Archive for 2006

Elections & Trade Secrets

December 30th, 2006

For those not keeping score, the recent federal elections are not completely over. The race for Florida 13, while certified by the Secretary of State, is not yet settled to the satisfaction of the losing party. In this case a Democrat who appears to have lost because many other people who voted Democrat on other races failed to vote in her race.

At the heart of the controversy are fancy touchscreen voting computers, which lack paper-trail verification, and have been the target of sustained criticism from voter rights groups for the past several years.

The Herald Tribute reports that the challenger’s motion to see the voting computer source code has been denied. Based on the article, which lacks sufficient legal description for this law school graduate, the judge felt the case as presented was mostly one of “conjecture” and was insufficient to override the trade secret protection of the voting machine manufacturers.

And so we enter the final realm of IP protection. I’ve spoken before on copyrights, patents, and trademarks… but trade secret just doesn’t make it into the news all the often and yet is the single most important form of protection in the computer industry. The idea is simple: if a company has information they produced and they take reasonable steps to keep in secret, then it is consider a “trade secret” and entitled to protection.

The most common situation in which I’ve encountered this protection is when one tech company sues another and source code is at the heart of the matter. If one company seeks to discover the source code, the other can argue trade secret protection to prevent a competitor from accessing the source, or worse yet, the code entering public knowledge and losing all protection.

But there is a standard remedy which seems relevant to this election case. Known as a protective order, the moving party can request the source code be reviewed by lawyers (and their experts) who are may review the code and determine if their suspicions are correct. The lawyers are required to keep the information from their client. If the code reveals something relevant to the case, they can go to the judge and say “look, this has a direct impact on the case it must be disclosed to the parties.” Then the judge can rule on something substantial.

In the present case, trusted experts could look at the code and make a determination on whether votes could have been improperly counted, present that determination to the judge who could make an informed ruling. Instead the judge seems to have bought the manufacturer’s claim of software perfection. Mind you, Microsoft has been saying for years that it is impossible to make bug-free software and thus they should not be liable for damages as a result of their bugs.

I hope the Florida Appeals Court thinks about the precedent being set here when legitimate claims of voter fraud are weighed against trade secrets.

probonogeek Politics

In Town

December 18th, 2006

I arrived in Seattle on Friday (having walked, ridden on three buses, and airplane, and a car) and I couldn’t be happier to be back. The why behind my love for this place is certainly still true. I won’t bore you with details, but it has been great to see the city lit up (well, the parts that have electricity, anyway) and see friends and family.

Hopefully if you are someone who reads this blog, I will contact you soon to setup a time to meet while I’m in town. If I don’t, chances are I don’t know you read this self-defacing trash. Contact me.

probonogeek Personal

Webcomics For Life

December 14th, 2006

A friend of mine sent me a humorous webcomic that deserves to be shared with a wider audience. I’ve never heard of this particular strip before, but if you are into math, technology, and humour, it may be for you.

If not, I still think this one is a particularly excellent reflection of me, as a person. I’m not saying the girl has ever left before, but the scenario certainly started out the same way.

Make sure to hang your mouse over the image for a few seconds to uncover one of my life’s guiding philosophies.

Here’s the strip.

probonogeek Personal, Technology

Thoughts on Digital Video

December 13th, 2006

For those who don’t regularly browse youtube content or browse slashdot obsessively… I suggest something which I think is well worth the bits to download.

Here’s a link.

But you don’t come to Pro Bono Geek for links to the latest media content. There are better blogs written by much more interesting people out there for such things. So, in addition to the link above (which I repeat again here for your convenience), here are some thoughts on digital video…

I’ve been considering getting Sarah a digital video (DV) camera for Christmas. Not really sure if I can afford to the level of quality I would want to get her, so it may have to be pushed off until after I strike it rich playing the California Lotto. They have a lotto down here, don’t they? Anyway, since the idea came into my mind I’ve been thinking about what I might do if I had access to such technology.

So far… haven’t come up with much. Sarah wants/needs the camera for school. Learning how to use it now will make doing ethnographic film making easier when she gets to that point in her graduate studies. So she’s got a rationale for the expensive little bobble. I, on the other hand, have really no justification other than it has cool buttons.

I’m an avid fan of The Show with Ze Frank and his show is made possible by a DV camera. But I’m sure not that funny, nor committed, to doing such a thing. It’s already risky that I, a person with political ambition, write a blog… heaven forbid if there were sound bytes!

There are other uses for a DV camera. Like, I’m told that a group of guys once went to Los Vegas with a fancy camera and took a bunch of pictures of their exploits. But that may or may not be true. But how often do you really produce that kind of footage? And, after you’ve created the footage, what in the world are you supposed to do with it? How often do you rewatch home movies?

All of these questions got me thinking… maybe I’m approaching the question all wrong. Perhaps a DV camera is not a means to a particular end, but a tool for general innovation. For example, I have this new case for my media server. The case includes a vaccum florescent display. At first I thought, wow… what am I going to do with that. Now, about a month later, I’ve written little display and control apps that allow me to manage my media collection without having to turn on the TV. Neat and energy efficient!

So the question becomes, would I have thought of the idea had I never owned the case? Probably not. But since the tool was available my mind got thinking and eventually innovation struck. Perhaps a DV camera, then, is not technology to be purchase because I have particular goals in mind… but because having the technology will present opportunities I would never have even considered… oh, and because Sarah would like it

probonogeek Technology

So Upsetting, It Actually Hurts

December 3rd, 2006

Democrats, as you may have heard, won big in November. What you may not have heard is that Keith Ellison, the new Minnesota Congressman and a Democrat, is the first Muslim to be elected to the House of Representatives. In accordance with his faith he has decided to take his oath of office using the Qur’an, instead of the Bible. This has upset some folks.

The article, if you can call it that, actually hurts to read. It is so full of inaccurate legal and cultural statements that I cringe to think about it. But allow me to share a few quotes which I assure you I am not taking out of context.

What Ellison and his Muslim and leftist supporters are saying is that it is of no consequence what America holds as its holiest book; all that matters is what any individual holds to be his holiest book.

Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don’t serve in Congress.

Ellison’s doing so will embolden Islamic extremists and make new ones, as Islamists, rightly or wrongly, see the first sign of the realization of their greatest goal — the Islamicization of America.

When all elected officials take their oaths of office with their hands on the very same book, they all affirm that some unifying value system underlies American civilization. If Keith Ellison is allowed to change that, he will be doing more damage to the unity of America and to the value system that has formed this country than the terrorists of 9-11.

Which brings me to one last quote I think is worth sharing on this topic. I think we can all agree that if there is one writing every member of Congress should uphold it is the United States Constitution. It has a valuable passage which I am reminded of everytime someone screams about the need to elect Christian legislators. You’ll find this in Article VI of that most venerable document.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

probonogeek Politics

Quick Post on Standing and the First Amendment

December 1st, 2006

Washington Post has an article on the Supreme Court’s decision to hear a challenge to the Bush Administration’s faith-based initiative program. There are a lot of opinions flying around about the faith-based thing, and I’m not really interested in getting into it (for discussions on religion, I suggest checking out my friends’ discussions).

What I am interested in is the Administration’s effort to get this case booted on procedural grounds. They argue the plaintifs in the case lack standing, which means the plaintifs have not personally suffered a harm. The plaintifs are suing as tax-payers, meaning the only harm they allege is that their tax dollars are being spent in an unconstitutional manner.

The administration is not wrong in that tax-payer suits are dangerous… to allow any old tax-payer to bring a suit would flood the courts with law suits while providing little context for the court to rule. See, the problem with the average tax-payer is that they have no specific facts, no information, nothing to bring to the table that a judge can consider. As such, we have a doctrine that says general tax-payer status does not count for standing.

The administration, however, is dead wrong when “[i]n written arguments filed with the Supreme Court, Solicitor General Paul Clement said the appeals court had transformed a narrow exception in law into a “roving license” for citizens to challenge any action of the executive branch of government.” See the mention of the narrow exception? That’s what is known as a bald face lie.

The narrow exception he’s referring to, and the only exception I know of to the tax-payer standing doctrine, is for establishment of religion cases. The argument is simple… if the government is, in fact, using tax dollars for unconstitutional establishment of religion (as the plaintifs argue in this case), who exactly suffers a harm other than the general tax-payer? Who, without this exception, has standing to challenge? Certainly not the religious institution receiving the funding. If no one has standing, then the behavior continues without scrutiny.

Which, I suppose, is exactly what the Bush Administration wants in this instance.

probonogeek Law

IP in the News

November 29th, 2006

Two stories worth noting/commenting about and then it’s back to work on my Kolab replacement technology… and maybe I’ll try to find a job.

First up, the United States Supreme Court heard oral arguments today on a topic near and dear to my heart: obviousness. In order to receive a patent from the United States government an invention must pass a series of tests. They are generally conceived of as: utility, novelty, and nonobvious. At this point utility is pretty much a non-test, as everything has some utility. There used to be a doctrine about public good, but a famous case about those drink dispensers and how they trick you into thinking the juice is fresh (when, in fact, the juice you see is colored water in a continuous cycle) ended any need for public benefit.

Novelty is perhaps the hardest hurdle to cross, because any prior art can nullify your patent. Of course, there is no easy way to access prior art and because trade secret is such a big thing in the technology sector, a lot of prior art is never widely published.

Which leaves us with obviousness. Under the statute, a patent is not to be granted to an idea with someone of “ordinary skill” in the same field could have come up with it. The point being that just because you were first to come up with something anyone could have done does not mean you should have exclusive rights. However, the statute was pretty much eviscerated by the Federal Circuit when they observed that such inquiries have a “hindsight” problem. Essentially, when the court tries to consider the obviousness it does so in the context of the inventions existence. It’s obvious because it’s already be done. But the Federal Circuit wanted to know if it was obvious at the time of invention.

The Federal Circuit’s test on this is odd and I’m not going to get into it because I don’t really understand it. Justice Scalia is quoted to have declared it “gobbledygook” and “meaningless.” Sounds about right. It’s also worth noting that the Supreme Court usually reverses the Federal Circuit if it bothers to take the case, which means the test will likely be rejected and replaced with something better. Which is a good thing.

In the past I have argued the reversal rate reflected a fundamental disconnect between the Federal Circuit and the Judiciary itself. However, my Circuit Court research from last spring makes me doubt that claim. Unlike the regional circuit courts, which can split on the same question, the Federal Circuit holds sole initial appelate jurisdiction over patent claims. Thus there is no such thing as a circuit split in the area of patent law. I suggest this is a bad thing, as it leads to ossification and reduced experimentation, but the Federal Courts Improvement Act of 1982 disagrees with me on this point.

Much of what the Supreme Court does is pick winners in circuit splits, which means one circuit usually gets upheld and the other gets overturned. But in the Federal Circuit context, if the Justices agree with the the Fed Circuit, it’s easier and quicker to simply deny cert. The only time they need to bother with a case is when they want to consider overturning a decision. Following the logic, we would expect the only time the Federal Circuit to be upheld is when four justices disagree (enough to grant cert) but can’t find a fifth to form a majority. Since most patent decisions are 7-2 or better, we rarely see this situation.

In other news, the first report of a major university selling it’s professor’s fair use rights has emerged. Apparently Cornell University has entered into an agreement with Association of American Publishers (think RIAA for books) which will significantly constrain the ability for professors to distribute learning materials to students without paying a royalty. Now, I’m not going to say the issue isn’t tricky, but this is no Napster situation. Professors are not stealing anything… they are teaching students. Considered by some to be the most noble of all professions.

The heart of the issues is §107 of the Copyright Act, which codifies fair use rights. The act has a four item list which are considered non-exclusive factors to be used in determining a fair use. Since it is a non-exclusive list, there are other factors, but these are the big four. The very first one reads

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

So, as you can see, the professors might think that their teaching falls under the nonprofit education purpose fair use exemption.

The publishers counter that they produce educational materials for the purpose of making a profit. If the very people who are supposed to be buying these products (teachers and students) can just get them for free, then there is no money to be had and it’s time to get out of the business. Which is as good an argument as any.

Of course, for decades (if not centuries) professors would have books placed on reserve at the university library where students could access the book for free. Online reserve, which is at the heart of the agreement, is just a natural extension of the old concept, right?

The article first caught my attention because of the inflammatory headline: “Professors get ‘F’ in copyright protection knowledge.” Which I thought was pretty extreme, given the difficult legal questions at issue. But the article redeemed itself way at the bottom when it recognized that not all matters are legal. Even if the publishers are 100% correct, they are essentially biting the hand that feeds them… the professors they are seeking to limit are the very professors who write the material in the first place. Here’s the quote from the article.

At Harvard University, in Cambridge, Mass., Chris Dede, a professor of learning technologies at the Graduate School of Education, says the Internet may let faculty members publish their own material and cut the book industry out of the picture.

“If publishers push too hard, faculty may just decide they no longer need a middleman who collects all the profits in each direction,” Dede says.

Which just goes to show you… you might have the best legal argument in the world, but if it doesn’t hold up outside of the courtroom your just chasing short term victories in your long plunge off the cliff.

probonogeek Law, Technology

Echoes of History

November 29th, 2006

I’ve been reading pretty much every article that has anything to do with defining the current conflict in Iraq. The big debate, for those not obsessed with language politics, is whether Iraq is in a “civil war” or a state of “sectarian conflict.” The stakes are quite high for the Bush Administration. With public support already low, the perception that the Iraq conflict is an internal issue will feed public support for troop withdrawl and signal the final defeat of the Bush Doctrine.

As any good war of words, this one focuses on how you define them. The question of what constitutes a “civil war” is key. There are a number of good articles with lots of academic commentary out there, but here is one for your reading that is as good as any. The Administration’s line is “you have not yet had a situation . . . where you have two clearly defined and opposing groups vying not only for power but for territory.” Thus no civil war.

The comparisons with the United Stats Civil War are also frequent… some in the Administration have gone so far as to require both sides don uniforms to qualify. Not sure if urban warfare requires color coordination, but the point is interesting. See, President Lincoln refused to recognize the Civil War as a civil war. It was a rebellion. He refused to recognize the Confederacy as anything more than upstart political rebels. Of course, history disagrees with Mr. Lincoln. I suggest that regardless of how the current war of words plays out, history will disagree with Mr. Bush as well.

probonogeek Politics

Curse you Kolab

November 29th, 2006

This weekend I began a colossal undertaking. I was going to install Kolab, the much praised open source groupware solution developed by the Germans. It was going to revolutionize my life… network enabled calendars, contact lists, journaling, and more reliable email. Brilliant.

Today, 72 agonizing hours later, I have totally abandoned my efforts. Oh, I’m sure it could work… eventually. But even I have limits on how many times I’m willing to run full speed into a brick wall. Eventually you remember that it hurts when you do that.

I think the biggest difficulty with the project was the shear number of components that I just simply didn’t understand. Kolab combinds a lot of big technology to work its magic. Things like LDAP, SMTP, IMAP, and SASL are just the big acronyms you need to know. Then you have to deal with the particular implementations of those technologies: openLDAP, postfix, cryus, and sasl2. Throw in things like DNS, apache2, and php4 & 5 (technologies I know, but not very well) and you’ve got a real party.

In the end, the deadweight of all those impenetrable technologies got the better of me. I began to feel like I was tossing stones down a well and using the resulting sounds to not only decide what was down the well, but how to throw the next rock such that whatever was down there would magically convert into an Saturn V Rocket.

But there is a valuable lesson here, the same one the Iraq War is teaching the neo-cons. Understanding a few of the parts is not enough when dealing with interdependent systems. Once you’ve gone through your old tricks, tried and true though they may be, you are left with a vast network of unknowns, left pulling at various strings in a desperate game of trial and error. After my defeat at the hands of Kolab I was able to purge the entire project, losing nothing more than a few days of productivity. Iraq may prove a different story…

probonogeek Technology

What They Don’t Tell You About California

November 25th, 2006

It’s cold here. Don’t believe me… read this article from the Santa Cruz daily paper. When I got here I put all my heavy tops (sweaters, sweatshirts, etc) way on the top shelf, boxed up all my winter gear, and superglued my heater’s temperature dial to off.

Now it’s getting to be 30° below and I have to wear socks in the house. What happened to my beach weather? I thought California was a perpetual summer paradise.

I’m demanding my money back.

probonogeek Personal