November 25, 2004  ·  Lessig

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So this is the beginning of some fascinating data. The graph represents the “shift” from 4pm exit poll data to final results. The puzzle is why the shift is so biased. It is an “academic” puzzle because it won’t matter to this election. But it should be explained.

November 24, 2004  ·  Lessig

In September, I reported that Philadelphia was considering funding a WiFi service for the city. Sixty percent of the citizens have no access to broadband. The city elders believe that’s no way to enter the 21st century.

But as Public Knowledge now reports, a bill on the Governor’s desk would now make it impossible for Philadelphia to offer such a service, because it “competes” with private businesses offering the same service.

So, let’s see: If I open a private street light company, selling the photons my lights give off, can Philadelphia offer “free” street lights? Or does the fact that Guards To Go offers services in Philadelphia mean we need to disband the Philly police department?

I am from Pennsylvania. I spent 4 wonderful years in Philadelphia. (Indeed, I was elected Youth Governor in 1979!) If you’re connected to that freedom-loving state, please say something to the Governor.

November 24, 2004  ·  Lessig

So months ago, I posted this odd post, titled “INDUCING gun control legislation”. I had to pull the blog post because the Washington Post had accepted something close to this op-ed. At the time, of course, INDUCE was looming. Activists, including Public Knowledge, EFF, and industry has now of course succeeded in stalling the legislation for now.

The basic point of the op-ed is obvious: There’s no difference in principle between regulating p2p manufacturers, and regulating gun manufacturers. Both make products that do harm; if you believe PK/EFF w/r/t p2p, and the NRA w/r/t guns, then both make products that do good too. If you want to be principled and distinguish the two, you’d have to say either that the harm caused by one is much greater than the harm caused the other, or that the good produced by the one is much less than the good produced by the other. By my reckoning, such an effort to distinguish would doom gun manufacturers, not p2p manufacturers.

Anyway, there’s a bit more to the argument in the piece itself. But one point I want to make clear: My argument is about what a principled Congress would do. It is not a prediction. It is of course “naive” to believe Congress believes itself constrained by “principle.” But if principle is absent, then please, let these Congressmen drop the self-righteousness as well.

November 18, 2004  ·  Lessig

Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter “smut” from films) would be read to deny fair use in other cases.

The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.

That bill adds some “Anti-Counterfeiting Provisions” to regulate counterfeit or illicit “labels.” Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.

Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there’s a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.

Senator McCain is thus floating an amendment, to limit the regulation of “illicit labels” to physical labels only. And he has proposed a savings clause, which states:

Savings Clause.–Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.

Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.

November 15, 2004  ·  Lessig

In 1991, according to The Patent Wars by Fred Warshofsky, Bill Gates said this about software patents:

If people had understood how patents would be granted when most of today�s ideas were invented and had taken out patents, the industry would be at a complete standstill today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.

Thirteen years later, according to Brad Stone of Newsweek, Microsoft alum Nathan Myhrvold is putting this insight into action.

November 9, 2004  ·  Lessig

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The six news organizations at the left contracted with two polling organizations at the right to provide exit poll information one week ago today. Those data were inconsistent with the actual results — significantly so. Dick Morris says that “this was no mere mistake. Exit polls cannot be as wrong across the board as they were on election night. I suspect foul play.” The aim of the evil doing in Morris’ judgment was to suppress Bush votes — which it apparently didn’t. But the same data are used by skeptics on the other side, to suggest that those who had a hand in tallying the vote — in particular, one company whose President had promised to deliver Ohio for the President — changed the votes that the exit poll surveyed.

I think both claims are bunk — I don’t think there was a conspiracy to suppress the Bush vote, nor do I think Diebold stole the election for Bush — but there are obvious puzzles that need to be resolved. First, there is Morris’ point — exit polls are just not that wrong. Second, there are the insanely inverted county votes in the many heavily Democratic counties in Florida that had their votes counted by optical scan (and tallied by Diebold machines among others). Why were the polls so bad? Why did Democrats in those counties overwhelmingly defect to the President while remaining “liberal” in their other votes?

These are questions of fact that can be answered, or at least understood, if the facts were known. The Exit Poll Consortium should enable that knowledge. It would be a relatively simple regression to map exit poll data against counties or precincts with suspect machines. More importantly, it would be relatively easy to isolate where, if anywhere, suspicion should be directed.

The Exit Polls have done enough damage to this election. My bet is that it was incompetence at Edison/Mitofsky. But those firms owe it to this Nation to release their data totally, so that a wide range of competent statisticians can evaluate whether and where the problem was.

And more importantly for the blog space: If blogs are going to be something more than the CB radios of journalism, we need an ethic to treat this sort of question ethically. Anyone who is surprised that a voting machine didn’t work has been living on Mars for the last 100 years: Always, and in every election, voting machines fail. That fact should force us to a sensible architecture for voting machines — one which we don’t have just now for electronic voting machines. But it isn’t, itself, evidence this election was “stolen.”

No one can, or should, utter such words without the data to back it up. Instead, we should demand what, in this context, should be our right: to have access to the data. There is irresponsibility somewhere. Let us not add to it here.