Categories
Legal, Laws, and Regs

Tis the season

I thought that now would be a good time to recommend two legal weblogs associated with consumer law, credit, and bankruptcy:

Consumer Law & Policy Blog

Credit Slips

We focus so much on DRM and copyright in weblogs that we forget that consumer law probably has far more impact on us, and far less public exposure.

Another related weblog is Ross’ Arbitration Blog, which covers the growing proliferation of mandatory arbitration clauses, and lack of accountability in the arbitration process. In particular he points to a LA Times article on arbitration that discusses some of the concerns associated with the increasing use of arbitration for any non-criminal court activity. (Sorry, free registration required for this article.)

A more pungent discussion on the current state of arbitration can be found in the article: Arbitration and the Godless Bloodsuckers, by a former state supreme justice of West Virginia. Richard Neely really lets loose with both barrels. PDF of actual article and be forewarned, it’s a large document.

Categories
Legal, Laws, and Regs Religion

Free will and religion

The Columbia Missourian has a thoughtful article on how the different religions in Missouri view Amendment 2. It’s timely, for me at least, because I needed to be reminded that religion does not automatically kill brain cells.

The St. Louis Post Post-Dispatch has an excellent article on the economic impact of not passing Amendment 2. Not only are we closing the doors to most stem cell research (including adult stem cell), it’s closing the doors to almost all biolife research in this state–primarily because any time someone wants to introduce a bill encouraging such, those opposed to embryonic stem cell research attack it, worried that in some small way the unrelated research might open a door for this activity.

Note in the article the reasons for Amendment 2: people like Rep. Lembke and state Senator Bartle, who spend all their time trying to pass legislation every year to criminalize embryonic stem cell research. Year after year, they try to push this through, and if they succeed, this means people such as Dr. Stephanie Watson can’t seek help for her daughter’s diabetes, even in another state, if such is based on embryonic stem cell research. To do so, would make her a felon. Oh excuse me, our beloved state representative and senator are thinking on not pushing this through as a felony–just making it one of extremely huge fines, which I’m sure that most Missourians can afford.

I got into a joke of a debate at Blogher with a person who is against such effort because of her religious beliefs. What she failed to explain is why it’s better to trash unused embryos left over from In Vitro Fertilization (IVF) than it is to use them for research that could possibly help find cures for Dr. Watson’s daughter’s diabetes, as well as Michael J. Fox’s Parkinson’s, or Matt Fickie’s congenital kidney disease. I am finding that the right to life people seem to be willing to kill off any number of living people in order to save one embryo–and this doesn’t make sense. Is it really life they value? Or is it the empowerment that comes from being able to exert control in a world, and on a world, where they feel increasingly powerless and threatened?

(PS Also see Marianne Richmond’s post at Blogher on this issue for another Missourian’s view. And another article on denominational views on Amendment 2. )

Categories
Internet Legal, Laws, and Regs Weblogging

That old copyright song

Recovered from the Wayback Machine.

My cable connection started working without problems yesterday, just in time for me to attempt to connect using DSL later today. I’ve also been attempting to take photos of the bald eagles wintering in our area, but have run into interesting complications, which I’ll write about later.

In the meantime, thanks to Halley Suitt for pointing out this rather amazing sleight of hand trick from John Palfrey at Harvard on copyright law, RSS feeds, and his new enterprise, Top Ten Sources.

Mr. Palfrey, the Berkman Center at Harvard holding the copyright of RSS is completely beside the issue, and only serves to obfuscate the discussion–as does raising the specter of the Big Bad Media companies. In addition, I’m very confident that I hold the copyright on my writing regardless of the medium in which I publish the writing, unless I grant that copyright to another. The fact that what I write appears in a RSS feed does not change how copyright laws work. No matter how much you wave the Web 2.0 wand, it does not change copyright law.

People who provide syndication feeds do so in the assumption that the feeds will be picked up in personal aggregators. A personal aggregator is nothing more than what amounts to a ‘reader’ for the content. Whether you read my content in your personal aggregator or via a web browser (point being moot since I only publish partial feeds), does not violate the copyright law because you’re not re-publishing or copying that material in its entirety. The personal aggregator becomes nothing more than a variation of a web browser.

To the techs out there: am I right, or am I wrong? Isn’t a personal aggregator, whether web-based or desktop-based, nothing more than a variation on a browser, in that it renders web-based material for an individual’s personal consumption?

However, re-publishing the content in its entirety for mass consumption without permission is a violation of copyright law. No ifs, ands, or buts about it. In addition, at least in the US, copyright is granted automatically on a work and one does NOT need to re-publish copyright information in one’s feed, unless one wants to. Now, people can and should include Creative Commons licenses that allow one to re-publish content if they don’t care that this happens. But if they do, and no commercial re-publication is allowed, this means that sites such as Top Ten Sources cannot re-publish the material if the site is run as a commercial for-profit enterprise.

To the legal beagles out there–point blank: am I right? Or am I wrong? No, ‘gentlemen of the court’ niceties; no A-list deference; no but it’s Harvard obfuscation; no Web 2.0 bullshit. As clearly and precisely as possible: am I right, or am I wrong?

Categories
Copyright

Debate on DRM

Recovered from the Wayback Machine.

Doc Searls points to a weblog post by the Guardian Unlimited’s Lloyd Shepherd on DRM and says it’s one of the most depressing things he’s read. Shepherd wrote:

I’m not going to pick a fight with the Cory Doctorows of the world because they’re far more informed and cleverer than me, but let’s face it: we’re going to have to have some DRM. At some level, there has to be an appropriate level of control over content to make it economically feasible for people to produce it at anything like an industrial level. And on the other side of things, it’s clear that the people who make the consumer technology that ordinary people actually use – the Microsofts and Apples of the world – have already accepted and embraced this. The argument has already moved on.

Doc points to others making arguments in refutation of Shepherd’s thesis (Tom Coates and Julian Bond), and ends his post with:

We need to do with video what we’ve started doing with music: building a new and independent industry.

Yes, the next generation of PCs and Macs will have DRM cripplecrap in them. Hey, who needs WIPO, Congress and the U.N. to mandate copyright craziness, when Intel is glad to put the means right in the hardware?

But current PCs already have DRM, truth be told. (Try getting a screen shot of a DVD frame on your Mac.) Yet you can still make music and movies that can be heard, watched, produced and distributed outside The System. That won’t change.

And that’s what matters most.

Because in the long run, the indies will win.

That’s how we got the Net, folks. And that’s how we’ll keep it, too. Even if our dawn’s early light is years away, it will come. Meanwhile, we have to endure this winter of dissed content.

I don’t see how DRM necessarily disables independents from continuing their efforts. Apple has invested in iTunes and iPods, but one can still listen to other formats and subscribe to other services from a Mac. In fact, what Shepard is proposing is that we accept the fact that companies like Apple and Google and Microsoft and Yahoo are going to have these mechanisms in place, and what can we do to ensure we continue to have options on our desktops?

There’s another issue though that’s of importance to me in that the concept of debate being debated (how’s this for a circular discussion). The Cluetrain debate method consists of throwing pithy phrases at each other over (pick one): spicey noodles in Silicon Valley; a glass of ale in London; something with bread in Paris; a Boston conference; donuts in New York. He or she who ends up with the most attention (however attention is measured) wins.

In Doc’s weblog comments, I wrote:

What debate, though? Those of us who have pointed out serious concerns with Creative Commons (even demonstrating problems) are ignored by the creative commons people. Doc, you don’t debate. You repeat the same mantra over and over again: DRM is bad, openness is good. Long live the open internet (all the while you cover your ears with your hands and hum “We are the Champions” by Queen under your breath).

Seems to me that Lloyd Shepherd is having the debate you want. He’s saying, DRM is here, it’s real, so now how are we going to come up with something that benefits all of us?

Turning around going, “Bad DRM! Bad!” followed by pointing to other people going “Bad DRM! Bad!” is not an effective response. Neither is saying how unprofitable it is, when we only have to turn our little eyeballs over to iTunes to generate an “Oh, yeah?”

Look at the arguments in the comments to Shepherd’s post. He is saying that as a business model, we’re seeing DRM work. The argument back is that the technology fails. He’s talking ‘business’ and the response is ‘technology’. And when he tries to return to business, the people keep going back to technology (with cries of ‘…doomed to failure! Darknet!’).

The CES you went to showed that DRM is happening. So now, what can we do to have input into this to ensure that we’re not left with orphaned content if a particular DRM goes belly up? That we have fair use of the material? If it is going to exist, what can we do to ensure we’re not all stuck with betamax when the world goes VHS?

Rumbles of ‘darknet’, pointers to music stores that feature few popular artists, and clumsy geeky software as well as loud hyperbole from what is a small majority does not make a ‘debate’. Debate is acknowledging what the other ’side’ is saying, and responding accordingly. Debate requires some openness.

There is reason to be concerned about DRM (Digital Rights Management–using technology to restrict access to specific types of media). If operating systems begin to limit what we can and cannot use to view or create certain types of media; if search engine companies restrict access to specific types of files; if commercial competition means that me having an iPod, as compared to some other device, limits the music or services at other companies I have access to, we are at risk in seeing certain components of the internet torn into pieces and portioned off to the highest bidders.

But by saying that all DRM is evil and that only recourse we have is to keep the Internet completely free, and only with independents will we win and we will win, oh yes we will–this not only disregards the actuality of what’s happening now, it also disregards that at times, DRM can be helpful for those not as well versed in internet technologies.

update

My apologies to Lloyd Shepherd for spelling his name wrong. I’ve attempted to correct the misspellings. Please let me know if I’ve missed any.

Categories
Legal, Laws, and Regs

Koi-side economics

Recovered from the Wayback Machine.

New bankruptcy laws went into effect in the US this week. For the best detailed description of these law changes, check this NOLO article.

The new law makes little sense in relation to today’s economy. Surveys of those filing for bankruptcy find they do so because of medical bills, loss of jobs, and divorce–only 3% could be considered as abusive filings. Unlike the banking industry’s assuptions given in a press release on the matter, I know of no one who filed for bankruptcy because they lived expensively and then decided to just bug off from the responsibility.

I don’t know what I consider of the new law to be the most flawed. There is the issue of ‘credit counseling’, whereby new industry will now spring up to provide spurious ‘economic advice’ and charge $75.00 or more to people who have little or no money. I find the concept of forcing people into credit counseling from a Congress that has managed to create a history making deficit to be rather ironic myself.

Then there’s the valuation of property if you do file Chapter 7. Each person filing is given so much in exemptions of what they make keep, all of which changes from state to state. In Missouri, you can keep about a 1000.00 dollars of exempt personal property. Before the change in law, items you kept were valued at what their sale would bring, using eBay or other auction or yard sale. Now, each item has to be valued at retail, in consideration of age and condition. Since the trustees would not get this amount selling the items, the only purpose for this change in the law is punitive–forcing those in bankruptcy to literally lose everything: from a 3 year old television, to a 10 year old bed, to a 13 year old frying pan. Even a pet has to be valued at it’s ‘retail’ value.

No, I think my favorite flaw is that those under Chapter 13 bankruptcy have to follow IRS guidelines for cost of living. These are set the same for all 48 states (Alaska and Hawaii have their own), which means whatever you pay for food in St. Louis is the same amount you can spend for food in San Francisco and so on. These are so restrictive, there’s almost a guarantee that Chapter 13 filers will fail before the five years is up.

This is ultimately the legacy of the new law: it won’t work. Unfortunately, though, while it won’t work, people already harmed by circumstance will be further harmed by law. According to Judge David Houson in Mississippi:

Congress changed the “gem of our bankruptcy system” so much that there’ll be “a subculture of people that will owe a lot of money and just move away,” Houston said in a recent interview.

The new law imposes restrictions aimed at preventing people from using the bankruptcy court to dodge debts they could actually afford to pay.

The “gem” in the current system, Houston said, is the Chapter 13 bankruptcy provision, which lets people with large debts reorganize their finances with court oversight to repay some or all the money over an extended period to creditors.

While Congress intended to steer more debtors to take the Chapter 13 route, Houston said the reforms could have the opposite effect – meaning more debtors will run away from creditors and they won’t get the money due them.

The law imposes disincentives for people to repay debts over time in a court-monitored process to ensure creditors get their money, he said.

“That’s one of the sad parts of the legislation. It’s going to (hurt) the Chapter 13 program,” Houston said.

Even before it went into practice, caveats had to be added to waive credit counseling for those whose homes and all livelihood were wiped out by Katrina. As for the provision that people filing bankruptcy have to do so from their local community, this is problematic when you consider that many new victims no longer have a local community.

In the meantime, to compensate for the surge of bankruptcies this new law has generated, credit card companies are raising their interest rates to 29 percent, for those already struggling with card costs. When one considers that wages have been virtually flat for the last several years while health insurance costs rise an average of 11 to 13% a year and fuel costs have jumped 200%, this interest increase will most likely force even more into bankruptcy next year–a cause and effect these companies seem incapable of understanding.

I used to think that those in favor of bankruptcy reform were being greedy and rapacious. Lately, though, I think that the laws reflect a growing mediocrity in the economic and financial community. In other words: those pushing for change aren’t thinking through the consequences; they’re just looking for quick ways to increase today’s bottom line, even at the risk of tomorrow’s financial stability. The last few years have shown a number of optimistic predictions from these same economists–ones that don’t match what we’re seeing and experiencing for ourselves. They remind me of weather forecasters who never look out the window and persist in predicting a sunny day even while it’s pouring rain outside. In the case of bankruptcy law, though, the credit card companies and banks are seeing a quick way to keep money flowing from people who literally have none.

There is some small justice, though, a bit of black humor associated with the new bankruptcy law. MBNA, the corporation most active behind the new law, has seen a significant decrease in profits this year. You might think it’s because of the increased bankruptcy filings, but no, that’s not it. According to Consumer Affairs:

Of potentially greater long-term significant, more and more consumers — perhaps stung by exorbitant increases in their interest rates — are paying off their MBNA credit card debts faster than expected.

Like other banks, MBNA relies on the interest, service fees and late charges it gets from its credit cards.

Perhaps the passage of S.256, the Bankruptcy Reform and Consumer Protection Act, which makes it harder to resolve credit debt through bankruptcy, has scared debtors into taking care of business faster. The financial giant spent millions of dollars priming the political pump to ensure it would be able to wring the last drop of blood from its credit card customers.

The moral of this story?

Paying off your credit card debt not only cleans up your balance sheet and gives you extra cash to spend and invest, it also puts a chink in the armor of the companies who’ve steadily tightened the noose around consumers’ necks.