Andy writes:

Roger, I'm not interested in writing for dying magazines like The New Republic. I already wasted too much time dealing with the American Spectator. Law journals are probably more worthwhile.

Incidentally, after all the mockery of Donahue here and elsewhere, I see that he has surpassed Chris Matthews with Guiliani and Schwarzenegger in the ratings. See drudgereport. Talk about 3 guys who are lost and clueless! Maybe Guiliani and Schwarzenegger can go to Mexico together, with Matthews reporting.

A topic on Roger's blog is how O'Reilly is criticizing Ashcroft's federal intrusion into the sniper case, which perhaps the White House ordered. Why do we need the feds chasing TV coverage here? It wouldn't surprise me if they bungled the investigation. Long list of previously bungled investigations by feds.

I finished Starr's book. Basically, his sop to equality means he's wrong on immigration, feminism, and the gay agenda -- three of the biggest issues.

Speaking of feminism, I realized that its real popularity is with unsuccessful, educated women having more successful husbands. It's the contrast between Hillary Clinton, smarter but less successful than Bill, and Margaret Thatcher, successful in her own right. I bet a study of donors to Emily's List would confirm a high percentage of educated wannabees, and relatively few women accomplished in their own right.

John writes:

It is increasingly clear that the presidential candidates in 2008 will be Hillary Rodham Clinton (Dem) and Rudolph Giuliani (RINO). These are the two with a clear shot, and I don't see anybody standing in their way.

Except for Bush himself, Hillary and Rudy are, by far, the most effective campaigners and most lucrative fund-raisers for their party's candidates this year. No one else is even close.

For example, Rudy was in St. Louis yesterday speaking at a Talent fundraiser. Rudy was careful to point out that he and Talent "don't agree on everything" but "share an essential Republican philosophy."

Conventional Wisdom is that a New Yorker can't be elected president. But that rule doesn't apply if both parties nominate New Yorkers.

Conventional Wisdom is that Dems have to nominate a Southerner for president because, if they don't, the entire South will go Republican. But if Repubs nominate Giuliani, the Dems have a good chance at the entire South after all.

Like Reagan in 1974, Giuliani has 6 years out of office to run for president. The way is clear; no other potential candidates are anywhere in sight.

Someone asked for an example of families who were not able to obtain religious exemptions even after going to court. Here is one from a couple of months ago. An Arkansas kid tried to get a religious exemption from the HBV vaccine requirement, but lost in court because the law restricted the exemption to members of "recognized churches".

The judge, Susan Webber Wright of Clinton sexual harassment fame, said that the law discriminated against individuals with sincerely held individual religious beliefs. The ruling doesn't really make much sense. The outcome was that the kid could not get the exemption.

A major theoretical physics journal has published a paper that appears to be a hoax. It has a lot of advanced buzzwords in it, but the content is nonsense. The author denies that it is a hoax, and the mainstream press doesn't want to write about it because they cannot tell who is right. Read about it here.
This is a little embarrassing for the theoretical physics community. The editors goofed.

Today's NY Times tells the story of the Salem witches. Among the facts: 54 confessed to being witches! Someone who confesses is not necessarily guilty. Maybe the devil made them confess?

Fox's O'Reilly Factor is getting annoying. He now claims that there is a right/left consensus that AG Ashcroft should be fired. He admits that he disagrees with the left-wing attack on Ashcroft, but now he got sucked in by a Maryland prosecutor claim that the Muhammad, the DC sniper, was about to confess. It is just a prosecutor's turf battle, that's all. I doubt that Muhammad was about to confess, but what difference does it make? They caught him with the murder weapon and the getaway car.

Some anti-gun freaks just cannot resist lying about guns. Bellesiles's fraudulent anti-gun book got glowing reviews in much of the media, and hardly any of those reviewers have issued a retraction now that Bellesile has been fired from his tenured professorship and his lies exposed.

Volokh found one magazine that issued a retraction, but he notices that the retraction is filled with anti-gun lies! When Volokh called him on it, the reviewer said:

I do not know what the official NRA position is ... I'm sure that I have heard many gun rights supporters say that "every colonist had a flintlock over the mantle" or words to that effect. ... However, I have neither the time, the resources, or the interest in tracking down those kinds of quotes.

IOW, the reviewer is just another lying anti-gun hack who is only disassociating himself from Bellesiles because Bellesiles had his reputation ruined.

John sends this column about California becoming an anti-business welfare state. It looks like Gray Davis will be re-elected, so the bad trends will continue.

John Lott says that ballistic fingerprinting for guns may not work. We should soon find out. New York and Maryland have started recording the ballistic fingerprints of all new handguns sold. They haven't solved any crimes with the help of the database yet. If they solve a lot of crimes, I am sure other states will follow suit. If they don't, then it is just a big waste of money.

John sends this story about a link between a vaccine and mad cow disease.

PBS Nova is showing a special on Galileo tonight. I'll be interested to see if it repeat the common myths about Galileo and his dispute with the Pope.

Update: Much of the show was indeed devoted to Galileo's dispute with the Pope. Most of the commentary came from the author of a book about some letters written by Galileo's daughter. It would have been better to have more commentary from people knowledgeable about the scientific/theological dispute.

The show ends saying that Galileo's controversial book was one of the greatest astronomy books ever written, and refers the viewer to the web site for what Galileo said about tides. On the web site, you can learn that this great book espoused a completely wrong analysis of tides as Galileo's main argument for the motion of the Earth.

The show says that Copernicus's model was simpler than Ptolemy's, and that it had two motions for the Earth. Actually, Copernicus explained the Earth in terms of three motions. And it wasn't so simple either, because it used a lot of epicycles.

The Pope is ridiculed for this statement, made while sentencing Galileo in 1633:

The proposition that the Sun is the center of the world and does not move from its place is absurd and false philosophically and formally heretical, because it is expressly contrary to Holy Scripture.

Galileo had been allowed to use this proposition as a useful hypothesis for doing calculations, but not to claim that it had been proved true or to give his own Scriptural analysis in support of it.

I don't know about the Scriptural analysis, but someone should have said that modern Physics is much closer to the Pope's view on this point than to Galileo's. The proposition that the Sun is the center of the universe and does not move from its place is indeed absurd and false. Motion is relative to a frame of reference. With respect to a reasonable frame for the Earth, the Sun orbits the Earth. With respect to a reasonable frame for our galaxy, the Sun is on an orbit in the Milky Way, and rotates.

Galileo had some brilliant arguments in favor of the Copernican model, but there were some legitimate scientific reasons for preferring the Ptolemaic model. It was actually Kepler's improvements to Copernicus that gave a more accurate model. (Kepler was a contemporary of Galileo, but Galileo did not espouse Kepler's model.)

The PBS transcript is now online.

The PBS film is not as bad as some other sources. Eg, Here is a Stanford history course on Galileo that says in its course description:

In 1633 the Italian mathematician Galileo was tried and condemned for advocating that the sun, not the earth, was the center of the cosmos. The Catholic Church did not formally admit that Galileo was right until 1992.

You could not find a scientist anywhere who thinks that the Sun is at the center of the cosmos. That idea has been dead for 100 years. There is no way the Catholic Church would admit in 1992 that the Sun is at the center of the cosmos. That would be much sillier than what it said hundreds of years ago about Copernicus.

Silly lawsuit of the day. A Swedish company is suing Reuters for linking to a financial report on its web site.

Another silly legal claim. Microsoft is trying to stop K-Mart from selling a subsidiary in bankruptcy court, because it has non-transferable software licenses. Software should be transferable just like everything else.

Congratulations to the Anaheim Angels for winning the baseball World Series. The AP reports:

A day before the World Series started, reliever Scott Eyre gave the San Francisco Giants the only scouting report they really needed. "Don't look at the Rally Monkey! He will jinx you," the pitcher said. "I'm serious."

The Angels played some inspired baseball. Not everyone was intimidated by Barry Bonds.

John sends this TNR column supporting Lessig's attack on copyright extension. I agree with some of his conclusions, like:

Now the Court has before it a law that is constitutionally offensive on every level: It clashes with the explicit limits on Congress's power set out in the text and original understanding of the copyright clause, it represents a naked transfer of wealth to a handful of greedy heirs of pop-culture icons from the '20s, and it threatens to constrict public domain on the Internet for generations to come.

But some of his facts and arguments are dubious. Eg, he says:

The reason the Supreme Court got out of the business of striking down acts of Congress in the mid-twentieth century was that it presumed that economic interests could ordinarily fend for themselves in the political process.

No, the reason is that President FDR intimidated the SC by threatening to expand it and pack it with political hacks who will rubber-stamp his misguided and socialistic programs. Eventually, the SC capitulated, and FDR did pack it with political appointees who ruled that Congress can regulated a farmer growing vegetables for his own consumption. If that could be justified, then there were no practical limits on what Congress could do under the Commerce Clause.

Andy writes:

Jeffrey Rosen is misguided in implying that Professor Lessig seeks a reduction in government copyright power ("Mouse Trap," Oct. 28). Rather, his briefs and oral argument endorse congressional power to extend copyright retroactively for old works, if conditioned on a quid pro quo like restoration activity. Lessig thereby petitions the Supreme Court for better government, not less government. Rosen is right that the 20-year copyright extension should be stricken, but that can only happen by embracing less government.

Slimy lawyer of the day. Robert Blake's lawyer, Harland Braun, says he will defend a murderer but not someone who appears on TV. Blake agreed to a TV interview, so Braun quit being his lawyer, saying "I don't think there's a criminal lawyer anywhere in the country that would allow this."

I hope Blake hasn't paid this scumbag lawyer. Blake is a famous actor, and he needs defense in the court and in the media. An honest defendant should be willing to tell his story to anyone. This lawyer seems to be more on his own ego trip than to defend the interests of his client.

Another paper says:

Loyola University law professor Stan Goldman said Braun is correct that Blake could hurt himself in the interview and that if Blake was defying Braun now he would probably do it again.
"Lawyers have to know their clients are going to take their advice," Goldman said. "They tell their clients, 'Either I am the lawyer, or I'm not the lawyer.' If Blake does this now, what's he going to do later."

How do these lawyers get the idea that the client is their personal slave? The lawyer works for the client. There is no reason for the client ever being required to do what the lawyer asks.

Watsonville Calif. is voting on water fluoridation. A fluoridation proponent complains:

William Jarvis liked to put on water fluoridation debates for his students at Loma Linda University's School of Dentistry. He would ask them to vote twice -- before the debate and after.
``We always had people favorable toward fluoridation before the debate and less favorable after,'' said Jarvis, who retired two years ago as professor of public health and preventive medicine.

Debates expose these facts:

1. Scientists no longer believe that they have evidence that fluorization has a systemic benefit. (Ie, the only known benefit is topical, meaning from direct contact between fluoride and teeth, and not from consumption of fluoride.)
   
2. Fluoridation does not benefit those who brush their teeth with fluoride toothpaste.
   
3. At least 10% of the population shows adverse medical effects of consuming too much fluoride.
   

Update: A measure to stop fluoridation passed by 32 votes. The city says that it is going to fluoridate anyway.

Andy writes that the Baltimore Sun reports that a lot of military pilots have quit because of the anthrax vaccine.

Don't believe any statistics you read in Harper's Index. Every month, they get debunked in the Smarter Harper's Index.

Why wasn't Malvo deported, once INS determined last year that he was an illegal alien?

Why didn't the feds circulate his fingerprints to Alabama law enforcement?

Why were the police profiling the sniper as a white man, when only 55% of US snipers are white? According to the Wash Post, the DC sniper car was spotted at least 10 times in the search, but it apparently didn't match the profile. It seems to me that an unemployed man named Muhammad driving a old beat-up Chevy Caprice with an illegal alien should have matched the profile.

"We were looking for a white van with white people, and we ended up with a blue car with black people," said D.C. Police Chief Charles H. Ramsey. ...

Another witness, a restaurant employee in the area, said in an interview that he also saw a Caprice slowly driving away but did not volunteer the information to police until after the suspects were arrested, because he assumed agents were looking for a white van. [Wash Post]

I don't want to blame law enforcement, because some of them did a very good job. But when we are at war with foreign Mohammedan terrorist, you would think that federal policy would focus on the people who are causing the most trouble.

John sends this Wired story about EBay not letting someone sell his own music. Sounds bad, but this blog has an alternate view.

Emory Univ. finally fired Prof. Bellesiles for publishing faked data in his anti-gun book, Arming America. InstaPundit has the links. This is an amazing story. His thesis was that early Americans didn't have any guns, contrary to conventional wisdom. His book got high praise in the media, and awards for being an important historical book. When the book started to be used to support gun-control, people checked out his facts. I wonder how many other historians are writing bogus books, but no one bothers to check the facts.

Earlier this year, a controversial 5-4 US Supreme Court cited polling data and other supposed trends to decide that the Constitution prohibits the application of the death penalty to mentally retarded persons. Now, this week, the four activist liberals say thesame reasons supporting that holding apply with equal or greater force to the execution of juveniles. The four say:

No State has lowered its voting age below 18. ... Nor does any State permit a person under 18 to serve on a jury... Scientific advances such as the use of functional magnetic resonance imaging—MRI scans—have provided valuable data that serve to make the case even stronger that adolescents “‘are more vulnerable, more impulsive, and less self-disciplined than adults.’” ... Moreover, in the last 13 years, a national consensus has developed that juvenile offenders should not be executed. ... All of this leads me to conclude that offenses committed by juveniles under the age of 18 do not merit the death penalty. The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice.

We will soon see that popular opinion says otherwise, now that the DC snipers have been caught and one of them is a 17-year-old illegal alien. (The other is a Mohammedan fanatic.) There can be no doubt that these four (Stevens, Souter, Breyer, Ginsburg) are just liberal activist judges who want to impose their personal opinions on everyone else. Their arguments are all bogus. A 17-year-old has the maturity to understand that murder is illegal and wrong, and does not have the maturity to serve on a jury. Trying to use MRI scans to support an anti-death penalty position is laughable.

Wouldn't you think that an Air Force base near DC would have some fighter jets that are always ready to go if the White House calls? Bob sends this Aviation Week story about how the F-16s that took to the air on 9/11 didn't even have any decent ammo.

Gumma sends this Wash Times story:

The State Department official who was forced to retire because her office allowed most of the September 11 hijackers into the United States has won an "outstanding performance" award of $15,000.

John reports that Msft is cheating on its antitrust consent agreement.

Is the trend of public opinion towards more gun control? According to the Gallup poll, sentiment for a handgun ban has declined from 60% in 1959 to 32% today.

No free speech in France and Germany. According to a Harvard report, Google removes some anti-abortion, pro-Nazi, white supremacy and anti-semitic site listings. Here are some of the sites. Google says it does it to conform with some countries' laws. Nevertheless, the European Reporters Without Borders just ranked the USA below France and Germany in its first worldwide press freedom index. It says:

The poor ranking of the United States (17th) is mainly because of the number of journalists arrested or imprisoned there. Arrests are often because they refuse to reveal their sources in court. Also, since the 11 September attacks, several journalists have been arrested for crossing security lines at some official buildings.

In the USA, a reporter who is a witness to a crime can be compelled to testify. Just like everyone else. That's the way it ought to be.

The feds now say the DC area sniper might be an immigrant, and they want to reward illegal immigrants who want to help. Why not reward citizens who want to help? They should immediately offer a $100k reward, dead or alive. That sniper needs to know that wherever he goes, he will find armed citizens who will kill him, and whoever kills him should be a hero.

4 out of 13 DNS root servers survived an attempt to shut down the internet. WashPost story.

Universities often sign away the independence of their scientists when their lawyers ink agreements with industry to perform company-funded medical research, according to The New England Journal of Medicine. Apparently the researchers do not even get full access to the data:

One percent of school officials who responded said all their contracts let their scientists have access to all the trial data and not just that collected at their facility. Ten percent said all their agreements permitted investigators to help shape the data collection and monitoring plan governing the studies.

If a study is to be considered scientific, the data should be available to the public. When the authors don't even have the data, it is a scam.

This study says eating too much MSG can make rats go blind.

Former pop music star Janis Ian has USA Today article in defense of Napster-like programs. She says:

On the first day I posted downloadable music, my merchandise sales tripled, and they have stayed that way ever since. I'm not about to become a zillionaire as a result, but I am making more money. At a time when radio playlists are tighter and any kind of exposure is hard to come by, 365,000 copies of my work now will be heard. Even if only 3% of those people come to concerts or buy my CDs, I've gained about 10,000 new fans this year.

On the first day I posted downloadable music, my merchandise sales tripled, and they have stayed that way ever since. I'm not about to become a zillionaire as a result, but I am making more money. At a time when radio playlists are tighter and any kind of exposure is hard to come by, 365,000 copies of my work now will be heard. Even if only 3% of those people come to concerts or buy my CDs, I've gained about 10,000 new fans this year.

Many artists now benefit greatly from the free-download systems the RIAA seeks to destroy. ... The RIAA and the entrenched music industry argue that free downloads are threats. The music industry had exactly the same response to the advent of reel-to-reel home tape recorders, cassettes, DATs, minidiscs, VCRs, music videos, MTV and a host of other products and services.

There is more on her site. Her best-known song is At Seventeen. She answers questions here.

Here are a couple of new sites I found that defend online free speech rights against attack by the copyright lobby: Digital Speech and Public Knowledge.

Update: Here is another article on how the RIAA is unhappy with Ian.

Andy reports:

From Veeck's attorney: "By a unanimous vote, tonight, the Anna City Council voted to file amicus briefs opposing cert and in support of Veeck should the case be heard on the merits. We will publish the ordinance, tomorrow." (Anna City was a key town requiring the public to comply with the SBCCI building codes).

Good. Every town should publish its building codes and other laws on the internet. The US Supreme Court is currently considering letting lobbying organizations use copyright laws to control access to laws.

Did Baseball juice up the balls for the World Series? It looks like it:

Once the baseballs were cut in half, Levine and his interested teammates noticed the inner materials were the same, but the World Series ball was wound tighter.
Angels shortstop David Eckstein said he thought the baseball not only was harder, but also smaller than the regular-season ball.
"My hands are small, so the first time a ball was hit to me in the game I could tell it was smaller,' he said. "And it was hard as a rock.' Long Beach paper

With a World Series record 11 homers hit in the first two games of the best-of-seven series, beleaguered pitchers are claiming the offensive explosion is the result of a harder and livelier ball being used in the playoffs.
The slugfest has also put a couple of other World Series records in jeopardy, total home runs for a series (17) and most home runs by one team (12).

Adding credence to Percival's theory, the light-hitting Angels have hammered a postseason record 21 homers, four coming from Adam Kennedy, the second baseman who had just seven round-trippers during the regular season. Monterey Herald

I agree with Judge Jackson's defense of talking to the press about the Microsoft case. He says:

The judiciary is in many ways the most secretive of the three
branches of the federal government. It is not subject to the Freedom of Information Act or any other so-called "sunshine" statute. Judicial disciplinary proceedings are conducted in private. Although the judicial system professes to display its decisional processes "on the public record," its most important decisions are made behind closed doors, whether by judges or juries. Law clerks and supporting staff are sworn to secrecy. There are remarkably few "leaks," and no whistleblowers. A veteran journalist once told me that "we know more about how the CIA operates than we do about you."

That secrecy has consequences. In his remarks to the D.C. Chapter of the Fellows of the American Bar Foundation last spring, my colleague Judge Paul Friedman expressed alarm at the increasing intensity of public attacks upon judges and their decisions, and the loss of public confidence in the judiciary as an impartial and nonpolitical branch of government. Because it would be "unseemly" for judges to respond, however, as well as contrary to the Code of Judicial Conduct, Judge Friedman called upon the bar to assume the responsibility to defend them.

I cannot agree. Judges are responsible for their decisions, not the bar. And so judges should expect to bear a large part of the responsibility for dispelling the caustic effects of any criticism they provoke. One way of doing so would be to become more communicative.

It is the DC Circuit judges who refuse to talk about their Microsoft decision and give an impression that they are corrupt. Their decisions were inexplicably favorable to Microsoft. Either they have personal antagonism towards antitrust law or they wanted to do favors for Microsoft. They really resented Jackson explaining the case to the press because it exposed how the DC Circuit ruined the case.

Kausfiles points out that controversial Bush nominee M. McConnell wrote an opinion of the Gore v. Bush SC decision that was not entirely favorable to Bush's side. Kaus quotes McConnell saying, "the Supreme Court held that there should be a recount, but there is not time enough to do it. That leaves Bush as president not so much by the will of the electorate, but by default." McConnell favored different reasoning, which would have also Bush the winner. (Actually, just about any reasoning would have been likely to make Bush the winner.)

I think McConnell's statement is factually incorrect. I'll have to recheck the opinions, but I don't think that any of the nine SC justices said that there should be another recount or gave any rationale for why another recount should take place. Stevens and Ginsburg wanted to permit the Florida to do what it wants, on the theory that there aren't sufficient federal issues for the SC to intervene. Souter and Breyer said that the proposed Florida recount was unconstitutional, but maybe it could be corrected by an alternate recount scheme. Scalia, Rehnquist, and Thomas said no additional recounts were lawful. O'Connor and Kennedy said that the Florida partial manual recount was unconstitutional, and no alternate scheme was practical. Even if an alternate scheme were practical, it might not be constitutional either.

Thus four justices would permit a recount, if they could agree on how it might be done (and they could not). But no one actually said that a recount should be done because the circumstances in Florida demanded it. No one on the US Supreme Court said that there was anything wrong with the count that was already done.

Science historian Stephen Jay Gould is dead, and now his widow has turned out to be a kook also. See Slate for her very strange attack on a book about the WTC attack.

There is a legal dispute over Barry Bonds 73rd home run ball, and eMoo thinks that the judge should split the ball in half. I disagree. Nonlawyers typically think that disputes can be resolved by splitting the difference. eMoo likes to write about Israeli-Arab disputes, but I don't see him saying that the sides should just split the disputed territory in half.

According to witnesses, Popov caught the ball first. Then the ball was stolen from him. Hayashi's main argument is that there is a tradition in baseball to let the fans fight it out, and to equate possession with ownership. But that is just because stadium ushers and officials do not want to be bothered resolving a dispute. Giving Hayashi the ball, or even half a ball, is just condoning mugging and theft. Hayashi should gain nothing.

A new medical report says, "We therefore recommend that for the sake of reducing consumers exposure to latex, food-handlers avoid using latex gloves". A 10-year-old boy had a severe allergic reaction after eating a cream-filled doughnut because the shop workers used latex gloves.

Eagle Forum reports:

SENATE COMMITTEE VOTES TO GIVE D.C. FULL VOTING RIGHTS IN CONGRESS. On Wednesday October 9, while Republicans were boycotting committee markup sessions to protest the snail's pace of judicial nominees' hearings, the Democrats on the Senate Governmental Affairs Committee met and passed 9-0 a measure sponsored by Senator Joseph Lieberman (D, CT) that would give the District of Columbia two senators and one congressman. Inasmuch as the District's voting registration is overwhelmingly Democratic, the net effect would be to add two new Democratic senators and a congressman. Majority Leader Tom Daschle says he expects to try to schedule a floor vote on the bill before Congress adjourns for the election. The last serious attempt to give voting representation to the District came in 1978, when a constitutional amendment to that effect passed both houses, but was unsuccessful in obtaining the necessary ratification by 3/4 of the states.

One of the big arguments for DC statehood back in the 1970s was that DC had a population exceeding that of 10 other states, according to the 1970 US Census. It had more people than 15 other states according to the 1950 Census. DC had more people than Alaska, Hawaii, and Nevada put together, or more than Vermont and Delaware put together. Those states had low black populations and DC had a high black population, so I suppose that some people thought that it was unfair that DC was not a state.

But according to the 2000 Census, DC population only exceeds that of one other state -- Wyoming. And if present trends continue, even Wyoming might surpass DC in the 2010 Census. DC is actually losing population while every single one of the 50 states gained population from 1990 to 2000. The argument for DC statehood is weaker than it has been in a very long time.

Bob sent this 1993 Richard Stallman flame. Stallman is the programmer guru that Steven Levy calls the last true hacker. It is hilarious. I think that it is tongue-in-cheek, but it is hard to tell with Stallman.

Could people please not use this list to announce information of no particular interest to the people on the list? Hundreds of thousands of babies are born every day. While the whole phenomenon is menacing, one of them by itself is not newsworthy. Nor is it a difficult achievement--even some fish can do it. (Now, if you were a seahorse, it would be more interesting, since it would be the male that gave birth.)

Following your example, I might send the list an announcement whenever a new GNU program is written. That happens less often than babies are born, it does the world a lot more good, it reflects more conscious creativity and hard work, and some of the readers might actually find the information useful. Even so, I think most of the readers would consider this outside the scope and purpose of the list. Clearly that goes double for babies.

Of course, we have another place for announcements of new GNU programs. If some people like to read birth announcements, perhaps you should set up a suitable list or newsgroup. Perhaps rec.births? (While you're at it, start rec.deaths for obituaries--they're usually more interesting to read.)

These birth announcements also spread the myth that having a baby is something to be proud of, which fuels natalist pressure, which leads to pollution, extinction of wildlife, poverty, and ultimately mass starvation.

Perhaps the people who have decided to have no children should start making proud announcements, so as to set a better example. I could start. I'm sure everyone on this list will be glad to know I don't plan to reproduce myself.

Here is RMS's latest cause: fighting TCPA (aka Palladium). Here is his rant.

Andy writes:

The Hartford Courant reports that the FDA now concedes that the anthrax vaccine was dangerous. A number of servicemen were punished for refusing to take it.

The paper also says that liberal Republican incumbent Nancy Johnson has an 18-point lead over Democratic incumbent Maloney, for whom Gore flew in to campaign.

It's amazing how much the sniper and threat of terrorism affects so many people, who completely change their plans in response. It's equally remarkable how immune the internet is to every possible type of terrorism. That bodes well for continued growth in internet usage and influence.

Roger noted that teams other than the New York Yankees and Atlanta Braves are in this year's World Series. But this is only the 3rd time in 12 years that the Series has not featured one or both of those big money teams! To use an old adage, is this year the exception that proves the rule?

I did some more homework on Lessig's "quid pro quo" argument for Copyright Clause limitation, which he emphasizes at least 6 times in his reply brief, and 11 times in his initial brief. This seems to be his main argument, that Congress extended copyright without a "quid pro quo" by the beneficiary (Disney et al.), and that lack of quid pro quo is somehow unconstitutional.

My research revealed that is a fictional argument developed by law professors, which the Supreme Court has never adopted and should not adopt. At most, two Supreme Court decisions mentioned a quid pro quo in the context of the patent statute, but not required by the Constitution. Simply put, there is no constitutional balance between private property and public rights.

Not a single one of the many amicus briefs in the Eldred case, except for one brief by one law professor, embraced Lessig's "quid pro quo" argument.

Worse, Lessig says that Congress could have "easily" made the Sonny Bono Act constitutional by including a quid pro quo: "if Congress wanted "restoration" of old works, or further "dissemination" of particular works, it could easily have achieved those ends in the same manner the Framers set--as a quid pro quo. Pet. Br. 16. Rather than an unconditioned grant, Congress could have offered a conditioned grant for restoration or a particular kind of dissemination."

Can Lessig's side win the case without a single Justice accepting Lessig's argument? Yes, but that might be unprecedented outside the context of criminal appeals.

Andy, maybe we should write an op-ed for publication somewhere on how Lessig is blowing it.

Andy writes:

More good stuff on Roger's blog, especially how the internet version of the Eldred v. Ashcroft includes information that the official court version intentionally deletes (e.g., name of Justice posing the question).

Roger wrote, "I thought [Lessig's] SC brief supported our argument. Good thing you did an amicus brief."

At first blush, Lessig seems to be with us. But scratch beneath the surface, and you find his views are very liberal and irrational. The Justices scratched at oral argument, and found illogic and confusion lying below.

Roger wrote, "Part of the problem with the above Lessig exchange may be that he was interrupted before he could finish his point ...."

What he said is repeated extensively in his briefs. There is no mistake.

Roger wrote, "I am inclined to agree with Andy that Lessig's problems are rooted in his political premises. In Lessig's view, copyright law is a quid pro quo between authors and the public, and the court should review it (with intermediate scrutiny) to see if it is a fair contract."

Right, and this is nonsense. It's emphasized in his reply brief. In effect, Lessig is saying that the Sonny Bono Act is unconstitutional because there is inadequate contractual consideration! Even if Lessig won, Congress could merely pass an identical act with an addendum requiring Disney to restore and distribute some old works in exchange for the extended copyright. I doubt a single Justice buys this central argument of Lessig's.

Microsoft is outraged that someone in Australia was acquitted for selling video game modification chips. Microsoft wants Australia to change its law in order to protect Microsoft's business model. I think Msft is very arrogant to think that it has some sort of right to stop modifications of a consumer device. Its Xbox has already been hacked to run Linux, but Msft is shutting down the sites that explain how to do it. They were only able to hack it because of some Xbox bugs. I think Msft should just fix its bugs instead.

Palladium is Microsoft's name for the version of the Xbox technology that will have the power to restrict what applications can do on the PC. On the Xbox, it means that only licensed games will run. After a year, people figured out how to bypass the tests by swapping a ROM chip, but that was only because of bugs in the early version of Palladium. The PC Palladium will be harder to break once it ships.

Why is Msft doing Palladium? The obvious answer is for digital rights management of copyrighted audio and video, better control over its own software licensing, and an attack on the open source software movement. According to this Wired story, Msft denies that Palladium could be used to enforce software piracy, so Lucky Green applied for his own patents on ideas for using Palladium that way. Clever. But I suspect that Msft, IBM, Intel, and HP already have a lot of patents pending for applications of Palladium (which Intel calls LaGrande and the others call TCPA).

Update: John sends this story about Microsoft threatening to pull the Xbox from the Australian market.

George writes:

Why do you say that Lessig's view of copyright law being a quid pro quo is mistaken? The Constitution itself says that the govt grants the rights in exchange for the authors promoting progress.

No the Constitution does not say that. It does not mention granting anyone any rights, nor does it require that anyone promote progress to get a copyright. It says:

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Most of the Founders had a view of natural rights in which rights are not granted by the govt. The govt only protects rights that people already have. It is Congress that promotes progress by protecting those natural rights (for a limited time, in the case of copyrights and patents). Note that the text says that Congress with secure the right, not grant it. Note also that it refers to their writings, as if the authors already owned them.

According to this, the UK has granted a perpetual copyright to Peter Pan. It should have been an example of why we should not harmonize with Europe.

The Eldred transcript is somewhat unofficial, and represents an object lesson in copyright. This blogger got a copy and posted it, with some names filled in and formatting cleaned up. The official court reporter is selling it for $200 a copy. The official copy does not identify the justices asking questions, because the court prefers it that way. The justices don't like public scrutiny, and don't allow TV cameras either. Should the court reporter maintain its monopoly and get $200 for every download? I say no, not under copyright law. The court reporter has not contributed anything original, and there is no copyright in a court argument. I am sure the court reporter is unhappy that everyone is downloading it for free, but it really should never have gotten the monopoly in the first place.

Lessig did end up saying, "They cannot give a copyright purely for purposes of distribution to publishers." Jack Valenti argues:

"[Lessig] made it appear as if a picture goes into the public domain ... [as if it were] going into paradise with 72 vestal virgins escorting this film around ... If nobody owns the film, who's going to restore it? That costs $25,000 to $100,000. I don't think Mr. Eldred himself is going to spend that kind of money to restore a film that he doesn't own."

This argument doesn't make much sense to me. Movie copyrights now last for 95 years. Movies produce maybe 95% of their revenue in the first year after release. Is some studio going to stop distribution for 94 years, and then complain that a $25k restoration is not worth it because someone could copy it? Why did they wait 90 years if they really wanted to restore it?

Even assuming Valenti's facts, there are 100s of TV channels, and I would think that one might easily spend $25k just to show a movie once.

Spidering tip. If you want to automatically download stock quotes, Yahoo makes it easy to get them in a spreadsheet-ready format. Just use the URL: http://finance.yahoo.com/d/quotes.csv?s=GM+IBM+MSFT+^DJI&f=sl1d1t1

This gets General Motors, IBM, Microsoft, and the Dow Jones average. The f=sl1d1t1 is a format code for getting the symbol, last trade, date, and time. Here are the other codes:

f = format
s = symbol
l1 = last trade
d1 = date
t1 = time
c1 = change
o = open
h = high
g = low
v = volume

The data comes in Comma-Separated-Values (.CSV) format that all the spreadsheet programs recognize. You can also set up a portfolio online, but the above method is more easily automated.

According to this transcript, a computer is trying to retake the chess title from the (human) champion Kramnik, and has tied the match by heckling the poor human with Shakespearean taunts!

Andy reports that an AAPS lawsuit yielded an order to the FDA to stop requiring child testing. In other words, drug companies can still sell Ritalin to kids without ever testing it on kids. Here is the CNN story. Here is also a NYTimes story on a series of setbacks that the FDA has gotten in the courts for trying to grab too much power.
Andy writes:

I was just interviewed on the Bloomberg radio news about AAPS's victory against the FDA. Maybe some of you pick up that radio news. Here is a synopsis:
The reporter asked me who the co-plaintiffs are, which fortunately I had just previously checked: Competitive Enterprise Institute and Consumer Alert.
She asked me what the alternative is for testing these drugs used on children: I said use some of the over $20 billion that NIH has for medical research. I volunteered that some funding of testing of Ritalin and Prozac on children would be a good idea. There is plenty of research money already available to do this.
She asked me if I knew of any examples of drugs being delayed by the FDA for this reason. I said we challenged the rule quickly. The FDA is claiming the power to block drugs for this reason, and it would presumably exercise the power it claims.
She said the drugs can become available under the Rule during pendency of the child testing. Yes, the FDA can grant waivers. But it doesn't make sense to withhold a drug based on testing for a disclaimed use.
She allowed me final comments. I said that the FDA is too powerful. Consumers and the medical profession should have more decisionmaking responsibility about new drugs, especially for patients who are terminally ill.

Remember David Kessler? He's the nutcase who abruptly forced the suspension of breast implants for 45 days, as head of the FDA. That even though all studies have shown them to be harmless. Kessler was a Bush appointee that Clinton liked so much he kept him on for his entire first term.
So what's the career path for this liberal bureaucrat? Now he's dean of Yale Medical School. Sooner or later, all liberals end up in controlling positions in formal education.

John sends this National Review story:

the Ohio Department of Education voted 17-0 on Tuesday to pass a "resolution of intent" to adopt science standards that would allow students to "investigate and critically analyze" Darwin's theory of evolution. ...

"The new language is a clear victory for students, parents, and scientists in Ohio who have been calling for a 'teach the controversy' approach to evolution,'" ...

Those in the scientific mainstream say there is no genuine dispute over evolution — at least not within scientific circles. ...

People for the American Way flew in Ed Asner to read from Inherit the Wind [to promote an evolution requirement in Kansas] ...

It is amusing to see people argue about whether or not there is a controversy about something. It is also amusing to see the Science position represented by a TV actor working for a leftist political front reading from a fictionalized anti-McCarthyism play in order to make a statement about what is scientific and how other views should be suppressed.

CNN says: "The standards put into writing what many school districts already do -- teach evolution, but also explain that there is debate over the origin of life."

Bob writes: "If this were a legitimate scientific controversy it would be great. Unfortunately this is an attempt to pass religion off as science."

I don't see how it can be religion to critically analyze a scientific theory.

The copyright extension court transcript is now online. It looks to me like Lessig did not learn his lesson from his losing argument before the DC Circuit. Consider this exchange:

JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.

MR. LESSIG: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

JUSTICE KENNEDY: Well, perhaps I misunderstood. I thought the whole thrust of your argument was that there is a great First Amendment force here that's being silenced, that's being thwarted.

There are two main Constitutional arguments against copyright extension: that it (1) does not promote progress, and (2) is not effectively time-limited. Before the DC Circuit, Lessig refused to argue (1), and persuaded no one. Lucky for him, one judge got argument (1) from the Eagle Forum amicus brief and made a forceful enough argument to get the Supreme Court's attention. It amazes me that Lessig would make the same mistake again.

Copyrights and patents only promote progress to the extent that they provide incentives to authors and inventors. No one ever creates a work with the purpose of getting royalties 50 years after death. The only people who want the long copyrights are companies like Disney who have bought up the rights to long dead authors like Milne (who wrote the Winnie The Pooh books).

Also, Andy should note that Justice O'Connor mentions the Rule against perpetuities.

Andy responds:

Roger's excellent blog has a link to the full transcript for the oral argument in Eldred v. Ashcroft (the Mickey Mouse case): http://www.aaronsw.com/2002/eldredTranscript


Roger describes Lessig's dreadful admissions as "mistakes".  But they aren't mistakes at all.  His approach is one of public ownership.  He probably supports the vast federal ownership of land out West, for example.  Roger is pretending that Lessig's objection to the Sonny Bono law is the same as ours.  It isn't.


Kennedy is the leading free speech Justice on the Court.  He was biting on the First Amendment argument, which we made more forcefully than Lessig did.

JUSTICE KENNEDY: I thought that [the First Amendment is] the whole underpinning of your case.


MR. LESSIG: It's certainly the case that we are asserting, in light of the changed circumstances, that the opportunity to build upon works within the public domain is a fundamental First Amendment interest, and that the First Amendment values, the vital speech interest at stake of this case, is that the public domain be permitted as a source for cultivating work about our culture without unnecessary legal restriction.

Did you get that conclusion?  "that the public domain be permitted as a source for cultivating work about our culture"???  That's more an assault on private property than anything else.  It is not limited to speech.  Environmental groups would love this stuff.


It gets worse when Stevens asked a question:

JUSTICE STEVENS: Can I ask you about one of the limits, just focusing on the Copyright Clause and the progress of science and useful arts? In your view, does that -- is that limited to encouraging creativity by authors and inventors, or does it also include the distribution of materials that might not otherwise be distributed, like old films and so forth?


MR. LESSIG: We're happy to adopt a broader interpretation of what promote the progress is about, within the general framework that the Framers established in light of the English practice, which was a quid pro quo. The ability to facilitate distribution ...

Lessig's admission, of course, destroys his entire case.  Congress can justify its extension by promoting distribution of old works.  Justice Breyer, stunned, gives Lessig a second chance:


JUSTICE BREYER: So your answer to Justice Stevens is no, they cannot give a copyright purely for purposes of dissemination to publishers, is that right?


MR. LESSIG: No.


???  Did Lessig change his answer?  Doesn't look like it from the transcript.


I went back and looked at Lessig's briefs.  He clearly argued that Congress can extend copyrights on existing works if the "retroactive extension [is] in exchange for nothing new" like "restoring old works, or disseminating old works, or for any other progress-promoting activity" -- like his first answer (to Stevens) above.



Our brief invoked the Feist decision to demonstrate that a promise of restoration cannot justify a copyright extension.  "Preserving old works utterly fails to satisfy the constitutional requirements of "originality" or promotion of progress. Preservation is no more original than the compilation found unworthy of copyright protection in Feist. 499 U.S. at 364 (holding that "copyright rewards originality, not effort"). Preservation fails to promote progress within the meaning of the Copyright Clause, regardless of its value as "sweat of!
the brow." Id. at 354 ("Without a doubt, the 'sweat of the brow' doctrine flouted basic copyright principles.")."  Point I.C.


But are we stuck with Lessig's admission?


Lessig's final point in summary is this:

The delicate balance is that, under the most reasonable assumptions of copyright royalty income and under our interest rate of 7 percent, as the amicus economists note at page 6, note 6 of their brief, the current term gives authors 99.8 percent of the value of a perpetual term.  Now, that might be a delicate balance, that they give the author 99.8 percent and the public .2 percent, but in my mind, that's delicate in a very different sense of that term.

In other words, curtail private property by balancing it against public needs, the commons that Lessig keeps talking about.  No wonder the consensus is that Rehnquist is going to hold against Lessig.

One thing I've learned in my limited legal experience is that even big-shot lawyers who get paid the big bucks for doing court appearances often look bad in the transcripts. Sometimes I think I know what points they are making in court when I hear the arguments orally, but then when I see the transcripts, I am baffled. Part of the problem with the above Lessig exchange may be that he was interrupted before he could finish his point, and he sounded like he was making the opposite point. But really good arguers always stay firmly on their side of the issue, no matter how they might get interrupted.

I am inclined to agree with Andy that Lessig's problems are rooted in his political premises. In Lessig's view, copyright law is a quid pro quo between authors and the public, and the court should review it (with intermediate scrutiny) to see if it is a fair contract. His view is fundamentally mistaken.

This idea site suggests perpetual bubble wrap. It looks to me like it is already simulated here.

John sends this National Review article about an Oregon assisted suicide court case. I have to agree that calling it a states rights case is misleading. It is about whether it is lawful for the federal DEA to be licensing physicians to dispense narcotics for the purpose of killing people. Seems like a bad idea to me, even if assisted suicide is a good idea.

Idea to improve patents. I think that patents should have a Disclaims section, as well as a Claims section. The idea is that the claims are supposed to define what the patent covers, but a series of Federal Circuit court decisions over the last 10 years has undermined that. Now, to really understand what a patent covers, you have to get the entire file history for $300, and try to decipher the confusing record. It is nearly impossible because the court decisions are confusing and contradictory, and not even the examiner and the inventor at the time necessarily knew what they were disclaiming. If the examiner were to approve a Disclaims section at the time the patent issues, then maybe it would make looking at the file history irrelevant.

John sends this story followup:

Charges dropped against woman whose kids were sunburned

Steubenville, Ohio-AP -- Prosecutors have dropped all charges against a woman who was jailed for eight days after her children were sunburned at a county fair in Ohio.
Eve Hibbits was originally charged with three counts of felony child endangerment -- but those charges were later reduced to a misdemeanor and she was released from jail.
Her attorney says prosecutors went to court last week to have the charges dropped.
A prosecutor says Hibbits is cooperating with children's services workers.
A sheriff's deputy arrested her in August after noticing her two-year-old girl and twin ten-month-old boys had severely sunburned faces at the fair.

Some people would say that cooler heads prevailed and justice was done, but I am still outraged. Getting a sunburn from a day at the fair is not evidence of a felony. The mom spent 8 days in jail. The prosecutors probably knew all along that they'd never get a jury to convict her of a felony, so they punished her as much as they could without convicting her of anything. Note the statement about "cooperating". That is a euphemism for "we told her that if she wants her kids back, she'd have to agree to submit indefinitely to the dictates of some 22-year-old childless social worker". That way the authorities can punish the poor mom without ever proving anything in court. And they can rationalize it to the media by saying that she is voluntarily cooperating.

Astronomers report that a black hole is at the center of our Milky Way galaxy. It had been suspected for some time.

Some environmentalists want to restore the Hetch Hetchy valley in Yosemite park. San Francisco wants to spend a couple of billion dollars improving the water resevoir. Usually, the SF politicians pretend that they are environmentalists.

Utah has an innumerate health inspector:

The menu at the Coffee Garden at 900 East and 900 South in Salt Lake City has included a scrumptious selection of quiche for about 10 years.
The recipe calls for four fresh eggs for each quiche.
A Salt Lake County Health Department inspector paid a visit recently and pointed out that research by the Food and Drug Administration indicates that one in four eggs carries salmonella bacterium, so restaurants should never use more than three eggs when preparing quiche.
The manager on duty wondered aloud if simply throwing out three eggs from each dozen and using the remaining nine in four-egg-quiches would serve the same purpose.
The inspector wasn't sure, but she said she would research it.

I didn't know that we still had piracy on the high seas. This book says that there is still a lot of piracy.

Liza writes:

Any of you who think that Muslim terrorists will settle down once the U.S. stops supporting Israel should explain to me why Al-Qaeda just bombed hundreds of tourists in Bali, most of whom were not Americans. Australia suffered the most casualties.

This is a religious war - fanatical Muslims around the world against Christians and Jews. It is not just a question of Muslims resenting and attacking Israelis and Americans. The fanatical Muslims are equally vile in persecuting indigenous Christians in their homelands, some of which are far from the Mideast.

The only way to cow them is to use overwhelming force with Western technology, which they cannot duplicate. The logical next step after our success in Afghanistan is Iraq. Yes, it is expensive, but we have to do it or we will be sitting ducks for a lot more attacks.

John responds:

"This is a religious war" - Why does that sound familiar? Oh, yes: Pat Buchanan's address to the Republican Convention, Houston, August 17, 1992. The speech that his enemies in both parties said was responsible for Bush I losing to Clinton.

Liza says Bali proves that "The logical next step after our success in Afghanistan is Iraq." What an awesome non sequitur! If our "success in Afghanistan" did not prevent Bali, what reason to suppose that bombing Baghdad would prevent similar attacks?

I would draw a different lesson from the Bali bombing: That our U.S. style of warfare is powerless to defeat the enemy we face. See this column.

Liza responds:

So what would you do, John? Give up and let them go on attacking Americans and other Westerners?

The attack on the French tanker is more evidence that the jihad is not just directed against the U.S. and Israel. France has been anti-Israel and pro-Iraq for a long time.

Al Qaeda has been getting state sponsorship from a few countries such as Iraq. Without the state sponsorship, they would not be able to train, organize and equip. Kicking out the sponsoring regimes one by one will send a message to the remaining ones.

What religious war was Pat Buchanan talking about? Surely not the Muslim one? Perhaps the domestic policy split between devout Christians and almost everyone else?

John responds:

I never said this is only about Israel. That would be too simple. Israel is merely one front in a wider conflict.

Actually, we don't know that al Qaeda has been getting state sponsorship from Iraq. As Charlie Rangel quipped, "there's more al Qaeda in Buffalo than Baghdad" (referring to the recent arrests of 6 Yemeni-Americans)

We have already destroyed al Qaeda's principal state sponsor. It is not clear that there is any other state sponsor. Al Qaeda draws varying amounts of support from a number of states; probably a dozen states give al Qaeda more support than Iraq does.

Yes of course; but my point is that for the last 10 years Buchanan was demonized for declaring that "there is a religious war" - the same declaration you are now making.

If this is a religious war, why attack Iraq, the most secular Muslim country except Turkey?

Bush, meanwhile, has repeatedly denied that religion has anything to do with the war he has declared. He says Islam is a religion of peace.

How can we fight and win a religious war if our leaders deny it?

Americans don't know how to fight a religious war. If we did, surely Step One would be to enforce a clear boundary separating us from all the heathens, pagans, gentiles, and barbarians. Exclude them, deport them, keep them out.

Evidently, our leaders are unable or unwilling to take those simple first steps. Instead, we are constantly lectured that "diversity" is strength.

If this is a religious war, I fear that the advantage belongs to the side with the stronger religious belief.

Liza suggests we should "cow them" (Muslim fanatics) by using "overwhelming force with Western technology, which they cannot duplicate." But that strategy has been attempted for many years by Israel, without success.

Amusing Microsoft controversy. A Msft ad about a woman switching from a Macintosh turned out turned out to use a stock photo for sale on the web. Here's the AP story, with links to the pictures.

Andy writes:

Roger, John and Liza all reject the logical similarity between the limited times of the Rule Against Perpetuities (RAP) and copyright duration. That analogy would have been useful in rebutting the claim that any fixed duration is limited, and could have given Breyer a basis for striking the 1998 Act without striking the 1976 Act.

Roger says "Why should shortening a copyright cause any more chaos than extending a copyright?" The answer is because the former disrupts millions of contracts and settled expectations, while the latter does not.

John says a copyright "could be 500 years or even perpetual without violating the RAP." A 500 year copyright or even a life-plus-70-years copyright does violate the principle underlying the RAP, which has been my point. The reason is because it frustrates alienability in the later years, as a practical matter, the same problem that the RAP addresses in common law. We mentioned this point obliquely in our brief, describing how difficult it is to bargain with heirs of a "life plus 70 years" copyright near the end of that long term.

Neither Roger nor John give any yardstick for ascertaining the "limited times" of copyright. RAP, applicable at the drafting of the Constitution, gives this context.

Liza says "The Rule Against Perpetuities has no bearing on the present property interest created by copyright."

I'm drawing an analogy, not applying RAP directly to copyright.

We all missed the rebuttal to Congress' argument that any fixed time, even 500 years, is still "limited" under the Copyright Clause. The rebuttal is that "limited" should be comparable to the limited right to render property inalienable, typically no more than life plus 50 years. The reason for these limits on property is identical: preserving alienability and use by others are necessary to efficiency and progress.

It is not true that copyright shortening is more disruptive than copyright extension. The disruption is the same either way. When the copyright on Gone With The Wind was about to expire, the copyright holders made decisions based on that expiration, such as licensing sequels. Others invested in unlicensed sequels and parodies, to be released after expiration. Copyright extension disrupted all of those contracts and expectations.

It is annoying that Breyer would base his reasoning on the hypothesis that copyright shortening would be chaotic. There is no evidence on the record of shortening causing any disruptions. If he were honest, he'd want to remand for some fact-finding on the issue. But that won't happen. Maybe we should have explicitly addressed the argument.

The RAP argument might have been worth a parenthetical remark, but that's all.

Liza writes:

Andy, I don't understand yoiur argument about alienability at all. A long-term copyright is alienable the entire time. While the market for selling it may dwindle in the later years (because the royalties presumably dwindle and will be cut off at the end of the term), there is certainly a right to sell or assign it.

A lease can be for 99 years or 999 years without violating the Rule against Perpetuities. The Rule applies only to unvested future interests. A 95-year copyright is vested from day one.

Liza is not completely correct. Some of the rights are not alienable. Under 17 USC 106A, authors have rights to attribution and integrity that cannot be alienated. Furthermore, under 17 USC 203, even if the author has sold all his rights, he can still recover most of them after 35 years.

Andy writes:

Roger's examples of the inalienability of copyright are fascinating. They do constitute contingent future interests, the kind the RAP was worried about. But that wasn't what I was talking about.

Property becomes inalienable when the transaction costs for sale or licensing exceed the value. For copyright, this occurs as the number of owners increase. After the life of the creator, inalienability of copyright increases. By 60 years after life, inalienability dominates.

Liza wrote, "A lease can be for 99 years or 999 years without violating the Rule against Perpetuities."
Yes, because a 999 year lease does not render the property inalienable. A 999 year copyright would.

I'm still curious if Roger, Liza or John feel a 500 year copyright would violate "limited Times," and if so, why? Alienability and RAP provide a reason.

I tossed Human Events right in the garbage this week. It's lost its way. I wouldn't recommend it anymore. What finally pushed me over the edge is its bashing of Senator Bob Smith of NH on p. 2.

What bashing? It said that some voters wanted to write in Smith, but that Smith was supporting Sununu, the primary winner.

The C++ language is being ruined. I don't know what it is about C++ that encourages people to make things a whole lot more complicated than necessary. A good example is the latest addition to the Boost library. These are functions that the C++ community usually thinks should be added to the language. There is a Boost date/time library that has over 60 include files! If you just want the current time, it is extremely complicated. It also throw exceptions! So you need some tricky and unnecessary exception handling logic to do anything with dates.

The 1998 C++ standard has a new keyword called export. Apparently the idea was to make it possible to declare a template in a header file without giving the full definition. Unfortunately that is impossible, so any compiler that sees such a declaration has to find the template source code, whereever it is, and use that source whenever the template is instantiated. So the export keyword is completely useless. None of the major compiler vendors support it.

Judge Jackson finally defends himself for speaking to the press about the Microsoft case. The real problem is that the DC Circuit did not want publicity because it massively botched the case. Microsoft violated antitrust law, and violated its consent agreement, but it is not going to suffer any punishment because of horrible DC Circuit decisions. I'm glad that Jackson talked to the press about the case, because it gave the public an inside view of the case. We need more scrutiny of the courts, not less. I think that all federal court and appellate proceedings should be open to TV cameras.

John writes:

While everyone was focused on the famous case of U.S. v. Emerson (5th
Cir., Oct. 16, 2001), cert. denied (June 10, 2002)
Did anyone know that the Supreme Court has granted cert in anotherpotential Second Amendment case, U.S. v. Bean, also from Texas, also from the 5th Circuit?
Oral argument is Wednesday, Oct. 16. Briefs are posted here.

There is a direct split in the circuits, so the SC has to hear it. Under federal law, a felon loses his gun rights but can apply to the ATF to reinstate them, and appeal to the courts if rejected. The ATF refused to consider his application, but Congress didn't fund it. The case may not involve the 2A, and might just be an interpretation of the intent of Congress in the face of conflicting laws.

Andy writes:

Roger says the punitive judgment against Philip Morris is unreasonable. Yes, I'd agree, but that doesn't make it unconstitutional. State legislatures define what's legal and what isn't, and Fortune 500 companies can fend for themselves there. Courts shouldn't bail them out for refusing to back conservatives.

Roger claims "You need Fourier transforms to understand the uncertainty principle."
Hardly. From Roger's own link, the principle simply means "the better position is known, the less well the momentum is known (and vice versa)." Quantification adds little to this insight.

Re: the Coase theorem, Roger writes "It is just an observation."
Yes, like all of math and science.

In the Eldred v. Ashcroft copyright case, we all missed an argument that the copyright extension essentially creates inalienable interests contrary to the Rule Against Perpetuities (RAP), the Framers' intent, and Coase. The new copyright period is life of the creator plus 70 years. Assuming 30-year differences in generation, that leaves scattered grandchildren and great-grandchildren controlling the copyright, ultimately making it inalienable (if unsold until the end).

The RAP requires alienability within 21 years of the death of children, which in actuary terms would be about the life-plus-50 year period of the 1976 Act. The RAP does not require alienation, of course, but property taxes do. Copyright, lacking such taxes, creates practically inalienable property near the end of its term, and should not go beyond the RAP equivalent of life plus 50. This argument would have given the Court a way to differentiate the 1998 Act from the 1976 Act.

Though I could find nothing published on this, Coase reinforces the brilliance of the RAP in economic terms. Yet some states are quietly repealing RAP.

FYI, one scholar commented that the American revolution changed the view of property here from a political construct to a legal one. Anyone familiar with that? I suppose the Constitution does have strong clauses prohibiting government interference with property which were lacking before.

In QM, the wave function of a particle can be expressed as a function of position or as a function of momentum. One is the fourier transform of the other. Your statement of the uncertainty principle is just a crude statement of a property of fourier transforms. Theorems about fourier transforms give more precise quantitative info.

Andy cites the uncertainty principle as a example of a non-quantitative breakthrough. In fact, it is quite quantitative. As quantitative as any other breakthru I know. Does he think that a fourier transform is not quantitative?

In math and science, it usually takes a little more than an observation to win a prize. Mathematicians consider Nash's Nobel-prizewinning work to be his most trivial work.

So Andy would be hoping the US SC would find that the Constitution's "limited times" coincides with the ancient RAP limits? I doubt that would get any votes.

I guess the problem is that we need Breyer's vote, and Breyer thinks that invalidating the 1976 term extension would cause chaos. Breyer is nuts. Why should shortening a copyright cause any more chaos than extending a copyright? It is possible that contracts are written based on the expected life of the copyright, and that if a party misjudged the term, then he might have made a contract concession that he didn't need to make, and thereby lose money. But that can happen whether copyrights are made shorter or longer. No difference.

Perhaps Breyer was referring to the possibility that those who have been paying royalties on old works might suddenly demand their money back for what they paid since 1976. Yes, that might be chaos. But that would never happen anyway. Those people could have contested the 1976 law, and chose not to. There are statutes of limitations on contesting contracts. The SC would probably not invalidate the copyrights retroactively, but I don't think it would make much difference if they did.

Andy writes:

I haven't heard from John or Roger on the issue of punitive damages and the Constitution. A case is before the Supreme Court on that issue. Justice Thomas says there is no constitutional limit on punitive damages, and I agree. It's a matter of state law. Time for large corporations to start supporting conservative legislators, or be sacrificed by liberal attorneys.

The reality, of course, is that feminists dominate the politics of large corporations. Fortune magazine reflects this in its articles, which cater to the politics of corporate ad departments.

Roger says that Nash's Nobel prize had an even longer delay than Coase's, which was 31 years. Except Nash only received 1/3rd of a Nobel Prize, and I believe a key element of that Prize was less than 31 years from its award. But it's hard for me to tell, which says something about the award.

Many Nobel prizes have a liberal gloss, and Nash's is no exception. One or both of his co-winners worked on a nuclear disarmament project.

As to Kelvin's bias towards quantification, the greatest 20th century breakthroughs have been otherwise. The uncertainty principle, Godel's theorem and Coase's work all lack quantification. Kelvin, by the way, was a Creationist who lived long after fellow Brit Darwin proposed his theory.

I certainly do not think that it is reasonable that Philip Morris should pay $28B in punitive damages. I don't even agree that Betty Bullock should get any compensatory damages. Rarely do punitive damages make any sense. They should be abolished, or capped by statute, or made very difficult to get.

But what is the federal issue? Congress regulates tobacco, and PM followed regulations. Is the theory that runaway juries are a threat to interstate commerce? I think a $28B judgment is a threat.

Nash's work was 40+ years previous. I don't know about the co-winners.

See the Carter announcement? Amazing arrogance from a group that gave a peace prize to Arafat.

Huhh? You need Fourier transforms to understand the uncertainty principle. Eg, see this or this.

Goedel's theorem is based entirely on a quantification of proof theory.

Here is one statement of Coase's theorem: The initial allocation of legal entitlements does not matter from an efficiency perspective so long as they can be exchanged in a perfectly competitive market.

I guess I'll agree that there isn't much quantitive info here. It is just an observation.

InstaPundit points out how the gun control crowd makes contradictory arguments:
"Saturday Night Specials" (cheap handguns) = Bad, must be banned
"Military Style Handguns" (expensive handguns) = Bad, must be banned
"Assault Weapons" (inaccurate, short-range rifles) = Bad, must be banned
"Sniper Rifles" (accurate, long-range rifles) = Bad, must be banned

Update: Glenn asked the rhetorical question about tracing shell casings, "what are you going to do, put a barcode on them?" A few hours later, the NY Times published a story about a couple of inventors who got US Patent 6,462,302 for making gun barrels that put a bar code on the bullet as it is shot. The NY Times has a weekly column about patents that do not necessarily have any commercial value. It doesn't sound very practical to me.

One good byproduct of the war on terrorism is that it has derailed the Bush-Fox "migration agenda". The NY Times reports:

"It is very clear to me that [Mexican] President Fox understands he is not going to achieve much of his migration agenda in the next few years," said Sergio Sarmiento, a political columnist in Mexico City. ...
Mr. Bush said on Sept. 5, 2001, that "the United States has no more important relationship in the world than our relationship with Mexico." ...
Before the attacks, Mr. Fox had seized upon Mexico's enhanced status to push a migration project that was as ambitious as the North American Free Trade Agreement. Declaring himself president to 100 million Mexicans at home and 23 million in the United States, he challenged Washington to expand permanent visas and guest-worker programs for Mexicans, and to give legal status to about 3 million Mexican migrants.

John sends this latest Microsoft bug that allows a malicious person to take over your Windows computer. It was Microsoft's 58th security advisory this year. Here is a Microsoft flack, trying to put positive spin on the situation:

"Outlook Express ships with every Windows system, or rather as part of IE, so it's on every system. But unless it is configured to receive mail, you are not at risk," said Scott Culp, manager for Microsoft security response.

Joe writes:

Walter Williams is just not a Nobel-level guy. He wrote a good book, "The State Against Blacks." If you listen to him on Rush, he's really a Johnny-one note. Sowell probably should be a winner, but he has done virtually no quantitative work, and the judges seem to like that stuff.

"When you can measure what you are speaking about, and express it in numbers, you know something about it; but when you cannot measure it, when you cannot express it in numbers, your knowledge is of a meager and unsatisfactory kind: it may be the beginning of knowledge, but you have scarcely, in your thoughts, advanced to the stage of science." Lord Kelvin, Popular Lectures and Addresses (1891-1894)

Joe writes: "True, true , true. Let's see - was he the guy who said heavier than air vehicles would never fly?"

Andy (who ghost-wrote an Eldred amicus petition) writes:

Volokh's prediction and reasoning for a 6-3 win by Eldred are intriguing.

Like me, Volokh predicts Thomas, Scalia, Souter and Stevens will rule for Eldred, and Rehnquist and Ginsburg will rule for the Bush Administration. And maybe those are the 4 pro-Eldred votes to get him cert. (it only requires 4, not 5, votes for cert.).

But I disagree with Volokh about Kennedy and O'Connor, who I think will side with Congress and the Bush Administration. Kennedy, after all, hopes to be elevated to Chief Justice in 9 months when Rehnquist presumably resigns. So Eldred needs Breyer to win, I think.

Roger writes, "Laffer is a joke. He hasn't accomplished anything."

Just the greatest economic insight of the last 25 years: that lowering taxes increases government revenue, also called Supply Side economics.

I am sure that there is plenty of literature on optimal levels of taxation. What has Laffer contributed to it? Did he ever prove that tax levels were so high that lowering taxes would increase revenue? Where is that paper? Where is the proof? Laffer was all talk, no substance.

The US Patent Office has been issuing a lot of bad patents. Most of the weird ones are from crackpot inventors, but even IBM does kooky patents. Check out US Patent 6,329,919, issued Dec. 2001, for using restrooms on a first-come, first-served basis. It claims:

What is claimed is:
1. A method of providing reservations for restroom use, comprising: receiving a reservation request from a user; and notifying the user when the restroom is available for his or her use.

There are 4 inventors, and 64 claims. It also claims letting airline passengers use the restroom in the order of ticket price, so first class passengers could use it first.

No one should take the Nobel Peace Prize seriously, after Yassir Arafat won in 1994. Or maybe after Henry Kissinger won in 1973. Here is a good National Review column explaining why Jimmy Carter does not deserve the peace prize.

Washington Uinversity (St. Louis) refuses to let law students form a pro-life organization. The excuse: they don't oppose the death penalty! This is more evidence of intolerant left-wingers on campus.

NY Times has an article and editorial favorable to the Supreme Court rejecting copyright extension.

Here are 2 lame arguments defending copyright extension:

Olson gained ground when he invoked another clause of the Constitution, the "necessary and proper" clause, as a justification for the legislation as a matter of equity.

The court, [Olsen] said, should not say that 99 years is too long for a copyright to exist, noting that the works of Herman Melville and Franz Schubert ''weren't valued until many years after their deaths.''

No one could really think that anything is necessary about copyright law. If that argument were valid, it would justify any federal law.

The Melville argument is sillier. Melville died at age 72 in 1891. The NY Times obituary said, "forty years ago the appearance of a new book by Herman Melville was esteemed a literary event, not only throughout his own country, but so far as the English-speaking race extended. ... Years ago the books by which Melville's reputation had been made had long been out of print and out of demand. " His last novel was publish in 1857. Moby Dick was 1851. Apparently his novels were highly regarded when they came out, but the market only existed for a few years. A copyright of 10 years might have been as useful to him as a copyright of 50 years.

But under copyright extension, Melville's novel would still be copyrighted until 1961. Giving some publisher a monopoly in 1960 over Moby Dick would not have gotten Melville to write any more novels.

Andy writes:

Based on oral argument reports and the written reports, I conclude that the liberal Justices took to Lessig more than Rehnquist and O'Connor did. Maybe we have the Bajakajian situation, whereby Thomas joined Stevens, Souter, Ginsburg and Breyer to apply the Excessive Fines against the government and force it to return $357,144 to someone who merely had failed to report it. We could still win by trading Ginsburg for Scalia. But if Thomas holds against Eldred, Lessig's lost. Too bad Lessig didn't work harder to appeal to Thomas. Well, we did.

I don't know that Friedman is really a conservative. He opposed California's Proposition 13, for example. Libertarian might be a better label for Friedman.

The conservative economists are Thomas Sowell, Walter Williams and Arthur Laffer. There should be at least one Nobel Prize among them, but that hasn't happened and isn't likely to. Liberals don't like giving awards, particularly academic ones, to conservatives.

Economic theory for copyright seems badly underdeveloped. Easterbrook wrote a superficial piece and seemed to imply that he favors clear rules, by which he may mean strong copyrights on which the market can bargain. But that only works if you ignore the monopoly inherent in strong copyrights. I think he once sided with the dental association's control of its codes.

Volokh has a detailed prediction of a 6-3 in favor of ruling the extension unconstitutional.

Andy writes:

Joe wrote, "Chicago economists have dominated for the last 10-15 years." Interesting point, which led me to do some research.

Only established in 1969 and funded by the Swedish Federal Reserve (not Nobel), the Economics "Nobel" Prize has had a huge pro-quantitative bias. The publicized award to mathematician John Nash is a case in point. Did he ever even study or write about economics? )I'd question the movie's portrayal of him thinking about Adam Smith in the bar when he had his insight.)

Chicago likes the quantification approach and thus has done well with this prize. But I haven't heard of any of the prize-winners, except arguably Friedman (1976 winner), being conservative. Most of them tend to be utilitarian liberals, like Posner.

That's not to knock Chicago, though. Coase, an Englishman, did his great work there, and he ultimately did win an unshared Nobel Prize after an inordinate delay of 31 years. Judge Easterbrook, one of the best appellate judges in the country, came out of Chicago. So did Talent and Ashbrook.

Did Congress declare war today? I'm not sure. I just read press reports. It sounds like Congress really authorized the president to declare war. The Constitution says Congress has the power to declare war, and I don't think that Congress can delegate the power. But maybe the Congress just authorized the president to take emergency defensive measures. If so, the president has those powers anyway.

Bad day for free speech. It looks like oral arguments on copyright extension went badly for Lessig, according to NY Times, AP, LawMeme, and Kwin and more NY Times.

It sounded like Breyer was looking for a way to declare the 1998 law unconstitutional without touching the 1976 law, but Lessig could not give him any such rationale.

John writes:

Breyer's question was logical and foreseeable. However, I can think of no better answer than the one Lessig gave (according to Nina Totenberg's report on NPR/ATC): Yes, logic implies that if the 20-year extension passed in 1998 was unconstitutional, the earlier 20-year extension passed in 1976 was also unconstitutional, but there is ample precedent for the Supreme Court to make its decision prospective only and not retroactive.

The question is logical and foreseeable, but also stupid. The court only has to rule on the question before it, not hypotheticals about other laws. When someone brings a case that a punishment is cruel and unusual, the court rules on the issue without ever defining precisely which punishments are lawful and which are not. No one challenged the 1976 law.

The main purpose of the 1976 law was to remove the copyright notice requirement, and to move into conformance with the Berne convention. Maybe no one wised up to the fact that Congress had decided to pass a 20-year extension every 20 years. The 1998 law was more clearly an attempt to make copyrights perpetual.

Breyer's argument can just as easily be run the other way. He is saying, if the 1998 law is unconstitutional, then why isn't the 1976 law unconstitutional? He could just as easily ask, if the 1998 is constitutional, then does that automatically make extensions in 2018, 2038, 2058, etc. constitutional? If so, he just approved a perpetual copyright.

John writes:

Those are good, snappy answers. Too bad Lessig, apparently, wasn't prepared with a similar response to what now seems like an obvious objection.
Just because Breyer's question was obvious doesn't make it "stupid." The issue of whether a Supreme Court decision is retroactive has come up many times before. An experienced advocate would have been able to handle it.
Probably our best hope is simply the fact that the Court took the case. Why would they take it unless some justices, at least, were interested in overturning it? There was no split among the Circuits that needed to be settled.

Andy writes:

Good analyses by Roger and John, plus John's superb links. The internet sure is powerful. One link said that only those who were in the public line prior to 3 am actually got in!

Ginsburg didn't like the Free Speech argument, which is predictable because I think her husband practiced in copyright law for decades. But that doesn't mean Thomas won't like the Free Speech argument, and if he runs with its power than that it will influence the outcome.

Consistency in outcome with the 1976 Act is an issue, but I doubt that will be dispositive. Consistency, after all, is the hobglobin of little minds.

However, it does sound like Lessig stumbled as badly at oral argument as in his brief on his "balancing", good-government approach. From one observer: "Stevens asked whether a retrospective extension that does promote progress is permissible. Lessig said yes [N.B.: that admission loses the case]. Stevens then said that the 1998 law, at least on its face, does that. Lessig: well, that's the government's position. Stevens: but that's what you just said. Lessig: no, Congress still has to abide by the constitutional limits. We were all confused." Confused indeed. Lessig loses if the Court accepts his admissions.

Our brief strived to pick up Rehnquist et al. on the "limited government" approach of Lopez. A very astute observer saw this today. That observer wondered if "the court was interested in extending the precedent set in Lopez, which for the first time in many years constrained Congress' power to regulate interstate commerce. Some have thought that this issue would be raised by analogy from the commerce clause to the copyright clause. The Chief Justice is the only one who raised the issue in a single question to Prof. Lessig. The question was oblique, and only implied the question, but Prof. Lessig recognized it and provided the appropriate answer, which seemed to please the Chief Justice. It was not raised by any other justice, nor was the Solicitor General provided a similar question."

If Rehnquist bites on our Lopez argument, and Thomas bites on our Free Speech argument, then we probably win by adding Scalia, Breyer and Stevens or Souter or Kennedy. We could even lose Rehnquist and still win. But if Lessig's admissions like the one above stick, then we lose.

I agree with Andy that Lessig should have told Stevens that a retrospective copyright extension cannot promote progress because it cannot provide an incentive for the author.

Andy writes:

Roger's excellent blog has a link to a NY Times article, which made this observation:
Chief Justice William H. Rehnquist seemed unsympathetic to those who want the law overturned. "You want the right to copy people's works verbatim,'' he told Eldred's lawyer.
My reaction: unfortunately, this may also be the result of Lessig's liberal approach to the case. Lessig argues for public rights and common good. Lessig thinks private property rights should be balanced against the "commons". He proposes new balancing tests for copying of others works.
Apparently Rehnquist didn't think much of this approach, and neither do I. The only way the case can be won is to embrace private property, but that the government entitlement must be limited. Lessig's talk about the commons hurts our cause.

What is wrong with Lessig's answer:

Professor Lessig replied, "We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified" either under the First Amendment or Congress's copyright power.

We absolutely do want to right to copy verbatim works that are in the public domain.

Andy writes:

Professor Lessig replied, "We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified" either under the First Amendment or Congress's copyright power.
Roger wrote: "We absolutely do want to right to copy verbatim works that are in the public domain."

The flaw in Lessig's answer is that it inflames, rather than ameliorates, Rehnquist's concern about Lessig's assault on private property. Lessig argues that works should be in the public domain for the good of the "commons". His reasoning is anti-private property, and my guess is that Rehnquist will rule against him for that reason.

If Lessig were conservative, then he would have replied: "We do NOT support a right to copy verbatim the property of another. But as the Framers made clear, Congress has sharply limited powers to grant copyright entitlements. Protections other than copyright, such as trademark or licenses, can extend beyond the copyright entitlement to prevent copying."

Roger wrote, "Meanwhile, here is this year's Nobel tally:
Physics: USA, USA, Japan
Chemistry: USA, Japan, Swiss
Medicine: UK, UK, USA
Economics: USA, USA
Literature: Hungary
So US 6, Europe 4, Japan 2.
Sounds about right. US intellectual output is about the same as the rest of the world put together."

Non sequitur. The Nobel prize is a grant by liberals to liberals. How'd we do with the MacArthur prize this year? Same dynamic.

Conservatives would do well to criticize these prizes more. Brace yourself for the Nobel Peace prize, to be awarded tomorrow.

Update: here is Lessig's account of the hearing.