The Substantially Similar Weblog

I wonder how often things like this (“Dear Sir, calling StarForce ‘Anti-copying malware’ is a good enough cause to press charges and that is what our corporate lawyer is busy doing right now”) actually have their desired effect. I suppose it might work in cases where the recipient is actually dumber than the writer.

On the plus side, that sort of letter could certainly create declaratory judgment jurisdiction; the recipient could turn around and sue the sender for a declaration that they have done nothing unlawful.

I also wonder whether companies like StarForce actually have a “corporate lawyer,” and if that person is aware of these emails. I sure hope not.

Update: Apparently this story has been slashdotted. I try not to post about things that also appear on slashdot, on the theory that most people will have seen the story somewhere else at that point, but this entry went up before the slashdot article. A commenter makes a good point, though, that Cory Doctorow (the recipient of the abovementioned threat) is Canadian and lives in London—something the writer of the threat seems to have no clue about.

Yesterday, it got up to 53° F (11° C), after a very cold and blustery week. There was still quite a bit of snow on the ground, so we went on our first ski trip of the year. It’s great to be able to ski with no jacket or gloves. (The hat came off later as well).

I recently blogged about humans failing my blog’s comment “Turing Test.” My blog had a box below the real comments box, prefaced with a statement to the effect that you shouldn’t enter anything in that box if you were a human (yet some humans did enter comments in that box, thus shunting their comments to a spam file). In response, several commenters noted that my layout was confusing and offered suggestions for improvements.

I’ve taken their advice and wrapped the “spam” comment box in a style tag that will make the box invisible if your browser renders CSS. I had this perhaps irrational fear that the spammers were smart enough to read the CSS, but as it turns out, they aren’t. The box is now invisible to most users, but I continue to get as many as several dozen spammers filling in the invisible box.

The main shortcoming I can see with the current system is that people who use text-only browsers like w3m or cell phones, or people with visual disabilities who use an audio screen reader may still be confused. Still, I think this is much less intrusive, annoying, and non-accessible than, say, a hard-to-read captcha that won’t work at all for those people.

I’ve been reading the news about the world’s tiniest fish, but I really didn’t appreciate how small this fish is until I saw this image on boingboing (from Science News, I believe).

All I can say is: that is a small fish.

Those of you outside of Massachusetts (or the United States) may not have heard about our recent healthcare insurance debates. Left Center Left has some interesting entries on the lack of local political analysis and confusion about why the business community opposes the various legislative solutions where those solutions appear to be basically in their self interest.

The proposed solutions are converging on a tax on employers who do not pay for their employees’ healthcare. That tax would help pay for statewide coverage of all or most citizens, and hopefully encourage employers to provide insurance for their employees to avoid the tax. (There is strong dissent, for example from the Massachusetts Taxpayers Foundation, as to whether the tax would actually raise any money).

Critics argue that the tax will discourage employers from coming to Massachusetts. The two large employers singled out most frequently in the State for not providing healthcare benefits to their large work force are Wal-Mart and Dunkin Donuts. Is it even remotely possible that Wal-Mart and Dunkin Donuts would actually shut down (or stop opening up) stores if they have to insure their employees or pay an additional tax? Obviously increased labor costs (whether through tax or insurance) could cut into profitability—but is there any evidence at all that it would represent a “tipping point” that would cause these employers to shut down? (Note that despite Massachusetts’ reputation as “Taxachusetts,” a study last year that I can’t locate right now pointed out that the overall tax burden on Massachusetts citizens was about in the middle, compared to other states).

Even if the health insurance mandate depresses wages, it’s worth noting that it is cheaper for the employer to buy group health insurance for its employees than it is for each of those employees to buy it individually—both because of the bulk buying power and for tax reasons. It is thus not a “zero sum game” where employees wages should be depressed by the exact amount of the increased health care costs.

Finally, wouldn’t this measure actually encourage employers to come to Massachusetts who already insure their employees, since presumably the statewide insurance mandate should decrease costs to those already providing insurance as they will no longer be effectively subsidizing the uninsured who work for competitors and other employers? And aren’t those the kinds of employers we would like to attract, rather than more Dunkin Donuts and Wal-Marts? (In fact, wouldn’t fewer Dunkin Donuts lead to less heart disease, thus also cutting down our health care costs overall…?)

Ed Felten at Freedom to Tinker makes an excellent observation while discussing Google’s video service digital rights management scheme: “Privacy is for Google what security is for Microsoft.”

Interesting commentary by Chinese documentary filmmaker Hao Wu on Marketplace. Wu explains that it is not possible to obtain most films in China except as pirated versions, and when there are official legal releases they are edited and censored by the government. If the United States is successful in getting China to devote substantial police resources to enforcement of international copyright law, a perhaps unintentional side effect is that access to information and openness will be squelched.

This raises the question of whether it is really in Hollywood’s long term interest to crack down on piracy in otherwise repressive regimes. It’s at least an interesting perspective to bring to the issue that I hadn’t really considered.

I learned just last week that my law school professor John Flym was counsel in the Vanguard Case. He testified before the Senate Judiciary Committee on Friday.

It appears that John is also retiring. This will be a great loss for Northeastern Law School. He was one of my favorite professors at Northeastern. Some students didn’t understand his clinical approach, which among other things demanded that we take nothing for granted and rejected easy or prefabicated answers to questions, but I found his teaching to be some of the best preparation for practicing law in the real world.

Right wing critics have predictably attempted to dig up “dirt” to discredit John—e.g., Baseball Crank: LAW: Who Is John Flym?. I don’t mind linking to that entry and increasing its PageRank, however, since I don’t find anything objectionable in the “dirt” the writer has dug up. In fact, it only increases my respect for the man. (He opposes nuclear weapons and torture? How shocking!)

Dave Douglas’ new album, Keystone, can be purchased as a CD (includes a DVD as well, free shipping), MP3 (entire album, cheaper than the CD), or MP3 (individual tracks). Douglas has started his own web-based label, Greenleaf Music. I’d like to see the MP3 album, which is now $10, even more cheaper than the CD, which is $15, but this model makes a lot more sense to me than the DRM-encumbered iTunes Music Store, where you end up paying as much or more for an album than a CD version of the same thing.

Douglas also has some sheet music on his site which is interesting.

This quote from the About Greenleaf page is right on:

And how will Greenleafs business approach differ? “We endeavor to be as innovative in our marketing plans as the artists are in their music,” says Friedman. “We plan to re-evaluate current approaches to everything from package design to marketing, promotion and sales strategies and look at every marketing expense in light of its potential resonance with each individual project. We will count on web marketing as a means of artist development and as our artists will be on tour, utilize the live performances to sell records and create sales bases. We also believe that what interests listeners is not just the recorded product, but the artists themselves. As such we are interested in making available sheet music, artist commentary, discussion and more.”

I expect we will look back on these sort of efforts and wonder why it wasn’t obvious to everyone at the time that this is the way the music industry would end up.

Can we just stop this nonsense about Judges enforcing the law but not “making” it? And that there is such a thing as a non-ideological Supreme Court justice?

Many people have articulated the problem better than I possibly could. But it boils down to this: “the law” is not deterministic. It is, as a practical matter, impossible to enact statutory language that is sufficiently specific to cover every situation that will appear before a court. The reason cases end up in litigation is, quite often, because the law is not clear on what the result should be. Law is not like source code that can be compiled into an object file and then fed arbitrary input to generate a certain predictable result. The real world is complex. Conditions arise over time that the legislators enacting the statute (or the framers drafting the constitution) could not have foreseen. Even if you believe Judges should exercise “restraint,” in many cases it is impossible to determine, objectively, what outcome represents the more “restrained” position. (I think Alito admitted an analogous issue today when he said that conservatives can be as much “activists” as liberals).

People should agree or disagree with Judge Alito’s judicial approach, but it’s absurd to suggest that he doesn’t have an ideology, or that he could sit on the Supreme Court and just apply the law “as it is written” without having to make interpretive leaps. Those leaps will almost always involve issues on which reasonable people can differ — otherwise the case would never have reached the Supreme Court. That is, in fact, the whole point of the Supreme Court.