Of Lodsys and Apple

While not obsessing about the matter, I've been reading whatever crosses my path about Lodsys's attempt to extor--er, obtain royalty payments for a patent that allegedly covers in-app purchases. Lodsys went after small iOS developers rather than Apple, undoubtedly because the patent troll knows small developers don't have the resources to sustain a legal fight. More information can be found in a MacWorld analysis (link courtesy of Daring Fireball).

The question every article I've read raises is, "Where's Apple in this fight?" Although not directly contacted by Lodsys, Apple undoubtedly has heard from developers who were, since a clause in the developer agreement requires them to notify Apple of any action that could affect Apple's legal rights. Apple, however, has made no public comment about the matter.

I'm not surprised Apple hasn't commented yet. If third-party developers face a few unpleasant options, so does Apple.

Third-party developers are widely seen to have only these choices:

• Agree to Lodsys's terms for royalties, including retroactive ones. This has the unsavory side effects of encouraging Lodsys to pursue this extortionist tactic with other developers and of giving the vulturine entity more money to do so. However, it gets the cooperating developers out from under the threat of litigation.
• Seek a reexamination of the patent in question. This requires money, but not nearly as much as litigation would. Unfortunately, this move doesn't preclude Lodsys from litigating in the meantime.
• Call Lodsys's bluff. It's barely possible Lodsys doesn't want to litigate. However, everything I've read suggests the patent troll is well enough funded to go to court, and it has everything to gain by making an example of a small developer or two. (It also has little to lose, since it doesn't need anyone's good will to prosper -- good will I guarantee it doesn't have).

That's all developers can do with respect to Lodsys. With respect to Apple, they have exactly one course of action: they can threaten to pull out of iOS (and possibly Mac OS X) development altogether. This is a threat Apple must take seriously, especially on the iOS side, where it is the great variety and high quality of apps that makes the platform so appealing to consumers.

In fact, the threat is not merely to Apple. As the MacWorld article notes, the tactic Lodsys is employing is very likely to work against Android or other development platforms as well, using the same or other patents. What Lodsys is doing, therefore, has the potential to cripple software development by individual developers and small companies.

First Amendment discussions often revolve around the "chilling effect" a restriction on speech would cause. Lodsys's predatory actions create an analogous chilling effect on development.

So with its prosperity threatened in a fundamental way by Lodsys, why hasn't Apple responded?

I suspect this is an emergency for Apple's legal team. I don't know whether that team wargames worst possible scenarios, but even if it does, this particular approach might well have gone unnoticed, or at best unplanned-for. I'd guess they're scrambling to figure out a response. The trouble is, Apple's options aren't all that appealing, either.

• Apple could agree to defend third-party developers against Lodsys. To those developers, that's the only responsible action for Apple to take, since the developers, as far as I know, are simply using APIs and toolkits provided by Apple to take advantage of in-app purchasing. Developers, logically enough, claim they did everything right and if somebody's not happy about it, it's Apple's fault.
  
  Apple could litigate Lodsys into the ground. Unfortunately, it would set what could be a very costly precedent: who knows whether there aren't other, better-funded patent trolls who would be happy to take on Apple in court? (Okay, that's not very likely, but it's a tactic that a behemoth like Google or Microsoft might find palatable at some point.) Moreover, there is always the possibility that Apple could lose in court, in which case it could have to pay out much, much more than it would have otherwise.
• Apple could reach a settlement with Lodsys that grants third-party developers the right to use the patented process. In the short run, this would probably be significantly cheaper than litigating. However, it sets a potentially costly precedent, as Lodsys and other patent trolls would be emboldened to pursue the same tactic with other patents.
• Apple could do nothing, on the pretext that Lodsys hasn't threatened it. That would be tantamount to kissing off the entire third-party development ecosystem around its products, which would be disastrous for the company.

Which of these would you choose? I certainly don't know, and I'm glad I don't have to make the decision.

So I understand Apple's failure to make a public statement so far. I have no doubt the company will respond in some way, eventually. It must.

As for Lodsys, I think every one of its executives should be publicly shunned. The only executive identified on Lodsys's Web site is Mark Small, so start by shunning him. Do no business with him. Refuse to accept his dry cleaning. Don't serve him in a restaurant. Let your leaves blow into his yard. Don't invite him to parties. Glare at him. Refuse to let him into traffic. Fart in his general direction. Proclaim your home and your business to be "Mark Small-free" zones.

You get the idea.

Yakker yanked

A woman spent sixteen hours talking on her cell phone ... on a train ... in a designated "quiet car," where cell phones are not allowed and conversations are to be kept at a low volume. That, apparently, led to a confrontation with other passengers. According to one account,

Lakeysha Beard of Tigard was charged with disorderly conduct after police said she got into a “verbal altercation” with passengers on the train. The other passengers complained she refused to put down her cell phone, even after train staff made repeated announcements for passengers to not use cell phones, according to police.

When a passenger confronted her about her loud talking, police said Beard got aggressive.

She was removed by police from the train in Salem, Oregon.

She claims to have felt "'disrespected' by the entire incident."

You gotta be kidding me.

Lady, you don't know what disrespect is until you've been forced to endure somebody else's inane conversation(s) for sixteen straight hours.

If it's physically within your power, just shut up.

About Thomas Drake: Mr. President, you need to read this

The New Yorker has another terrific piece by Jane Mayer. Among other things, Mayer previously wrote for the magazine about the billionaire Koch brothers (I linked to both her article and the Kochs' response). In her latest piece, she profiles "a former senior executive at the National Security Agency," Thomas Drake, who is accused by the Justice Department of having

... willfully retained top-secret defense documents that he had sworn an oath to protect, sneaking them out of the intelligence agency’s headquarters, at Fort Meade, Maryland, and taking them home, for the purpose of “unauthorized disclosure.” The aim of this scheme, the indictment says, was to leak government secrets to an unnamed newspaper reporter, who is identifiable as Siobhan Gorman, of the Baltimore Sun. Gorman wrote a prize-winning series of articles for the Sun about financial waste, bureaucratic dysfunction, and dubious legal practices in N.S.A. counterterrorism programs. Drake is also charged with obstructing justice and lying to federal law-enforcement agents.

You'll note that Drake isn't accused of leaking information to al-Qaeda, or to Iran. (Originally, Drake was accused of retaining classified documents, and of participating in a conspiracy to leak classified information.) Essentially, he is accused of the same thing Daniel Ellsberg was accused of during the Nixon administration: leaking inconvenient secrets to the public. In Drake's case, he provided evidence of the N.S.A.'s costly decision to farm out an information-trawling software project to the private sector, rather than adopting an in-house skunkworks project that already had demonstrated some success. The private-sector project never got off the ground, and the N.S.A. eventually killed it -- but only after $1.2 billion in taxpayer money had been spent on it.

From Mayer's article it's impossible to say whether those championing the failed project should have known better. I'll generously accept the possibility that this was a costly but innocent mistake. On the other hand, the prosecution of Drake and the threatened prosecution of others who, with Drake, protested the wasteful expenditures to the Pentagon's Inspector General, seems indefensible. Those quoted in favor of prosecution speak in vague generalities about the principle of never endangering "the troops" by leaking sensitive national-security information, but none of them is quoted explaining exactly how the documents Drake is alleged to have wrongfully handled and shared endangered anyone. Here's the most on-point remark Mayer quotes:

“This is not an issue of benign documents,” William M. Welch II, the senior litigation counsel who is prosecuting the case, argued at a hearing in March, 2010. The N.S.A., he went on, collects “intelligence for the soldier in the field. So when individuals go out and they harm that ability, our intelligence goes dark and our soldier in the field gets harmed.”

Let's remember, once again, that the project about which Drake is alleged to have leaked information never worked. No intelligence-gathering capability was adversely affected. Indeed, I would like to ask Welch how much more intelligence and analysis $1.2 billion, properly spent, could have garnered.

I'll call your first attempt to justify this prosecution a swing and a miss, Mr. Welch. Care to try again?

Mayer quotes observers who collectively make a powerful argument that the pursuit of this case sets a terrible precedent for our legal system.

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act.” Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” Halperin says.

And:

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. “It was meant to deal with classic espionage, not publication,” Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

And:

Mark Feldstein, a professor of media and public affairs at George Washington University, warns that, if whistle-blowers and other dissenters are singled out for prosecution, “this has gigantic repercussions. You choke off the information that the public needs to judge policy.”

One of the other criticisms of national-security prosecutions like Drake's is the inconsistency with which the law is applied.

In recent years, several top officials accused of similar misdeeds have not faced such serious charges. John Deutch, the former C.I.A. director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization. In 2003, Sandy Berger, Clinton’s national-security adviser, smuggled classified documents out of a federal building, reportedly by hiding them in his pants. It was treated as a misdemeanor. His defense lawyer was Lanny Breuer—the official overseeing the prosecution of Drake.

Jack Goldsmith, a Harvard law professor who served in the Bush Justice Department, laments the lack of consistency in leak prosecutions. He notes that no investigations have been launched into the sourcing of Bob Woodward’s four most recent books, even though “they are filled with classified information that he could only have received from the top of the government.” Gabriel Schoenfeld, of the Hudson Institute, says, “The selectivity of the prosecutions here is nightmarish. It’s a broken system.”

Obama comes in for special criticism because so many had hopes he would change George W. Bush's obsession with perceived national-security threats. Many of Drake's problems, for instance, arose from the anger of Bush administration officials over the December 2005 revelations in the New York Times of the N.S.A.'s warrantless wiretapping program against U.S. citizens. The Bush administration was determined to discover who had leaked the information to the paper, and suspected Drake of being one of the leakers.

Drake himself was one of those who thought Obama would turn things around.

“I actually had hopes for Obama,” he said. He had not only expected the President to roll back the prosecutions launched by the Bush Administration; he had thought that Bush Administration officials would be investigated for overstepping the law in the “war on terror.”

“But power is incredibly destructive,” Drake said. “It’s a weird, pathological thing. I also think the intelligence community coöpted Obama, because he’s rather naïve about national security. He’s accepted the fear and secrecy. We’re in a scary space in this country.”

And speaking of that Times article:

In 2008, Thomas Tamm, a Justice Department lawyer, revealed that he was one of the people who leaked to the Times. He says of Obama, “It’s so disappointing from someone who was a constitutional-law professor, and who made all those campaign promises.”

The treatment of Tamm, by the way, shows how selective prosecution is.

The Justice Department recently confirmed that it won’t pursue charges against Tamm. Speaking before Congress, Attorney General Holder explained that “there is a balancing that has to be done . . . between what our national-security interests are and what might be gained by prosecuting a particular individual.”

President Obama, you need to end the Justice Department's prosecution of Thomas Drake. To pursue it would be a repudiation of your self-professed admiration of whistle-blowers. Some of us have cut you a lot of slack, permitting you to disappoint us on health-care reform, financial regulation, climate change legislation ... the list goes on. But if you carry on George W. Bush's shameful legacy of curtailing our civil liberties, we will consider you complicit with him.

How ironic, and tragic, it would be if the nation's first African-American president were remembered not for advancing the country further toward a freer future for all, but for overseeing “the bipartisan normalization and legitimization of a national-surveillance state,” as Yale law professor Jack Balkin puts it.

Are you going to start healing the wounds inflicted by the privacy-contemptuous Bush administration, Mr. President, or are you going to worsen the damage?

Roseanne on Charlie Sheen

First Kirk Cameron, now Roseanne. Have I gone stupid for TV stars? Maybe. But I liked Roseanne's eponymous series, whereas I had no use for the inanities of Cameron's show. Roseanne had some bite to it.

At any rate, she was asked to weigh in on Charlie Sheen's troubles, and she has done so in a New York magazine piece.

... it was assumed that I know a thing or two about starring on a sitcom, fighting with producers, nasty divorces, public meltdowns, and bombing through a live comedy tour. I have, however, never smoked crack or taken too many drugs, unless you count alcohol as a drug (I don’t). But I do know what it’s like to be seized by bipolar thoughts that make one spout wise about Tiger Blood and brag about winning when one is actually losing.

If you're on the fence about Roseanne as a person, if you can't decide whether she has the biggest ego this side of Donald Trump or is the most maligned celebrity since Fatty Arbuckle, this article won't help. You can read into it bitter self-aggrandizement or saddened, unjustified martyrdom. My personal take is, she still has issues to work out. I won't get into whether she's telling the whole truth and nothing but the truth: I doubt I'll ever know.

I think she has an insight into Sheen that most of us don't. I don't care about that, though. I found her reflections on herself to be more interesting.

Religionists respond to Hawking

You might have heard that famed physicist Stephen Hawking proclaimed there was no afterlife.

"I regard the brain as a computer which will stop working when its components fail. There is no heaven or afterlife for broken down computers; that is a fairy story for people afraid of the dark," he added.

Hawking's latest comments go beyond those laid out in his 2010 book, The Grand Design, in which he asserted that there is no need for a creator to explain the existence of the universe. The book provoked a backlash from some religious leaders, including the chief rabbi, Lord Sacks, who accused Hawking of committing an "elementary fallacy" of logic.

Lord Sacks' claim was laid out in an article last September:

Writing in the Times, the chief rabbi said: "There is a difference between science and religion. Science is about explanation. Religion is about interpretation. The Bible simply isn't interested in how the universe came into being."

(The Times article is behind a paywall.)

Frankly, Lord Sacks' distinction is a little subtle for me. Perhaps it's because I've been overly influenced by the utterances of literalist, fundamentalist Christian sects here in the U.S. The idea that the Bible "isn't interested in how the universe came into being" is, I'm sure, literally anathema to those folks.

But even accepting that the Bible is a moral guide rather than a history textbook doesn't quite resolve my confusion as to Lord Sacks' point. If all of existence can be explained without reference to a creator -- and Sean Carroll convinced me -- then I don't see where Lord Sacks finds room for interpretation. As far as I can tell, he didn't address Hawking's claim at all.

At least Lord Sacks tried, and probably had some more or less cogent argument in mind. Over here, in the colonies (whoops, did I just write that?), we have no one of nearly as high intellectual stature contesting Hawking. Instead, it's former TV star Kirk Cameron shooting off his mouth:

"Why should anyone believe Mr. Hawking's writings if he cannot provide evidence for his unscientific belief that out of nothing, everything came?" Cameron queried.

Cameron, whose claim to scientific credibility is, um, nonexistent, is calling Hawking's belief "unscientific"? To borrow from J.M. DeMatteis' Justice League dialogue, "Bwahahahahahahaha!" That's funnier than anything Cameron did on TV.

That Cameron never has heard of quantum physics is manifest. That he wouldn't accept its findings if he had, is even clearer.

Cameron also, and unfathomably, whines that Hawking's disability renders it impolite to attack him.

"To say anything negative about Stephen Hawking is like bullying a blind man. He has an unfair disadvantage, and that gives him a free pass on some of his absurd ideas."

Why does Cameron feel he's in such a superior position -- in any way -- that "saying anything negative" about Hawking is "bullying"? I trust I won't be the one to break the news to Cameron that, save in physical vigor and fervor of religious belief, he is undeniably inferior to Hawking.

Kirk, don't play in science's sandbox: you simply aren't equipped. Go back to your evangelical movies, secure in the stature you've attained in that world. In matters of belief, you cannot be assailed. In matters of ... just about anything else, well, stick to your day job.

About the Templeton Foundation

Further to an earlier entry about Lord Martin Rees winning the Templeton Prize, here is a February 2011 story in Nature on the Templeton Foundation and why it makes so many scientists uncomfortable to be associated with it, even if the association is only in the public's mind. The piece is (to my mind, surprisingly) sympathetic toward the foundation, but makes clear why the wariness among scientists exists.

Halliburton fracking info, week 26

Huh -- I thought I was only a week behind, but here it is, four full weeks since I last checked in on Halliburton's fracking fluids disclosure page. In those four weeks Halliburton added three formulations for Colorado:

• Colorado Denver Julesburg (DJ) Basin Hybrid Formulation
• Colorado DJ Basin WaterFrac Formulation
• Colorado Piceance Basin WaterFrac Formulation

The information for all formulations includes the last date and time the information was updated, and an explanation of how the items in the "common uses" category were chosen:

Items identified in the "common uses" column were chosen in part because the constituents found in these products exist in roughly the same concentrations as would be found in fracturing materials at the wellhead. In some cases, however, concentrations present in consumer product are either not publicly available or in higher percentages than would be found at the wellsite.

It's still a meaningless category intended entirely for public-relations purposes. I marvel that Halliburton thinks it can make its fracking formulations (and their consequences) warmer and fuzzier by claiming they share ingredients with cottage cheese or dish soap.

(If you want to know "week 20 from what?" you can either follow the previous-entry links backwards or go directly to the original entry about Halliburton's fracking information.)