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January 29, 2005

Can you believe people believe this?

Doug Ross, a normal citizen like you and me, wrote a guest column for The Cincinnati Enquirer's "Your Voice" section on Friday. You know it's going to be good. (Link may expire after a week.) Aw, heck. Let me just post the entirety of his op-ed here:

Elections in Iraq spread freedom

In medicine, the consequences of failing to clean and dress a festering wound are clear: severe infection and even death may result. Prior to the war in the Middle East, Iraq was just such a festering wound.

It is safe to assume that certain observers among us, including recent writers in this space, believe that the world would be better off with Saddam Hussein, the terrorist training center at Salman Pak, Abu Abbas, Abu Nidal, al Qaida affiliate Ansar al Islam, a nuclear research program, Uday's rape rooms, hundreds of thousands of bodies in unmarked mass graves, anthrax, and tons of high explosives all co-existing in Iraq as the highly suspect UN sanctions machine ground to a halt.

It is increasingly clear that these observers are possessed of antediluvian ideas and low reserves of intellectual honesty. A little historical perspective is in order.

In 1776, there was exactly one country in the world with an elected government: the United States of America. Today there are 117 - or more than 60 percent of the world's governments.

Writer Joshua Muravchik points to "waves of democracy": periods of time in which the creation of elected governments accelerates, slows and then starts anew. Further, this tidal effect strengthens itself. As more democracies arise, remaining authoritarian governments find it increasingly difficult to retain power.

Only one region of the world has, thus far, been left behind: the Middle East and North Africa. Israel is the sole democracy among 18 states. The handiwork of George W. Bush is therefore astonishing: Afghanistan, the Palestinian Authority, and - within days - Iraq will all have held elections.

Further, Bush's leadership has heartened freedom-lovers and propelled the cause of liberty in Egypt, Saudi Arabia, Yemen and Oman, where elections have been or are slated to be held. And the enticing fragrance of freedom hasn't stopped at the ballot box.

Egypt's first independent newspaper launched in 2004. A new network called Democracy Television, owned by Arab liberals, is slated to begin broadcasting in May. Each month, influential Arab intellectuals issue new demands for reform.

Some caustic observers warn that democracy is no panacea for terrorism. But the historical record shows that democratic governments seldom sow either conflict or terror. These observers, therefore, must ignore both history and intellectual honesty, burying their heads in the sand while freedom marches on.

Doug Ross of Symmes Township is a software architect and developer specializing in Internet-based commerce and collaboration systems.

Mr. Ross deigns to give us a history lesson in order to explain why "it is safe to assume that certain observers among us, including recent writers in this space, believe that the world would be better off with Saddam Hussein." Okay, Doug. Teach away.

"In 1776, there was exactly one country in the world with an elected government: the United States of America." Really, Doug? By my calculations, there were no elected governments in 1776, since the United States did not exist until 1789! Once again, we have confused the Declaration of Independence -- a persuasive essay -- for the Constitution -- a legal document. But I suppose that's a public school education for you.

He then gives us a lesson in contemporary geo-politics. "Israel is the sole democracy among 18 states [in the Middle East]. The handiwork of George W. Bush is therefore astonishing: Afghanistan, the Palestinian Authority, and -- within days -- Iraq will have held elections." Not so fast there, Sunny Jim. What did George W. Bush have to do with elections in the Palestinian Authority? And let's talk about these elections in Iraq. Why is it so important to the Bush administration that the elections happen, even though there has been a guarantee of violence? Terrorists have published pamphlets declaring, "We vow to wash the streets of Baghdad with the voters' blood" and "To those of you who think you can vote and then run away, we will shadow you and catch you, and we will cut off your heads and the heads of your children." That's quite an incentive to vote. Mark my words: tomorrow's election will be a bloodbath.

Let's go back to that statement that Israel is the sole democracy in the Middle East. What happened to Turkey? Last I checked, Turkey was a secular democracy and it was one of our good friends. Was Gamal Abdal Nasser's overthrow of King Farouk all for naught? I suppose Egypt doesn't count as a democracy, either. Probably because it's not on our side (Egypt sided with the Soviet Union during the Cold War, though to his credit, Nasser observed that being allied with the Soviet Union was as bad as being allied with the United States). No doubt Venezuela under Hugo Chavez isn't a democracy, either. Please don't forget Lebanon or Yemen, as they are also democracies (actually, all of these countries are republics, but no one cares about terminology anymore).

So when you say "Israel is the sole democracy in the Middle East," you mean either 1) "Israel is the sole democracy in the Middle East that agrees with our policies," or 2) "There are five democracies in the Middle East." Bush has been pushing this line that "Israel is the sole democracy in the Middle East" for four years. Doesn't he know he's wrong? Don't his supporters do their homework?

And what is this "18 states" thing? Did Mr. Ross pick 18 states at random? By my count (and by the Columbia Encyclopedia's), there are 12 states in the Middle East: Turkey, Syria, Lebanon, Israel, Jordan, Iraq, Iran, Egypt, Saudi Arabia, Yemen, Oman, and the United Arab Emirates. Where did the other six states come from?

"Bush's leadership has heartened freedom-lovers and propelled the cause of liberty in Egypt, Saudi Arabia, Yemen, and Oman, where elections have been or are slated to be held." Not so much. Egypt has been having elections since 1954, well before Bush's leadership heartened freedom-lovers there. Yemen's constitution dates from 1991, when Bush was still an unsuccessful entrepreneur. It's doubtful that even he, with his Christ-like powers, could have influenced Yemen back then.

So, in short, Mr. Doug Ross of Symmes Township has demonstrated that he knows nothing about the world except what he is told by the Bush administration. Perhaps if he visited the links above and learned a little bit about the Middle East, he would come to understand that the Bush administration lies where it is convenient, distorts the truth where it is convenient, and repeats incorrect facts to the point where people believe they are true (e.g. "Israel is the only democracy in the Middle East"). Iraq is not a safer place without Saddam Hussein; the world is not a safer place now that he has fallen from power. The world hates us more than it ever has. Specifically, Iraqis hate us more than they ever have. But it's nothing personal. Terrorist groups see a power vacuum and are vying for control of Iraq, which they think they can acheive because 1) they have more rocket-propelled grenades, and 2) the people don't want to be ruled by the United States.

I loathe the Bush administration.

January 26, 2005

The final showdown

So it's come to this. The U.S. Supreme Court has granted a writ of certiorari to the Grokster case, which proves to be the next landmark legal decision in copyright law (the first being Sony v. Universal, 464 U.S. 417 (1984), the so-called Betamax case). In that case, the Court ruled that the Betamax did not infringe upon the copyrights held by respondents Universal City Studios and Walt Disney Company. The Court didn't buy the argument that "supplying the 'means' to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement." And finally -- and most importantly -- the Court ruled that "[t]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses." The notion that "an article of commerce" may be able to infringe copyright but can still be legal as long as it has "substantial noninfringing uses" is what has allowed things like photocopiers, VCRs, CD burners, and so on and so forth.

At issue in MGM v. Grokster, 03-55894 (2004) is "whether distributors of peer-to-peer file-sharing computer networking software may be held contributorily or vicariously liable for copyright infringements by users." The Ninth Circuit Court of Appeals didn't believe so, and ruled in August 2004 that Grokster was not liable for contributory infringement.

The Ninth Circuit Court observed, rightly, that ever since "the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation."

Contributory infringement

It wouldn't be a federal court case without prongs, and MGM v. Grokster is no exception. In order to prove contributory infringement, the following three prongs must be met: "(1) direct infringement by a primary infringer, (2) knowledge of the infringement, and (3) material contribution to the infringement." The lack of any one prong means that the activity does not constitute contributory infringement.

No one disputes the element of direct infringement, so that's one prong. Two more to go until we've got contributory infringement.

The "knowledge" prong gets tricky, because if the device in question is not capable of "substantial non-infringing uses," then "the copyright owner need only show that the defendant had constructive knowledge of the infringement." "Constructive" in this case means that, although the defendant did not, in reality, actually know that infringement was occurring, the situation was such that the defendant could probably surmise that infringement was occurring, since the device had no non-infringing uses.

But, "if the product at issue is capable of substantial or commercially significant noninfringing uses, then the copyright owner must demonstrate that the defendant had reasonable knowledge of specific infringing files and failed to act on that knowledge to prevent infringement." "Reasonable" means that the defendant had rational or appropriate knowledge. It is a higher standard of knowledge: the defendant could not merely surmise that infringement was occurring, since non-infringing activity could also be occurring; therefore, he had to know that infringement was taking place.

The Circuit Court determined that Grokster was capable of "substantial non-infringing uses," even though the respondents insisted that a majority of the activity on Grokster's network was illegal. That doesn't matter, though, since, "in order for limitations imposed by Sony to apply, a product need only be capable of substantial noninfringing uses." The law says nothing about quantity of noninfringing use. Boo-yah!

Thus, the standard is "reasonable knowledge of specific infringement": Grokster had to know that copyright infringement was taking place. Did they? The Ninth Circuit Court's argument is sketchy here, although ultimately they conclude that Grokster did have knowledge of specific infringement.

And what of "material contribution"? In the Napster case, the Circuit Court ruled that "Napster provides the site and facilities for direct infringement." Grokster is different because of its distributed architecture: "even if the Software Distributors 'closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.'" Thus, it is here that the argument fails: Grokster does not materially contribute to infringement, and thus, it does not meet the third prong of the test, meaning that there is no contributory infringement.

And the Ninth Circuit adds, "The technology has numerous other uses, significantly reducing the distribution costs of public domain and permissively shared art and speech, as well as reducing the centralized control of that distribution."

Vicarious infringement

Okay, maybe Grokster didn't contribute to infringement. But maybe, through negligence -- by not doing something they could have done -- they indirectly contributed to infringement. This is "vicarious infringement," and Grokster is being charged with that, too.

Time for more prongs. To prove "vicarious infringement," there must be "(1) direct infringement by a primary party, (2) a direct financial benefit to the defendant, and (3) the right and ability to supervise the infringers." The "direct financial benefit" in this case is advertising revenue, since Grokster (and Kazaa, another respondent) uses ad-supported software (this is the one and only time I'll be on spyware's side). The Court also did not dispute the existence of "direct infringement." That's two prongs down.

Does Grokster have "the right and ability to supervise the infringers"? Not really. "It does not appear from any of the evidence in the record that either of the defendants has the ability to block access to individual users," the Court said. "The nature of the relationship between Grokster and StreamCast and their users is significantly different from the nature of the relationship between a swap meet operator and its participants [a reference to another case determining a relationship between an infringer and a potential infringee; cf. Fonovisa v. Cherry Auction, 76 F.3d 259 (1996)], or prior versions of Napster and its users, since Grokster and StreamCast are more truly decentralized, peer-to-peer file-sharing networks." They fail to meet the third prong, so there's no vicarious infringement.

And so, the case is over in the Ninth Circuit Court of Appeals, with the respondents urging for a renovation of copyright laws, which the Court said would be "unwise," since it "would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context." Now here's a great paragraph which I will quote here, without citations. It describes exactly what copyright law does and what it doesn't do:

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

And so the case will be heard by the Supreme Court on March 25. Rehnquist himself voted against the Betmax decision back in 1984, but I'll bet he has a VCR now. This time, the case is more sound, as the Ninth Circuit Court stuck to the letter of the law, something that will please Justice Scalia (although it doesn't bring in larger Western, male, heterosexual traditions -- which are perfectly acceptable as law -- so he might cry just a little bit). This case is different from Betamax in that the words of the law are clear: Grokster does not meet all the requirements for vicarious or contributory infringement. The Supreme Court will not have to fashion a brand-new interpretation of the law to fit a brand-new situation as it did in 1984.

And if the Court rules that file-sharing on a peer-to-peer network is illegal, how else will Clarence Thomas get his episodes of Sex and the City?

For more information, please visit EFF's big page of MGM v. Grokster case files.

January 23, 2005

The end of a television era

Johnny Carson

MSNBC is reporting that Johnny Carson, host of The Tonight Show from 1962 to 1992, died today of emphesyma at the age of 79.

Johnny Carson was a class act all the way. The end of his stint on The Tonight Show was, in many ways, the end of the great era of television. Johnny presided over seven U.S. presidents (and, thankfully for comedy, he said, seven vice presidents), the change from black and white to color, and a moon landing.

Johnny Carson was funny in a way that I have never since seen a comedian be funny. You can't say that he wasn't raunchy, because he really was, though he wasn't explicit about it. There were subtle innuendoes in many of his jokes ("A woman came up to me after the show yesterday and said, 'I want to capture you on canvas.' I said, 'You want to paint my portrait?' She said, 'No, I've got an army cot in my Winnebago'"). He artfully mixed visual humor with puns and slapstick to create a hilarious show. One of my favorite sketches from his show features Hamlet as a sales pitchman ("To sleep, to die, perchance to dream. Aye, there's the rub. Mentheladum deep heating rub. There's no beating deep heating," "And as we pause, let me ask you, are you suffering the slings and arrows of painful hemmoroidal itching?"). Another great sketch is Johnny's take on Abbott and Costello's "Who's on First?" routine, but with Ronald Reagan and Jim Baker. I won't repeat it here because it has to be watched, and no amount of artful typing can convey the effect of watching the sketch.

The banter between himself and Ed MacMahon is unrivaled in the history of television. Johnny made Ed crack up so many times on camera that it's hard to count. Johnny was a master of improvisation, taking a funny situation and running with it (Johnny, as his character Aunt Blabby, got annoyed with Ed's repetition of what he had just said: "Why do you repeat everything I say? I can go to Taco Bell for that!"). Especially funny was their banter whenever Ed was a little bit tipsy, which happened a lot throughout the 1970s.

As Michael Ventre's euology at MSNBC observes, "The day that television died was May 22, 1992. The day it was buried was today."

January 20, 2005

Of economics, equality, the past, and the future

Economics is well-named. It is the study of economies of things, the study of scarcity. If given the opportunity, humans would consume an infinite supply of things. The problem is that resources are scarce; there are not enough resources to enable everyone to have everything he wants.

Enter economics, which determines who gets how much of what. “Economics” comes from the Greek words “oikos,” house, and "nomos," management. In a broad sense, economics is the management of the house, if that house is all of society.

But first let’s delve into the history of economic systems in the West. There has been an historical progression of economies, and even though we can agree that our current system is not equitable, it is certainly more equitable than older economic systems.

Feudalism; or, “Because I Said So”

The foundation of Western nation-states has its origin in the various tribes which existed in Europe during the time of the Roman empire. The Visigoths occupied the Iberian peninsula, the Angles and Saxons occupied the island of Great Britain, and the Gauls lived in the area that is now France.

Between 476 A.D. (the date given by the nineteenth-century British historian Edward Gibbon as the end of the Roman empire) and 800 A.D. (when Charlemagne was crowned Holy Roman Emperor by the Pope), Western Europe was in a state of fragmentation. Individual tribes rallied around individual leaders. These tribes fought with other tribes, conquering land in the process. Over time, these leaders amassed a good deal of land.

But they couldn’t possibly manage it on their own. Once these tribes settled down into particular areas of Europe, leaders of tribes sub-let land to some of their lieutenants. This is the feudal system, where a king -- who technically owned all of the land in a given nation -- rented some of that land to his friends, who were granted titles of nobility, in exchange for a pledge to support him in times of war. The nobles, in turn, rented some of this land to others, and so on and so forth. The word “feudal” comes from the Latin feodum, meaning “fief,” a Germanic word meaning “cow.” The word “fief” referred to any kind of movable property, which is what a feudal lord owned on his land.

At the bottom of the feudal system existed peasants and serfs. Though there is a technical distinction between peasants and serfs (serfs were actually attached to the land; peasants were not), both kinds of people worked the land of a feudal lord and were allowed to stay there as long as they compensated the lord, usually by giving him some of their crop of food. The feudal lord, in turn, provided the peasants with military protection. Sometimes, entire towns grew around a single feudal lord. It was not uncommon in medieval England or France to see a town built around a single castle.

Property in the feudal system passed from father to the eldest son, a condition called primogeniture. Titles of nobility were also inherited. The effect of the system was to keep the people in charge in charge and to keep the people outside outside. Peasants could not become nobility. There was no such concept as “upward mobility.” You could not improve your station in life. If you were a noble, good for you. You had power and land. (Wealth was not so important as land.) If you were a peasant, life was difficult and it wouldn’t get any better. This section is subtitled “Because I said so” because that’s why the nobility had power. In the feudal system of economics, who got what was determined by birth, by circumstances outside of your own control. If you were born a noble, you had everything; a peasant, and you got nothing.

But then, enter the middle class. They were called the bourgeoisie in France, burghers in Germany, and burgesses in England. The middle class did not own land in the same way that the lords (collectively, the aristocracy) did. They did not work the land in the same way that the peasants did. Peasants had nothing. Lords had everything. The middle class had something. Not much, but something. They were merchants and craftsmen, people who made products, people who handled money and law, people who had to work for their livelihood (unlike the aristocracy), but also people who could, through work, improve that livelihood (unlike the peasantry). The beginning of the middle class is the beginning of capitalism.

Capitalism: Rise of the Middle Class

Whereas the aristocracy did not have to work to get by, the middle class did. By the seventeenth century, eight hundred years after Charlemagne was crowned Holy Roman Emperor, the nobility was declining in power and the middle class was rising. Plays of England’s Restoration (1660-1685) were rife with characters drawn from the middle class. These were people who worked and gained wealth. But they were not like the nobility, who didn’t have to work. The sentiments of most Restoration authors were that the nobility were lazy and drunk, sometimes demented. The middle class had “middle-class values”: an emphasis is placed, for example, on marriage for love in Restoration comedies. Under the feudal system, marriage occurred whenever and however it was politically or financially expedient for the parents. The middle class did not own tremendous amounts of property, so there was no need for strategic alliances to be made between families. “Love” became important: if you’re going to get married, and you can choose who you want to marry, why not marry someone you have feelings for?

Another middle class value was the value placed upon work. And why not? It was through hard work that a middle-class person could improve his socioeconomic position. Value was placed on merit; which is to say, if a person works hard, then that person is deserving of the monetary rewards that come with working hard. The middle class was being paid money, where the peasants were not. The middle class bought things from one another using money or using barter.

In 1776, the Scottish economist Adam Smith published An Inquiry into the Nature and Causes of the Wealth of Nations, which described division of labor and suggested that, in doing things which are in our own self interest, we will necessarily do things that are good for society. Of course, Smith was not in favor of giving over control of resources to private people. He understood that private businessmen might not always do what is in the best interest of society, and therefore accepted government regulation of workers and government actions that reduced poverty.

Whereas “feudalism” is named thus because of its emphasis on the feodum, or fief (land), “capitalism” is named because of its emphasis on capital; that is, money or a medium of exchange. Goods and services are exchanged in a free market. “Free market” means that 1) the market is free from intervention by outside sources, and 2) the buyer and the seller are both mutually agreeing, of their own free will, to engage in a transaction.

Capitalism was different from feudalism in that you did have control of your station in life. Under the feudal system, a person was born into a particular situation and had no hope of changing that situation. Under capitalism, a person could change his situation. Free will, that thing that the Enlightenment philosophes loved so much, was exercisable. A person had control of his own life for once.

Capitalism was also more equitable than feudalism. When asking the question, “Who gets what?” the answer is, “Whoever can afford it.” Work hard and you earn scarce resources. They are not doled out to you by someone else and they are not given to you by virtue of your birth.

Communism: Everyone Is Equal

Capitalism was good at allowing middle-class people to improve their station in life, but with the industrial revolution, a new class of people was created. These people were not craftsmen, tradesmen, or professionals (doctors and lawyers). They worked in factories, mass-producing things. They did not engage in any kind of skilled labor. They tended to machines that made things. And they were poorer than the middle class. Capitalism was not good at being egalitarian. The system gave more to some than to others.

The German philosopher Karl Marx was concerned at how labor was “alienated,” as he put it. A laborer became “alienated” when he became estranged from the end product of his labor. An artisan puts himself into his work, and when he is finished, he has a work that he can be proud of. A laborer in a factory is not the same. Though he puts himself into the thing he is producing, he will never benefit from that thing. He has lost a part of himself to the process of production.

Marx was hardly an economist, but more an historian and philosopher. History, he believed, could be viewed as a constant struggle between owners (the powerful) and laborers (the oppressed). Whereas the world at any given time had been in the shape of a pyramid -- with a few on top in positions of power and many on the bottom in positions of servitude -- Marx wanted to level the pyramid and create a rectangle. He envisioned an end of history, where the laborers would overthrow the owners and create a communist utopia. Who decides who gets what? The people themselves decide. They control the means of production (the resources: land, labor, capital [machinery], and entrepreneurial talent).

The process of the creation of this communist utopia would be in three stages: first, the overthrow of the owners. Second, something Marx called the dictatorship of the proletariat. Third, the communist utopia itself. Marx theorized that some people would be hostile to the overthrow of a system, and therefore concluded that in the interim, the people would have to be governed by someone who would begin the process of socialization. This is the period called the “dictatorship of the proletariat.”

Unfortunately, every country that has had a communist revolution has never left that stage. Russia was the first country to experience a communist revolution. This situation was ironic, since one of Marx’s requirements for a revolution was that there had to be industrialization and workers operating machinery. Russia had no industrialization; it was still an agricultural society. It is the last place that Marx would ever have predicted a communist revolution.

Communism in Russia fell victim to the failings of Russian society and to human error: people simply became power-hungry. Stalin killed thousands in party “purges” in order to maintain control, and killed millions more by socializing the land; that is, the central government took the harvest from the land and re-distributed it as it saw fit. Unfortunately, it wasn’t very good at this redistribution, resulting in the deaths of millions from starvation. The same thing happened in China’s “Great Leap Forward” (1957-60).

Socialism: “Practical Communism”

And so, instead of the people being in control of the means of production, as was Marx’s intention, the state is in control of the means of production. This is what we would call “socialism.” Who decides who gets what? The government does. Under socialism, the government knows best, although historically, this hasn’t necessarily proven to be the case. Countries that operate with pure socialism do not allocate resources well and there are always administrative, logistical problems. It is very difficult to operate an entire country’s economy from a central office. Bureaucracy (literally, “rule by the desk,” although actually rule by appointed officials working in different offices) is required, and bureaucracy always creates problems of efficiency and timeliness. It usually ends up that in a socialistic state, favors, bribes, and corruption are the way that things get done expediently.

In our world, a state which is somewhat socialist has some good things going for it. Take modern Sweden, which has several economic safety-nets in place for its citizens. A Swede can not work at all and still make about 75% of what he would make just through government entitlement programs. The issue, though, is who pays for these programs. The government pays for them through taxes, and these taxes come from people. And people get the money to pay taxes by working. This is called the fallacy of composition: what is good for one person is not necessarily good for everyone. While it may be good for one person not to work and get government benefits, if no one works, then no one is earning money and no one is paying for the government benefits. Currently, Sweden has problems supporting its economy, more so in the past, since the population is growing older, there are fewer people working, and it spends more than it takes in.

Under a capitalist system, people would be forced to fend for themselves. The government’s job is to stay out and let the market handle things, since it handles things most efficiently. In a socialist system, the government’s job is to ensure equality -- or as much equality as it can. To do this, however, requires taxation, and usually socialism taxes the rich more than the poor. This creates a disincentive to be wealthy (“why make money if I’m just going to give it to the government?”) as demonstrated by the tremendous amount of Britons who live in the United States. Paul McCartney makes a good deal of money, and if he lived in the United Kingdom, he would have to give a good deal of his good deal of money to the government for taxes. In the United States, the current highest marginal income tax rate is 37.6%, a rate paid only by people who make more than $288,350 per year. In the United Kingdom, the highest marginal tax rate is 40%, paid by people who make more than £31,400 (about $58,639). People move away or they don’t make money. This is a problem.

So What Do We Do?

Certainly capitalism is more “fair” than feudalism in the sense that the more people work, the more they are rewarded, and communism is more “fair” than capitalism, since everyone receives the same rewards regardless of his level of work, but communism is, practically speaking, a pipe-dream. Realistically speaking, the best economic system would combine the efficiency of the capitalist system with the stability of the socialist system. We see this in the United States in the form of entitlement programs like welfare (which is a blanket term for several federal and state programs), social security, Medicare, and Medicaid. Our educational system is publicly funded, unlike the system of private schools in Great Britain. (Although most higher education in Europe is publicly funded.) Our health care system, though, is privatized: people who can pay the most will get the best health care. There is a minimum standard of health care in the United States, but the issue is that people in the U.S. die of diseases that they could have treated if only they had the money to afford that treatment.

The correct movement, if economics is a progression through history, is a combination of the efficiency of capitalism with the social justice of socialism. Capitalism made social mobility possible for the middle classes; socialism makes social mobility possible for the lower classes. To combine the two in perfect balance with each other would produce a system which is efficient but at the same time ensures that no one will do without the basic necessities of life. The people who earn what they get will still get what they earn, but for the people incapable of earning anything, a state -- a well-regulated, well-monitored state -- will look out for them, allowing them to survive and get health (to maintain their lives) and education (to improve their lives). Even Adam Smith believed in a little government regulation. To those who maintain that the government is corrupt, I say that private enterprise can be equally corrupt. Only by balancing the two and ensuring that there is freedom for capitalism to work (that’s what democracy is for) can we achieve a synthesis which brings things closer to an ideal living condition that is a little more equitable and takes into account that things happen -- the condition into which we are born, for example -- which are outside of our control.

January 19, 2005

INDUCE comes to Caleefoahnia

Both Boing Boing and Slashdot reported on California Senate Bill (SB) 96, which would punish any person who

sells, offers for sale, advertises, distributes, disseminates, provides, or otherwise makes available peer-to-peer file sharing software that enables its user to electronically disseminate commercial recordings or audiovisual works via the Internet or any other digital network, and who fails to exercise reasonable care in preventing use of that software to commit an unlawful act with respect to a commercial recording or audiovisual work[.]

The phrase "reasonable care," says Jason Schultz of the Electronic Frontier Foundation (EFF), is dangerously ambiguous:

"Reasonable care" could mean anything from the forced design and/or redesign of software to mandated filtering and digital rights management (DRM) -- even the forced installation of spyware to monitor user behavior. Moreover, SB 96 would effectively overrule the Betamax protections that the Supreme Court has provided technology companies for more than 20 years. That kind of seismic shift would destabilize some of California's most successful companies.

Of course, any state law that conflicts with a Supreme Court ruling is null, since the Supreme Court's interpretation of the law trumps state laws. Still, the phrase "reasonable care" means that a corporation designing a product will err on the side of too much restriction, rather than be complicit in copyright violations. This is the same thing going on in network television, where broadcasters err on the side of too much censorship rather than face the wrath of an irrational FCC controlled by the Parents Television Council.

The problem with this law is that the Internet is designed to disseminate information. As Cory Doctrow notes, "This, of course, includes email, IM, Web-browsers, and every other tool for exchanging data on the Internet. Nice one, Kevin! Maybe once you've passed this one, you can introduce a bill to make Pi equal to 3 and then execute everyone who insists otherwise." Doctrow alludes here to an old urban legend which claims that an Alabama state law changed the value of pi to 3 in order to agree with the Bible. The point is nevertheless well-taken: attempting to constrain the Internet to fit the form of older types of communication is a ridiculous notion which will send science back to the stone age. And even then, AOL TimeWarner will demand seven cents for every communication sent by throwing rocks, since they hold a patent on rock-throwing technology.

January 18, 2005

'What are you going to do with that?'

It's a question I hear whenever I talk to mere mortals about my studies in college. I tell them that I'm majoring in history and English literature, and they say, "What are you going to do with that?" or some variant thereof. The second-most-popular response is, "Are you going to teach?" I feel like I'm being patronized, as the person pats me on the head and says, "Of course your degree is useful."

It's only in the last forty years that college has become an expensive vocational school. The rise of the business degree has turned some institutions into business mills, churning out half-prepared business students who wait eagerly to enter the echelons of middle management. Miami University is such an institution, with Miami graduate, billionaire, and founder of the company Cintas sitting on the Board of Trustees. His name is Richard T. Farmer, and they've named the School of Business after him. None of our other colleges are named after people. You might think that even Miami's most famous graduate, William Holmes McGuffey, author of McGuffey's Eclectic Readers, might have the school of education named after him. Nope. He's too old and too dead. Give him a building and a street.

Only in the last forty years have students gone to college hoping to get an education that trained them for the "real world." Students in the humanities have dropped as students in business have climbed. The United States is an economic society based on money. What better guarantor for making money than getting a degree in which you're taught how to make money?

But what are you getting? I like to joke that business majors at Miami University go to King Library to use the study rooms to do their group marketing projects. I wonder how much of that is true. White boards in the lobby tell people from various groups that they are to meet in such-and-such a room. The group names begin with "ACC," "FIN," or "MKT," which stand for "Accounting," "Finance," and "Marketing." One day I want to do an informal survey of the abbreviations on the white board and see what percentage of students in study rooms are business students. The thing about the group projects is true, though: business students don't write papers and they don't take tests. They do group projects. Good for them, I say as I pat them on the head.

But what about learning? It used to be that learning for learning's sake was enough. You didn't go to college to necessarily do something with your degree. You got a degree and then studied your subject. There will always be doctors and teachers; those fields are prosaic enough. But philosophy? History? Literature? What does one do with such things? How does one make money?

Well, a person studies such things, of course. History is probably the most utilitarian of all of the liberal arts. An historian looks up new information in archives, or goes around the world, digging up artifacts that tell us more about times long past. The historian writes books about these things to let us know what happened in the past. I don't mean, of course, the obligatory biographies of founding fathers that appear every other year. That's intellectual chump change. A book about Benjamin Franklin contains no newer information about him than the last book that was written five years ago. People are suckers for biographies, for some reason.

The philosopher thinks about the nature of the universe and deals with the tough questions about our existence that we either don't want to deal with, don't care about dealing with, or are too dumb to know exist. "What is reality?" is pretty heady stuff. It's also a valid question that some of us don't care about. Answering the question "What is reality?" may not net you a job as CEO of Cintas, but it will make you a better person for knowing the nature of the aether in which you float every day.

Matthew Arnold was a nineteenth-century British essayist who foresaw a coming war between knowledge for itself (what he called "culture") and knowledge for utility (what he called "anarchy"). Fittingly enough, the work which dealt with this culture war is called Culture and Anarchy.

Culture and Anarchy came about because of a speech made by Mr. Frederic Harrison, a member of Parliament who suggested that

the man of culture is in politics one of the poorest mortals alive. For simple pedantry and want of good sense no man is his equal. No assumption is too unreal, no end is too unpractical for him. But the active exercise of politics requires common sense, sympathy, trust, resolution and enthusiasm, qualities which your man of culture has carefully rooted up, lest they damage the delicacy of his critical olfactories.

First of all, cultural is impractical. Second, culture has no place in politics, a practical trade which demands common sense, something which Harrison suggests that people of culture lack. In Culture and Anarchy, Arnold mounts his defense of culture.

Arnold distinguishes good culture from bad culture, the latter being a "culture which is supposed to plume itself on a smattering of Greek and Latin" in the denigrating words of John Bright, another member of parliament who had nothing but contempt for intellectuals. "Bad culture" is "a culture which is begotten by nothing so intellectual as curiosity; it is valued either out of sheer vanity and ignorance, or else as an engine of social and class distinction, separating its holder, like a badge or title, from other people who have not got it."

"Good culture" is "the desire to augment the excellence of our nature, and to render an intelligent being yet more intelligent." Culture also concerns itself with "the love of our neighbour, the impulses towards action, help, and beneficence, the desire for stopping human error, clearing human confusion, and diminishing the sum of human misery, the noble aspiration to leave the world better and happier than we found it."

In Arnold's time, as in ours, there was an obsession with the accumulation of wealth. Wealth, he says, is not an end unto itself, but "machinery" used to acheive some end:

the commonest of commonplaces tells us how men are always apt to regard wealth as a precious end in itself; and certainly they have never been so apt thus to regard it as they are in England at the present time. Never did people believe anything more firmly, than nine Englishmen out of ten at the present day believe that our greatness and welfare are proved by our being so very rich. Now, the use of culture is that it helps us, by means of its spiritual standard of perfection, to regard wealth as but machinery, and not only to say as a matter of words that we regard wealth as but machinery, but really to perceive and feel that it is so.

Freedom is the same. Freedom is not an end unto itself, but "machinery" that we use to acheive some end. In talking about freedom, Parliament has cleverly disguised the purpose of freedom: freedom for the aristocracy and the middle class, and that's about it. The aristocracy and middle class design a state structure that serves their own interests, and their own interests only:

Our leading class is an aristocracy, and no aristocracy likes the notion of a State-authority greater than itself, with a stringent administrative machinery superseding the decorative inutilities of lord-lieutenancy, deputy-lieutenancy, and the not in print version posse comitatis, which are all in its own hands. Our middle-class, the great representative of trade and not in print version Dissent, with its maxims of every man for himself in business, every man for himself in religion, dreads a powerful administration which might somehow interfere with it; and besides, it has its own decorative inutilities of vestrymanship and guardianship, which are to this class what lord-lieutenancy and the county magistracy are to the aristocratic class, and a stringent administration might either take these functions out of its hands, or prevent its exercising them in its own comfortable, independent manner, as at present.

But above all, culture -- rather than politics -- is most suited to solve problems, since it constantly strives for perfection. Culture "enables us to look at the ins and the outs of things in this way, without hatred and without partiality, and with a disposition to see the good in everybody all round."

Why I have an iPod

Well, it's finally happened. iPods are our undisputed lords and masters. Like some sort of parasite or alien baby, they have latched onto normal human beings and turned them into zombies.

But why do people have iPods? Because it's fashionable? Certainly. The little white ear buds and the white cord immediately send the signal, "Look at my iPod. Look how trendy I am!" Especially since our favorite movie heroes use iPods.

Let it be known: I had an iPod before it was cool to have one. I got an iPod for Christmas two years ago because I was looking for a good MP3 player. And what do you know? The iPod was the best MP3 player on the market. It didn't play "brain-damaged DRM" formats (to use Cory Doctrow's phrase) like Real's MP3 player or Sony's old MP3 player. It used iTunes, which is a superb music management program, and it's also useful as a regular old hard drive, unlike MP3 players which operate using memory sticks. It's stylish and well-built, and for your money, there's no better MP3 player on the market. That's why I have an iPod.

This is what it must have felt like for the runners who wore New Balance shoes because they were excellent shoes. Now everyone has New Balance shoes, not because they need good shoes, but because it's hip to be seen wearing New Balance shoes.

I suppose it's best for high quality to be trendy.

January 14, 2005

What I believe

Elizabeth has been accosting me, accusing me of being a centrist. It's probably because I called myself a centrist, for lack of a better term.

So what do I believe?

First, I avoid labels like "Democrat," "Republican," or even "Socialist" or "Libertarian." I do not want to be pigeon-holed into a particular way of thinking, or giving others the impression that I am a "Democrat," which then presents them a whole buffet of assumptions about me that they can pick and choose.

"Centrists can decide the best political course of action based on the issue instead of the ideal to which they cling," writes Elizabeth. That's exactly right. When I make a decision, I don't make that decision based on whether or not I am a Democrat or a Republican, but based on how I personally feel about an issue. This results in my opinions being conservative in some cases (I am not opposed to allowing some people to invest part of their social security money) and liberal in others (we should legalize marijuana because it's no more harmful -- and even less so -- than alcohol, a legal drug). To say I am a "Democrat" would be a misnomer, because I often disagree with the Democrats. To say I am a Republican would be similarly wrong, because I often disagree with the Republicans (although in truth, I probably disagree with the Republicans more than the Democrats). The effect of my decisions is that I usually end up on the liberal side of the political spectrum, but this is not because I have a liberal ideology, but rather that my beliefs often lead me to the more liberal opinion about an issue.

Plato believed in a theory of transcendent ideals. A chair is a chair because it is a copy of the perfect form "chair" which exists in some supernatural, transcendent realm. Aristotle said that a chair is a chair because we call it a chair; everything that matches our conception of a chair is called a chair. In terms of politics, this means that Plato would say that first a political party exists and we then attempt to mimic the opinions of this party: "I am a Democrat and will follow Democrat beliefs." Aristotle would say the opposite, that our political beliefs exist first, and we then ascribe a name to them: "My beliefs make me a Democrat."

To the latter statement I have no objection. If you, as a person, have thought long and hard about your beliefs on individual issues, and you more often than not end up on the conservative end of things, you may safely say that you are a Republican. For this reason, I might call myself "liberal," since more often than not, my opinions end up on the liberal end of the political spectrum.

To the former statement, I have some question. "I am a Democrat; therefore, I should believe X." To adhere to an ideology is cause for concern, since adhering to an ideology denies that each person's beliefs vary. No one can adhere completely to the party-line.

To evolve or not to evolve

MSNBC reports that a federal judge "ordered a suburban Atlanta school system to remove stickers from its high school biology textbooks that call evolution 'a theory, not a fact,' saying the disclaimers are an unconstitutional endorsement of religion."

Is that really the case? Is this the right decision? If I were the U.S. Supreme Court and this case appeared on my desk with an application for a writ of certiorari attached to it, I might consider granting that writ. Does criticism of evolution necessarily entail support for creationism? I'm certainly no fan of creationism, but when it comes to the law, I am a fan of correct, well-thought-out, objective rulings based in the law and not ideology. A formalist critic might ask of a judge writing an opinion, "Where's your textual support?" In that case, the "text" would be the law, and in order to make a ruling in a particular case, the law must support that ruling. So let's take a closer look at the Atlanta case.

The case is called Selman et. al v. Cobb County. (Link goes to a PDF of the opinion courtesy of the ACLU.) "Selman et. al" refers to a group of parents who were upset about the placement of warning stickers on biology textbooks in Cobb County, Atlanta. The case was argued and decided in the U.S. District Court for the Northern District of Georgia. (As an aside, why can't AP get this information in their articles? I have to beg, borrow, and steal to find out what "a federal judge" means. Also, AP doesn't even report the name of the case! Back to you, Chet.)

Back in 1995, Cobb County Schools tried to avoid the issue of evolution altogether by eliminating it from the curriculum. The regulation mandated the following:

  1. The curriculum of the Cobb County School District shall be organized so as to avoid the compelling of any student to study the subject of the origin of human species.
  2. The origin of human species shall be excluded as a topic of curriculum for the elementary and middle schools of the Cobb County School District.
  3. No course of study dealing with theories of the origin of human species shall be required of students for high school graduation.
  4. Elective opportunities for students to investigate theories of the origin of human species shall be available both through classroom studies and library collections which shall include, but not be limited to, the creation theory.
  5. All high school courses offered on an elective basis which include studies of the origin of human species theories shall be noted in curriculum catalogs and listings which are provided for students and parents for the purpose of course selection.

So as you can see, Cobb County is hardcore about keeping evolution out, even if it has to graduate students who are completely ignorant of biological evolution. Looks like it's Bob Jones University for them! And, just to make things more interesting, "[I]t was common practice in some science classes for textbook pages containing material on evolution to be removed from the students' textbooks."

In 2001, Cobb County decided to purchase new science textbooks, some of which may have included material on biological evolution. Some parents objected to the treatment of evolution as a fact, rather than a theory. This makes things murky, especially when we don't use our terms consistently or correctly. That organisms evolve over time is indisputable. It has been observed in our lifetime of simple organisms like bacteria and virii. It has been observed through fossils, which show us that organisms have not remained static. Fossils (and geology) have also shown us, by the way, that the Earth is much more than six thousand years old. Most creationists believe that the Earth is only around six thousand years old, since that date is consistent with the Biblical account of creation.

What is in dispute in the biological community is the mechanism of evolution. Darwin suggested natural selection, whereby organisms with mutations favorable to their environment survive to pass on those mutations to their offspring and organisms with unfavorable mutations die, leaving a population that is well-suited to exist in a particular environment. "Intelligent design" (ID) is another theory used to explain the mechanism of evolution. Intelligent design does not dispute the existence of evolution, but it does call into question what (or who) is responsible for evolution. ID proponents suggest that biological life is so complex that only a "higher power" (which usually goes unnamed) could possibly have created it. While this is not a scientific theory, but a rhetorical argument, it is still a proposition that runs counter to evolution.

But placing a sticker on a book saying that evolution (read: natural selection) is a theory does not, in itself, constitute an endorsement of non-empirical, unscientific theories of evolution like intelligent design. "After the School Board adopted the Sticker, numerous citizens, organizations, churches, and academics from around the country contacted the School Board and individual School Board members to praise them for then decision to open the classroom to the teaching and discussion of creationism and intelligent design," reads the opinion of the court. This is the full text of the sticker:

This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.

The people who asserted that criticism of natural selection necessarily entails acceptance of creationism are just plain silly. Not p does not imply q. It implies only not p.

Okay, okay, so creationism isn't a scientific theory. We already knew that. What about the law?

The opinion in this case asserts that courts have struck down numerous "balanced treatment" laws because those laws, far from attempting to be objective, were attempting to endorse a religious viewpoint:

Freiler v. Tangipahoa Parish Bd of Educ., 185 F.3d 337 (5th Cir 1999) (invalidating disclaimer required to be read to students prior to teaching of evolution because the disclaimer had the primary effect of endorsing a particular religious viewpoint). Daniel v. Waters, 515 F.2d 485 (6th Cir 1975) (declaring unconstitutional a statute that required a disclaimer to accompany all theories of origin except the Biblical theory of creation and that precluded the teaching of occult or satanical beliefs of human origin), McLean v. Arkansas Bd of Educ. 529 F.Supp 1255 (E.D. Ark 1982) (striking down statute that required balanced treatment of creation science and evolution in public schools).

The test of whether or not a government message violates the Establishment Clause of the Federal Constitution ("Congress shall make no law respecting an establishment of religion") is articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971):

[A] government-sponsored message violates the Establishment Clause of the First Amendment if (1) it does not have a secular purpose, (2) its principal or primary effect advances or inhibits religion, or (3) it creates an excessive entanglement of the government with religion.

If a government-sponsored message does not meet one of these prongs, then it is unconstitutional under the Establishment Clause.

The U.S. District Court in this case affirmed that the textbook sticker does have a secular purpose. In analyzing the second prong of the Lemon test, the Court believes that the Sticker fails the "effect" test:

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders.

In coming to this conclusion, the Court said that the "problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause." How has the school board "appear[ed]" to have sided with proponents of religious theories? Again, I must emphasize that critically considering a theory is not tantamount to the negation of that theory. Unless, of course, Cobb County is denying the existence of the fact of evolution (that is, biological change over time), which is not religious entanglement, but just stupidity.

Or is it? "This Court's review of anti-evolution cases indicates that whether evolution is referenced as a theory or a fact is certainly a loaded issue with religious undertones," says the opinion. Remember: the existence of biological change over time is a fact supported by evidence. The existence of natural selection, however, is a theory. In this case, the sticker suggests that evolution is not a fact, and to say this is, as the court notes, a loaded statement. It is akin to suggesting that the heliocentric model of the universe is only a theory, when it is really a fact supported by evidence. The court also observed that "encouraging the teaching of evolution as a theory rather khan as a fact is one of the latest strategies to dilute evolution instruction employed by antievolutionists with religious motivations." To put an asterisk next to everything a student learns about evolution, with the footnote "There's a good chance that this information isn't true" is plainly not a true statement. The court's basis for invalidating the Sticker based on the effect prong is that "the School Board should have called evolution a fact."

My original intent when writing this entry was to demonstrate that the court's decision was wrong, that asking students to critically consider evolution did not constitute an endorsement of religion. Reading the case, further, however, it became clear to me that calling evolution a "theory" rather than a "fact" was disingenuous and false on its face. Perhaps a sticker saying that "natural selection is a theory" would have been more true.

Ultimately, I agree with the District Court on both prongs of the Lemon test. While the school board's purpose may not have been to advance or inhibit religion (and the Court agreed that this was not the purpose), its effect has been to advance religion through the denigration of evolution. More seriously, the Sticker makes a patently false statement -- that evolution itself is a theory -- and has the effect of advancing the conservative Christian opposition to evolution. In retrospect, if I were a judge and this case came across my desk for an appeal, I would probably deny the appeal and let the District Court ruling stand.

January 1, 2005

If I had five wishes this year ...

Another year, another day older. But another chance to do right what went wrong last year. What do I want to see in 2005?

  • The FCC decides that it no longer wants to be the Parents Television Council's lap-dog and tells them to go take a hike. It goes back to the way it used to be before Janet Jackson's boob was suggested during the Super Bowl.
  • Spyware manufacturers decide that their business model isn't making them money and it's harming millions of computer users. They all jump off a bridge. Or get hit by a bus. The downside to that is that I'll be bored with no spyware to remove.
  • George W. Bush either 1) resigns or 2) wises up, stops operating the country based on evangelical Christian beliefs, decides he doesn't want to be a neo-con anymore, and spontaneously gets about 30 more I.Q. points. We abandon our War on an Abstract Idea and decide to work together with the rest of the world instead of in opposition to it. How many Civilization 3 players actually like the Mongols or the Zulu?
  • The MPAA and RIAA give up their persecution of file-sharing networks (their latest tactic is placing enticing spyware-infected files on peer-to-peer networks). They also decide that the consumer should decide what he wants to do with the content he has purchased. The Ghost of Jack Valenti is finally exorcised from the MPAA and content is produced that is DRM-free or has DRM installed that protects consumers' rights as well as the artists' (read: publishers').
  • Finally, the terrorists conclude that blowing people up doesn't endear them to anyone. They talk to governments, and governments listen. ETA and Madrid respectfully agree to disagree, atavistic Muslim clerics get with the times, and the new leader of the Palestinian Authority condemns terrorism and works to stop it. Oh, and Ariel Sharon stops taking those crazy pills and actually works with the Palestinians instead of trying to kill them all.

And because I can, here's the inspiration for the title of this entry: Steve Martin's "Five Wishes for Christmas" monologue.