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dans vos oeuvres.
THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (CONTINUITY AND CHANGE) I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery.I am responsible for editing a THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM : HOW COPYRIGHT IS LIKE COGNITIVE IMPAIRMENT The Sweet 16 is another cognitive impairment test. Its creators did a study to validate that Sweet 16 and MMSE scores correlated strongly, and that the Sweet 16 could be as effective when used in a clinical setting. And now for the bad news. The Sweet 16 is no longer availablefor download.
THE LABORATORIUM (2D SER.) (CONTINUITY AND CHANGE) I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery.I am responsible for editing a THE LABORATORIUM (2D SER.) (SPEECH IN, SPEECH OUT) I have just posted Speech In, Speech Out, one of several scholarly responses included as part of Ronald K.L. Collins and David M. Skover’s new book, Robotica.The book is their take on how the First Amendment will adapt to an age of robots. To quote from the publisher’s description: THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CHILDREN'S ANIMATED SERIES, AS My Little Pony: Friendship is Magic: The brony thing is legitimately weird, but this is legitimately a great show.The combination of epic-fantasy plots with a deep dive on friendship is a winner (and has also been deeply influential on kids’ television). THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (SOCIAL MEDIA AND ORAL CULTURE) The Laboratorium (2d ser.) Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture. — an xiao mina (@anxiaostudio) January 3, 2015. A written culture assumption: selfies are the height of vanity. An oral culture reframing: selfies are a way to conveyemotion
THE LABORATORIUM (2D SER.) (TIMES OUT) On its website, Harvard uses Hoefler Text, which is a decent enough match for Old Style 7, comes preinstalled on Macs, and has advanced features like ligatures, ornaments, and bold.That’s how serious Harvard is about tradition: Old Style 7 doesn’t have bold, and neither does the Harvard Law Review. THE LABORATORIUM (2D SER.) (THE HOBBS LAND GODS) The setting for the book is that humanity has recently turned the planet of Hobbs Land into a quiet agricultural colony. It was previously occupied by a placid species called the Owlbrit, who moved about on detachable tentacles and left it dotted with small circular temples. A few of the inhabitants of Settlement One have taken up theOwlbrit
THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : TO KILL A SPARROW Kill fifty or a hundred, and you get a Mao button, a proud emblem of your revolutionary anti-sparrow zeal. Incredible as it may sound, this tactic works. Overnight, the sparrow population in Northern China falls to a small fraction of its former size. The CCP hands out a ridiculous number of Mao buttons. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (SOCIAL MEDIA AND ORAL CULTURE) The Laboratorium (2d ser.) Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture. — an xiao mina (@anxiaostudio) January 3, 2015. A written culture assumption: selfies are the height of vanity. An oral culture reframing: selfies are a way to conveyemotion
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : TO KILL A SPARROW Kill fifty or a hundred, and you get a Mao button, a proud emblem of your revolutionary anti-sparrow zeal. Incredible as it may sound, this tactic works. Overnight, the sparrow population in Northern China falls to a small fraction of its former size. The CCP hands out a ridiculous number of Mao buttons. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (SOCIAL MEDIA AND ORAL CULTURE) The Laboratorium (2d ser.) Until recently, many critiques of social media have come from the perspective of written culture, but the better framework is oral culture. — an xiao mina (@anxiaostudio) January 3, 2015. A written culture assumption: selfies are the height of vanity. An oral culture reframing: selfies are a way to conveyemotion
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM : AS FLIES TO WANTON BOYS As Flies to Wanton Boys. June 28, 2014 at 4:33 PM. 0 Comments. Most recent update: 9:05 PM, Monday June 30. If you were feeling glum in January 2012, it might not have been you. Facebook ran an experiment on 689,003 users to see if it could manipulate their emotions. One experimental group had stories with positive words like “love” and THE LABORATORIUM (2D SER.) (INTERNET LAW: CASES AND As usual, the book is available as a DRM-free PDF download on a pay-what-you-want basis with a suggested price of $30. It’s also available in a perfect-bound paperback version from Amazon for $65.25. Thanks as always to my editors at Semaphore Press for their fairer business model. In true Internet style, we cut out the middleman andpass the
THE LABORATORIUM (2D SER.) (SPYWARE VS. SPYWARE) I’m happy to announce a little non-coronavirus news. I gave a lecture at Ohio State in the fall for the 15th anniversary of their newly renamed Ohio State Technology Law Journal.It was a great program: Mary Anne Franks gave the other lecture and there were some unexpected but fascinating connections between our talks. My remarks have been going through the editorial pipeline, and just THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (THE HOBBS LAND GODS) The setting for the book is that humanity has recently turned the planet of Hobbs Land into a quiet agricultural colony. It was previously occupied by a placid species called the Owlbrit, who moved about on detachable tentacles and left it dotted with small circular temples. A few of the inhabitants of Settlement One have taken up theOwlbrit
THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (COMPUTER-GENERATED WORKS The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (CONTINUITY AND CHANGE) I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery.I am responsible for editing a THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (CONTINUITY AND CHANGE) I am pleased to say that I have joined the editorial board of the Communications of the ACM, the monthly journal of the world’s leading computer-science professional society, the Association for Computing Machinery.I am responsible for editing a THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) (SPYWARE VS. SPYWARE) I’m happy to announce a little non-coronavirus news. I gave a lecture at Ohio State in the fall for the 15th anniversary of their newly renamed Ohio State Technology Law Journal.It was a great program: Mary Anne Franks gave the other lecture and there were some unexpected but fascinating connections between our talks. My remarks have been going through the editorial pipeline, and just THE LABORATORIUM : TO KILL A SPARROW Kill fifty or a hundred, and you get a Mao button, a proud emblem of your revolutionary anti-sparrow zeal. Incredible as it may sound, this tactic works. Overnight, the sparrow population in Northern China falls to a small fraction of its former size. The CCP hands out a ridiculous number of Mao buttons. THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (FAITH-BASED INTELLECTUAL The Laboratorium (2d ser.) Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legalacademy.
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (SPEECH IN, SPEECH OUT) I have just posted Speech In, Speech Out, one of several scholarly responses included as part of Ronald K.L. Collins and David M. Skover’s new book, Robotica.The book is their take on how the First Amendment will adapt to an age of robots. To quote from the publisher’s description: THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (THE HOBBS LAND GODS) The setting for the book is that humanity has recently turned the planet of Hobbs Land into a quiet agricultural colony. It was previously occupied by a placid species called the Owlbrit, who moved about on detachable tentacles and left it dotted with small circular temples. A few of the inhabitants of Settlement One have taken up theOwlbrit
THE LABORATORIUM (2D SER.) (TIMES OUT) The typical law-review article of 2015 looks a lot like the typical law-review article of 1965 or 1915: same arrangement of text and footnotes on the same size page, same general citation style, samethis
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) The facts are simple: Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. THE LABORATORIUM : HAPPY FATHER'S DAY Happy Father’s Day. June 18, 2000 at 12:00 AM. 0 Comments. Father's Day was originally a pagan holiday, the Great Sky-Father's Day. Part of the week of celebrations leading up to the summer solstice, the day was give over to celebrating the Sky-Father's providing for his human children with his rich gifts of sun and rain. THE LABORATORIUM (2D SER.) (RM RMS) I was shocked to learn that Richard Stallman will be returning to the Free Software Foundation board of directors. Stallman resigned as president of the FSF and from his position at MIT in 2019 after making offensive profoundly misinformed statements about victims of sexual trafficking and abuse. His inexcusable remarks were the triggering incident, but it should have happened years before. THE LABORATORIUM (2D SER.) (SSRN AND THE 15-STEP LOGIN) Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. Put my finger on the home button to authenticate myself using TouchID. Tap on “Sign in”. Wait a couple of seconds, then cancel the page load. Tap the browser’s Back button. Tap the browser’s Back button. Tap on“Open PDF in
THE LABORATORIUM (2D SER.) (THE COPYRIGHT LAW OF EMBEDDING The server test, although widely relied on by Internet users and Internet services, has also been criticized. The third SDNY embedding API case, Goldman v. Breitbart, held that the defendant websites could be liable for Twitter embeds of Goldman’s photograph. In a detailed opinion, the Goldman court considered and rejected the server test. THE LABORATORIUM (2D SER.) (TAKING A CRISIS SERIOUSLY) Taking a Crisis Seriously. Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to tortureone of
THE LABORATORIUM (2D SER.) (WORKING TOWARD THE FÜHRER) Since the mid-1920s, ideological orthodoxy was synonymous with adherence to Hitler. 'For us the Idea is the Führer, and each Party member has only to obey the Führer,’ Hitler allegedly told Otto Strasser in 1930. The build-up of a 'Führer party’ squeezedheterodox positions
THE LABORATORIUM (2D SER.) (CPU, ESQ.) I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write. The tentative title is CPU, Esq.:How Lawyers and Coders Do Things withWords.
THE LABORATORIUM (2D SER.) (BORROWING TIME) Survival that night was a very tight race, and savagely simple. People who started early and moved fast had some chance of winning. Peoplewho started late or
THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (INTERNET LAW: CASES AND As usual, the book is available as a DRM-free PDF download on a pay-what-you-want basis with a suggested price of $30. It’s also available in a perfect-bound paperback version from Amazon for $65.25. Thanks as always to my editors at Semaphore Press for their fairer business model. In true Internet style, we cut out the middleman andpass the
THE LABORATORIUM (2D SER.) (COVID-22) The Laboratorium (2d ser.) A blog by James Grimmelmann Soyez réglé dans votre vie et ordinaire afin d'être violent et originaldans vos oeuvres.
THE LABORATORIUM (2D SER.) (MICROSOFT AND THE GOVERNMENT I’m taking part in a blog symposium at Just Security on the United States v. Microsoft case currently before the Supreme Court. My essay, thrillingly titled “The Parties in U.S. v. Microsoft Are Misinterpreting the Stored Communications Act’s Warrant Authority” makes two arguments.First, framing the case as a question of whether the SCA is “domestic” or “extraterritorial” is THE LABORATORIUM (2D SER.) (RENVOI AND THE BARBER) I have a new essay, Renvoi and the Barber, in The Green Bag 2d, 1.Here is the abstract: The renvoi paradox in choice of law arises when two states’ laws each purport to select the other’s law. The barber paradox in the foundations of mathematics arises when a set is defined to contain all sets that do not contain themselves, or, more famously, when a barber shaves all men who do not shave THE LABORATORIUM (2D SER.) (THE KILL AND EAT YOU PARTY) August 9, 2016. Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: One person wants plain cheese pizza. One person wants vegan fig and mushroom pizza. One person wants to kill and eat youbecause the
THE LABORATORIUM (2D SER.) (TIMES OUT) The typical law-review article of 2015 looks a lot like the typical law-review article of 1965 or 1915: same arrangement of text and footnotes on the same size page, same general citation style, samethis
THE LABORATORIUM (2D SER.) (BY NO MEANS A PHILOSOPHER) The present author is by no means a philosopher. He has not understood the system, whether there is one, whether it is completed; it is enough for his weak head to ponder what a prodigious head everyone must have these days when everyone has such a prodigious idea. THE LABORATORIUM (2D SER.) (RISKSTARTER) The Kickstarter model shifts some of this creative risk onto backers. By fronting the money, they climb in the boat with the creator. Ideally, they make a rational calculation about how much they’re willing to lose if sinks. (Kickstarter’s required disclosures aresupposed to
THE LABORATORIUM (2D SER.) (EMOTIONAL MOBILIZATION, OR OLD Emotional Mobilization, or Old Man Yells at Death of Reason. One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair. By this, I don’t mean that government has been captured by THE LABORATORIUM (2D SER.) (IMPEACH DONALD TRUMP) I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. THE LABORATORIUM (2D SER.) A BLOG BY JAMES GRIMMELMANN SOYEZ RÉGLÉ DANS VOTRE VIE ET ORDINAIRE AFIN D'ÊTRE VIOLENT ET ORIGINAL DANS VOS OEUVRES. SSRN AND THE 15-STEP LOGIN This is what I have to do to read an article on SSRN from my iPad: * Tap on the link to the SSRN page in my RSS reader. * Tap on the “Open this page in Safari” icon. * Wait a couple of seconds, then cancel the page load. * Tap on “Open PDF in Browser.” * Wait a couple of seconds, then cancel the page load. * Tap “Sign in and Download” * Wait a couple of seconds, then cancel the page load. * Tap on the “Email Address” field. 9 Tap on the Safari button to fill in my stored username and password. * Put my finger on the home button to authenticate myself usingTouchID.
* Tap on “Sign in” * Wait a couple of seconds, then cancel the page load. * Tap the browser’s Back button. * Tap the browser’s Back button. * Tap on “Open PDF in Browser.” As best I can tell, there are three separate issues. First, SSRN pages have _something_ on them that loads so slowly as to block the entire page from displaying, hence the need to cancel page loads in steps 3, 5, 7, and 12. Second, SSRN logins time out incredibly quickly, so that I have to go through steps 6 through 15 frequently. And third, SSRN loses track of what it was doing during the sign in process, so that rather than just showing me the article when I complete the login process, I have to manually go back to the article page in steps 13through 15.
The whole thing is enough of a hurdle that it makes me think twice before trying to read anything. It’s also flakier and more annoying than the login process for anything else I read online. I have been saying for years that the steps SSRN takes to generate its download counts substantially reduce the actual readership for scholarship, and it is quite frustrating to have become an example of this pattern. _✳ frustrations _May 13, 2020
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SPYWARE VS. SPYWARE
I’m happy to announce a little non-coronavirus news. I gave a lecture at Ohio State in the fall for the 15th anniversary of their newly renamed Ohio State Technology Law Journal.
It was a great program: Mary Anne Franks gave the other lecture and there were some unexpected but fascinating connections between our talks. My remarks have been going through the editorial pipeline, and just today the student editors emailed me the final PDF of the essay. And so I give you _Spyware vs. Spyware: Software Conflicts and User Autonomy_.
By remarkable coincidence, my talk started with … a massive Zoomprivacy hole.
> This is the story of the time that Apple broke Zoom, and everybody > was surprisingly okay with it. The short version is that Zoom > provides one of the most widely used video-conferencing systems in > the world. One reason for Zoom’s popularity is its ease of use; > one reason Zoom was easy to use was that it had a feature that let > users join calls with a single click. On macOS, Zoom implemented > this feature by running a custom web server on users’ computers; > the server would receive Zoom-specific requests and respond by > launching Zoom and connecting to the call. Security researchers > realized that that web pages could use this feature to join users to > Zoom calls without any further confirmation on their part, > potentially enabling surveillance through their webcams and > microphones. The researchers released a proof-of-concept exploit in > the form of a webpage that would immediately connect anyone who > visited it to a Zoom video call with random strangers. They also > sketched out ways in which the Zoom server on users’ computers > could potentially be used to hijack those computers into running> arbitrary code.
>
> After the story came to light, Apple’s response was swift and > unsparing. It pushed out a software update to macOS to delete the > Zoom server and prevent it from being reinstalled. The update was > remarkable, and not just because it removed functionality rather > than adding it. Typical Apple updates to macOS show a pop-up > notification that lets users choose whether and when to install an > update. But Apple pushed out this update silently and automatically; > users woke up to discover that the update had already been > installed—if they discovered it at all. In other words, Apple > deliberately broke an application feature on millions of users’ > computers without notice or specific consent. And then, six days > later, Apple did it again.>
> There is a lot that could be said about this episode; it illuminates > everything from responsible disclosure practices to corporate public > relations to secure interface design for omnipresent cameras and > microphones. But I want to dwell on just how strange it is that one > major technology company (AAPL, market capitalization $1.4 trillion) > deliberately broke a feature in another major technology company’s > (ZM, market capitalization $24 billion) product for millions of > users, and almost no one even blinked. We are living in a William > Gibson future of megacorporations waging digital warfare on each > other’s software and everyone just accepts that this is how life> is now.
Here is the abstract: > In July 2019, Apple silently updated macOS to uninstall a feature in > the Zoom webconferencing software from users’ computers. Far from > being an abberation, this is an example of a common but > under-appreciated pattern. Numerous programs deliberately delete or > interfere with each other, raising a bewildering variety of legal> issues.
>
> Unfortunately, the most common heuristics for resolving disputes > about what software can and cannot do fail badly on > software-versus-software conflicts. Bad Software Is Bad, which holds > that regulators should distinguish helpful software from harmful > software, has a surprisingly hard time telling the difference. So > does Software Freedom, which holds that users should have the > liberty to run any software they want: it cannot by itself explain > what software users actually want. And Click to Agree, which holds > that users should be held to the terms of the contracts they accept, > falls for deceptive tricks, like the the virus with a EULA. Each of > these heuristics contains a core of wisdom, but each is incomplete> on its own.
>
> To make sense of software conflicts, we need a theory of user > autonomy, one that connects users’ goals to their choices about > software. Law should help users delegate important tasks to > software. To do so, it must accept the diversity of users’ skills > and goals, be realistic about which user actions reflect genuine > choices, and pay close attention to the communicative content of> software.
_✳ scholarship _April 7, 2020
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COVID-22
“Hey, Doc,” said Yossarian. “I think I have coronavirus.” Doc Daneeka picked up his chair and backed away until he was six feet from Yossarian. “Don’t worry, you don’t have coronavirus.” “How do you figure that, Doc?” asked Yossarian. “I’ve got a bad fever and a cough and I’m starting to have trouble breathing.” “Those are the symptoms of coronavirus, but you don’t havecoronavirus.”
“How do you know?” “You haven’t tested positive. If I give you the test and it comes back positive, that’s how you know you have coronavirus.” “Okay, Doc, give me the test.” Doc Daneeka shrugged. “They only give me five kits a day, so I can’t give one to just anyone.” “But I have all the symptoms,” said Yossarian, shifting in hischair.
“Fine, I’ll do the questionnaire, but it won’t change the answer,” said Doc Daneeka, pulling out a pad and a pen. “Do youhave a fever?”
“Yes, of course I do, you checked me yourself just now. A hundredand four.”
“Patient reports a fever of one hundred and four degrees,” said Doc Daneeka, writing something on his pad. “Have you had a dry cough?” Yossarian started to reply, but then a coughing fit came over him and he doubled over in pain. Doc Daneeka reached up to adjust the mask on his face, then remembered he wasn’t wearing one and covered his mouth and nose with his elbow. After a while, Yossarian continued, “Yes, I have a cough. It hurts like hell.” “Patient reports a dry cough,” Doc Daneeka wrote. “Have you had difficulty breathing?” “Since this morning, and it’s getting worse.” “Patient reports trouble breathing,” Doc Daneeka said. “There. So, can you give me the test now?” asked Yossarian. “Wait, wait, we’re not done with the questionnaire. Just one more question. Have you had any contact with confirmed cases ofcoronavirus?”
“Nately and McWatt both have it. And Orr’s been keeping me up for days with his coughing. He’s got a terrible case.” “Okay, give me a moment.” Doc Daneeka pulled out a stack of files and started flipping through them, making hmm-hmm noises to himself. After a bit, he looked up, satisfied, and nodded. “You don’t have coronavirus. You have no known contacts with confirmed carriers.” “But I just told you, I’ve been around Nately and McWatt and Orr and they all have it.” “They don’t have coronavirus.” “Yes, they do, the cough and the fever and everything.” “No, they don’t. They didn’t test positive.” Yossarian relaxed. “That’s a relief. I was afraid there was a coronavirus cluster on the base. What do you think they haveinstead?”
Doc Daneeka shrugged. “I don’t know. I haven’t tested them.” Yossarian immediately sat back up, nervous again. “I thought you said they tested negative. How could they test negative if you didn’t test them?” “No, I said they didn’t test positive.” “But the only reason they didn’t test positive was because you didn’t test them at all!” said Yossarian, agitated. “That’s right,” said Doc Daneeka, clearly pleased that Yossarian understood him at last. “And you can’t test me until they test positive.” “That’s right, too.” “So why don’t you give them the test too, and then we can all gettreated?”
Doc Daneeka sighed and pulled out some sheets of paper from his files. “They don’t qualify for the test. Look, here’s Orr’s questionnaire. And here’s McWatt’s. No contact with confirmedcases.”
Yossarian squinted. From six feet away, all he could make out was a big red stamp reading INELIGIBLE at the bottom of each sheet. “So let me get this straight. You can’t test me unless I have contact with someone who tests positive. But you haven’t tested any of my contacts because they haven’t had any contact with anyone who testspositive.”
“Yes, that’s right. Testing resources are extremely limited. The kits came with strict orders not to give them to anyone who fails thequestionnaire.”
Yossarian thought for a bit. “You’re really going to send me back out where I’m going to cough all over everyone else on the base? So if Dunbar comes in here and says ‘I’ve got trouble breathing, I think I have coronavirus’ he won’t get tested either because I didn’t get tested.” Doc Daneeka smiled again. “Yes, that’s what it says in the Army coronavirus guidance.” Yossarian sighed, resigned. “How many cases are there on thebase?”
“Zero.”
“Zero? Really?”
“Zero.”
Yossarian leaned in toward Doc Daneeka. Doc Daneeka leaned back to keep an even six feet away. “Just one more question. How many tests have you performed?”“Zero.”
Yossarian pushed himself to his feet, staggered out of the room, screamed for a bit, broke down coughing, then came back in and slumpedin the chair.
“It’s like I said,” Doc Daneeka said, as though Yossarian had been sitting there all along. “The Army coronavirus guidance says I can’t test anyone who hasn’t had contact with a confirmed case, and there are no confirmed cases on this base.” He pulled out a rubber stamp, inked it, and stamped INELIGIBLE on the bottom of Yossarian’s form. “Look on the bright side, though. At least you don’t have coronavirus.” ------------------------- _With thanks to to Maciej Cegłowskifor the observation
for the
observation that this is a Joseph Heller pandemic._ _✳ covid19 covid22_
April 3, 2020
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BORROWING TIME
> Survival that night was a very tight race, and savagely simple. > People who started early and moved fast had some chance of winning. > People who started late or hesitated for any reason had no chance at > all. Action paid. Contemplation did not. The mere act of getting > dressed was enough to condemn people to death, and although many of > those who escaped to the water succumbed to the cold, most of the > ultimate winners endured the ordeal completely naked or in their > underwear. The survivors all seem to have grasped the nature of this > race, the first stage of which involved getting outside to the Deck > 7 promenade without delay.>
> –William Langeweische, _A Sea Story_> ,
> The Atlantic (May 2004) I am not absolutely certain that protecting the public from coronavirus requires the same remorseless haste as escaping the sinking of the ferry _Estonia_, but I increasingly and uncomfortably believe that the chance is high enough that we must act as though itdoes.
This past week, the United States tried social distancing with all deliberate speed. Stores closed, parades cancelled, universities went online. Restaurants and bars are open but often with curfews and capacity limits. And many school systems announced that they would be closed for a week or two. How did it go? Not so great:
> In Seattle, where one hospital is reportedly preparing for Northern > Italy levels of infection and already running low on some supplies, > bars in the Capitol Hill neighborhood have been full of people. On > Friday evening, a Twitter search for the phrase “the bars are > packed” yielded hundreds of tweets from cities like Baltimore; > Columbus, Ohio; Los Angeles and New York City. On Saturday in > Chicago, one reporter tweeted a photo of a line around the block for > a St. Patrick’s Day bar crawl at 8 a.m. This doesn’t sound good either:
> On Wednesday night, as President Trump was announcing a travel ban > from Europe to the United States, hundreds of residents at The > Villages freely roamed the sprawling property. Partygoers danced to > the live music presented nightly, ignoring the warnings of the CDC > to practice social distancing — “remaining out of congregate > settings, avoiding mass gatherings” and maintaining a distance of > about six feet to guard against infection.>
> “We’re living the last third of our lives,” Sal Gentile, 70, > wrote in response to a Washington Post inquiry. “We’re bolder, > not older. Time to be mindful. Take a deep breath and enjoy life. We > worked many decades to now have the privilege of being older. … > Yep, I have a pacemaker and recent fusion; however my love for > quality of life is more important to me than being rattled by a TV> station.”
Also pretty bad
:
> Airports around the country were thrown into chaos Saturday night as > workers scrambled to roll out the Trump administration’s hastily > arranged health screenings for travelers returning from Europe.>
> Scores of anxious passengers said they encountered jam-packed > terminals, long lines and hours of delays as they waited to be > questioned by health authorities at some of the busiest travel hubs > in the United States. If this is broadly representative, then we are doing exactly what Italy did at the same point in its infection curve. Their grim and worsening present will be our future. People will die, in great andterrible numbers.
If people will not voluntarily keep away from each other, government will need to make them keep away from each other. Close the bars. Close the restaurants. Close the churches. Close the stores, except for groceries, pharmacies, and a few other essentials. And most especially, close the schools. These moves will eliminate the most extreme and outrageous concentrations of people infecting each other. And they will also signal, clearly and unmistakably, that people should treat their own social distancing as a matter of life and death, because it is. (If not their own, then those of people they love, and of their fellow Americans.) There are obvious and quite severe costs to taking these steps. They shutter more businesses and put more people out of work. They isolate people mentally as well as physically. And they make it harder for the work that must still be done to get done. The schools are an especially poignant case. Many children depend on schools to eat; many parents depend on schools to be able to work. A nurse at home watching two children off from school is a nurse who is not able to care forpatients.
These costs, however, are no longer reasons to delay shutting everything down. They are instead problems that must be solved as part of shutting everything down. If businesses can’t survive without customers, _give them loans_. If employees can’t survive without a paycheck, _give them money and food_. If people depend on schools to watch their children, _find a way to provide childcare safely for those who truly need it_. If everyone needs company for their mental health, _find news ways to create community_. And so on. This will require institutional improvisation on a vast scale. So be it. That iswhat is required.
This is not easy. This is not cheap. It will be wrenching, and it will make people suffer. But if the coronavirus continues to spread in the way it has so far, a _shutdown is inevitable_. The choice is not between a shutdown and no shutdown. It is between a shutdown now and a shutdown later, between a shutdown on terms we can partially control and a shutdown on terms that are forced on us, between a shutdown when it still can do some good and a shutdown that comes too late. One might say (as the United Kingdom appears to be saying) that it is better to wait until it is truly necessary. This is a risky strategy, bordering on reckless. It takes a long time to stop even after slamming on the brakes. If you are wrong about how fast you are going, how far you are from the wall, or how effective the brakes are,disaster can ensue.
And even more importantly, _buying time now_ is incredibly precious. We have squandered the time we had from the early warnings of a serious new infection in Wuhan, time that could have been used to create tests, increase hospital capacity, stockpile equipment, and take a million other preparations. Those preparations are in full swing now. An extra few weeks would be a profound gift to hospitals, to local governments, to laboratories, and to everyone else racing to brace for impact. It would also be a profound gift to the doctors and epidemiologists and other researchers trying to understand the coronavirus and develop strategies to deal with it. Think about how much clearer the picture of coronavirus’s spread in the United States is now than it was two weeks ago, and how much better we understand what is and isn’t proving effective in slowing that spread around the world. I wrote a few days ago that the clock is ticking.
I meant it as a call to action. But it has an important corollary. Stalling for time is a kind of action, too._✳ covid19 _
March 15, 2020
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TAKING A CRISIS SERIOUSLY Two decade-defining crises ago, in the aftermath of September 11, there was a brief period of intense public debate about the ethics of torture. One trope that regrettably recurred in those debates was the ticking time bomb: what if the only way to find and disarm a nuclear device in a major city was to torture one of the terrorists responsible? It turned out that _24_ was a poor guidebook for national security policy: the United States tortured prisoners on a vast scale, some of whom were completely innocent victims of mistaken identity, for negligible public benefit, and we are still dealing with the terrible consequences of that terrible decision. But although its application to torture was a moral and policy catastrophe, the general form of the argument is sometimes valid. In a true national crisis, when time is of the essence, strict adherence to rules is sometimes indefensible. When lives are on the line, either the law should bend to allow swift preventative action, or those charged with enforcing the law should ignore it in service of thegreater good.
This isn’t universal. True crises are rare. Some rules, like the rule of law and essential human rights, are so fundamental they must be upheld even in crises. And a rationally structured response is almost always better than throwing the rulebook out the window and choosing anarchy as a strategy. The point is only that sticking to rules _just because they are the rules_ in a true crisis is a failure to take the crisis seriously.Case in point
:
> As luck would have it, Dr. Chu had a way to monitor the region. For > months, as part of a research project into the flu, she and a team > of researchers had been collecting nasal swabs from residents > experiencing symptoms throughout the Puget Sound region.>
> To repurpose the tests for monitoring the coronavirus, they would > need the support of state and federal officials. But nearly > everywhere Dr. Chu turned, officials repeatedly rejected the idea, > interviews and emails show, even as weeks crawled by and outbreaks > emerged in countries outside of China, where the infection began. It appears there were two objections. First, there was a regulatory game of buck-passing over which laboratories could perform coronavirustests:
> But there was a hitch: The flu project primarily used research > laboratories, not clinical ones, and its coronavirus test was not > approved by the Food and Drug Administration. And so the group was > not certified to provide test results to anyone outside of their own > investigators. They began discussions with state, C.D.C. and F.D.A. > officials to figure out a solution, according to emails and> interviews. …
>
> C.D.C. officials repeatedly said it would not be possible. “If you > want to use your test as a screening tool, you would have to check > with F.D.A.,” Gayle Langley, an officer at the C.D.C.’s National > Center for Immunization and Respiratory Disease, wrote back in an > email on Feb. 16. But the F.D.A. could not offer the approval > because the lab was not certified as a clinical laboratory under > regulations established by the Centers for Medicare & Medicaid > Services, a process that could take months. This reverse turf war between CDC, FDA, and CMS delayed testing for two weeks, until the Seattle Flu Study simply went ahead and started testing without government approval of the test. Dr. Chu and her colleagues took the crisis seriously; the government agencies whose job it is to take public health crises seriously did not. The second problem was an issue of research ethics: > On a phone call the day after the C.D.C. and F.D.A. had told Dr. Chu > to stop, officials relented, but only partially, the researchers > recalled. They would allow the study’s laboratories to test cases > and report the results only in future samples. They would need to > use a new consent form that explicitly mentioned that results of the > coronavirus tests might be shared with the local health department.>
> They were not to test the thousands of samples that had already been> collected. …
>
> On March 2, the Seattle Flu Study’s institutional review board at > the University of Washington determined that it would be unethical > for the researchers not to test and report the results in a public > health emergency, Dr. Starita said. Since then, her laboratory has > found and reported numerous additional cases, all of which have been> confirmed.
Credit is due to the UW IRB for correctly recognizing the ethics of the situation. Where the federal regulators thought that the interests of the patients who had provided samples _prohibited_ repurposing them to track the spread of coronavirus, the IRB saw that testing the samples for coronavirus was not just ethically _allowed_ but ethically _required_. But it should not have taken until March to make thiscall.
The ticking-time-bomb torture scenario exists only in writers’ rooms and in philosophical thought experiments. But the samples sitting in the Seattle Flu Study’s lab were real. Early testing would have shown where an explosively deadly pathogen was hidden in the community. The only thing missing to make it a genuine ticking-time-bomb case was a literally ticking clock. Indeed, the ethics of testing the coronavirus samples tilt decisively toward breaking the normal rules in a way that not even the most strained torture hypo can match: * The purpose of the certification rules is to make sure that tests are reliable. But in the face of a public health emergency, an unreliable test is still far better than no test. A false positive requires unnecessary quarantine – but many thousands of people who are not coronavirus carriers have already been quarantined simply out of an abundance of caution. And a false negative, while obviously not good, is still a big improvement over simply assuming that everyone who has not been tested is also uninfected. * The purpose of the informed-consent rules is to protect research participants’ autonomy. But you know what also harms peoples’ autonomy? Dying of an undiagnosed viral infection. People who have agreed to be tested for flu and to have those samples analyzed to promote public health would almost certainly want their samples to be tested for a similar virus posing even greater individual and publichealth risks.
* The cost-benefit analysis of whether to suspend the rules tips decisively in favor. The public at large faced high risks of widespread harm, a risk that could be mitigated by testing. People will die because the tests weren’t run earlier, a lot of people. On the other side of the ledger, biological specimens don’t suffer in the slightest when you run diagnostic tests on them. In short, people talk in the abstract about ticking time bombs, and sometimes they use that logic to justify abhorrent actions. But confronted with an actual crisis in which swift action is essential and essentially harmless, people can display a shocking inability to act as though their actions matter. Few us of face decisions that matter this much. But in the face of coronavirus, every single one of us faces decisions that matter. Flatten the curve. The clock is ticking._✳ covid19 _
March 12, 2020
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KILL-ALL’S PATENTED RAT TRAP > For example, I think that references to patents, so ancient and > pervasive in sales literature, are just such a move. It may be in > part that the word “patent” is used to stand in for “clever” > or “cunning,” and it certainly is true that “patented” is > often central to that classic and powerful product-differentiation > technique, “Kill-All’s Patented Rat Trap.” But it is also the > case that having a patent means that one has a _governmentally > approved_ right coercively (through legal action) to exclude > competitors from particular cost-cutting processes for a very long > time (specifically seventeen years). The power of “our patented > process” may inhere in this triple reference power, but the most > important of the three may be to indicate this commercial _rara > avis_, sole licit durability of a competitive advantage. —Arthur Leff, _Swindling and Selling_ 127–28 (1976)_✳ quotation _
January 23, 2020
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THE KILL AND EAT YOU PARTY I go back to this tweet a lot: > This election is like if your friends pick dinner and 3 vote pizza > and 2 vote “kill and eat you”. Even if pizza wins, there’s a> big problem.
> — Andrew Shvarts (@Shvartacus)> August 9, 2016
>
Three months later, “kill and eat you” won the 2016 election. Three years on, “kill and eat you” is an established feature of the United States political system. To continue the metaphor: * One person wants plain cheese pizza. * One person wants vegan fig and mushroom pizza. * One person wants to kill and eat you because the talking lizards living under his bed told him that you have delicious space aliens hiding under your skin. * One person wants to kill and eat you because anything else would be better than pizza again. * One person hasn’t been paying attention, isn’t really hungry, and doesn’t really believe in killing people or talking lizards, but says you have to admit that the talking-lizards guy makes some valid points about the aliens. Living together in this house is impossible, and yet it goes on. You can’t make the talking-lizards guy move out; he has too many friends. (Even if he did, could you ever really trust your other friend who went along with him?) You can’t move out; you have nowhere else to go. The fact of the matter is, dinner – and your life – depend on the person who knows and cares the least abouteither.
The model is simple, but it explains much that is maddening about contemporary political life. One substantial segment of the electorate has suffered the political equivalent of a psychotic break; another has not, but cynically accepts that playing along is the best way to achieve its preferred policy goals. Together, they make up the modern Republican Party, and they have discovered that yelling insane things at the top of their lungs is a viable political strategy. It also highlights the structural factors that make intra-Democratic debates over policy and strategy so deeply frustrating. “Say no to killing and eating people” is a point of undisputed agreement. It is a necessary minimum for coexistence in society. As against a party whose _de facto_ platform includes killing and eating people, it ought to be politically sufficient, and yet it plainly is not. It matters deeply what kind of pizza we get when the shouting ends and things go back to normal, but there is no assurance that they ever will. Maybe the perfect set of pizza toppings will capture the imagination of the muddled middle – or then again maybe actual pizza toppings are no match for the false promise of fried space alien. Offer to compromise on burgers, or is that just giving up any hope of ever making a majority for pizza rather than being killed and eaten? Start shouting too, or keep trying to be the reasonable one? Maybe there’s a right choice, or maybe there isn’t and all roads lead toruin.
In conclusion, impeach Donald Trump._✳ politics _
December 10, 2019
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BONE CRUSHER 2.0
Greg Lastowka
,
who taught law at Rutgers-Camden until his untimely death of cancer in 2015, was a thoughtful scholar of copyright and virtual worlds, a beloved teacher, and a profoundly decent human being. He was generous and welcoming to me as a law student whose interests paralleled his, and then a generous and welcoming colleague. He was always one of my favorite people to see at conferences, and his papers were like the man: intelligent, unpretentious, and empathetic, with a twinkle ofpoetry.
Greg colleagues at Rutgers-Camden have honored his memory by holding an annual memorial lecture, and I was privileged beyond words to be asked to deliver last fall’s fourth annual lecture.
It was a snowy day, and I drove through a blizzard to be there. I felt I owed him nothing less. So did many of his colleagues and family, who turned out for the lecture and reception. It was a sad occasion, but also a happy one, to be able to remember with each other what madeGreg so special.
I am very pleased to say that thanks to the efforts of many – our mutual friend Michael Carrier from the Rutgers faculty; Alexis Way, the Camden editor-in-chief of volume 70 of the Rutgers University Law Review; her successor Alaina Billingham from volume 71; and the diligent student editors of the RULR – my lecture in memory of Greg has now been published as _Bone Crusher 2.0_.
(The title refers to one of my favorite examples from all of Greg’s scholarship, a stolen Bone Crusher mace from Ultima Online.) Here isthe abstract:
> The late and much-missed Greg Lastowka was a treasured colleague. > Three themes from his groundbreaking scholarship on virtual worlds > have enduring relevance. First, virtual worlds are real places. They > may not exist in our physical world, but real people spend real time > together in them. Second, communities need laws. People in these > spaces do harmful things to each other, and we need some rules of > conduct to guide them. Third, those laws cannot be the same as the > ones we use for offline conduct. Laws must reflect reality, which in > this case means virtual reality. Using these three themes as > guideposts, we can draw a line from Greg’s work on virtual items > in online games – Bone Crusher 1.0 – to modern controversies > over virtual assets on blockchains – Bone Crusher 2.0. This is not my most ambitious paper. But for obvious reasons, it is one of the most personally meaningful. I hope that it brings some readers fond memories of Greg, and introduces others to the work of this remarkable scholar. _✳ scholarship _December 6, 2019
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IMPEACH DONALD TRUMP I set out to write a longer post, but there is really no need. The readout of President Trump’s July 25 telephone call with Ukranian President Volodymyr Zelenskyy shows him committing an obviously impeachable offense. The President of the United States personally asked a foreign nation to investigate a political rival, and he used nearly $400 million in American aid as a bargaining chip. This is corruption of the most basic sort: using his office to serve his personal interests. Nothing more need be said. I agree that there should be an immediate investigation. But the point of this investigation is not to dig at some further factual questions of what exact words Trump used or what he meant by them. Trump himself has admitted that the conversation happened as described, and thee meaning is the meaning is clear enough. If Trump is too confused to express his demands more clearly, or too amoral to understand why they are so deeply wrong, these facts make him more impeachable, not less. They amount to a defense that he can’t be impeached because he is unfit for office in the first place. This is not the first obviously impeachable thing that Trump has done. The Mueller report lays out, with painstaking clarity, multiple instances of impeachable obstruction of justice. The only difference is that this new story broke all at once, rather than being dribbled out over the course of years, so that the political shock of seeing everything so clearly in focus landed with full force. The financial self-dealing also probably rises to the level of high crimes and misdemeanors, although the facts there have been a little better obscured. The articles of impeachment should include obstruction of justice, and the financial investigations should continue. With an urgent official impeachment inquiry underway,, it is time for the House to use all of its powers to compel documents and testimony, and to ask the courts for the most expedited rulings they are capable of giving. The nation has no more important business than this. This is a moment of clarity. Trump’s conduct here is fundamentally incompatible with democratic self-government. To stand aside – or worse, to defend it – is to give up on the republic. Donald Trump must be impeached, so that the United States can survive._✳ politics _
September 26, 2019
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A FEW THOUGHTS ON CISCO V. BECCELA’S Rebecca Tushnet blogged a trainwreck of a copyright opinion in _Cisco Systems, Inc. v.Beccela’s Etc._
from the Northern District of California. The software-licensing caselaw was not good, but this is one of the most confused opinionsI’ve seen.
In brief, Cisco sells networking devices through a network of authorized dealers. The defendants allegedly sell Cisco devices outside of these authorized channels. Cisco sued on a variety of theories, including copyright infringement. In response, the defendants claimed they were making legal first sales. Ninth Circuit caselaw (see _Vernor_,
_Psystar_
,
and _Christenson_
)
has held that first sale doesn’t apply to software distributed on CD-ROMs or DVDs which are “licensed” rather than “sold,” and use a messy multi-factor test to determine whether a given shiny plastic disc is licensed or sold. The defendants here argued that the result should be different where the software is “embedded in hardware,” but the court disagreed that this made a difference. “The Ninth Circuit in these cases did not distinguish the first sale doctrine’s application between software and hardware … .” As a result, “he first sale doctrine does not apply to software licensees even when the software is embedded in lawfully purchasedhardware … .”
To which I can say only, _what does the court think that software IS_? “Software” could refer to the information in a program – the sequence of bits or characters – or it could refer to a specific physical instantiation of the program – a chip, printout, or other object encoding that information. In copyright terms, the former is a “work”; the latter is a “copy.” Cisco has a copyright in the work, and we can assume that the copyright has never been validly licensed to the defendants. But in first sale, that’s irrelevant. If I’m “the owner of a particular copy … lawfully made,”
then I can distribute that copy regardless of whether I have any license from the copyright owner. That’s what first sale is. The reason that _Vernor_ and other cases rejected the application of first sale is that the _copy_ had been licensed rather than sold: that messy multi-factor test tries to figure out what rights the possessor has over a particular shiny plastic disc. For example, does the copyright owner have the right to demand the shiny plastic disc back? If so, then the possessor may not be an “owner” of that “particular copy” and so first sale may not apply. This reasoning doesn’t on its face distinguish between shiny plastic discs and computer hardware. But that doesn’t mean the two cases are the same. It’s right there in the _Beccela’s_ opinion. In fact, it’s right there _in the same sentence where the court announces its conclusion_. Cisco’s software isn’t just “embedded in hardware”; it’s “embedded in _lawfully purchased_ hardware,” in the court’s own phrase. That ought to end the case. If the hardware is lawfully purchased (note: “purchased” and not “licensed”), then the defendants are owners of the copies of the software and have full first sale rights. Remember: “copies” are “material objects … in which a work is fixed,”
a definition that includes both shiny plastic discs and dense arraysof transistors.
The court here honestly seems to believe that software can somehow be “embedded” in hardware without the hardware being a copy of the software, as though a file were in the computer but not of it. But there is no such thing. That is what it _means_ to store digital information in a thing: the physical structure of the thing becomes an encoding of the thing. Or, in copyright terms, a copy is a physical thing “from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” That’s how software works. To be fair, I don’t think that courts in previous first-sale and software-licensing cases have been terribly careful about the work/copy distinction or about what software is. The opinions cited in _Beccela’s_ are full of sloppy language that seems to invite this result. But that language was unnecessary; you could come out the same way in a DVD software first sale case while being careful about your terminology. _Beccela’s_ takes these unintelligible fictions about how software works and turns them into an actual holding that is essential to the outcome of the case. It is rare to see the confusion at the heart of modern software copyright licensing so plainly stated._✳ law _
August 27, 2019
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