Author Archives: legallysociable

Secondary liability, approaching the limit

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The Seattle Times reported a few weeks ago that Microsoft “is pushing Washington legislators to pass a law making it illegal for manufacturers that use pirated software to sell goods in the state”:

The proposed legislation would create a legal cause of action by making manufacturing companies liable for damages, and it would give the state attorney general and companies the right to pursue injunctions in civil court to stop the manufacturers’ goods from being sold.

For example, if a large Washington store sold T-shirts made from a company in China and the Chinese company uses pirated copies of Excel at an office in Shenzhen, Microsoft could seek an injunction to prevent the manufacturer from supplying T-shirts to be sold in Washington state.

This represents a sweeping change to current intellectual property law. It is one thing to grant monopolies via copyright for “limited Times” in order “To promote the Progress of Science and useful Arts”. It is another thing entirely to extend copyright’s monopoly over physical objects alleged to have been manufactured in another country with the help of pirated software and thus to hold the buyers of those physical objects legally responsible.

To put it concretely:  this isn’t holding the buyers of obviously stolen TV’s out of the back of a pickup truck legally responsible for their purchases.  This is holding GM, maker of that pickup truck, legally responsible because the Chinese manufacturer of one of the parts in the truck’s engine used a pirated copy of Microsoft Outlook to receive emailed purchase orders from GM.

Now that’s secondary liability.

Hat tip to Groklaw, where I ran across this story earlier today.  If you’d like to read more about this, Pamela Jones has written rather extensive commentary, including a hypothesis Microsoft is pushing for this and similar laws in other U.S. states in order to unleash a “litigation storm against Linux” — including derivatives like Android:

The law would make it possible for Microsoft to block Android sales in whatever state passed such laws if it could find some tie between the Android product and some manufacturer of a contracted part in China or wherever who happened to use a pirated version of Microsoft Word — not to make the part but to write up an ad for it. Ephemeral, much? But can you imagine how much litigation could spring from a law like this? How little it would take to keep litigation in the air forevermore? And you don’t have to even prove infringement in China, just allege it to initiate proceedings.

Of course, Jones is quick to note that the state of Washington’s “protections” do not extend to companies like Red Hat that profit from selling open source support and services.  Under the law, software companies with proprietary licenses like Microsoft

can sue in civil court and the Attorney General can go after the “wrongdoer” US company, if a notice is sent and no amelioration occurs. But if the violation is of an *open source license*, the victim can’t sue anyone under the bill, and the Attorney General does nothing for you. It’s an exception to the law.

Are Section 8 vouchers now being used for McMansions?

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WalletPop has a story with a provocative opening line: “In what may be one of the strangest twists to the housing market crisis, Section 8 housing tenants are moving from urban housing projects and into high-end condo complexes and single-family McMansions that just a few years ago sold for hundreds of thousands of dollars.” The premise makes some sense: in an unstable housing market with a lot of potential for vacancies and foreclosures, landlords are looking for steady money. While Section 8 users were “treated by landlords as the tenants of last resort” in better times, now landlords are looking for this consistent money from the government.

But as I read this article, I tried to figure out where the McMansions come into play: most of the examples here feature Section 8 users moving into nicer condos or apartments, not large homes out in the suburbs. So are Section 8 vouchers really be used for McMansions, which at the most basic level are large, single-family homes? Does a Section 8 voucher provide enough funding to allow people to live in McMansions, even ones with reduced prices? There is not much information here to back up this assertion although it does sound as though the housing crisis has allowed Section 8 users to access a broader market.

Also, the headline of the article, “Section 8 Tenants: the Housing Market’s Salvation?,” doesn’t really address if there are enough Section 8 vouchers to help the broader housing market. For this to happen, the federal government would need to free up more money for more people in this housing assistance program.

New Census figures on Hispanics in US: over 50 million

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Data from the 2010 US Census continues to trickle out (see stories on the shifting US mean population center, the growth in the multiracial population, and the population changes in places like Chicago). With almost all states accounted for, demographers expect that the Hispanic population in the United States has exceeded 50 million for the first time. The Hispanic population growth was also higher than expected for the last decade:

In a surprising show of growth, Hispanics accounted for more than half of the U.S. population increase over the last decade, exceeding estimates in most states…

Racial and ethnic minorities are expected to make up an unprecedented 90 percent of the total U.S. growth since 2000, due to immigration and higher birth rates for Latinos…

“This really is a transformational decade for the nation,” said William H. Frey, a demographer at Brookings Institution who has analyzed most of the 2010 data. “The 2010 census shows vividly how these new minorities are both leading growth in the nation’s most dynamic regions and stemming decline in others.”

Currently the fastest growing group, Hispanics now comprise 1 in 6 Americans; among U.S. children, Hispanics are roughly 1 in 4.

With relatively low birth rates for whites (though these rates are not as low as other industrialized nations such as Western Europe or Japan), most of the recent population growth in the United States is non-white.

I would really like to hear more experts comment on this sort of data. What do they expect America to be within a few decades? How will these figures affect social life, politics, work, culture, and more?

Chicago Tribune calls for phasing out of mortgage-interest deduction

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What interesting arguments people will make in the midst of an economic crisis. While one commentator has a number of reasons why he is “never going to own a home again,” the Chicago Tribune argues that the United States needs to phase out the mortgage-interest deduction. The main reason seems to be that the deduction primarily benefits wealthier homeowners, not the middle class:

Trade groups such as the National Association of Home Builders portray the benefit as a middle-class tax break. But it does a lot less for most Americans than those with a vested interest in promoting home sales would have you believe: If you rent, you get nothing. If you have reasons not to itemize deductions, you get nothing. If you pay off your mortgage to live debt-free, you get nothing.

Borrow a fortune for a McMansion, however, and the Internal Revenue Service provides a big discount, at the expense of every other taxpayer. More than three-fourths of the benefit from the mortgage-interest deduction goes to the 14 percent of tax filers reporting six-figure incomes. Almost one-third of the subsidy goes to the population reporting incomes of $200,000 or more. Those 3 percent of tax filers at the very top receive about the same amount as do the 86 percent earning less than six figures.

As a consequence, this deduction does little to promote homeownership — supposedly its main objective. Data suggest that almost no one now benefiting from the break would flee the real-estate market. People just wouldn’t borrow as much to fund home purchases.

What is remarkable to me about both of these arguments is that such arguments might have been unheard of before this economic crisis. But since the economy has gone downhill, the housing market in particular (and the most recent housing figures are not good), desperate times apparently call for desperate measures.

All of this bears watching: will homeownership remain a cornerstone of the American Dream?

Internet competition

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My friend Adam Holland pointed me over to Galen Gruman’s article at InfoWorld, which points to the problems that arise when carriers have considerable pricing power:

Users are being forced to sign up for separate data plans for each device. The cellular carriers advertise their data plans in data buckets, such as $25 for 2GB of iPad usage at AT&T and $20 for 1GB of iPad usage at Verizon Wireless. But you also pay separately for access on your iPhone or other smartphone. That means multiple-device users are asked to pay a lot more, forcing most to make a choice between the two.In both cases, the pricing is illogical and punitive. For their DSL and TV services, neither AT&T nor Verizon (half-owner of Verizon Wireless) charges per computer or per TV, but that’s what they’re doing for mobile devices.

Of course, I’m sure that both AT&T and Verizon would love to charge per computer/TV for home Internet use as well (and AT&T is currently in the process of instituting data caps on home users).  As with so many mobile and broadband ISP policy issues, the fundamental problem is that many ISP operate as monopolies or oligopolies.  Accordingly, there are only two major impediments to their pricing structure:

  1. Government regulation
  2. More competition

Government regulation is, of course, is notoriously tricky.  Indeed, it is often counter-productive as established ISPs use vast lobbying budgets in an attempt to regulate any new competitors out of existence.

But more competition is great when it’s possible, and, fortunately, sometimes new market entrants do appear with offerings that put pressure on established providers.  To use a personal example, my wife and I use a Clear Spot for our only Internet service here in the Boston area.  It’s not perfect (ping times are high), but it’s only about $50/month and is fast enough for high quality Netflix streaming.  Moreover, the Spot’s 4G interface/Wi-Fi router allows us to use the Internet within our apartment or anywhere within Clear’s 4G network.  Among other things, this means we can use an iPod Touch “on the go” (just like an iPhone) and “tether” both of our laptops (no additional fee) and connect up to five more Wi-Fi devices (eight total).

Best of all, because Clear’s service is wireless, we don’t have to subscribe to Comcast even though they are the only ISP providing service to our building.  Maybe that’s why they sent us a letter this past week offering cable+Internet for less than $60 a month indefinitely (not as a temporary promotional price).  I guess the market really does work when the market really does work.

Aurora now second largest city in Illinois

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The population growth in the Chicago suburbs has shifted from Naperville (in the 1980s and 1990s) to communities further west and south. In particular, Aurora grew during the 2000s and is now Illinois’ second largest city:

[T]he Alperins are among the nearly 55,000 new residents since 2000 who helped Aurora boost its population to 197,899 and officially eclipse Rockford as Illinois’ second-largest city, according to the recently released 2010 U.S. census figures.

Aurora’s 54,909 jump was the largest among Illinois cities. Its percentage increase of 38.4 percent was just behind top-ranked Joliet, which grew at a 38.8 percent pace to 147,433 and beat out Naperville as Illinois’ fourth-largest community.

The growth comes as Aurora makes strides resurrecting what had become a struggling downtown and boasts of statistics that show the city’s major crime rate is at its lowest in more than three decades. The physical size of the city also has grown to accommodate more people. Aurora has three times as many square miles as it had four decades ago.

There are several reasons that the community has grown including a growing Hispanic population and open land in a growing region of the Chicago suburbs. But the city has also dramatically expanded in size:

Aurora, meanwhile, now covers 46 square miles compared with 35 in 1990 and 15 in 1970. It sprawls through four counties, six school districts and seven townships. But like Naperville in the last decade, the city could eventually be boxed in by neighbors, Greene said. And there’s also no guarantee that brisk growth from the 1990s through part of the 2000s will repeat when the economy improves.

The explanation for why Aurora is growing is very similar to what led to Naperville’s growth between 1960 and 2000: it is located near highways, it has a number of businesses, and there is plenty of room to expand and the city has annexed a lot of land. But as Naperville discovered, the growth only goes on for so long: eventually, the land runs out and then Aurora will become a different kind of place. As the end of the article notes, the long-term course of the city will likely include denser development near the center of the city.

At the same time, Naperville and Aurora’s growth are not quite the same: Naperville has long had a wealthier profile compared to Aurora’s status as an industrial satellite city (named as such in this 1915 work).  During the 1980s and 1990s, Naperville’s growth was quite unusual: Naperville was classified as the only boomburb outside of the South or West during the last two decades of the twentieth century. Naperville is quite well-off for a large community, has a history of high-tech companies dating back to the mid-1960s, has very low crime and poverty rates, and has a vibrant and popular downtown.

It will be interesting to watch in the coming years how Aurora, Joliet, Plainfield, and other suburbs in the southwest suburbs continue to grow.

From former suburban home to authentic home to be restored

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What happens to suburban homes that were once on the outskirts of the big city? One writer describes the 1927 rowhouse she and her husband bought in Jackson Heights (part of Queens, New York City) and their plans to restore it:

Friends warn me this will be a lifelong endeavor. But my husband and I have always preferred houses with some history in them (this is our fifth, and maybe last, transaction). I suspect it’s a rejection of my New Jersey McMansion rearing.

To get a better sense of this house’s past, I turned to Daniel Karatzas, an agent with Beaudoin Realty Group and the local historian. He wrote the book, “Jackson Heights – A Garden in the City,” which sits on our coffee table. Well, it used to. Now it’s in storage.

Our house, Karatzas told me, was designed by Robert Tappan, “one of those unsung architects” who helped develop the neighborhood into a slice of suburbia just a few miles from midtown Manhattan.

“It wasn’t like Frank Lloyd Wright,” says Karatzas. “They were building traditional styles that would appeal to upper middle-class families. They used vernacular architecture. … Tudor, French, Georgian. That made it seem the houses had been there longer than they had.”

The houses on my block first sold for between $24,000 and $28,000. If he had to liken it to a modern-day phenomenon, Karatzas said, our 1920s house might have once been considered like “those McMansions in New Jersey.”

A couple parts of this stick out to me:

1. This neighborhood was once a suburb of New York City. While the home is now 80+ years old, it is still more of a suburban setting. According to this brief history of Jackson Heights, the community was built primarily after World War I, which would have been during a large wave of suburbanization.

Suburban homes generally get a bad name, both today and historically for being relatively cheaply made and looking all the same. Perhaps this is epitomized by the 1962 song “Little Boxes” by Malvina Reynolds – here are the opening lines:

Little boxes on the hillside,
Little boxes made of ticky tacky,
Little boxes on the hillside,
Little boxes all the same.

There’s a green one and a pink one
And a blue one and a yellow one,
And they’re all made out of ticky tacky
And they all look just the same.

And yet, with age, some suburban homes can become the sort of authentic homes that people desire. This house has history but it is suburban history. While the realtor suggests this home was probably like a McMansion of the 1920s, the writer is interested in restoring and rehabilitating this home, gold-metal cabinets in the kitchen and all.

2. The primary comparison made is between this new purchase and the McMansion the writer grew up in New Jersey. We don’t quite know why this writer disliked this New Jersey upbringing but it is clear that this new home has more character than that home did. She also suggests that her father is likely puzzled by her decision to move back to Jackson Heights: “Sometimes, I suspect my decision to settle in Jackson Heights puzzles him, since he worked so hard to get out and buy a house in the suburbs.” While one generation viewed a move to the suburbs as a good thing, some people in later generations see a move back to city life (though this is somewhere between city and suburban life) as desirable.

Does this mean that the sort of suburban homes that people now call McMansions may one day be authentic and the sorts of places that others will want to restore? This idea perhaps assumes that Americans will continue to move further and further out from the center of metropolitan regions and then the older suburban homes will age and no longer be on the fringes. What is the long-term fate of McMansions: will they fall apart? By co-opted for other uses (like perhaps being subdivided into multiple units)? Become desirable reminders of the past? Become teardowns themselves and the land put to other uses?

Monopolizing orphans

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As numerous outlets are reporting, a federal judge rejected the proposed Google Books Settlement (Wikipedia backgrounder) yesterday, citing a number of concerns:

  1. “Adequacy of Class Notice”
  2. “Adequacy of Class Representation”
  3. “Scope of Relief Under [Federal Rules of Civil Procedure] Rule 23”
  4. “Copyright Concerns”
  5. “Antitrust Concerns”
  6. “Privacy Concerns”
  7. “International Law Concerns”

In this post, I want to comment just on #5 since the court’s discussion of this point focused on the orphan works problem, an issue I analyzed at length just last summer in a journal note (PDF here).

In brief, “orphan works” are creations protected by copyright law but with unclear ownership.  Prospective users of orphan works are in a bind because they cannot ascertain who to ask for permission yet still face the prospect of substantial penalties if an owner eventually surfaces and sues for copyright infringement.  As a result, orphan works remain in legal limbo and rarely are used to their full economic and/or cultural potential.  Orphan works include many (though certainly not all) books that were published during the 20th century (still under copyright) but are now out of print (unclear ownership).

Google sought a way out of this legal limbo so that it could put such books in its database.  Specifically, Google sought to escape the orphan works problem by leveraging the “opt out” structure of this class action lawsuit.  One of the ways that class action lawsuits “work” is by binding a group of people — including those who could have “opted out” of the litigation by filing their own lawsuits but didn’t — to the outcome of the class action.  Here, Google wanted the owners of orphan works (who by definition would not be “opting out”) to be bound by the terms of the settlement.  This would have allowed Google to digitize and distribute those orphaned works.

Writing for the Southern District of New York, Judge Denny Chin expressed concern that the proposed settlement would have given Google too much power over orphan works:

The ASA [Amended Settlement Agreement] would give Google a de facto monopoly over unclaimed works. Only Google has engaged in the copying of books en masse without copyright permission.  As the United States observed in its original statement of interest: “This de facto exclusivity (at least as to orphan works) appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription. The seller of an incomplete database — i.e., one that does not include the millions of orphan works — cannot compete effectively with the seller of a comprehensive product.” And as counsel for the Internet Archive noted, the ASA would give Google “a right, which no one else in the world would have, . . .to digitize works with impunity, without any risk of statutory liability, for something like 150 years.”

(internal citations omitted, emphasis added).

While I certainly share the court’s concern with the prospect of a Google monopoly over orphan works, I also find it rather ironic that the court cited monopoly as one of the “problems” that prevented it from approving the settlement.  After all, copyrights are themselves monopolies; they prevent non-owners from using copyrighted works in a whole host of ways (subject to fair use and certain — often technical — exceptions).  Indeed, courts straightforwardly enforce copyright monopolies every time a copyright owner wins an infringement lawsuit.

If monopolies are such a problem, why do we allow them as the foundation of copyright law?  There are policy-based answers, of course, but it seems strange that Judge Chin didn’t engage in any real policy analysis except to say:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.

Of course, many would argue that U.S. copyright law and policy essentially is “an agreement among private, self-interested parties” that simply gets ratified by Congress.  Perhaps the litigants here made the mistake of picking the wrong forum.

American Sociological Association committee on doctoral program rankings

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While the ranking of undergraduate programs is contentious (read about Malcolm Gladwell’s latest thoughts on the subject here), the rankings of doctoral programs can also draw attention. In February, a five-person American Sociological Association (ASA) committee released a report about the 2010 National Research Council (NRC) rankings of doctoral sociological programs (see a summary here).

The ASA committee summarized their concerns about the NRC rankings:

Based on our work, we recommend that the ASA Council issue a resolution criticizing the 2010 NRC rankings for containing both
operationalization and implementation problems; discouraging faculty, students, and university administrators from using the core 2010 NRC rankings to evaluate sociology programs;
encouraging them to be suspicious of the raw data accompanying the 2010 NRC report; and indicating that alternative rankings, such as those based on surveys of departments’ reputations, have their own sets of biases.

The explanation of these issues is an interesting methodological analysis. Indeed, this document suggests a lot of these rankings have had issues, starting with the 1987 US News & World Report rankings which were primarily based on reputational rankings.

So what did the committee conclude should be done? Here are their final thoughts:

At this time, the committee believes that ASA should encourage prospective students, faculty, university administrators or others evaluating a given program to avoid blind reliance on
rankings that claim explicitly or implicitly to list departments from best to worst. The heterogeneity of the discipline suggests that evaluators should first determine what characteristics they value in a program and then employ available sources of information to assess the program’s performance. In addition, the ASA should help facilitate, within available means, the dissemination of such information.

So the final recommendation is to be skeptical about these rankings. This seems to be a fairly common approach for those who find issues with rankings of schools or programs.

How might we get past this kind of conclusion? If the ranking process were done by just sociologists, could we decide on even a fuzzy rank order of graduate programs that most could agree upon?

A Houston Chronicle editorial pushes for historic preservation districts

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When sociologists talk about urban zoning, Houston is often cited as an example of a city that has had and has little zoning. However, there is a recent debate about instituting the city’s first six historic preservation districts. The Houston Chronicle wrote an editorial supporting these districts as they only affect a small part of the city:

In a council meeting earlier this month, one council member compared city restrictions on property rights to Gestapo tactics.

People, please: We’re not talking about seizure of private property. We’re talking about bungalows, Victorians and Dutch colonials. The new rules don’t say that you can no longer build McMansions or townhouses in Houston — just that you can’t plop them into a historic district. That leaves 99 percent of Houston wide-open.

Tomorrow, council will vote whether to accept the maps for the six most controversial districts, all of which are in the Heights and Montrose.

All six districts survived a postcard referendum that could have obliterated their historic status completely; the only change to the maps is the removal of a single commercial property from Montrose Commons.

Opponents have argued that historic designation will hurt neighborhood property values, but that strains credibility.

It sounds like this battle over historic districts is quite similar to other historic district battles: are there limits to what property owners should be able to do? And as is often the case, these historic districts are proposed because some of these older homes are being torn down to make way for newer homes, the larger ones which are dubbed McMansions.

But the larger issue may be neighborhood change: just how much should any neighborhood be allowed to change in a short period of time? Buildings in a historic district are protected because they are older (perhaps at least 50 years old?). But these questions can also pop up in newer neighborhoods: should a religious building or a park or a gas station be allowed to be built on the corner at the edge of the neighborhood? Should a set of townhouses be built the next street over? What happens if more traffic starts driving down the main street in the neighborhood? The same people who would want the right to build a McMansion in an older part of town after tearing down an old home would also probably not desire an apartment building constructed next door or a garbage facility built a block away.

Where exactly you draw the line between these competing interests is not an easy decision but one that must be made by individual communities.