care if you think someone making a dating profile is a frivolous thing. Somebody made that. They thought the company hosting it could be trusted to present it honestly. They were wrong.
So this is the problem I see not just with Facebook and OKCupid’s experiments, but with most of the arguments about them. They’re all too quick to accept that users of these sites are readers who’ve agreed to let these sites show them things. They don’t recognize or respect that the users are also the ones who’ve made almost everything that those sites show. They only treat you as a customer, never a client.
And in this respect, OKCupid’s Christian Rudder and the brigade of “and this surprises you?” cynics are right: this is what everybody does. This is the way the internet works now. (Too much of it, anyway.) It doesn’t matter whether your site is performing interventions on you or not, let alone publishing them. Too many of them have accepted this framework.
Still, for as long as the web does work this way, we are never only these companies’ “products,” but their producers, too. And to the extent that these companies show they aren’t willing to live up to the basic agreement that we make these things and give them to you so you will show them to other people — the engine that makes this whole world wide web business go — I’m not going to have anything to do with them any more. What’s more, I’ll get mad enough to find a place that will show the things I write to other people and tell them they shouldn’t accept it either. Because, ultimately, you ought to be ashamed to treat people and the things they make this way.
It’s not A/B testing. It’s just being an asshole.
Update: OKCupid’s Christian Rudder (author of the “We Experiment On Human Beings” post) gave an interview to Alex Goldman and PJ Vogt for On the Media’s TLDR podcast.
Rudder says some of the negative response “is my own fault, because, y’know, the blog post is sensationally written, for sure.” But he doesn’t back off of that tone one bit. In fact, he doubles down.
Alex Goldman: Have you thought about bringing in, say, like an ethicist to, to vet your experiments?
Christian Rudder, founder of OkCupid: To wring his hands all day for a hundred thousand dollars a year?… This is the only way to find this stuff out. If you guys have an alternative to the scientific method, I’m all ears.
I think he maybe should have just written the blog post and left it alone.
Update: University of Maryland Professor of Law James Grimmelmann say that not only were OKCupid’s and Facebook’s studies unethical, but they were illegal.
Most of the resulting discussion has treated this as a story about ethics. Which it is — and the lapses of ethical judgment shown by Facebook and OkCupid are scandalous. But the ethics are only half of the story. What Facebook and OkCupid did wasn’t just unethical. It was illegal. A common assumption is that even if research laws ought to apply to private companies, they don’t. But that assumption is false. Facebook and OkCupid are bound by research laws, and those research laws quite clearly prohibit what they did.
Sometime around 1918 in Buenos Aires, Marcel Duchamp designed a chess set:
Sometime earlier this year, Scott Kildall and Brian Sera used archival photos of the hard-to-find set, turned them into 3D models of the chess pieces, and made a pattern for 3D printing your own set:
The community at Thingaverse is already busy making interesting variations of Duchamp’s set…look at this one:
Something tells me Duchamp would have loved this whole thing.
Update: Welllllll, Duchamp may have loved this, but his estate definitely did not. Duchamp’s estate sent Kildall and Sera a cease and desist letter, forcing them to remove the 3D models from Thingiverse. Which, the irony! So, Kildall and Sera, riffing on Duchamp’s mustachioed Mona Lisa, have created a set of six 3D-printed chess pieces with mustaches modeled on the Duchamp set. Fantastic.
NYC and the Central Park Five have agreed to a $40 million settlement that will bring a years-long civil rights lawsuit to an end.
The five men whose convictions in the brutal 1989 beating and rape of a female jogger in Central Park were later overturned have agreed to a settlement of about $40 million from New York City to resolve a bitterly fought civil rights lawsuit over their arrests and imprisonment in the sensational crime.
The agreement, reached between the city’s Law Department and the five plaintiffs, would bring to an end an extraordinary legal battle over a crime that came to symbolize a sense of lawlessness in New York, amid reports of “wilding” youths and a marauding “wolf pack” that set its sights on a 28-year-old investment banker who ran in the park many evenings after work.
Ken Burns made a documentary film about this case in 2012. Highly recommended viewing…and you can watch the whole thing on the PBS web site.
A new study finds that insider trading is much worse than commonly thought: a quarter of all public company deals may involve some kind of insider trading. From the NY Times:
The professors examined stock option movements — when an investor buys an option to acquire a stock in the future at a set price — as a way of determining whether unusual activity took place in the 30 days before a deal’s announcement.
The results are persuasive and disturbing, suggesting that law enforcement is woefully behind — or perhaps is so overwhelmed that it simply looks for the most egregious examples of insider trading, or for prominent targets who can attract headlines.
The professors are so confident in their findings of pervasive insider trading that they determined statistically that the odds of the trading “arising out of chance” were “about three in a trillion.” (It’s easier, in other words, to hit the lottery.)
Only about 5% of the deals are ever litigated by the SEC. (via mr)
Dang, Tesla just announced they’re letting anyone use their patented technology. CEO Elon Musk:
Yesterday, there was a wall of Tesla patents in the lobby of our Palo Alto headquarters. That is no longer the case. They have been removed, in the spirit of the open source movement, for the advancement of electric vehicle technology.
Tesla Motors was created to accelerate the advent of sustainable transport. If we clear a path to the creation of compelling electric vehicles, but then lay intellectual property landmines behind us to inhibit others, we are acting in a manner contrary to that goal. Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.
Damn good move for a damn good reason. It’s impressive to watch this company in action.
Update: I read that last line quoted above again and perhaps “abandoned” is too strong a word. Glenn Fleishman notes on Twitter:
They did not abandon their patents. They aren’t apparently even licensing them. They are stating they won’t sue except defensively. The devil is in the details. Twitter released a complete framework of their policy when they announced the same thing.
Hopefully Musk and co. will clarify what they mean by “in good faith”.
This is called a billing block:
You find it at the bottom of movie posters and often at the end of movie trailers. In an Op-Art piece from last year, Ben Schott explains how the billing block is carefully constructed with information from contracts and legal agreements.
The content, order and format of the billing block are governed by two things: personal service contracts with cast and crew, and industrywide agreements with professional guilds — notably the Directors Guild of America (D.G.A.) and the Writers Guild of America (W.G.A.). Thus, while some elements of the billing block remain consistent, others depend of the type of film and on individual negotiations. That said, there has been a marked inflation in billing block credits. An “Ocean’s 11” poster from 1960 credited just three noncast individuals; the 2001 remake poster credited, coincidentally, 11.
Oh, wow. Tobias Frere-Jones is suing his business partner Jonathan Hoefler over ownership of world-reknowned type foundry Hoefler & Frere-Jones.
Type designer Tobias Frere-Jones claims he has been cheated out of his half of the company by his business partner, Jonathan Hoefler. In a blistering lawsuit filed today in New York City, Frere-Jones says he was duped into transferring ownership of several fonts, including the world-famous Whitney, to Hoefler & Frere-Jones (HFJ) on the understanding that he would own 50% of the company.
“In the most profound treachery and sustained exploitation of friendship, trust and confidence, Hoefler accepted all of the benefits provided by Frere-Jones while repeatedly promising Frere-Jones that he would give him the agreed equity, only to refuse to do so when finally demanded,” the suit claims.
The full complaint is here. A descendant of Whitney (Whitney ScreenSmart) is what you’re reading right now and I was an early beta tester of H&FJ’s webfont service. This is gobsmacking news…I have no idea what to think about it. What a sad and strange situation. (via @khoi)
Update: H&FJ has released a statement from their general counsel:
Last week, designer Tobias Frere-Jones, a longtime employee of The Hoefler Type Foundry, Inc. (d/b/a “Hoefler & Frere-Jones”), decided to leave the company. With Tobias’s departure, the company founded by Jonathan Hoefler in 1989 will become known as Hoefler & Co.
Update: According to a document filed with the New York County Clerk, the matter between Hoefler and Frere-Jones “has been settled”. No other details are available at this time.
A federal judge ruled this morning that NYC’s controversial stop-and-frisk practice violated the rights of “tens of thousands” of New Yorkers.
In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.
These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.
To fix the constitutional violations, Judge Scheindlin of Federal District Court in Manhattan said she intended to designate an outside lawyer, Peter L. Zimroth, to monitor the Police Department’s compliance with the Constitution.
This is good news. Treating every young black male in the city like a criminal is not a policing strategy and it’s embarrassing it has gone on this long. This kind of thing, along with the recent NSA revelations and other issues, make me wonder if “innocent until proven guilty” is still something the US citizenry and its law enforcement agencies still believe in. (via @beep)
Update: Using data from the last half of 2013, the NY Times says ‘Stop-and-Frisk’ Is All but Gone From New York.
Many who live and work in the neighborhoods say they see scant evidence of change, and some say the police are simply not reporting some or all of their stops. The police did not respond to requests for comment.
But something is clearly different: Misdemeanor drug and weapon charges, the most common arrests to result from a stop, are down considerably. Advocates say misdemeanor marijuana charges, which require that the drug is in plain sight, are a bellwether, because the police ordered thousands to empty pockets, and arrested them.
I’ll reserve judgement until the numbers from 2014 are in, particularly those post-Bloomberg.