Friday, January 31, 2014

Social (Financial Investment) Trading: What's it All About?

Social trading allows traders to trade financial investments online with the help of others. Wikipedia. We really do not know a lot about it, so we looked at this posting about eToro, a well-known online social trading platform:

Is eToro a Scam or Not?

We find the concept interesting, surely in the trend of the times and perhaps fun if one sticks to small amounts of cash, but please note that we have never used the platform and are not members of eToro nor do we recommend or not recommend it at the time of this posting. We are merely serving our information purpose. Perhaps we will try it one day, who knows.

But we do not want anyone to blame us if they try something like this and lose their shirt, so here is the boilerplate we have in our "Legal Notices":
"Nothing published at LawPundit™ should be construed as investment advice or as a solicitation to buy or sell any kind of financial instruments.
Caveat emptor (buyer beware).
The ability to exercise personal responsibility for one’s own actions and choices is a kind of immense private wealth.
Take it seriously but enjoy it for what it represents.
LawPundit™ expressly disclaims any liability for the consequences of links to third party websites."

Privacy Implications of Coming Robot Technology Featured in Stanford Magazine, January/February 2014 Issue

"Anthropomorphic Design" as a term of art has been popping up in leading places for quite some time.

When we saw that it was being featured in the special 2014 "robots" issue of Stanford Magazine, we decided to do a blog about it as a coming trend that is marked by a highly distinct present and a very rich past.

The Stanford Magazine article is writen by Ryan Calo who touches upon the legal question of the invasion of privacy by robots. He says the prospect of drone surveillance in the future is a problem that people really "get".

See the new Anthropomorphic Design blog.


Thursday, January 30, 2014

Innovation-Blocking and Progress-Hampering Patent on Selective Sintering in 3D Printing Expires

At Boing Boing, Cory Doctorow had the story yesterday in Key 3D printing patent expired yesterday, writing:
"Yesterday marked the expiry of US Patent 5597589, "Apparatus for producing parts by selective sintering." This is one of the core patents in the 3D printing world -- the patent that allows 3D printer companies to charge more for fine nylon powder than Michelin-starred restaurants charge for filet mignon. The high cost of consumables in 3D printing has been a major barrier to innovation in the field -- selective laser sintering produces a fine finish that the patent-free fused deposition modeling technique used in Reprap-style printers can't match -- and now the brakes are coming off. "
This is another example of how patents do not foster innovation and progress, but achieve exactly the opposite.

Sunday, January 26, 2014

If in Europe, Where Are The Anthropomorphic Figures Found at the Start of the Avant-Garde Film "Object Lesson" Located?

OBJECT LESSON (1941) was described by its director, Chris (Christopher) Young, as "America's first surrealist film". (Lovers of Cinema)

Chris Young worked with Lowell Thomas and was married to Mary Elizabeth Bird Young, who represented the United States in alpine skiing at the 1936 Winter Olympics in Garmisch-Partenkirchen, Germany. Christopher Baugham Young, born 1908, Jenkintown, Pennsylvania, died 1 December 1975, Hartford, Connecticut. Films: Object Lesson (1941), Subject Lesson (1953-1955, 1955 or 1956 depending on source), Nature is My Mistress (after 1955), Search for Paradise (after 1955).

The late Robert (Bob) Schubel Sr. was the "Sound Engineer" for Object Lesson's movie sequel, SUBJECT LESSON (1956), an independent avant-garde short flim again directed by Chris Young. Original copies of the sound tapes to the Subject Lesson film still exist and there must be film copies somewhere out there in cinema-land. Please let us know if you know if and/or where one or both films can be obtained. Thank you.

OBJECT LESSON (1941) as a film is currently available in part online, and that video is embedded below, but make sure you also read the text following, especially if this entire subject is of interest to you.

A YouTube Video of OBJECT LESSON

OBJECT LESSON (1941), directed by Chris (Christopher) Young, is currently found in part online (1:45 minutes of a ca. 12-minute film) at YouTube. Share the video using this link.


The "Opening Screen" unfolds entering this text line by line:

LET US CONSIDER OBJECTS
FOR THEY TELL THE STORY OF LIFE
THERE IS NO THING WITHOUT MEANING
__ AND THE COMBINATION OF THINGS
MAKE NEW MEANINGS THAT ARE
TOO COMPLICATED TO EXPLAIN_

It is accompanied by some -- for that era and given our own special interests -- spectacular photography of anthropomorphic figures in stone, thus proving an early recognition of such figures by Young, which of course is of particular interest to us because of our work on megalithic cultures.

It is known that Chris Young was at one time in a skiing party that was rescued and dug out of an avalanche in Switzerland, so that these anthropomorphic figures could be located somewhere in Europe, perhaps in Switzerland, rather than in the United States.

Here is our version of the transcript of OBJECT LESSON for that 1:45 intro, as corrected by us from the otherwise erroneous English "transcript" shown online at YouTube, but we must point out that we are VERY thankful neverthelss to the YouTube poster for putting this video online. Thank you! Here is the transcript of the narrator's text in the film in its introductory minutes:
"In the beginning, before life had appeared on the Earth
there were life-like forms,
places and figures in the very rocks and stones.
But out of the stones will come life,
out of life, man,
and out of man,
new things that he will make
from the stones and the stuff from the Earth --
things that may be beautiful,
or useful,
or dangerous.
The story of them can not be told with words
but only by the things themselves.
It begins with the first Spring."
The rest of the movie is not shown in this YouTube video, except for some shots of a human-sculpted Venus in the landscape -- we presume -- intended to show the transition from anthropomorphic figures not created by mankind to those so created.

Indeed, we might venture to guess that anthropomorphic natural "faces seen in stone" may at some stage in history have served as models for human sculpting of similar figures by hand in stone for a variety of purposes. Young's father as a landscape painter had apparently instilled in his son the same talent that he had for spotting essentials in the landscape, also in stone.

Chris Young was the son of Charles Morris Young, a famed landscape artist. See the Charles Morris Young artist profile, in more detail at Brush with Greatness, and examine the auction prices obtained recently for his paintings.

Chris Young as a man was not only an early, creative filmmaker, but also traveled in Europe and was "an avid skier, explorer and mountain climber". He passed away with an estate worth more than $1 million in 1975 and left legal questions about the whereabouts of several of his father's paintings.

The Young films mentioned here (there are others) received cinema awards in their era. "Object Lesson" won the award for best avant-garde film at the Venice Film Festival in 1950, while its sequel, "Subject Lesson," won the top Creative Film Award in 1957, a series of prizes sponsored jointly by the Creative Film Foundation and Cinema 16.

Both films are in fact listed in the Final Cinema 16 Distribution Catalog Film Listings, 1963, Columbia University, where Amos Vogel, Cinema 16, wrote as follows (excerpts):
"Since the publication of our first listing of experimental films in 1950, the independent and avant-garde cinema in America has come into its own. In 1950, we were the first to pioneer in both the exhibition and distribution of such films at a time when their very purpose, integrity and seriousness were openly questioned by many; step-child of the industry, they were at times considered scandalous, fraudulent, or irrelevant. Their distribution was limited to hardy individuals and stubborn public institutions unwilling to join in the prevailing lack of celebration. Today these films are used by hundreds of universities, public libraries, churches, civic groups, film societies, art institutes and individuals across the nation. They have become curriculum-integrated in cinema, art, or English literature departments. They are exhibited at church conventions; at special festivals, on television and in theatres; discussed in magazines; used by art galleries, advertising agencies and coffee houses for their own nefarious purposes; purchased by international film archives. The basic question asked is no longer why such films are being made but rather (and rightly so) an investigation of the quality and originality of a particular title or tendency in the field....

There is also no doubt that the publication of this new catalog — the most comprehensive listing of experimental cinema published anywherein the world — will further contribute to a more rapid opening up of the field and a more general appreciation of the efforts and achievements of the film avant-garde.... Produced by independent film artists, these are explorations in the cinema. Offered as significant efforts to broaden the scope of the film medium and further develop its aesthetic vocabulary and potential, these films express the psychological and emotional tensions of modern life; delve into the subconscious; explore the world of color and abstract images; experiment with cinematic devices and synthetic sound...."
We have found some additional materials online about Young's films.

In An introduction to the American underground film (1967), New York : E.P. Dutton & Co., Sheldon Renan writes:
"Second Film Avant-Garde

The second film avant-garde began as the Depression ended. Sixteen-millimeter film and equipment, available since 1923, were becoming more accessible, and the Second World War, because its training films and features for the troops were on 16mm, rapidly increased this accessibility. Sixteen-millimeter was less expensive than 35mm, the film stock used by the first avant-garde, and the coming of prosperity eased the money problem in this expensive art medium. There was, too, the effect of the Museum of Modern Art's circulating film programs, starting in 1937, which brought back into sight the refreshing old French trick films and the work of the first avant-garde. Later the Art in Cinema showings in San Francisco and those of Cinema 16 in New York gave publicity to the personal art film and a chance for exhibition to the new film-makers.

By 1941 Crockwell, Bute, and Nemeth and some new people were already at work. Francis Lee made 1941, an abstract antiwar film. He was then drafted and left the pawn ticket for his camera in the hands of Marie Menken and Willard Maas, soon to become film-makers themselves. Dwinnel Grant made Themis (1940), Contrathemis (1941), and Three Dimensional Experiments (1945), all abstract films. Mylon Meriam made unnamed abstract films (1941-42). And Christopher Young made Object Lesson (1941), a work that employed symbolic objects placed in natural environments to give the effect of a journey through a surrealist landscape. His later Subject Lesson (1953-55) did much the same thing in color." [emphasis added]
In the Village Voice, June 13, 1956, page 6, we find written:
"Eleven Receive First Creative Awards

Christopher Young and Hilary Harris, makers of experimental films entitled "Subject Lesson" and "Generation", were last week named the top winners of the first annual Creative Film Awards, a series of prizes sponsored jointly by the Creative Film Foundation and Cinema 16. Young and Harris each received an award for Exceptional Merit.
In the Sarasota Herald-Tribune, October 4, 1959, page 36, we find under the headline, Asolo Opens Fall Season Wednesday:
"Subject Lesson," a short produced by Christopher Young, won the highest Creative Film Award in 1956. It is a sequel to Young's 1950 award winner, "Object Lesson" and is an imaginative representation of the inner life of man, told in symbols."
In the CITWF Complete Index To World Film we find the following entries:

CHRISTOPHER YOUNG - Person Information

OBJECT LESSON - Director CHRISTOPHER YOUNG, 1941, 12 Minutes, USA

SUBJECT LESSON - Director CHRISTOPHER YOUNG, 1956, 22 Minutes, USA

At the BFI (British Film Institute) in Film Forever we find under the entry Christopher Young Filmography for SUBJECT LESSON only a marvelous -- from the artistic point of view -- still photograph from the film of a beach with statues and sculptures in the sand (Venus statue, Adonis statue, Lion sculpture, and Hand of God sculpture ala Michelangelo). We have reason to believe that at least some of these statues and sculptures were originally in the garden of the house of Christopher Young in Connecticut (perhaps in Sharon, near Canaan and Cornwall, CT).

The Underground Film Journal lists both films in its Underground Film Timelines for 1940-1949 and 1950-1959:
1940 — 1949
Filmmakers:
.... Christopher Young ... Object Lesson
1950 — 1959
Filmmakers:
.... Christopher Young ... Subject Lesson (1953-55)
We found at The Sticking Place: Theatre - Film - Books, The Angry Young Film Makers, by Amos Vogel, who wrote:
"Christopher Young’s Subject Lesson (Creative Film Foundation Winner 1957), symbolic tracing of the development of man’s consciousness, with startling juxtapositions of familiar objects and incongruous backgrounds...."

originally at Evergreen Review, November/December 1958
© Amos Vogel/Evergreen Review
All rights reserved by the original copyright holders
The Sharon Greenhorn in The Harlem Valley Times, Feb. 14, 1957 wrote:
"It is a pleasure to correct an error made in this space two weeks ago. We reported the fact that Christopher Young's movie "Subject Lesson" had won one of the 1956 Creative Film Awards. Incidentally, it received the top award of "Exceptional Merit." We then said he had a new film, "Object Lesson" which he had enjoyed and which you could look forward to seeing on the award lists in the future. We were happily incorrect. "Subject Lesson" is the new film, and "Object Lesson" the older one which did win an award at the Venice Film Festival in, we believe, 1950. Both are very special...."
To add an international touch, we find written at the prestigious Pompidou Centre in  France -- in la collection en ligne du Centre Pompidou - Musée national d’art moderne -- the following French text about Chris Young and his films, citing as a bibliographical source: Christopher Horak, Lovers of Cinema, The First American Avant-Garde Film 1919-1945. Please go to Google Translate if you do not read French and plug in the text below to get a translation in your preferred language:
"Christopher Young a été une figure marginale du cinéma d’avant-garde américain. Sa réputation repose essentiellement sur un film, Object Lesson (1941), une fusion singulière d’invention visuelle et de symbolisme naïf. Object Lesson, réalisé juste avant l’entrée des États-Unis dans la seconde guerre mondiale, reflétait les courants intellectuels et politiques dominants de l’intelligentsia américaine : il situe le caractère inévitable et tragique de la guerre dans la nature de la psyché humaine, et incarne formellement les principes de la sémantique que posaient alors les écrits de Korzybski, Hayakawa et Chase. À l’instar de 1941 de Francis Lee, réalisé l’année suivante, le film de Young souffre d’un symbolisme excessif, qui résulte peut-être de l’intensité des pressions politiques et sociales de l’époque ; il reste que, de même que le film de Lee, ses résonances dépassent largement les limites de l’allégorie nettement explicite. Dans un texte écrit à l’époque de ce film, Young révèle lui-même la détermination univoque des objets de cette allégorie : “Les forces de la vie, exprimées dans ce film sous forme symbolique, sont… : la nature (symbolisée par les rochers, la végétation), l’idéalisme et les idées de l’Homme (les statues grecques), l’art (le violon), la guerre (les épées, etc.), le déclin (la destruction, etc.).”
De crainte que le spectateur ne manque le récit symbolique, malgré de telles précisions, le film commence par un titre d’introduction : “Considérons les objets, car ils nous racontent l’histoire de la vie. Il n’existe nulle chose sans signification et l’association des choses crée de nouveaux sens qui sont trop difficiles à expliquer.” Le trope sur lequel s’ouvre le film, qui réunit des statues féminines et une épée, avec tous les signes du printemps, indique la concaténation de l’agression destructrice et régénératrice qui est inscrite dans la différence sexuelle. Le film montre les sublimations cycliques et les éruptions violentes de cette tension fondatrice.

Object Lesson indiquait le chemin d’une utilisation plus mystérieuse et anti-allégorique de l’association prônée par Deren, Broughton et Anger, et par les autres cinéastes du style dit du “film de transe”, qui avait marqué le premier grand épanouissement du cinéma d’avant-garde américain, peu après que Young eut réalisé son premier film.

L’emploi spectaculaire qu’il faisait du raccourci et des angles de caméra, qui dérive peut-être du cinéma d’Eisenstein et qui évoque les compositions de Que viva Mexico !, et son montage innovateur de sons symboliques et isolés (sur un fond de chant russe) ont contribué à la réputation du film autant que son utilisation des objets. En fait, le son anticipe curieusement d’une vingtaine d’années La Jetée de Chris Marker.

Avant Object Lesson, Young avait réalisé un film documentaire pour le ministère de l’Agriculture, The Vanished Land (1935), qui traite de l’érosion du sol dans la réserve Navajo, ainsi que deux films nés de sa passion pour le ski. Après avoir servi dans les transmissions durant la seconde guerre mondiale, il a réalisé au moins deux autres documentaires. Entre 1953 et 1956, il a essayé de retrouver le style et les préoccupations d’Object Lesson, avec Subject Lesson (1956). Le film a reçu l’Award of Exceptional Merit de la Creative Film Foundation de Maya Deren, mais ne possède pas la force historique de son modèle. Entre 1941 et 1956, le cinéma d’avant-garde américain avait subi une telle évolution que Subject Lesson, qui n’en tient pas compte, se faisait l’écho d’une technique antérieure et naïve, et d’une ambition sans prétention.

La description que fait Young de la conclusion du film laisse indirectement entrevoir ses réticences face aux investigations de Deren, Broughton, Peterson et Anger, dans la littéralité sémantique: “Au sein du feu, l’Homme voit son ancien soi, puis son autre soi, puis son propre soi, répété (à l’infini : indiquant que l’objet de sa quête est lui-même). Ces nombreux “soi” se dissolvent dans le feu. Alors apparaît le globe de la conscience, reflétant la double image de l’homme… L’Homme et Vénus sont entourés par le feu.
La Main de Dieu (La Main de Dieu de Michel-Ange) apparaît. L’Homme est seul au coucher du soleil. Titre : fin, suivi d’un plan du Sphinx qui indique qu’il n’y a pas de fin à la quête humaine de soi-même.”

P. Adams Sitney

Bibliographie sélective [Selected Bibliography] :
Christopher Horak (sous la dir. de), Lovers of Cinema, The First American Film Avant-Garde 1919-1945, op. cit. [Jan-Christopher Horak, Lovers of Cinema: The First American Film Avant-garde, 1919-1945, University of Wisconsin Press, 1995, 404 pages.]

Saturday, January 25, 2014

Bear Care

and don't miss this photo....

Picture This: Bear Care.



Bill Gates Says Almost No Poor Countries Will Be Left in the World in 21 Years: "The World is BETTER Than It Has Ever Been": Let That Sink In !!

Amazing things have been written by Bill Gates (of Microsoft fame) in the 2014 Annual Letter of the Bill & Melinda Gates Foundation, where Gates introduces "3 Myths That Block Progress for the Poor" and tells us:
"By almost any measure, the world is better than it has ever been. People are living longer, healthier lives. Many nations that were aid recipients are now self-sufficient. You might think that such striking progress would be widely celebrated, but in fact, Melinda and I are struck by how many people think the world is getting worse. The belief that the world can’t solve extreme poverty and disease isn’t just mistaken. It is harmful. That’s why in this year’s letter we take apart some of the myths that slow down the work. The next time you hear these myths, we hope you will do the same."
Everyone should read that newsletter and look at those 3 MYTHS, because what Gates has written so strongly contradicts the world view that is presented to us by mainstream media day in and day out.

Have we been misled?
You mean we are not on the edge of Armageddon?

These are issues that go to the heart
of national and world politics everywhere.

Is it possible that many political doomsayers
and many others pushing dogmas of financial or religious salvation
have been twisting the truth about
the actual state of the world
just to get elected
or to push their own selfish views?

Hat tip to Timothy Egan at the New York Times in Billionaires and Boasts.


Friday, January 24, 2014

Is London Emerging as Europe's Gourmet Capital?

See the Condé Nast Traveller at Best small and secret restaurants in London.

France, the French, Politics and Various Couples - Bof, c’est normal - Who Cares?, This is Normal

Spring must be around the corner.

Roger Cohen at the New York Times in French Couples, an article about the vagaries of politics in France, also the "affaires" of its politicians, writes, inter alia:
"In matters of the heart the French shrug holds sway. This is healthy. “Bof, c’est normal,” a ubiquitous phrase, is the shrugging expression of a fierce realism about life in general and sex in particular."
Google Translate tells us Bof, c’est normal in French means "OK, this is normal".

Bing Translator tells us Bof, c’est normal in French means "Nah, this is normal".

The Babylon translator would translate "Bof" as "Who cares?", which is probably the best translation in terms of the sense of the word.

Really, it would be better if people paid MORE attention to what politicians accomplish or not in their JOBS and less attention to their private lives. "Bof!"

Hat tip to CaryGEE.

Drug Law Revisions in the USA 40 Years After John Kaplan's Marijuana: The New Prohibition: Why are Legal Systems So Slow in Adopting the Obvious?

What is true for marijuana laws is true for most of the laws that we post about. Why are we always something like 40 years ahead of the pack?

Let me say at the outset here that I am not a proponent of drug use of any kind, and I have recently even sworn off coffee, because it raises my blood pressure. Clean, disciplined living is always the best policy in the long run.

Nevertheless, past American laws and criminal justice policies toward drug use of all kinds, and this includes tobacco, marijuana and alcohol have been poorly deliberated, poorly legislated and have not worked. Abuse is still rampant.

We wonder, for example, why the current change in marijuana laws in some quarters is occurring 40 years later than it should have. Why is the legal system so slow in reacting to things that are clear??

John Kaplan had this figured out in the late 1960's and early 1970's, and yet we hear nothing about his publications in the press, even today, indicating that many people in mainstream media are not doing their homework.

In terms of drug possession, drug abuse and drug criminalization, we wrote previously elsewhere about John Kaplan's book, published in 1970:
"John Kaplan's
Marijuana -- The New Prohibition

John's book on the drug laws resulted from his membership on a professorial advisory committee to the California state legislature. John was quite conservative in his views and had in fact served as a public prosecutor of crimes, but his committee recommended a liberal stance toward marijuana - regarding its criminalization to be a legislative mistake.

John's view was that the legislature should concentrate more on workable laws regarding hard drugs such as heroin and cocaine, which were the major dangers. Too much emphasis was going toward marijuana - where young people were easily being caught in the act of smoking - and too little effort was being placed on going after hard drug makers and dealers, where arrests were much harder for the authorities to obtain.

As the result of the objective committee report, however, the committee was fired by the California legislature and a new committee was formed, ostensibly with members whose views were more in line with what the legislature subjectively wanted to hear, whether it fit the facts or not.
In his book, John predicted that the criminalization of marijuana would not work - it did not work - and that, on the contrary, the marijuana laws would strengthen the hard drug dealers as suppliers - which in fact happened, leading many people to take stronger drugs.
The drug abuse mess that exists today throughout much of America is partially the result of this very erroneous drug law policy, having concentrated on marijuana and not enough on the truly dangerous substances.

See: Marijuana -- The New Prohibition
by John Kaplan
Publisher: Ty Crowell Co; 1st Edition (June 1970)
"
As we wrote about this topic previously at LawPundit:

"The State of California and the other states of the United States have ignored Kaplan's recommendations and the results are now in, 40 years later. They do not speak well for the wisdom of past or current legislation on drug laws or their enforcement. According to the National Institute on Drug Abuse (NIDA) :
"In 2006, 25 million Americans age 12 and older had abused marijuana at least once in the year prior to being surveyed. Source: National Survey on Drug Use and Health; http://www.samhsa.gov/. The NIDA-funded 2007 Monitoring the Future Study showed that 10.3% of 8th graders, 24.6% of 10th graders, and 31.7% of 12th graders had abused marijuana at least once in the year prior to being surveyed. Source: Monitoring the Future http://www.monitoringthefuture.org/. "
According to Eric E. Sterling, President of the non-profit Criminal Justice Policy Foundation and former counsel on anti-drug legislation to the U.S. House Judiciary Committee, there are currently 2.3 million Americans in jails or prisons, many of them due to drug infractions:
"We certainly need to imprison dangerous offenders - to protect us and to punish them. But we need to get a lot smarter about why we imprison and who we imprison. Remarkably, in the last thirty years, the largest increase in imprisonment has been due to prohibition drug policy.
Even though drug enforcement leaders have warned for more than twenty years that "we can't arrest our way out of the drug problem," every year we arrest more people for drug offenses than the year before. Last year we arrested over 1.8 million Americans, more than three times the number arrested for all violent crimes combined. Now about one-quarter of those in prison are serving drug sentences. As the centerpiece of our anti-drug strategy, arrests and imprisonment have failed: high school seniors report that drugs are easier for them to get now than in the 1970s and 1980s."
Andrew Bosworth in Incarceration Nation: The Rise of a Prison-Industrial Complex writes similarly:
"Consider this disturbing fact: the United States now has the world's highest incarceration rate outside of North Korea. Out of 1,000 people, more Americans are behind bars than anywhere in the world except in Kim Jong-Il's Neo-Stalinist state. The US has a higher incarceration rate than China, Russia, Iran, Zimbabwe and Burma - countries American politicians often berate for their human rights violations.

Well over two million Americans are behind bars. Let us agree that violent criminals and sex offenders should be in jail, but most Americans are not aware that over one million people spend year after year in prison for non-violent and petty offenses: small-time drug dealing, street hustling, prostitution, bouncing checks and even writing graffiti. Texas, with its boot-in-your-butt criminal justice system, is now attempting to incarcerate people who get drunk at bars - even if they are not disturbing the peace and intend to take a taxi home...

Arguably, continuously lowering the bar for what it takes to be jailed threatens the liberty of all Americans. And having one million non-violent offenders in prison (often for absurdly long periods) makes it that much easier, in the near future, for the return of debtors' prisons and dissident detention centers. This approach to locking up everyone possible undermines both the liberal emphasis on personal liberty and the conservative emphasis on small government."
Who out there in the American criminal justice system understands the basic wisdom found in Herbert L. Packer's Limits of the Criminal Sanction? What lawmaker, government official, judge, prosecutor, or prison official in the United States has ever read Packer's book - much less applied the inexorable legal policy conclusions demanded by it? (see Google Books, this PPT and Packer's Two Models of the Criminal Process)

Not every undesirable human action or activity in society is or should be subject to criminal punishments. There are other - more modern - means available to deal with socially undesirable behavior.

Indeed, the primitive idea of jails or prisons as legal solutions for societal problems has been around for millennia. But such jails and prisons, except as a deserved punishment of and/or an effective deterrent of violent and dangerous criminals, are by their very nature as outdated in modern law as the now discredited blood-letting is in modern medicine, which was an accepted medical practice worldwide from the earliest times of humanity down to the late 19th century, a flawed medical practice which surely cost America's first President, George Washington, his life (we quote from the Wikipedia):
"Bloodletting was also popular in the young United States of America.... George Washington asked to be bled heavily after he developed a throat infection from weather exposure. Almost 4 pounds (1.7 litres) of blood was withdrawn ... contributing to his death in 1799."
We were reminded of the similar backward state of contemporary American law by the April 26, 2009 TIME article of Maia Szalavitz on Drugs in Portugal: Did Decriminalization Work? (referring to an article by Glenn Greenwald at the Cato Institute), where the answer to that question in the title is a clear, resounding, "YES, drug decriminalization has worked in Portugal".

Szalavitz quotes Glenn Greenwald, writing at the Cato Institute:
"Judging by every metric, decriminalization in Portugal has been a resounding success," says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. "It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does."
What sensible legal policy did Portugal adopt?

Going to the original article at the Cato Institute, Glenn Greenwald writes in Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies :
"On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense....

The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world." [emphasis added]
We are particularly gratified to read this result, because the Portuguese solution is the solution advocated 40 years ago by our mentor at Stanford Law School, the late Professor John Kaplan - famed for his legal brilliance from his days at Harvard, a former prosecutor who was a conservative at heart - who in the late 1960's was selected as a member of a top-notch advisory committee of law professors to advise the California state legislature on a revision of the California criminal (penal) code.

Kaplan's drug research at that time led the professorial advisory committee to recommend the decriminalization of marijuana in California to the California legislature - with the result that the entire advisory committee was released from its duties by the legislature and replaced by other law professors whose political views were more in line with what the California legislature wanted to hear. I know of this only by hearsay and can not vouch for the exact details.

In any case, Kaplan responded to this experience with his book, Marijuana: The New Prohibition, which I had the honor and pleasure to edit (indeed, I drafted a chapter) while still a student, and in which Kaplan was of the opinion that drugs such as marijuana should be "decriminalized" - it was his major recommendation in this field of law.

As Herbert Packer - for whom I was also a student assistant at Stanford Law School - would have predicted by the principles in his book on the limits of the criminal sanction, drug abuse simply does not lend itself well to control by criminal punishments.

Eric E. Sterling, J.D., President of the Criminal Justice Policy Foundation in his Drug Policy Bibliography and Websites lists Kaplan's book as follows:
"John Kaplan, Marijuana – The New Prohibition, Pocket Books, New York, 1971, 402 pp. A classic. Stanford law professor John Kaplan demolished the factual foundation for marijuana prohibition when originally published in 1970. Throughly documented."
Talcott Bates M.D. wrote in his book review of Marijuana: The New Prohibition:
"Professor Kaplan was appointed in 1966 by the California Senate to a committee to revise the California Penal Code, last completely revised in 1872. By chance he was assigned the drug laws, about which he felt he had no knowledge or experience except that which he had acquired as a one-time prosecutor as Assistant United States Attorney. It became apparent at once that the key drug problem in California was the treatment of marijuana. Not until the treatment of marijuana was intelligently handled would progress in the broader area of drug abuse be possible.

Marijuana: The New Prohibition reviews the history of marijuana, how in 1937, four years after Prohibition ended, Congress outlawed the sale, possession, and use of marijuana. Professor Kaplan points out that the measure of the wisdom of any law is the measure of its total social and financial costs and the benefits that derive from this outlay. This book is an attempt to measure the costs of the criminalization of marijuana and concludes that the costs far outweigh the benefits."
It is not without reason, as written at ProhibitionCosts.Org, that in the year 2005, three Nobel laureates in economics and more than 500 distinguished economists advocated:
"replacing marijuana prohibition with a system of taxation and regulation similar to that used for alcoholic beverages [which] would produce combined savings and tax revenues of between $10 billion and $14 billion per year...."
The case for decriminalization and for a more intelligent approach to drug possession and abuse is clearly apparent, and has been so for 40 years.

Generally, in terms of all petty and needlessly "criminalized" legal infractions, there are great legislative and judicial opportunities out there to adopt sensible criminal laws, to get people out of jails and prisons who should not be there, and to help to integrate people into normal life rather than tossing them stupidly into jails and prisons, where little progress in development is possible for most.

Quite the contrary, people are thrown together with hardened criminals, to their detriment. In the case of most non-violent crimes, especially petty infractions, and definitely in the case of financial infractions, jail and/or prison should be the very LAST option, not the first.

But how likely is it that an entrenched unmoving American legal system will now take the intelligent path forward to reform its vastly outdated drug laws and to free its jail and prison populations of people who should not be there?

Not very likely - unless the people in Congress and state legislatures suddenly get to be a lot smarter than we judge them to be.

For more resources on this topic, see the Cato Institute's Criminal Justice Reading List."

Thursday, January 23, 2014

The Right to Privacy in Communications: Law Enforcement and Law and Order as the Backbone of Civilization

Linda Greenhouse has a "must read" article at the New York Times
in We’ve Got Your Number. Clever title.

Greenhouse presents a very balanced analysis of the right to privacy in communications since Smith v. Maryland - 442 U.S. 735 (1979), suggesting that the United States Supreme Court has its work cut out for it in formulating a right to privacy standard that works in the modern world.

Although we are political centrists, we are very much on the side of law enforcement when they are doing their jobs as foreseen by law.

"Law and order" is not just an empty slogan -- it is the backbone of civilization, whether in criminal or civil law. The world works -- not always optimally -- only because society has rules that must be followed. Otherwise there is chaos.

Accordingly, we think it is the job of legislators and judges to formulate legal standards that permit law enforcement officers to carry out their work sensibly, also in the digital era and especially as regards modern technological devices.

We see no socially necessary reason among decent citizens to oppose a very open view concerning the right of law enforcement agencies to access the knowledge and information they need to carry out their jobs, including modern "phones" and similar gadgets, and trust the U.S. Supreme Court will ultimately so decide.

Should modern telecommunications firms and devices be able to serve as impregnable shields for criminal activity? The answer can clearly be no.

Nor do we have any trouble with NSA.

You mean they are reading our postings?

Well, finally, SOMEBODY!


Wednesday, January 22, 2014

Securities Litigation Department of the Year 2014 in the USA selected by American Lawyer: and the Winner is, Paul, Weiss, Rifkind, Wharton & Garrison in NYC

In an article by Vivia Chen
in the ALM American Lawyer,
January 2014 issue,

we see that our alma mater law firm
Paul, Weiss, Rifkind, Wharton & Garrison
-- headquartered in New York City and with offices around the world --
(known as "Paul Weiss" in the trade)

has been selected
Securities Litigation Department of the Year 2014
in the USA.

Congratulations!

In an article well worth reading for those interested in the top law firms in the world, Chen writes:
"Paul, Weiss, Rifkind, Wharton & Garrison's securities litigation practice is big, powerful and swaggering. It's also seemingly ubiquitous, popping up in some of the most high profile, high-stakes securities litigations in recent history.
 

Indeed, its representation of mega financial institutions caught in the maelstrom of the economic meltdown is quite exceptional. What also sets it apart is its willingness to go to trial at the 11th hour — which it deploys as leverage in negotiating settlements. We picked Paul Weiss as securities litigation department of the year because no other firm matched the number and magnitude of headline-making securities litigation during our competition time frame (August 1, 2011, to July 31, 2013)."
Chen's article is here.

Monday, January 20, 2014

Broadband Throttling, Data Mining, Floods of EMail, Bad Law, and More: Technological Progress and "Invention" Mean Two Steps Forward and One Step Back: Where Are We Now?

Some people view invention and technological progress as a forward-moving vector, whereas we define it in terms of the actual beneficial  "advancement of humanity" -- which often means two steps forward and one step backward.

For one example of technology gone negatively wild, see e.g. Nick Bilton at the New York Times in Disruptions: Looking for Relief From a Flood of Email.

Another example is data mining and the ever-spreading disregard of privacy rights and the misuse of personal communications by corporations, politicians and the government. See John Nichols at The Nation in Beyond the NSA: What About Big Data Abuse by Corporations, Politicians? who writes:
"[I]t’s not just the government that’s paying attention to our communications—and to what they can reveal about our personalities, lifestyles, values, spending habits and political choices.
There’s a reason the NSA has been interested in accessing the servers of Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. When you’re mining, you go where the precious resources are, and technology companies have got the gold.

Data is digital gold. Corporations know that. They’re big into data mining."
Anyone who thinks that data mining is "progress" is in another ball park. Rather, anything you say online can be used against you, and is.

Indeed, ever since the recent terrible net neutrality decision in Verizon v. FCC (link 1) and our postings about it, we are unable on our state-of-the-art and fast broadband PC to access GMail in "standard mode" (normal mode) and can only view our German-based Google Mail mailbox via "basic mode", an HTML version out of the Internet pioneer era which surely saves someone a lot of bandwidth. Is this blockage connected to the Verizon v. FCC (link 2) decision? We do not know.

We do know that similar net neutrality breaking has surfaced in Germany in the past year, as Deutsche Telekom, the German broadband giant, had its plans to throttle heavily-used broadband connections blocked by a German court, but that throttling battle is far from over. Other companies such as O2 also plan to throttle power users unless they pay more money for services.

At the same time, the European Commission of the EU has said it plans to bar online throttling and site-blocking in the European Union. They better get moving fast before the Internet as we know it is destroyed beforehand.

Digital and Internet technology today is in many ways in backward mode as far as consumers are concerned, and not just because of Verizon v. FCC. The normative legal sector still does not appreciate fully the great dangers of actual monopolistic developments, especially in intellectual property law.

One reason for this is that the prevailing rules and guiding institutions of society lag far behind technological developments. As in the case of patent law, for example, they actually serve to harm that very same advancement of humanity which intellectual property law was intended to promote.

This problem is also especially visible in the undemocratic software programming excesses that now mark program developments and updates.

"Force" seems to be the modus operandi of the major corporations in updating their monopolistic software (Microsoft Windows, Google, Facebook, even Firefox, etc.) Users are not given the option of opting in or out of changes made by these companies in their software programs. They are to obey.

Most people seem to think that these monopolistic companies will continue to prosper down the road forever, but we are not so sure. We are protesting.

We do not buy overhyped, overpriced Apple products.

We look at Facebook rarely and have always viewed it to be a gross violator of privacy rights. Today to our further consternation we found our Facebook pages filled with superfluous ads of all kinds, which we do not want to see when conversing with our friends. Facebook as a place for communication has been replaced by Facebook as an ad factory. Moreover, private communications are being data mined for profit. We do not need Facebook.

For years, we have been great fans of Google, but they seem to be approaching the same status as Apple and Facebook, a status under which power corrupts, and absolute power corrupts absolutely.

We just got rid Google+ for the second and last time, after giving it another chance, for being irresponsibly invasive of private rights. We do not want strangers to be able to put us into "their circles". Forget it. Google+ fulfills none of our basic Internet needs. We will write emails -- privately -- should there be such a program out there.

We are in fact looking around for a new email program to replace Gmail, because we are also tired of viewing "trimmed" Gmail emails which are forcing us to click three dots (....) in order to see the text of what has been written. When we want trimmed emails, we will tell Google, otherwise we want to see what people are writing to us, that is why we have email.

As for Microsoft, which is one of the worst offenders with their adolescent ribbon interface, the user merely has to look at Windows 8 and 8.1 to see that software programming has virtually nothing to do with customer use, as favorite features such as the Start button are eliminated without asking and are often replaced by nonsense, as Microsoft attempts to unify their graphic user interface for mobile use, thus ignoring the needs of serious PC users.

For years, we have been using Yahoo! Groups, but that has been recently "redesigned" for all groups with the consequence that all of our introductory material for our group was lost. The redesigned replacement now gives the users a tiny box -- the size of which can not be changed -- in which to make postings -- a joke. We do not need Yahoo! Groups and are in the process of moving that group elsewhere.

Even Mozilla Firefox, originally designed to give the USER full control over his browsing options, now is content with forcing changes on the user that the user does not want, e.g. abandoning the Google Toolbar, which we viewed to be one of the major plusses of that browser, making useful add-ons incompatible with newer versions, etc.

The days in which the user had the "option" to choose are gone and we now have an Internet climate in which monopoly, force and greed are the reigning values.

Whether the companies operating by those value systems will survive long-term is questionable.

Will 2014 be good for the Internet user? We doubt it.

Thankfully, there is one program we CAN recommend to all -- yet.
That is What's App, a communication service designed -- are you ready --
FOR THE USERS first,
to which we thus give five stars plus.
May they make billions! They deserve it.

Maybe the other companies in the digital field could invite the guys who run that service to give them some pointers about forming the future digital world with the customer in mind.


Sunday, January 19, 2014

Ideas that Will be Changing the World in 2014?

Fast Company's FastCoExist examines The World Changing Ideas Of 2014.

We ourselves our not so optimistic. See our next posting.

Air Travel in Increasingly Narrower Seats and with Less Legroom is the Problem: What is the Solution?

The people who disfavor government regulation should as a reward have to spend the next years flying economy class on planes with increasingly narrower seats and with less legroom, something that flight passengers are increasingly facing.

Although there should be strict rules -- for the sake of everyone's health and welfare -- that govern seat width and leg room on airplanes, the fact is that passengers are being increasingly crammed into their seats like sardines by the commercial airlines in order to improve their financial bottom line, regardless.

Without proper regulations, the private commercial world really could care less about YOUR flight health or comfort -- that is, unless you are willing to pay a premium.

See Skift, the travel intelligence company at
How to Outsmart the Airlines and Beat the Shrinking Airplane Seat.

Wednesday, January 15, 2014

Corporate Evasion of Government Regulation in the USA by Switching from Landline Phones to Voice over IP: Net Neutrality and the Law

You read our previous posting, right? If not, you definitely should.

If you read this one, you will better understand our criticism of the decision in Verizon v. FCC of the responsible judges on the DC Circuit Court of Appeals, who apparently are not aware of what is going on in the real world.

At Stop the Cap! Promoting Better Broadband, Fighting Data Caps, Usage-Based Billing, & Other Internet Overcharging Schemes
one can read that already in 2012, AT&T had understood the legal and practical ramifications of the stealth-of-hand "switch" from landline phones to Voice over IP as a quick and clever means to avoid federal regulation under the Telecommunications Act of 1996.

Stop the Cap! put into a nutshell in the year 2012 what the DC Circuit in its opinion of 2014 has difficulty in expressing, namely:
"Basic landline service is designated a “telecommunications service” by the FCC, which makes it subject to regulator review. Broadband, on the other hand, and anything else using IP, is typically classified as an “information service,” where most oversight regulations do not apply."
The DC Circuit judges would like to have the world believe that Verizon v. FCC is a case that turns on a twisted FCC self-imposed and foolishly Supreme Court deferred-to definition of what a "common carrier" is in terms of the law, but in fact, in the real world, there is hardly a difference between what traditionally was called a phone company and what now is a broadband provider via VOIP (Voice Over Internet Protocol)  -- as written at the FCC:
"Voice Over Internet Protocol (VoIP)

IP-Enabled Services

Voice over Internet Protocol (VoIP), is a technology that allows you to make voice calls using a broadband Internet connection instead of a regular (or analog) phone line. Some VoIP services may only allow you to call other people using the same service, but others may allow you to call anyone who has a telephone number - including local, long distance, mobile, and international numbers. Also, while some VoIP services only work over your computer or a special VoIP phone, other services allow you to use a traditional phone connected to a VoIP adapter.

Frequently Asked Questions
How VoIP / Internet Voice Works

VoIP services convert your voice into a digital signal that travels over the Internet. If you are calling a regular phone number, the signal is converted to a regular telephone signal before it reaches the destination. VoIP can allow you to make a call directly from a computer, a special VoIP phone, or a traditional phone connected to a special adapter. In addition, wireless "hot spots" in locations such as airports, parks, and cafes allow you to connect to the Internet and may enable you to use VoIP service wirelessly."
Given the above knowledge, for the courts in a pea-and-shell game now to take the ball and move it onto another field under the guise that there is a significant difference here for purposes of federal government regulation is just nonsense, and makes a mockery of the law.

No excuse. These are educated people who should know better.


Court in America Trashes Net Neutrality and Opens Internet to Preferential Commercial Use via Faster Connections and Differential Pricing

The Open Internet as a myth of the future?

Will Internet go the way of radio -- where federal deregulation has led to a concentration of U.S. radio stations in the hands of just a few companies?

What is the cause of our concern? It is a case decided January 14, 2014, one of the worst (for the people) U.S. court decisions to come out in recent years
 -- one, however, that would probably be affirmed by the predominantly current pro-business majority in the current U.S. Supreme Court (even the intellectual Breyer here is on the wrong side of the equation).

In that just decided case, Verizon v. FCC, the U.S. Court of Appeals for the District of Columbia Circuit has fully trashed the idea of "net neutrality" and a "free and open Internet", by permitting preferential provider treatment of commercial services via faster streaming connections and differential pricing.

This is a very stupid decision because it makes the crux of the holding depend on a "straw man" legal technicality -- discussed in confusing and epic detail and that no layman will understand -- i.e. a determination of whether broadband providers are "common carriers" under the law [a common law legal fiction not employed in Europe and never designed for the Internet], whether those providers are being treated as "per se common carriers" by the FCC even if declared otherwise, and what limitations that brings in terms of regulation.

Providers can now concentrate on the most profitable aspects of their Internet business, the rich companies, companies such as Apple, whose power has become so great that they challenge court authority (only if it is not in their favor).  The United States of Apple? These companies will own your souls.

YOU, the consumer, unless you will be willing to pay much higher premium rates in the future, will have to become content with slower Internet service as compared to the "big boys".

Put differently, total commercialisation of the Internet has arrived, which is precisely the opposite of what the Internet originally was intended to do.

Verizon already tried ten years ago to shamelessly expand its monopolistic powers in Verizon v. FCC, 535 U.S. 467 (2002), and now has finally been successful in this case. Too bad for you, John Q. Citizen.

But perhaps it is all part of the trend whereby mega-companies like Facebook now exist mostly just to commercialise the interests of their users for corporate gain.

In the just decided case, Verizon v. FCC, Judge Tatel, who should know better, wrote for the Appeals court [LawPundit has add the bracketed material]:
"As we explain in this opinion, the Commission [FCC] has established that section 706 of the Telecommunications Act of 1996 [see text, and NTIA] vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure. The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here — that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet — is reasonable and supported by substantial evidence. That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order."
Here is how the FCC currently (still) describes that Telecommunications Act of 1996 at its website:
"The Telecommunications Act of 1996 is the first major overhaul of telecommunications law in almost 62 years. The goal of this new law is to let anyone enter any communications business -- to let any communications business compete in any market against any other.

The Telecommunications Act of 1996 has the potential to change the way we work, live and learn. It will affect telephone service -- local and long distance, cable programming and other video services, broadcast services and services provided to schools.

The Federal Communications Commission has a tremendous role to play in creating fair rules for this new era of competition." 
Well, that is the world of yesteryear. If big companies are to get preferential provider service, the competition can forget it. No chance. Just look at radio.

Crichter in his comment at the New York Times Bits Blog on the article The Nuts and Bolts of Network Neutrality, hits the reality right on the nose in writing:
"To state the obvious, individual carriers like Verizon have no interest in free flow of information, or promoting growth in the economy overall, and certainly not in offering equal access to content or services from potential competitors. They are interested in profits, period. Though there is some competition in [b]roadband service, it still does not extend to many rural areas, where telecoms or expensive satellite providers have virtual monopolies. And even in more densely populated areas, the model is more oligopoly than free competition. I hope the FCC can work out ways to prevent cream skimming and discrimination that earns the blessing of the courts. DirectTV is NOT a good model for the internet."
We are not against profits. We are against legally created windfall profits, law-based monopolies, and against giving people the golden goose for nothing. Rewarding economies of scale by preferential laws simply leads to larger monopolies, nothing else. Where has the contrary ever happened?

The logical fallacy in the legal reasoning of the Court is its finding that:
"Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order."
The Court has thus taken the legal position that FCC anti-discrimination and anti-blocking rules on Internet providers (ISPs) "impose per se common carrier obligations".

Andrew Raff explains:
"In 2002, the FCC ruled that cable modem service is properly classified as an information service rather than cable service or telecommunications service offering and therefore is not subject to common carrier regulation, but merely to regulation under the Commission's ancillary jurisdiction to regulation communications under Title I of the Act. In re: Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities." [emphasis added]
The Court is now saying that if broadband provision of Internet is not "a common carrier service", then the FCC can not regulate it as it has been regulating, because it is in fact treating Internet service providers as per se common carriers, which the FCC has declared that they are not.

Leland E. Beck at Federal Regulations Advisor in FCC “Net Neutrality” Rules Vacated by U.S. Court of Appeals for D.C. Circuit writes:
"Although the court of appeals spends considerable time affirming the FCC’s authority to regulate under the 1996 Act, the key lies in the distinctions:  the FCC cannot regulate broadband providers as common carriers because the FCC retains its 1980 still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” and the Communications Act expressly provides that “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”  Therefore, the court needed to determine whether the requirements imposed by the FCC’s Open Internet Order subject broadband providers to common carrier treatment.

Even granted the FCC due Chevron deference, the court had “little hesitation” in deciding that the anti-discrimination and anti-blocking obligation classified, in reality, fixed broadband providers as common carriers under the long history of that status."

But the Telecommunications Act of 1996 does not require that conclusion. Rather, in a case that went to the U.S. Supreme Court, as Raff further writes at AndrewRaff.blog:
"The Supreme Court affirmed the Commission's ability to make that regulatory classification in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). In a 6-3 opinion delivered by Justice Thomas, the Court overturned the Ninth Circuit and ruled that the Commission acted within the scope of its power to make such a regulatory classification and that the classification should be afforded judicial deference."
The Court of Appeals thus held further in the current 2014 Verizon case that the FCC can not rely on ancillary jurisdiction for its net neutrality regulations, so that we have the absolutely absurd situation that the FCC clear up to the Supreme Court was given judicial deference for a far-reaching classification of ISPs as not being common carriers and here is not being given judicial deference for treating them as common carriers nevertheless for purposes of net neutrality, anti-discrimination and anti-blocking. Why the two-faced jurisprudence?

This is law at its worst. If the "net neutrality" rules can be tossed this easily, then the stupid FCC decision not to treat ISPs as common carriers should be equally tossed. Why judicial deference in one case and not the other???

Worse, there is the chance that the FCC will not even appeal the decision, since the new FCC chairman, Tom Wheeler, is on record (WSJ) as being against regulating broadband Internet the way that landline phone systems are regulated.

We thus have the bizarre situation of the virtual destruction of the Internet as we know it today because of an ill-conceived Court of Appeals decision that stinks to heaven in terms of its unnecessarily convoluted legal analysis on a simple question of Internet regulation, which should have removed the legal fictions and have decided the case by finding Internet service providers to be what they are, common carriers, and thus subject to the regulations that apply to them. What we have now is one legal fiction after the next. Terrible jurisprudence. Terrible.

For more detail and analysis, see:

Gautham Nagesh and Brent Kendall at the Wall Street Journal, Business, in Court Tosses Rules of Road for Internet: Federal Regulations on 'Net Neutrality' Are Voided, Clearing Way for New Fees

Micahel Hiltzik at the Los Angeles Times in Net neutrality is dead. Bow to Comcast and Verizon, your overlords

Edward Wyatt at the New York Times - Rebuffing F.C.C. in ‘Net Neutrality’ Case, Court Allows Streaming Deals

Clyde Wayne Crews Jr. at Forbes - Court Rules Against Net Neutrality In Verizon V. FCC

Bits Blog at the New York Times, The Nuts and Bolts of Network Neutrality

Danny Kimball at Antenna, Why Verizon v. FCC Matters for Net Neutrality— and Why It Doesn't writes:
"1. The rules haven't been very effective....

2. Overturning the rules could actually lead to getting better ones."


-- Law Pundit comment: Sorry, Danny, but obtaining "better" rules in the current American political climate is perhaps a Utopian illusion. 
Nicholas Economides, The Telecommunications Act of 1996 and its Impact

Scott Cleland, Chairman, NetCompetition, Why the 1996 Telecom Act’s Unbundling Model is Obsolete, writes:
"The transition to competition that the Telecom Act envisioned has happened, just not the way Congress expected. This means that the 1996 Telecom Act’s transitional purpose is done and that its continued incorrect focus on implementing obsolete competition policies is counterproductive and dysfunctional."

-- Law Pundit comment: Sorry, Scott, but federal regulation of business and the communications industry has the same basis as our criminal laws. People when unregulated abuse the system, in all walks of life. How many real options do many users today have -- or not have -- in obtaining a broadband Internet connection? Everything is dominated by monopolies, and their top services concentrate on cream skimming (as noted by Crichter above). Here is a map of Verizon's cream skimming FIOS service from TopTenReviews.com 2014 Best Internet Service Provider Comparisons and Reviews:
Ben Bajarin writes at Time, Techland, Big Picture, in Living in the Last Mile: How to Improve Rural Internet Access:
"I am part of the 30% of Americans who don't have real broadband access at home. And no, this is not by choice…entirely."
Gerry Smith, Huntington Post, in FCC Finds Rural Internet Access Is Still Lagging   wrote in 2012:
"About 19 million Americans still have no access to high-speed Internet, according to ... [a report of] the Federal Communications Commission.

About 14.5 million of those without access ... live in rural areas, where Internet providers do not offer service because "there is no business case to offer broadband”....
The Telecommunications Act of 1996 tasked the commission with ensuring that broadband is rolled out on a "reasonable and timely" basis to all corners of the country.

But the [FCC] report found this is not happening."
The decision by the Appeals Court will not improve this situation. Quite the contrary, it will allow companies not only to continue to concentrate on the most lucrative sources of revenue, but also to refine even those markets by offering bennies to the biggest customers, the public interest notwithstanding.

In closing, take a look at
Betty Isaacson at the Huffington Post,
Why You Should Be Freaking Out About The End Of Net Neutrality

That could be the future of the Internet.

Monday, January 13, 2014

Paul Krugman Keeps Hammering at Europe in "Success, European Style"

Because of its austerity policies, Paul Krugman keeps hammering at Europe, this time in Success, European Style. Some critique is surely justified, some not.

We have some connections in Ireland, but not enough to judge the economy of the country as a whole. As everywhere, you have plusses and minuses.

Sometimes I wish Krugman would resurrect discussion of the economic doctrine of "comparative advantage" in comparing the sometimes non-comparable apples and oranges of the national economies.

Indeed, seen fairly and impartially, what should be our realistic expectations concerning the various economies of the world, given their natural and human resources and economic, social, political and legal structures?


The American Criminal Justice System as a Manifestation of "Racial Democracy"?

Jason Stanley and Vesla Weaver at the New York Times have a devastating empirical analysis of the color-discriminatory criminal justice system in America in their article titled Is the United States a 'Racial Democracy'?.

They write there, inter alia:
"Just from 1980 to 2006, the black rate of incarceration (jail and prison) increased four times as much as the increase in the white rate. The increase in black prison admissions from 1960 to 1997 is 517 percent. In 1968, 15 percent of black adult males had been convicted of a felony and 7 percent had been to prison; by 2004, the numbers had risen to 33 percent and 17 percent, respectively....

Evidence suggests that minorities experience contact with the police at rates that far outstrip their share of crime....

the evidence shows that black incarceration is out of step with black offending."
Our question here is:

What correlation can be drawn between the above statistics
and the increasing inequality of income and wealth in America
during the same period of time?

Is it possible that nearly everyone knows the answer to that question without even having to look at the mathematics of money earnings in the USA?

Tuesday, January 07, 2014

Unemployment Rate in Germany Steady at 6.9%, at 12.1% in the Eurozone, and at 7% in the USA

Germany Unemployment Rate Steadies at 6.9%
according to Finances.com, while the Eurozone still languishes at 12.1%.

The amazing thing is
that in spite of all the Obama naysayers out there,
U.S. unemployment dropped to an almost German-equivalent 7.0%
at the end of the year 2013, according to TradingEconomics.com.

Saturday, January 04, 2014

U.S. Supreme Court Enters Software Patent Wars: Are Computer Implementations of Abstract Ideas Patentable?

Should computer software be patentable?

Well, what do I know about software?

I am the sole author of a ca. 10 megabyte software adventure program called Infinity One: The Secret of the First Disc (version one), which was submitted to Microsoft in 1994 for a finding that it was Windows Compatible, which it was, resulting in a 1994 license agreement with Microsoft (May 27, 1994) for the use of the Microsoft Windows Compatible Logo on the product packaging.

Accordingly, I know something about software, having programmed that software from scratch, originally for Atari, and then converting it to Windows. I did it all as a beginner, without ever consulting anyone on programming "methods" or "algorithms", having written the program mainly to "learn how".

Did I violate any software patents? Who knows? and who cares!

Software programming is all just math and logical reasoning.

That is the software programming reality.

But it is certainly not the current "legal" reality relating to software and patents.

The U.S Supreme Court has now (December, 2013) put a software patent case on its docket by granting certiorari in Alice Corporation Pty. Ltd. v. CLS Bank International, CLS Bank Int'l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 106 U.S.P.Q.2d 1696, 2013 ILRC 1851 (Fed. Cir. 2013) [2013 BL 124940]

The writ of certiorari raises the following constitutional question:
"QUESTION PRESENTED

Whether claims to computer-implemented inventions — including claims to systems and machines, processes, and items of manufacture — are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?"
The case is being appealed from a Federal Circuit Court of Appeals decision issued by a bevy of allegedly technically-trained judges (how many of them have ever written ANY software?), who in this case were able to reach a majority agreement only on the Per Curiam Judgment, i.e. "the result", but not on the underlying legal standards applicable to software patents.

The case involves the question of a computer implementation of a method for exchanging financial instruments, which an initial panel of judges of the Federal Circuit found patentable, but which the Federal Circuit sitting en banc found unpatentable, finding the method to be merely the computer implementation of "an abstract idea".

The patent system has been broken for years, and up to now the Supremes have been content to issue patchwork decisions that leave many of the major questions raised by software patents up in the air.

Whether the Justices of this particular U.S. Supreme Court can do any better in coming up with a sensible standard in this case is questionable.

We therefore reiterate our stand on this issue -- a position that we think is the only sane patent standard possible to avoid the kind of chaos in which patent law currently finds itself.

If it is deemed that software can be patented (frankly, we would not permit it), then only a specific complete software program should be able to obtain a patent, NOTHING MORE.

A good example here would be a software program that does your taxes.

If you were to write a program called John's Tax Program, there is really no reason not to issue a patent for THAT program in its entirety as a particular solution or "invention", including as it does not only the actual software programming, but also the design of the user interface, etc.  i.e. no one should be able to duplicate that software program exactly and sell it under that or another name. YOUR product should be protected. OK. No problem.

But if another person writes something similar called William's Tax Program, it should not be possible for John to keep William from patenting or selling his alternative tax calculation program, even though they both might use the same method or methods for tax calculation, because such software methods are mathematical by nature. They involve NO REAL INVENTION, but merely apply mathematical principles to implement abstract ideas that prevail throughout the legal, business, financial and accounting world.

Indeed, given the laws of mathematics and the demands of calculation generally, there are only so many options available, and at the simplest level, there are as good as no options at all: e.g. "if N=1 and P=2 then N+P=3, go to 4". Mathematical solutions are not inventions, computer or no computer, but are merely creative applications of "tools" that are given.

One could compare them to food recipes.
Creative? Absolutely.
Patentable? No.

People claiming exclusive, monopoly patents for any kind of mathematically based methods implemented in electronic instructions -- software -- are thus trying to exclude legitimate competition from using the "tools" of the trade.

EVERY software patent increasingly takes certain tools away from other software programmers, and that is why software patents are so insidious.

In seeking such patents, patent applicants and holders are not protecting THEIR invention -- rather, they are trying to obtain unconscionable monopolies to keep others from using essential abstract ideas as tools that inhere in mathematics -- tools that should be available to all. The fact that a given mathematical implementation is, for the time being, unique -- does not make it patentable, Diamond v. Diehr notwithstanding (that was a stupid decision).

The same reasoning also applies to software implementations such as the infamous "bounce back" patent of Apple -- essentially stolen from the Atari "Pong" game -- and issued absurdly by incompetents at the USPTO.

In the case of the "bounce back patent", its regrettable grant by the USPTO and its upholding by uninformed courts reduces for other software programmers the ability to implement elementary software programming code (we paraphrase) -- "start at A, go to B, if you get to C, go back to A".

The U.S. Constitution protects YOUR invented product. It says NOTHING about keeping others from producing similar, competing products, which is the norm in the commercial world.

YOU should be able to build and sell YOUR mousetrap. Others should be able to build and sell THEIRS.

YOU should be able to  build YOUR mailbox. Others should be able to build and sell THEIRS.

By their very nature -- as in the case of software implementations of abstract ideas -- such products by their very nature MUST be similar, because there are only a few possible ways to catch a mouse and only a few possible ways to build mailboxes, and only a few obvious ways to build handhelds.

To permit patenting of the METHOD, e.g. by "enclosure" of the mouse, or via "a slit insert for letters", whether at your front door or in your electronic mailbox version, is just legally IDIOTIC.

But that is what 99% of patents are today -- abstract ideas implemented on computers or handhelds or other electronic devices, or implemented in media such as the Internet ("one-Click" patents and such nonsense) -- which should NEVER be patentable because NOTHING is invented. Simple abstract ideas are merely being electronically implemented.

Many of the surely well-meaning but erring judges on the Federal Circuit still do not get this and we hope that the Supreme Court does better, but we are not optimistic, given the near-sighted Supreme Court precedent in Diamond v. Diehr and its consequences, which have been catastrophic, creating a "patent industry" far beyond what the U.S. Constituton envisioned and permitting an arguably "decaying" society chained by its ill-conceived monopolistic intellectual property laws, which are not promoting invention and discovery, but rather are monopolizing the fruits of human ingenuity in the hands of the "clever" patented few who know how to use foolish laws to their advantage.

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