I came upon this interesting case on Internet speech, privacy, and defamation at EFF.org and found the ruling rather interesting.  The case centered on a number of critical posts made to two Yahoo! message boards by anonymous posters, including the defendant using the avatar “Stokklerk”, relating to the company USA Technologies, Inc.  USAT (the company’s stock market acronym) is involved in “wireless, cashless, micro-transactions and networking services”, and since its IPO in 2000, the value of the company has plummeted from a high of about $400/share to its current selling price of $.66/share.  Perhaps not surprisingly, critics of the company and its management have emerged over the years, including the aforementioned commenter Stokklerk, who claimed that USAT was “legalized highway robbery” and that CEO George Jensen was “fleecing humanity”.  The anonymous poster also made references to USAT being a “soft” Ponzi scheme, claiming that it made outsized compensation payments to executives while failing to generate profits or otherwise show progress toward sustainability.  The tone of the comments clearly portrayed the company in a poor light, and while the actual credibility of the comments certainly is open to debate, the fact remained that the prominence and quantity of said comments on a major message board related to the company was not good for business. 

So in a surprise to no one who has followed Internet-based disputes, USAT brought suit against Yahoo! to disclose Stokklerk’s IP address pursuant to Securities Exchange Act of 1934, specifically Section 10(b) and related Pennsylvania common law defamation statutes. USAT claimed that by posting these negative comments about USAT on a publicly-accessible forum, Stokklerk and others were involved in a “scheme” to “enrich themselves through undisclosed manipulative trading tactics.”  In effect, USAT was claiming that various anonymous posters on a Yahoo! forum were involved in a remote cabal to undermine the value of the company’s stock.  So for those of you scoring at home, Internet bloggers were apparently a major contributor in USAT retaining a mere .17% of its initial IPO value. 

Well, the District Court of northern California clearly did not agree, finding that “the Constitutional protection afforded pseudonymous speech over the internet, and the chilling effect that subpoenas would have on lawful commentary and protest.”  The Court also shot holes in the notion that Stokklerk and others were involved in some coordinated assault against USAT and its stock, pointing out that “[USAT] does not allege any facts that defendant ever owned or sold any USAT stock or submit competent evidence that Stokklerk’s alleged statements distorted the market price for USAT stock, and that USAT was damaged as a result."  The gist of the Court’s ruling was that while USAT might not agree with the posts made by Stokklerk regarding USAT, these comments are clearly framed as the opinions of the poster and, if perhaps a bit hyperbolic, still should be protected as criticism and not defamatory.

Not surprisingly, I am happy with this ruling.  Commenting on social networks and public forums is a new frontier of public discourse, and while there certainly should be limits on what is deemed defamatory and not, making negative comments about an underperforming company and its management strikes me as well within the wheelhouse of free speech.  Stokklerk was clearly stating his (as the decision noted, the masculine form was accepted for convention in the brief, and does not necessarily identify the gender of the poster) opinions about USAT and its rather dramatic fall in value, and to be fair made comments that are rather tame by Internet standards.  True, if Stokklerk actively and knowingly spread lies and misinformation about USAT and (especially) its executives, I would be more accepting of this type of suit.  Because while I am a firm believer that anonymity on the Internet is something to be protected, that should not give carte blanche to post anything you want with impunity (we even have a term for those types of people).  Especially with respect to executives, there is a fine line between stating one’s negative opinions and openly attacking an individual, and one should be held responsible if that line is crossed.  That is why most legislatures have passed defamation laws that include striations of “public figures,” placing a greater burden on the aggrieved party show malice and intent to defame for public figures (either full or limited).   

Hopefully this will help to cement a precedent that free speech needs to be protected on the Internet, even at the expense of some nasty words being shared.  I’m sure that USAT felt that they had a viable case here, but some would argue that instead of picking a fight with some anonymous posters, USAT should focus its attention more on fixing the problems that the commenters highlighted.

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A real quick post since I haven’t made an entry in some time (due in part to ongoing Android development[read: cursing at Java books and Sun Microsystems]), but I thought this was an interesting article at Science Daily.  The article delves into the recent Science and Engineering Indicators (SEI) report that outlines the health of the U.S.’s science and engineering system via a number of markers such as total R&D costs and patent fillings.  The gist is that Asian countries, particularly South Korea, are starting to make a significant splashes in the global science and technology pool, and in a round-a-bout way at the expense of U.S. developers.  The article noted that “[a]nnual growth of R&D expenditures in the U.S. averaged 5 to 6 percent while in Asia, it has skyrocketed. In some Asian countries, R&D growth rate is two, three, even four, times that of the U.S.”  It goes on to say that foreign inventors seeking patent protection in America is on the rise from nations such as Taiwan and South Korea, though (somewhat) surprisingly is still relatively low in major countries like India and China.

At first blush, that sounds like the U.S. is losing ground, which would keep in line with the pessimistic outlook of this country’s future that has been circulating for some time.  As the U.S. becomes more of a “knowledge economy” driven by intellectual property and technological innovation, maintaining itself as a leader in engineering and science is essential.  True, the U.S. has not completely abandoned its manufacturing roots, and high-tech areas such as alternative fuel and defense development are likely to remain “in-house”, so to speak, for some time.  At the same time, though, if the U.S. expects to maintain its position as a leading global power, it must continue to be a leader in innovation and technological growth internationally, especially as Asian countries continue their impressive growth.

My issue with the article, and I guess the growing mindset that America is losing ground to other Eastern countries, is that most of these reports seemingly disregard the immense differences in the economies and growth patterns of the various countries.  While the U.S. is a mature nation with an established research base, nations like Taiwan, Korea, and even China are relative newcomers to the global technological stage, and all realize that to become a player they need to increase their production significantly.  That means more and more money being dedicated to research and development in order to spur on growth, but always with the caveat that most of the countries are still lagging significantly behind other developed countries in terms of innovation.  Without delving too deeply into the report (which can be found here for anyone who has a masochistic desire to skim 730+ pages of small text), the numbers show that while growth in foreign countries outstrips America’s, the total output by the U.S. still dwarfs the efforts from these rising nations.  So while it is still impressive to see 3x growth per year in some countries, the massive grain of salt is that they are based on much smaller starting bases.  And while the size of the countries should obviously be taken into account when analyzing the raw numbers, the fact remains that the U.S. should remain an innovation leader for years to come.

Of course, this position relies on a continued stream of high-quality engineers and scientists being produced by American schools and employers, which this report showed was eroding somewhat.  Less Americans are graduating college with degrees in engineering and the sciences than in years past, and even where there is growth it is somewhat minimal or due to classifications of “science” degrees that may not translate to real R&D growth.  And yes, the rending of clothes and gnashing of teeth over America’s struggles to promote science to a younger generation cannot be ignored.  But as others have noted, looking at raw numbers like graduation rates and total degrees being issued can be immensely misleading, since how ones defines a science background is obviously open for interpretation.  Also, quality of education at many of these schools is dubious at best, resulting in individuals graduating in a couple of years with degrees that are engineering degrees in name only.  So while the focus on science in America certainly needs to be reinforced (a position taken by President Obama both during his campaign and since entering office), the notion that America is about to be lapped in the server farms and laboratories by other nations is a bit premature.

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Today the Internet lost a vanguard in the form of Geocities, at one point a dominant player in web-hosting and one of the first sites to offer the service to individuals on a massive scale and for free.  Utilizing a unique “neighborhood” design, users would be assigned to a particular sub-section depending on the focus of their site (such as “Petsburgh” for sites focusing on pets, or “HotSprings” for health and fitness).  It was a pioneer in bringing the power of personal expression and discourse ubiquitous to the Internet the masses, in large part because it made the creation process so simple.

Though it is often forgotten today with services such as WordPress, Blogger, MySpace, and other sites providing simple webpage templates, but  in Geocities’s infancy back in the mid-90s you needed to know at least a workable amount of HTML to create a page and maintain it.  Geocities was one of the first sites that offered a simple site generator that required minimal knowledge of HTML, and made it simple to add such “cool” features as a visitor counter, guestbook (a forbearer to comments sections today), and various HTML/text effects.  Sure, that sometimes resulted in some pretty awful looking pages, but it still helped to break down a massive wall blocking individuals from venturing onto the information superhighway (the go-to buzzword at the time).  Today this level of streamlining is expected, but back then it was a godsend for those wanting to dip their toes into the digital stream without first having to don waders.  In fact, it is fair to say that sites like MySpace, Friendster, and much of social media owe at least part of their existence to the pre-fabricated little ‘burbs that sprung out from Geocities.

As one analyst put it, “[i]t was was the first proof that you could have something really popular and still not make any money on the internet.“  Of course, this inability to generate sustainable revenue was a major reason why the service was discontinued by Yahoo!, which had been underperforming in recent quarters and needed to streamline its business somewhat.  Coupled with a shift in how people express themselves on the Internet – “ shifting away from isolated Web pages [and instead using] social-networking sites such as Facebook, with built-in features for creating a profile, staying in touch with contacts, and maintaining at least a little privacy,” it seemed that Geocities’s days were numbered.

Of course, with any passing, there are tributes to past glory as well as those who look to cull some message or greater meaning from its end.  In my opinion, Geocities ultimate demise was due to the same factor most sites wrestle with – they could not sufficiently monetize the immense traffic they received effectively.  Sure, Geocities adopted the tried-and-true banner ads, and I’m sure that generated revenue to a point.  But successful advertising on the web is elusive, and I have my doubts that it will ever be a viable option for sustaining a large hosting service like Geocities, Blogspot,  or Facebook.  Of course, people will point to Google as an example of a company profiting from ads, but Google is an extremely unique case – they are a leader in so many facets of the Internet (searching, email, blog hosting, etc.) and are so diverse in their holdings that they almost “had” to make money.  Their dominant position, though, is unique to them alone, and by its nature could never be duplicated by other companies.

It will be interesting to see if the next generation of user-generated service companies such as Facebook and Youtube find a way become profitable based on their users; my guess is that Geocities’s failings had less to do with its own inability to evolve or poor management as it did with the realities of the Internet, where paying for services sometimes seems sacrilegious.

But as for Geocities, I’ll miss it.  Back in high school, I actually used them to host an early web page shortly after I learned how to “code” in HTML.  I have no idea what happened to that site, but it was certainly fun to lay claim to a small plot of cyberspace for my very own.  Plus, as someone with precious little artistic talent, it was somewhat liberating to design a page that looked unique, if not a bit cool.  So R.I.P. Geocities, and hopefully people won’t ever forget how pioneering it was to have an address CollegePark.

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This will be a shorter post than earlier (I promise).  I just wanted to comment a bit on some articles that I have been meaning to read.  Enjoy.

Obese Employees Injured at Work May Now Seek Bypass Surgery

This article addressed a recent trend in workers compensation cases in which employers were required to foot the bill for gastric bypass (or similar weight loss surgery) in addition to the injury that precipitated the original claim.  In the two cases cited, the court rationalized that without the surgery and the subsequent weight loss, the surgeries to address the actual injury would not be successful.  In effect, they combined the weight and the accident into a single injury.

What troubles me about these cases is that it treated obesity as a pre-existing condition, and thus the employers accepted the extent of this liability when they employed them.  Now, it is no secret that Americans are fat – nearly 1/3 of all American adults are considered obese, and that number is trending upwards.  At the same time, though, I disagree with the notion that this is some pre-existing condition like hemophilia or even some genetic disorders.  While the science is still not conclusive about the cause(s) of obesity, most would agree that there is a voluntary element to it that does not exist for other common pre-existing conditions.  In other words, there is no conscious act that leads to hemophilia; there is, to some extent, personal control over whether or not a person becomes obese.

I understand that some people are prone to gaining weight and there likely is a genetic component to obesity much like there is for alcoholism and other “social diseases”, but the fact remains that obesity numbers have nearly doubled in the past generation.  Now, unless you are going to argue that a whole generation of people were born with a rare genetic defect that made them uncontrollably gain immense amounts of weight, it looks like people are  (a) eating too much/the wrong food and/or (b) living a sedentary lifestyle without proper exercise.  That definitely sounds like the cause of a social epidemic, but it certainly does not sound like a definition of a pre-existing condition.

I think these decisions open up a pandora’s box for employer liability, and as a result will likely create situations in which overweight employees become victims of discriminatory hiring practices.  Employers, knowing that they might have to foot the $20k+ bill for the bypass surgery in addition to any costs related to an employer’s work-related injury, will refrain from hiring severely overweight individuals in order to mitigate this potential overhead.  In a world where discrimination against overweight individuals is already prevalent, these decisions seemingly add to the uphill battle many overweight individuals already face in the workforce.  It may sound cliche, but I think the court tried too hard to protect these injured parties in lieu of more meaningful change; at some point, people need to take responsibility for their own situations and do what is necessary to help themselves.  That may mean finding ways to make gastric bypass and related surgeries more affordable, but it certainly should not be the court’s prerogative to shift this financial responsibility solely onto employers.

Copyrights and Google Books

I have been intrigued by the Google Books Library project for quite some time – digitizing long-forgotten tomes so that millions may now access the information quickly over the Internet seemed like a very natural technological progression.  Sure, it has led to some authors waxing poetic about the end of physical books and libraries, including a particularly prescient article from in the NY Times from 1992(!), but overall this digitization of timeless novels seems like a win for all.

Of course, there are some sticky legal issues related with such an endeavor, to say nothing of the significant technical issues that arise when you are trying to scan millions of pages of brittle text.  As with any printed work, the chief legal dispute falls on copyright ownership and production.  On one side, the creator of the work should be able to direct the publication and distribution of his work – that is a fundamental right few would argue against.  At the same time, though, the goal of this project is to push knowledge forward into the 21st century, to create a viable and centralized system for connecting and analyzing the information found in books.

So it should come as no surprise that a lawsuit against the project was initiated by various publishing organizations in 2005, arguing that this was massive copyright infringement because most authors of these works did not give their permission for the duplication and subsequent digital distribution.  Google argued the tried-and-true fair use doctrine defense, which acts as an umbrella under which potential copyright infringers may seek shelter for their actions.  A variety of factors are considered for this protection, but the determination generally hinges on whether the infringing action would economically injure the copyright holder without a compelling social benefit and/or justification.

On one hand, there clearly is an altruistic element to Google’s project – most of these books have been out of print for years, lost in the catacombs of university and public libraries, gathering dust and slowly degrading, or long ago entered the public spectrum.  This isn’t a movement to take the top-20 bestsellers each week and make them publicly available.

On the other hand, of course, copyright law is very explicit about the rights granted to the holder, and power over distribution and duplication are paramount.  While I am from the school of thought that U.S. copyright protection is far too long (either 95 years from publication or 120 years from creation, whichever is shorter),  that is the current system and it has been adopted in relatively the same form by most developed nations (though the terms tend to be closer to 70 years) and change seems unlikely in the near future.

Furthermore, Google expects to sell advertisements and Adwords for this service, and will work with retailers such as Amazon and Barnes & Noble to sell online access to these repositories.  One could argue that the financial possibilities of this service are relatively limited – again, most of these books have been out of print for years and likely do not have much of a market – but clearly there is money to be made here, and Google certainly would like to recoup its costs, if not turn a nice little profit.

Like most lawsuits, though, this one ended in a settlement between Google and the various publishing organizations.  For $125 million, Google will be granted, in effect, an eternal license to scan and commercialize “orphan books” (books whose owners no longer exist or cannot be located), as well as continue to catalog various other publications.  The settlement has yet to be ratified by the U.S. court, but it seems unlikely that it will not be accepted.  the chief argument against the settlement is that, by effectively granting Google a perpetual license, the courts will be usurping the power of Congress to legislate how copyrights will be treated and maintained; in other words, the courts will be granting immunity to Google’s infringement without Congress’s (and, vicariously, the copyright holders’) approval.  That clearly sounds like a slippery slope for copyright holders, though the argument may be more an academic exercise than a true perversion of the copyright system.

Personally, I think this project makes an immense amount of sense.  As noted earlier, Google isn’t scanning in best-sellers and making them publicly available to all – J.K. Rowling will not see her sales of the next Harry Potter book affected in any way.  In effect, this project is the natural evolution of knowledge retention that has existed for eons.

Before the written word was invented, knowledge was retained by sages and wisemen, passed down orally generation to generation.  Then, with the advent of the printed word, these stories were transcribed on parchment and tanned hides, though due to miniscule literacy rates the information was still largely controlled by the few educated members of the community (who tended to also be religious leaders).  Then the Gutenberg printing press was invented, and suddenly information could be copied and distributed (relatively) quickly and cheaply.  Not surprisingly, literacy rates increased rather quickly thereafter, and a modern intellectual Renaissance took off.  Libraries and similar repositories began to spring up to house these books in centralized locations, eliminating the need for readers to either purchase the books themselves or borrow them from neighbors or local leaders.  Now, instead of relying on your personal collection and those around you, people could go to a library, locate a book on any number of topics, and read it free of charge.  This digitization of libraries seems like a natural progression of this same basic concept, one that has existed for thousands of years: the preservation and distribution of knowledge through the the most pervasive and advanced technology of the day.  Now, I understand the foreign nature of this switch; for the first time since tribe elders regaled their charges with the collected history, knowledge is being transferred from a tangible medium (parchment, books, etc.) to an “intangible” medium (digital memory).

But like the transition from people’s memory to parchment, and from single copies of books to mass pressings, the technology is there to make information more digestible and accessible than ever before.  Sure, Google might make some money on the deal (and so will the original publishing companies/rights holders), and I can understand how some might feel this is yet another step in commercializing the work of others without due compensation, but I think the end result will be an increase in exposure and appreciation for works that have languished on bookshelves for years.  Plus, if an author is truly unhappy with his work being digitized, Google will remove it without reservations.  This project that, once the rhetoric dies down, will be looked upon with a fair bit of awe and appreciation for generations to come.  The worst thing that can happen to knowledge is that it is forgotten; this project is yet another step in making sure that every printed thought, no matter how inconsequential, is allowed to live on and educate those in the future.

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