Calling Paul Harvey

I can't say I was a fan of Paul Harvey's views, when he was alive and on the radio, but he was a marvelous storyteller whose signature feature was "The Rest of the Story."  In each installment, Harvey would bring to life some unknown aspect of a well known, or not so well known, story.  The storytelling was aided by Harvey's no-nonsense Midwestern baritone.

It's important to hear the rest of the story.  I was reminded of that this morning, when social media was all a-twitter (pun intended) over the horrifying news that an appellate panel of the Ninth Circuit, a federal appeals court with jurisdiction over the western U.S., had upheld the right of a school district to ban the display of the American Flag.

The usual suspects were manning the outrage machine today.  There are left-wing reactionaries, to be sure, but the right wing has us beat on that kind of activity.  If all you hear is "American school bans American Flag," then it's obvious that something has gone horribly wrong. 

It turns out that there is more to the story.

Morgan Hill is a city of about 40,000 people that lies on the outskirts of Silicon Valley, about a half-hour drive from San Jose.  For several years, Morgan Hill's Live Oak High School has offered a Cinco de Mayo celebration in respect of its students of Mexican extraction.  Cinco de Mayo nominally celebrates the Mexican army's unlikely victory over French forces at the Battle of Puebla in 1862.  Cinco de Mayo is actually not an important holiday in Mexico, nor is it celebrated throughout that country.  Instead, it's a Mexican-American holiday that is observed in the United States as a celebration of Mexican culture and heritage.

Like many high schools with racially diverse student bodies, Live Oak occasionally had problems with race-based fighting.  By 2009, the Cinco de Mayo celebration had become particularly marked by problems.  Both Hispanic and non-Hispanic whites appear to have been at fault. Some whites would use the holiday to assert an aggressively patriotic view, complete with clothing representing or containing the American Flag. Some Hispanics took offense and resorted to violence as an expression of that offense.

In its published opinion, the Ninth Circuit described the situation as follows:

On Cinco de Mayo in 2009, a year before the events relevant to this appeal, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students. The groups exchanged profanities and threats. Some students hung a makeshift American flag on one of the trees on campus, and as they did, the group of Caucasian students began clapping and chanting "USA." A group of Mexican students had been walking around with the Mexican flag, and in response to the white students’ flag-raising, one Mexican student shouted "f*** them white boys, f*** them white boys." When Assistant Principal Miguel Rodriguez told the student to stop using profane language, the student said, "But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up." Rodriguez removed the student from the area.

When May 5, 2010, rolled around, school officials were determined to minimize the likelihood of violence while maintaining the celebration.  When several white students wore American Flag shirts to school, the principal asked them to turn their shirts inside out or take them off.  They refused.  The principal pleaded with them that he was concerned for their safety.  The students said they were willing to risk it.  The principal then offered them excused absences if they would go home, and they did so.  The principal's fears were justified; despite their having gone home, the students were threatened with violence later in the week.

The school did not discipline the students who wore the shirts.  It did not charge them with absences for the missed school.  They were not prohibited from wearing flag shirts on other days.

The Ninth Circuit agreed that the school's actions were appropriate.  While students do not give up their right to free speech at the schoolhouse door, schools have the right to enforce rules designed to protect their students from speech that is disruptive or dangerous.  The most famous case on that point is Tinker v. Des Moines Independent School District, a Supreme Court case in which the speech in question was students' wearing of black armbands to protest the Vietnam War.  That kind of speech was deemed to be protected.  However, schools may prohibit speech that "might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities," or that constitutes an "actual or nascent [interference] with the schools’ work or . . . collision with the rights of other students to be secure and to be let alone."

Live Oak had had problems with violence in the past.  It took steps that were very narrowly tailored to prevent that violence from happening again.  This is not persecution of "white America."  While I think additional effort could have been focused on disciplining the students who were threatening violence, the school acted appropriately.

And now you know the rest of the story.

Compelled to act

In 1964, Congress passed a new Civil Rights Act that, among other things, banned discrimination on the basis of race, color, religion, and national origin in "public accommodations."  Public accommodations are those entities, whether public or private in ownership, that are generally open to the public.  Hotels, restaurants, retail stores, service stations, educational institutions, and recreation facilities are all examples of public accommodations, while private clubs and religious institutions are not.

The new law was squarely aimed at ending not only the official discrimination enforced by state laws mandating "separate but equal" (but in practice quite unequal) facilities for racial minorities, but ending the de facto segregation that prevented racial minorities from fully participating in the public commercial life that is part and parcel of our freedom.

Before the 1964 Act, it was perfectly legal for a hotel to refuse to rent rooms to blacks, or for a restaurant to refuse to serve them, as a policy of discrimination.  Such policies made it difficult if not impossible for racial minorities to travel and to engage in the ordinary types of commerce that whites took--and take--for granted.

I am very much in favor of a general policy of freedom, whereby individuals are entitled to choose how they interact in our society, with whom, and on what terms.  We ought not force people to do things they would prefer not to do, if it can reasonably be avoided.  Some acts, like paying taxes, have to be compulsory, because if they were not compulsory, it would be impossible to carry out some of the necessary functions of the government.  We might disagree about which functions of government are necessary and which are not, but I expect that everyone agrees that some government is necessary.

If nothing else, we need a government to enforce our rights and freedoms against those who would infringe them.  Every game needs umpires.

If you look closely at our system of government as it relates to guardianship of our rights, you will begin to recognize that we often must make choices when rights are in conflict.  In such situations, a rule of reason tends to apply; as a society, we choose to resolve conflicts of rights according to many factors, with fundamental fairness as our guiding principle.  Some rights are more important than others, or are more clearly defined than others, or are more fundamental to the ordered liberty that makes our culture what it is than others.

When Congress passed the Civil Rights Act, it altered the general proposition that those who seek to serve the public in commercial settings have the right to refuse to serve any individual member of the public.  An alteration of that proposition was necessary because the law as it stood before then made it impossible, or nearly so, for members of racial minorities to exercise their own rights.  Americans have the right to travel.  When a person travels, it is necessary to eat and to have shelter for the night.  The inability to obtain those things easily makes the exercise of the right to travel practically impossible, or at least often painful and dangerous and expensive.

I think I have made it clear that I am very much opposed to racial bigotry.  But my opposition is one of social pressure, not legal pressure.  It should remain legal for a person to hold bigoted ideas, as repugnant as those ideas might be.  If we cannot convince people to lay down their ignorance willingly, then so be it.  The cure for ideas that you do not like is greater expression of ideas that you do like.

Still, there is a conflict of rights between the bigoted hotelier on one hand, and the black traveler on the other.  One must give way to the other.

One of the growing pains our society has experienced in recent years is rooted in the sea change of opinion on homosexuality.  I am proud to say that as Americans we have, by increasing majorities, come to recognize that greater recognition of the rights of homosexuals has not spelled doom for our society.  It is good to know that our collective moral compass still points toward equality.  We are unfortunately not unanimous in this view, and we probably never will be.  We aren't even unanimous about racial discrimination.  But most Americans want, more than anything, to live as they choose and to prosper, and we are content to allow others to do the same.  Most Americans don't care for discrimination as a general rule.

There is a movement among the redder states to recast the conflict of rights, and the resolution that appears to be the most popular and the most constitutional at present, as an infringement of religious freedom.  No doubt, for many Americans, religion is the most important influence informing their views of homosexuality.  As I have written here and elsewhere, for reasons that are not clear to me, homosexuality receives highly disproportionate attentions from religious conservatives.  The reality is that the Christian religion in particular contains precious little to say about homosexual orientation, preference, and practice, in comparison to topics that are relevant to everyone. A casual observer of the rhetoric of these people, who was otherwise unfamiliar with Christianity, might wonder if it was a cult centered on sex.

The tendency at present appears to be headed toward a nationwide recognition that consenting adults of the same sex have the right to have their marriage sanctioned and recognized by the government, on the same terms as different-sex couples.  It will take some time to get there, but the Supreme Court has lit the pathway.

If homosexuals may marry, that means that the commercial wedding industry--the planners, the bakers, the officiants, the florists, the rental houses, and so forth--must grow to accommodate them.  Because most of these people like money, they are more than happy to accommodate homosexual couples.  Perhaps they are even eager.  But there is a core of bigoted people who are no doubt sickened by the prospect of seeing too grooms atop a wedding cake.  Perhaps these people are even sincere in their religious belief that homosexual marriage is wrong.

As a society, we can cajole them, we can boycott, we can do everything we can socially to convince them that their views are wrong.  But can we compel them to act against those beliefs, by forcing them as public accommodations to serve the gay community they loathe?

To resolve this question, I have to clarify one small point.  When it comes to religious institutions--specifically churches--the right to determine whether they will solemnize any particular marriage is essentially absolute in my view.  Just as the local Catholic church can refuse to allow divorced people to marry in their facilities, they should be able, without explanation or legal action, to refuse to allow a marriage of homosexuals in their facilities.

But what about the baker who specializes in wedding cakes?  That is a tougher question.  I have to admit that my opinion on this point has not always been where it is today, because I have had a hard time telling a person that he must act.

But the reality is that the baker has chosen to engage in a commercial business that accommodates the public.  Religious rights are important, but the baker does not bake out of religious conviction or imperative.  I'm not aware of any religion that requires commercial baking as one of its tenets.  The baker has chosen to enter a public market for his services.  The people who are marrying are, by contrast, exercising a fundamental right of Americans.  The baker must yield, and there is nothing wrong about requiring him to do so. 

Arizona's legislature has passed a bill--and several other states are considering laws--that would elevate the baker's so-called religious rights over those of the marrying couple's, by enshrining in law the right to discriminate against homosexuals as a matter of religious conviction.  I have my doubts about the constitutionality of such a bill. After all, the Fourteenth Amendment prohibits states from denying the equal protection of the laws to persons within its jurisdiction.  This legislation creates a classification of persons and expressly authorizes discrimination against them.  Such legislation does not lift up the rights of the religious.  It uses religion as a prostitute for bigotry, and makes a mockery of it in the process.*

* - If you need some textual justification for why it's OK for a Christian baker to bake a wedding cake for a homosexual wedding, I suggest Matthew 15:21:  "Render unto Caesar the things that are Caesar's, and to God the things that are God's."  In that passage, Jesus is discussing the payment of Roman taxes by Jews.  The Roman government of that time was multi-theistic and pagan in nature.  If the payment of taxes to support such a government were sinful, Jesus's command would certainly be different.  Baking a cake for a homosexual wedding no more endorses the solemnity of that wedding than the payment of taxes to Rome endorses the official religion of the Roman Empire. 

Judging from the outcry against this legislation, I expect that the governor of Arizona will veto it.  After all, even people who are willing to tolerate bigotry draw the line when it begins to cost them money, and all indications are that it will cost Arizona millions of dollars to indulge this bigotry.  The people of Arizona deserve a government that guards their real rights, instead of ginning up fake justifications for justifying discrimination.**

** - I have no doubt that those who opposed the 1964 Civil Rights Act could have come up with some ridiculous religious justification for continuing discrimination. That does not make discrimination the exercise of a religious right.

But even more importantly, this legislation almost certainly represents the death throes of official discrimination against homosexuals.  When the anti-gay movement had the majority of what must almost certainly have been an uninformed public, it could be satisfied with keeping gay marriage illegal.  That movement is now on the run, and it is doing what it can, by any means necessary, to protect itself.  We can expect more of this nonsense as time goes on.  Fortunately all that is required is to keep batting it down.

Corporations are people, right?

I don't normally make public comments on lawsuits in which I'm involved, but I'm going to make an exception for this one because it's kind of an unusual situation.

See, I'm being sued.  But before we get to that, a little background. 

A few years ago, I started a corporation to be a vehicle for a business I was going to run.  It was a simple process...just file a few documents with the Secretary of State, pay a small fee, and we're off.  I was the only shareholder, investor, officer, employee, and janitor.  After operating for a short time, it became clear that the new business wasn't going to be viable, so I shut it down.

It costs money to keep corporations "alive," because you have to pay annual fees and franchise taxes, and you have to file paperwork every year, and since this business isn't operating anymore, I decided to file the articles of dissolution necessary to end the corporation.

Somehow, the corporation got wind of it, and now it's suing to stop me from killing it.  See, corporations are persons, according to the U.S. Supreme Court, and persons have constitutional rights.  My corporation is arguing that if I file the papers with the Secretary of State that will kill it, the Secretary of State and I will violate its right to life.  My corporation is pleading for its life, quite literally, by seeking the court's protection.

I suspect that my corporation got the gumption to take this otherwise unprecedented step by taking a page from the corporation that owns and runs Hobby Lobby and other stores.  Hobby Lobby has a case in front of the U.S. Supreme Court in which it is arguing that the provisions in Obamacare that require it to provide health insurance to its employees and that require that health insurance to cover, among other things, contraception, Hobby Lobby is being denied the right to exercise the corporation's sincerely held religious beliefs.  Among those beliefs is that birth control pills cause abortions by preventing fertilized eggs from implanting in the uterus.  (Never mind that most birth control pills don't actually work that way; Hobby Lobby isn't required to be factual in its beliefs, just sincere.)

The Supreme Court has long held that corporations have some constitutional rights, as "persons."  More recently, in Citizens United v. FEC, the Supreme Court held that corporations have free speech rights and can spend as much money as they would like in order to attempt to influence elections or popular opinion on issues.

Hobby Lobby wants to take that a few steps further and assert its freedom of religion.  After all, the freedom of religion and the freedom of speech are in the same amendment.  Surely a corporation that has one has both, right?

Against that backdrop, we shouldn't be surprised that my corporation wants the right to life.  What is freedom of speech or religion if you don't have the right to life?  At some level, I think my corporation just wants to live out its natural life in peace, thinking as it does and doing as it does, until...well, since corporations aren't tied to natural persons, they theoretically have unlimited lifetimes.  If it's successful at its lawsuit, my corporation will outlast me.  In fact, it will outlast the human race, all life on Earth, even the Sun.  My corporation will be immortal.

I suppose it will be cheaper just to acquiesce and keep paying those fees and filing those forms than to fight a lawsuit I might lose.  So I probably will.

But you know what's really scary?  My corporation might one day read the Second Amendment.  Then we're all in trouble.

On grades, and what they mean

Until I finished high school, there were very few things that were on my mind more constantly than grades.  I had a personal goal to finish first in my high school class, and that meant that it was necessary to out-perform my classmates.  Especially then, I was a competitive person where it was possible to compare myself to others.  Sports provided one outlet for that, but academic competitiveness was something that stayed with me until the very end.  There were times when my quest for eking out every last advantage on my grade point average verged on the monomaniacal.

Today's entry is bound to be controversial for some people, but Good Counsel never shies from controversy, so here goes:

Grading systems that promote the approach I took are inappropriate at best and damaging at worst.

I've given a great deal of careful thought to this subject, and our approach to grades, especially in elementary, middle, and high schools, is part of the problem that George W. Bush famously (in)articulated:

Rarely is the question asked, is our children learning?

Jokes aside, this might be the most insightful thing that Bush* ever said or thought, even if it was unintentional in its brilliance and appalling in its grammatical structure.  Consider a student who masters 85% of the curriculum before her, as measured by an 85% overall grade average for a particular class.  That would usually be assigned a traditional letter-grade of "B," which is supposed to reflect above-average performance.  But above-average compared to what?  And doesn't it also reflect a lack of mastery of the other 15%?

* - I can scarcely believe I am quoting Bush with approval, but "any port in a storm," as they say.  I once gave a speech to the Georgetown Law Democrats that was entirely composed of around 50 "Bushisms," tastefully arranged into a semi-coherent message. It brought the house down.  But a couple of months later, the joke was on us—and the whole country, as it turned out.


Consider your job.  Of the skills you use at your job, what 15% are you allowed not to be proficient at?  At what 15% of your tasks can you utterly fail and still be considered an effective employee?

I would hope that for most people, whether you are a lawyer or doctor or a mechanic or a bookkeeper or a janitor, the expectation would be there that in order to stay employed, you need master all of the skills that are expected of you.  (That doesn't mean that you don't make mistakes, or that the outcome of your effort should always be perfect.  I'm talking about the skills you have.)

Would you drive across a bridge that only had 85% of the rivets placed correctly according to the engineering plans?  Would you go to a surgeon who only knew which instrument to use 85% of the time?  Would the IRS accept corporate accounting books that were only 85% accurate?  What about a concert pianist who only hit 85% of the right notes--would that be someone you'd pay to see?

Of course not.

So why would we find it acceptable, much less "above average," for students to master only 85% of the material covered in their classes?

I suspect that the reason why we find that 85% figure, or anything less than 100%, acceptable is because of the "performance" imperative.  What seems to matter to us most academically is for students to "perform"--to go through the motions of homework and tests as though they were sporting events or game shows, for the purpose of drawing comparisons.  You don't need to shoot 100% from the field to win a basketball game; you don't need to answer all the questions right to be a champion on Jeopardy!.

Rarely, however, is the question asked:  Are our children actually learning, as in mastering the skills they must develop to be educated, creative, critical, productive adults?

If a child is given 100 math problems to work out as homework, and those math problems are directed toward practicing particular math skills, why do we regard anything less than getting 100% of the answers right as reflecting mastery of those skills?  Isn't mastery the goal?

When I was in the sixth grade, my elementary school installed a computer lab, one purpose of which was to assist in the teaching of science.  Those computers had software on them that provided some automated instruction in various science principles. After a student reviewed the lesson, he was given a set of 8-10 questions designed to test whether the student understood the material or not.  In a twist on the usual testing method, this program required the student to answer 100% of the questions correctly before moving on to the next lesson.  If any questions were missed, the student was forced to go back and re-review the relevant sections of the lesson.

This arrangement was not exactly well executed for a couple of reasons.  If the student missed a question, the lesson didn't become more detailed or attempt to explain the concept in a different way.  The questions were multiple-choice and didn't change no matter how many times they appeared, which allowed for passing through trial-and-error and pattern recognition. There are limits on what you could do with an Apple IIe computer.

But the larger point is this.  If the curriculum specifies that children of a certain grade level should demonstrate mastery of a particular group of concepts, then children should be expected to master all of the concepts before moving on.

When I was a kid, I dreamed of a curriculum that was based on much smaller units, akin to chapters in a book, whereby I would be given maybe thousands of units to complete over the course of a school career, arranged so that mastery of each one was required before moving on to the next.  Slower students would work at their own pace and be given as much time as needed to master the material.  I might have been able to work through those units at twice or three times the pace of an "average" student, while still developing the same skill set I ultimately developed, thereby leaving more time for creative work, for play, or even for more academic work.  I don't know how it would work logistically, but it seemed to me to be far preferable to the group pace that characterized most of my education.

I realize that there are other factors involved in grade promotion.  I realize that not every student is capable of mastering concepts at the same rate as his or her age-peers, which is sort of the point.  I suppose it's also possible that students don't really need to master 100% of the curriculum before moving on to the next unit, because what they miss out on, they will pick up later.  But maybe the problem is in thinking that way.  Maybe we're so concerned with performance and its measurement, and the corresponding comparisons among students in a group and between a student and a given age-based standard, that we're forgetting that the point of an education is to develop thinking skills.

Is our children learning? No wonder we can't tell.

Candy crushed, part III

This is part III in a three-part series on trademark law and King.com, the maker of the popular Candy Crush Saga game.  Part I dealt with a specific dispute between King and the maker of a competing game.  Part II dealt with King's broader and questionable efforts to gain additional trademark registrations.

I have been practicing trademark law more or less continuously since the day I was sworn in as an attorney in 2001, and effectively from well before that date under the supervision of other attorneys.  I've handled pretty much every type of procedure found in trademark law, from registration, to opposition and cancellation proceedings, to infringement lawsuits and appeals.  Even though I do practice in other areas, notably patent law, my main expertise is in trademark law.

As trademark attorneys go, my rates are pretty typical for attorneys of my experience level.  Clients who pay the equivalent of what the hotel industry calls "rack rate"--the full, non-discounted rate--pay me $350 an hour for those services.  For the record, most of my clients get a discount, or they pay flat rates, or we have some other arrangement.  I don't make $350 an hour, or anything close to it, for most of the hours I work.  I also don't charge for a lot of the expenses that attorneys usually pass on to their clients.

If I were operating in New York or Los Angeles, you could probably double that rate.

The broader point is that the services of good trademark attorneys are not cheap.  One of the reasons why King can prosecute its interests in the way it is choosing to do so--by using its highly paid trademark attorneys to push registrations that are ultimately of questionable merit through the USPTO--is because King has been made rich through clever marketing of its games, mostly including Candy Crush Saga.

Years ago, the comic strip Doonesbury featured a long-running storyline in which the main character, Mike Doonesbury, had started a dot-com business whose product was to be a "shop-bot," a program that would scour the web for prices on goods in order to help consumers locate deals. The program was nearly complete when--in the strip--Google announced the release of its own shop-bot, thereby severely hampering Doonesbury's prospects for competitive success.

That kind of thing happens all the time.  Small companies with great ideas can be easily overwhelmed by the industry behemoths who aren't risking everything on those ideas.  On a strictly competitive basis, that's not necessarily a horrible thing.  It is, at least, the capitalist way of doing things.  As long as that is how it turns out in a meritocratic fair market, it's hard to oppose it.

But King isn't pursuing that strategy.  Or, at least, the strategy it is obviously pursuing doesn't fit that mold.  It is one thing for King to pour its gains from Candy Crush Saga into development of other products that consumers will want to spend money on.  It's quite another for King to use those gains to stifle competition by making it difficult for smaller players to get traction in the marketplace, based on something other than the relative merits of their products.

It is wishful thinking to expect the public to abandon King.  Candy Crush Saga is an enormously popular game because it appeals broadly to different types of consumers--those who like its sickly-sweet "storyline," those who enjoy the social aspects of the game, and those who appreciate the intellectual challenge of a well executed match-three game.  It is entirely possible to play it without giving King a dime.  But it takes discipline that I expect most people don't have to avoid paying to unlock levels.  To play into that lack of discipline, King has built a game that is not impossible to play, but that is just difficult and frustrating enough that spending 99 cents to get to move on seems like a small act.  If each one of King's downloaders does that just one time per year, that's nearly half a billion dollars in annual revenue, including the revenue share with Google and Apple.

I am relatively confident, however, that the public will move on from Candy Crush Saga as its novelty wears off.  My Facebook news feed was once heavily populated by updates from friends who played Zynga's Mafia Wars and Farmville games.  Those mostly subsided even before Facebook made it easier to block that kind of status update from the news feed.  Even the venerable Words With Friends has lost its steam.  Candy Crush will go away eventually, too.  But I'm not so worried about what happens with that game.  I'm much more worried about what King is planning next, because it very much looks like something we don't want:  a litigious nightmare of a corporation, flush with cash and ready to sue.

As a lawyer, I usually find the complaints about the litigiousness of our society to be a bit naive.  In recent years, for example, it has become fashionable for large companies to complain about "patent trolls," which are individuals or small companies that obtain patents for inventions and seek compensation for the use of those inventions by litigating.  The companies that find themselves to be targets of the patent holders have whined so much about the expense of litigation that they have been able to paint these small entities as misusers of the patent system and to get relief from Congress--even though these targets would not hesitate to sue someone else who was infringing one of their own patents, regardless of the expense it would cause.

That state of affairs has essentially operated to make the legitimacy of a patent depend on whether you have the capital to make a product based on it.  That's not what the framers of the Constitution had in mind when they set up the patent system based upon a fair exchange:  public disclosure of new ideas in exchange for exclusivity for a period of years.  If you can't afford to make a product out of your idea, you can at least use the exclusivity of the patent you get to get others to make it instead and pay you for the privilege.  Restricting non-practicing patent owners from doing so deprives us all of those ideas.

So when we talk about what to do about King, we need to be careful not to rig our actions to cause unexpected harms.  The fact that King is misusing the trademark system doesn't mean that the system is inherently bad. Neither does King's size necessarily make its efforts to obtain trademark registrations illegitimate.  As I discussed in Part II of this series, my issue with King's trademark office activities are entirely based on the merits of their applications, not who is making them. 

What we do need to do is evaluate whether there are unintended loopholes that should be closed, and close them.


The thing that bothers a lot of people about King, however, isn't so much that their trademark-related activities are questionable.  Trademark issues are merely the vector of the community's disappointment.  What bother people are two things that don't have much to do with the law but have everything to do with our society. 

The first is that King doesn't seem to be very conscientious about originality.  Candy Crush Saga is hardly an original game.  It is a fairly close copycat of others' work that has merely caught hold of the viral phenomenon that rewards some and punishes others with apparent randomness.  It's a straight-up lottery that King, and not Runsome (for example), saw success.  As a value judgment, we tend to take the view that originality, not execution, should be rewarded.

The second thing is simply outright envy.  I'm not especially interested in the moral aspects of envy.  But envy as an expression of people's desire for justice--now that's important.  For many people, King's financial success is entirely undeserved.  I'm not sure that I ascribe to that idea, but if there is such a thing as the community of developers, it is fairly obvious that the community wants to knock King down a peg because the rewards King has received are outsize in comparison to what it has contributed.  Even though as human beings we have to understand that life's lottery allocates its winnings in strange ways, I do find envy-driven justice to be a noble goal.

The question is, how do we get there?  To some extent, the peculiarities of our judicial system require that those who are directly affected by King's activities have to take the lead.  For example, opposition to King's proposed trademark registration for CANDY would have to be undertaken, in all likelihood, by someone who has a game that uses CANDY in the title.  The problem, of course, is the expense--it's not cheap to oppose a trademark registration.  But it can be done if the community most affected by it is behind the effort.  I have to believe that the Electronic Frontier Foundation--an organization that I tend to view as radical on intellectual property issues, and not usually in a good way--would be interested in taking up this cause, but there is much power in simply passing the hat for the cause.

* * * * *

I hope you've enjoyed this series.  Even though a lot of what I do on a day-to-day basis is pretty dry, there are occasionally some aspects of it that can hold your interest.  It's been nice to take a break from the political and cultural commentary that is usually what I cover, so maybe we'll do this more often.  Please feel free to link to and share these posts if you think they would be of interest to others.

Candy crushed, part II

This is part II in a three-part series on trademark law and King.com, the maker of the popular Candy Crush Saga game.  Part I dealt with a specific dispute between King and the maker of a competing game.  Part III discusses where we go from here. 

In a recent article in Forbes, Erik Kain complains about King's aggressive trademark posturing.  King is seeking a trademark registration for CANDY CRUSH SAGA,* and that is the source of the dispute with the maker of Candy Swipe.  Kain's complaint extends to a more controversial portfolio of marks that King is seeking to register, including individual marks for CANDY and SAGA, among others.

* - As in my previous entry, I use the convention of all-caps to denote trademarks.

Although I generally agree that what King is trying to do is, at best, a misuse of trademark law, Kain's article, and his position, suffers from a fundamental lack of understanding of what trademarks really are.  Companies (and individuals!) own trademarks, but their ownership of trademarks does not take those words out of free use as part of the English language.

There are a couple of very important restrictions on the power of trademarks.  First, trademarks are only protected to the extent that they serve primarily as indicators of the source of goods or services.  Words that merely describe features or qualities of the goods to which they are attached aren't trademarks and remain free for use in their descriptive senses. 

Second, trademarks are only protected against uses that are likely to cause confusion among the purchasing public as to the source of the goods or services, or their sponsorship or affiliation.  Whether something is likely to cause confusion or not is dependent upon a 13-factor test that examines the marks, the goods and services, and many other aspects of a collision of interests, in order to determine whether a person can continue using a given mark.

(There is a special class of enhanced trademark protection, not dependent upon likelihood of confusion, for marks that can be described as "famous," but that protection is beyond the scope of what King is doing or, at this point, able to do.)

Kain's central proposition is this:  "No corporation should have legal rights to any word I can use in Scrabble."  That view is wrongheaded, because it would effectively restrict trademark registrations to made-up words alone.  Some of the most well known, respected, and powerful marks are ordinary English words that are arbitrarily applied to goods or services.  For example, the mark UNITED has been registered by United Air Lines.  "United" is a perfectly ordinary word, worth 21 points in Scrabble if you make it land on a triple word score.  But the fact that United Air Lines has a federal registration for UNITED does not keep anyone from using "united" as an ordinary English word.  More importantly, it doesn't force United Van Lines, which provides moving services, to change its name; neither does it keep D.C. United, a major league soccer team, from selling tickets to its games.

It also doesn't keep anyone from claiming to be a citizen of the United States or taking a vacation to the United Kingdom or the United Arab Emirates.

I have two problems with CANDY, and to a lesser extent SAGA, as trademarks owned by King.  First, those are not the trademarks that King uses.  There is a principle in trademark law called "mutilation."  Mutilation refers to the practice of seeking registration for less than the entire trademark as used.  A prominent example of this is the "Dummies" series of how-to books.  IDG Books, the original publisher of the "Dummies" series, originally sought registration of ____ FOR DUMMIES, as a kind of fill-in-the-blank trademark application.  The USPTO initially blocked the registration, on the basis that the "blank" never appeared on any of IDG's goods.  Instead, the blank was filled in.  In order to obtain a registration, IDG had to remove the "blank," change its printing scheme to emphasize the "For Dummies" wording, show that consumers perceived their mark as FOR DUMMIES, and provide examples (specimens) in which they used the "For Dummies" wording without any other language.  IDG eventually got its registrations, but not without the kind of compromise that emphasizes the true nature of trademarks.

King, by contrast, insofar as I am aware, never uses the word "candy" by itself in connection with its offerings.  Neither does King use "candy" for more than one game.  Unlike IDG, which could actually show that it used FOR DUMMIES by itself, King is seeking what amounts to a fill-in-the-blank registration that will allow it to have at least some rights over others who want to use the term "candy" as part of their trademark, without doing the hard work of showing that King is entitled to those rights.

Use is a critical piece of trademark rights.  Insofar as I can tell from reading the files, King is only able to get the USPTO to consider issuing a registration for CANDY because it has already convinced the European Community Trademark Office to issue a registration for CANDY.  Under the part of the Trademark Act that King is seeking a registration for CANDY, the lack of use of the mark in the United States is not a ground for refusing what is termed "extension of protection."  About 10 years ago, the U.S. entered an international trademark protection agreement known as the Madrid Protocol that provides some leeway to foreign companies seeking to enter the U.S. market by giving them protections they would not otherwise be entitled to without the usual showing of actual use in commerce.

The problem with King's strategy is that even under the Madrid Protocol, the rights they obtain for a mark they have not used yet are rather hollow.  In the long run, I believe their efforts to monopolize words like "candy" and "saga" will fail.  If King tries to enforce its trademarks through a lawsuit without actual use of the marks, it will likely find itself out of luck.

The second problem I have with King's proposed marks is that both CANDY and SAGA are descriptive for King's own offerings.  King's major product is a game that is heavily reliant on the "candy" theme that is organized in such a way that users progress through a "story."  Descriptive marks cannot be registered without a showing that they have acquired "secondary meaning"--meaning that the public views those terms as indicators of the source of goods rather than descriptors of the goods to which they are attached.  Secondary meaning requires a significant showing, particularly when the words are so descriptive of the goods they are attached to.  Perhaps most importantly, King will have to show that its use of these terms as marks is substantially exclusive--and that it cannot show; there are dozens of other trademark uses of these terms for similar products, many of which pre-date King's offerings.

To allow King to have registrations for CANDY and SAGA would allow it to attempt to monopolize the market for games that involve candy or storytelling--something that the trademark laws were never intended to do.

I have reviewed the prosecution histories for the CANDY and SAGA applications, and it does not appear that the examining attorney--a USPTO employee charged with the first-line examination of applications--even considered the descriptiveness argument.  King will not be so lucky to escape that descriptiveness argument if its registration applications are challenged, or if it seeks to enforce the marks through an infringement action.  In fact, if I were representing someone locked in a dispute with King over these marks, my first argument would be the descriptiveness argument.

Of course, the major problem here isn't so much what is legal.  It's that King, with the resources generated from half a billion downloads of its top game, can afford to litigate, while its targets may not be able to do so.  That's a legitimate concern, because the imbalance of power tends to stifle innovation by shooing developers away from topics they know are likely to raise King's ire.  But it's not a problem of the law.  It's a simple fact of our legal system that is hardly peculiar to trademark law.  It's expensive to litigate even if you are in the right.  That's where the power of community needs to step in.  Independent developers can pool resources.  Expert attorneys who don't like this misuse of the trademark system can provide time and effort, either free or at reduced rates.  And nonprofits like the Electronic Frontier Foundation can work to support developers who are ensnared in King's web. 

In part III, hopefully tomorrow, I will talk some more about this last aspect.

Candy crushed?

This is part I in a three-part series on trademark law and King.com, the maker of the popular Candy Crush Saga game.

The life of a trademark attorney can be lonely.  Most of what I do is well out of the spotlight.  But every once in a while, trademarks grab the attention of the public, and that gives me the opportunity to sort things out.

There is a popular movement afoot to boycott Candy Crush Saga, the popular game from King.com.  Candy Crush Saga is a more-or-less standard match-3 game, in the tradition of Bejeweled, and it is a distant cousin of Tetris.  The goal of Candy Crush Saga is to progress through a seemingly endless series of levels by manipulating pieces of candy laid out in a grid, aligning three or more pieces of the same color in a specified pattern to make them disappear.

King's contribution to the myriad games of this type is to make the game social.  If you find yourself stuck on a level, you can get assistance from Facebook friends.  King also throttles your progress, allowing you to fail on a level only five times before you must wait a specific period of time to try again--unless, of course, you want to pay them a small fee, $0.99, not to wait.

Recently, a simmering dispute in the U.S. Patent and Trademark Office (USPTO) has come to the forefront of pop culture.  In 2012, King sought to have its trademark CANDY CRUSH SAGA* registered in the United States.  Trademark registration confers on the registrant any number of important rights, the most important of which is to prevent others from making commercial use of trademarks that are confusingly similar to the registered mark.

* - One of the conventions of trademark law is that we use all-caps to indicate when we are talking about a trademark, just to make it easier to pick out.

Trademarks serve as indicators of the source of goods (or services).  When you buy a bottled soft drink that carries "COCA-COLA" on the side, that is an indication to you that the soft drink inside was made by, or under the authority of, a particular company that is responsible for the quality of the goods.  Trademarks are ubiquitous in our society, to the point at which you don't even notice them most of the time.  For a really interesting take on trademarks, it's worth your time to go over to YouTube to watch Logorama (warning: some coarse language), a short film that used more than 2,500 trademarks to animate a story.  Logorama won the Academy Award for Best Animated Short Film for 2009.

The trademark application process includes, at its end, a short period of time in which people and companies who think they would be harmed by a registration to oppose that registration.  If registration is opposed, the USPTO conducts a proceeding known as an "opposition," similar to a lawsuit, in which each side develops and makes its case, and a panel of administrative trademark judges decides whether to allow the registration.  Once a mark is registered, it is also possible to petition the USPTO to cancel that registration.

The available grounds for opposition and cancellation are generally the same.  The most important ground, however, is "likelihood of confusion" between the opposer's (or petitioner's) mark and the mark for which registration is being sought (or has been granted).  Determining whether there is a likelihood of confusion depends on a test of numerous criteria, including the similarity of the marks, the similarity of goods and services to which they are applied, the channels of trade in which the two entities operate, and as many as 10 other factors. 

If the USPTO determines that there is a likelihood of confusion between the two marks, it will either block or cancel, as applicable, the "junior user"'s mark.

In April 2013, a company known as "Runsome Apps, Inc.," which owns a federal registration for CANDYSWIPE, and which coincidentally sells a game that is remarkably similar to King's Candy Crush Saga, filed to oppose King's registration of CANDY CRUSH SAGA.  Runsome argued in its opposition that the two marks are confusingly similar and that because Runsome was first to the USPTO with its registration (dating to 2010), King shouldn't be allowed to register CANDY CRUSH SAGA.

At that point, all was good, I suppose.  I think Runsome's case for confusing similarity is weak at best.  It might have a better case for copyright infringement, because Candy Crush Saga is a fairly direct appropriation of many of the features of Runsome's version, which debuted two years prior to King's.  But that is not the case they filed.

King, which makes an enormous amount of money off the popular addiction to Candy Crush Saga (it is the most popular game on Facebook and boasts 46 million users there, and untold millions who play on smartphones without connecting to Facebook), has some very good lawyers.  Even though King probably had a winning hand already, it took steps to make Runsome's case unwinnable.  King identified a third party that has been using the trademark CANDY CRUSHER for computer games since 2004, and in January, King bought the trademark from that company.

Trademarks are property that can be bought and sold as long as certain rules are followed, and there is absolutely nothing illegitimate about King's purchase.  In fact, apart from the dispute with Runsome, it would probably have been an excellent move on King's part to negotiate for the purchase of the mark CANDY CRUSHER just to avoid having a future dispute with the owner of that mark.

What has struck some people as sneaky, however, is that King has now asked the USPTO to cancel Runsome's registration on the basis of the prior CANDY CRUSHER mark.  It stands to reason--and King is exactly right about this--that if, as Runsome says, CANDY CRUSH SAGA is confusingly similar to CANDYSWIPE, then CANDYSWIPE is confusingly similar to CANDY CRUSHER, and CANDYSWIPE shouldn't stay registered.  The software engineer, as it turns out, is hoist with his own petard, to paraphrase Shakespeare.

Last week, Albert Ransom, the president of Runsome, wrote a heartfelt "open letter" to King, deriding it for its efforts to win the trademark opposition by canceling CANDYSWIPE.  In his letter, Ransom plays the sympathy card heavily, referring to his deceased mother's cancer and his dedication of the game to her memory.  He criticizes King for ripping off his concept and defends his own actions in opposing King's registration as an exercise of his own rights.**  He even quotes a statement by King in support of the rights of intellectual property owners to protect what they create.

** - Ransom also complains that King is trying to stop him from using CANDYSWIPE by canceling his registration.  King might actually take that step, but it is not a foregoing conclusion that cancellation means you have to stop using a mark.

On the trademark level, I don't think much of either case.  If it were up to me, I would deny both aspects of this proceeding.  There is simply no likelihood of confusion among these various marks.  They can all exist on the Register without conflict.  Frankly, I don't think King thinks there is much of a likelihood of confusion; it is simply making the argument as an extension of Runsome's argument.

There is a great outcry, especially in the app-development community, against King for what are termed heavy-handed tactics; a boycott has been urged.  (I note that no one has suggested a boycott of Runsome for filing an opposition against a mark that doesn't have much in common with its own mark. I suspect that's because most people haven't heard the whole story; thus, this post.)

It's probably a good thing for people to stop playing Candy Crush Saga; it's a time-waster and a money-waster.  But those who quit are doing the right thing for the wrong reason, if they are doing it because King is being heavy-handed with a smaller competitor.  The simple fact is that Runsome picked this fight.  Its argument has been turned against it, and it would be well advised to suggest that all simply walk away from the trademark dispute.  To boycott King over this trademark dispute isn't the right move.

Of course, if Runsome wants to sue for copyright infringement, I think that it would stand a far better chance of success with that case.  And if you want to quit playing Candy Crush Saga for that reason, you can do so with a clear conscience.

* * * * *

Part II of this series deals with King's broader and questionable efforts to gain additional trademark registrations, while Part III discusses where we go from here.

Rube Goldberg would be proud

For several reasons, I don't spend much time talking about the absolute rat's nest that is Arkansas politics, but probably the biggest one is that I spent fifteen years largely absent from the state.  It's hard to see detail when you're watching from afar.

But now that I'm back, my reticence about local politics is mostly out of disgust.  It was weird to return to an Arkansas "governed" by Republicans.  Yes, I know the Governor is a Democrat, but one of the dirty little secrets of Arkansas's political system is that the governor has virtually no power beyond the power of appointment. 

Consider for a moment the brain malfunction that must have occurred when the writers of Arkansas's constitution were deciding how the veto would work.  The canonical model is the one practiced on the federal level:  simple majority to pass legislation; two-thirds majority to override a veto.  Because it is rare for one party to have two-thirds of either house, the veto is a true power of the executive.  But that structure also promotes compromise.  The threat of a veto that can undo months of legislative work tends to shape legislation so that the legislature and the executive can come to a decision.

In Arkansas, however, a gubernatorial veto can be overridden by a simple majority of both houses (for most legislation).  Think about that as you read this dialogue:

Legislature:  We want this to be law.

Governor:  I forbid it.

Legislature:  Too bad. We want it anyway.  It's law.

This structure effectively amounts to Gov. Regis Philbin asking the Ledge, "Is that your final answer?"

But this post wasn't supposed to be a complaint about the structural problems of Arkansas government.  I could fill a book about those, and there are many times when I think it would be better simply to wipe the slate clean, call a constitutional convention, and see if we could do without the innumerable boards and commissions, the increasingly stringent supermajorities required for basic governmental functions, and all of the other intentional monkey wrenches our Know-Nothing forebears thought were best.

At issue at the moment is whether the state will continue to take federal money for the "private option."  The Affordable Care Act provided for the expansion of Medicaid by making people with incomes somewhat above the poverty line eligible.  Medicaid is one of the very best federal programs around because it provides a service that everyone needs--health care--to people who cannot afford it.  But the way that Medicaid is administered is a little weird; it's administered on the state level, but the federal government pays for 90% of the cost.  That strikes me as an unnecessary administrative wrinkle, but up to this point it has worked out OK.

The ACA requires states to accept the new Medicaid expansion dollars if they accept Medicaid dollars at all (which all states do, because even the most hard-hearted conservatives are at least not numerous enough in government to make states say no to all of the money).  But last year, the Supreme Court said that states could opt out of the expanded program.

One of the results of that was that Arkansas--which was threatening to opt out--got permission for a different use of those Medicaid dollars.  Instead of public administration of this segment of the program--the people added to the rolls because of new eligibility--Arkansas was granted the right to use those Medicaid dollars to purchase private insurance for the newly eligible.  That arrangement managed to tickle enough Republicans' political erogenous zones (Public money going to private companies! Hooray!) that the Ledge could cobble together the three-quarters' majority of both houses necessary to accept the money.

Arkansas has something of a history of this kind of thing.  Back when Mike Huckabee was the governor instead of talking about women's libidos on national television, he and the Ledge got Arkansas into some trouble with Medicaid and the State Children's Health Insurance Program ("S-CHIP").  ARKids First was--and is--Arkansas's S-CHIP program, a program that ensures that kids from low-income families get access to health care even if their families make too much money to be on Medicaid.  After all, it takes a special kind of sociopath to deny health care to children because their parents can't afford it.

The problem was that Huckabee's administration was making a special point of enrolling kids in ARKids First, which requires some out-of-pocket expense, when their families were actually eligible for Medicaid.  The public statement about this issue was that being on Medicaid carries a stigma.  That is no doubt somewhat true, and I know plenty of people who would not dare take Medicaid for themselves, except maybe in the most dire emergency, but would accept it for their children.  But the real reason is that because of the limited coverage provided--ARKids First is limited to children and pregnant women--and the co-pays, ARKids costs the state fewer dollars than it would cost to enroll the entire family in Medicaid.

Anyway, back to Medicaid expansion.  The "private option" was crafted to solve a problem, namely the Republicans' desire to make Obamacare as unsuccessful as possible, by giving the GOP a carrot it could not refuse--injecting a profit line into government programs. Now that it has become necessary to renew the acceptance of these Medicaid dollars, the Republicans that run (ruin) the show have different motivations.  Handing a few more dollars to Blue Cross isn't enough to defeat their monomaniacal hatred of all things Obama.  They are desperate and scared because the ACA isn't the all-out disaster they had hoped to make it.

(Have you noticed, by the way, that the word "Obamacare" has disappeared from the Republican lexicon?  It's now back to the "Affordable Care Act."  There's only one reason for that:  The ACA is succeeding in getting uninsured people insured.)

In Arkansas, the ACA has been so successful that nearly 100,000 Arkansans who did not have insurance before have now become insured under Medicaid expansion.  In a state just shy of 3 million people, that's significant; among other things, it's a bunch of people who won't be clogging emergency rooms with non-emergency conditions because they can't afford to go to a doctor.

Of course, that's a true disaster for the Republicans.  We can't have a government that does things well, they say.  People will start to want a government that does well all the time.

So, when a Democratic state senator had to resign over some campaign finance irregularities and was replaced in a special election by a special breed of know-nothing, the Republicans saw their chance.  They would simply discard the private option entirely, reject the money for upcoming years, and kick those people off their health insurance.

And they could do that.  All it takes to block acceptance of the money are nine seats in the Senate and 26 in the House; they have those numbers easily.  But can you imagine the ads their opponents will run next time out?

But it turns out that the Democrats have a few cards to play.  They could force the GOP to take the money by threatening to block other appropriations in the current session, which would shut down the state government.  Arkansas Republicans saw the damage done to their federal brethren last October, and apparently the prospect of schools, colleges, and state agencies shutting down is hard to swallow.

So, instead of refusing the money outright, the GOP has decided that the real problem with this money is that the state is spending money to make people aware of the program.  Bear in mind, by the way, that the state gets the money it spends for that purpose from the federal government.  State Sen. Nate Bell, a (what else) Republican, is pushing an amendment to the appropriations bill that would do just that.  Bell isn't coy about his reasoning:

"[W]ithout active marketing, you probably get declining enrollment. ... In general, as a conservative, if I have the opportunity to reduce government spending in a program from what’s projected … I’m probably going to take that deal."

So, let's check the scorecard a moment.  The easiest, least expensive, and most comprehensive resolution to the health care issue would have been simply to expand Medicare to everyone.  Obamacare rejected that approach, instead providing federal subsidies and an individual mandate for private insurance, thereby guaranteeing a complex, meshy (as in full of holes) patchwork that, for all its faults, is better than what we had before.  Last year, Arkansas Republicans took one of the few solid aspects of Obamacare and turned it into an even more complex, expensive program.  And now, as a condition of continuing that plan, the Republicans are demanding that we not tell anyone about the plan, hoping that people who are eligible will simply not sign up.  And as a result of that, we will get less care per dollar.

Why is that last bit true?  Three reasons.

First, the pool of people in those "private option" plans will be smaller and, on average, sicker, because the people who have a more immediate need for health care will make a greater effort to find out about and therefore utilize programs that cost them less money (and, by extension, cost the government more money).  That puts upward pressure on premiums.

Second, insurance companies will have a motivation to gain more subscribers via the private option, because the government must pay for eligible enrollees.  The expense of that marketing will put upward pressure on premiums.

Third, because enrollments will almost certainly go down, the number of uninsured people will go up.  That means more people utilizing county health clinics and hospital emergency rooms for conditions that could have been treated more effectively or earlier in doctors' offices.  That costs all of us more money, not just in tax dollars, but in the expense of services overall (which, again, puts upward pressure on premiums).

The Republicans' intentional stupidity is costing you money.  This whole thing reminds me of my story about epicycles.  When will enough be enough?

Astrology is not science

The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings.

-- Wm. Shakespeare, Julius Caesar, Act I.

I was born on October 15, which means that according to the astrology of the ancient Greeks, my star sign is Libra.

And everything in the preceding paragraph is meaningless.

The concept of astrology holds that the path of a person's life is dependent upon the particular arrangement of astronomical bodies, both at the person's birth and through that person's life.  Because of rigorous study of the subject by actual scientists, applying the scientific method, it can be safely said that astrology is utter bunkum, a pseudoscience that preys upon hopeful and desperate minds.

A survey released today by the National Science Foundation found that 58% of young adult Americans, those aged 18-24, believe that astrology is either "very" or "sort of" scientific.  I suppose some of that number can be chalked up to ignorance, and some of it can be explained by immaturity.  For some people, a certain number of trips around the sun--obviously a larger number than 24--are required for them to figure out the way the world works.  Some of these people are the same ones who believe that you can make big money stuffing envelopes (just put $20 in an envelope and send for our pamphlet on how to do so) or who buy universal life insurance policies at inflated rates from questionable companies (no health questions asked!).  That is to say, they have a certain level of gullibility that will almost certainly wear off once they've been burned a few times by experience.

But can we really blame them?  The daily horoscope can be found in almost every daily newspaper, on countless websites and Facebook apps.  The fact that it so available must mean it has credibility, right?  I mean, if it were fraudulent, the government would shut it down, right?

There is a point at which critical thinking has to become a required skill for living.  As an exercise in critical thinking and investigation, I went a few minutes ago to horoscope.com and clicked on "Libra."  This is what it told me to expect, along with the approximately 583 million other humans who share my star sign:

Success and good fortune might be in the wind for you today, Libra. Whatever it is will probably have you feeling especially elated and satisfied with your accomplishments. You'll want to tell everyone, but this could prove frustrating since some of the people you want to tell might not be reachable today. Hold off on spreading the word until you can inform those closest to you. You'll need and want their support.

Note the use of "might" (twice), "probably," and "could," all of which make this "prediction" utterly incapable of being wrong.  If I don't experience success and good fortune today, then that is meaningless, because the horoscope merely said it was possible, not that it would definitely happen.

And this astrologer couldn't even be bothered to be specific about what was going to happen.  "Whatever it is" could be that I will win the Powerball jackpot, or it could be that I will have an exceptionally satisfying bowel movement.  I must admit, however, that the latter option is unlikely to be the subject of this particular horoscope, because I can't think of anyone I would want to tell about that.

You know what I'd like to see?  A newspaper that prints yesterday's horoscopes alongside some statistics that show how accurate it was for those to whom it applied.

The reality is that astrology tells us nothing about the future; it tells us nothing about our personalities or our tendencies.  It is so nonspecific that it could literally mean anything, as my horoscope today proves.  Does anyone really think that it's possible to make a correct prediction that would apply to more than a half-billion people (but only them), or that such a prediction would be genuinely meaningful?

Astrology survives, and apparently thrives, because of the number of people who are unwilling or unable to think.  That's genuinely sad.

Why? It should be obvious

I was in college when Rush Limbaugh became nationally known.  I was an eager listener, sort of, not because I enjoyed what he was saying, but because he provided the challenge of opposition.  Essentially, it was something to argue against.

But Limbaugh has long been a self-caricature, to the point at which it is unclear how he is still able to convince people to pay him to talk over the radio.  There is no topic on which he can speak with any moral authority.  A couple of years ago, when he embarrassed himself over the Congressional testimony of Sandra Fluke on women's health issues and insurance, groups quickly organized to campaign to have his advertisers dump him--and they've been highly successful.  To date, more than 3,000 business and nonprofit organizations have prohibited their advertising from appearing on his program.*

* - It is actually fairly common for advertisers to be unsure what programs they are "sponsoring" with advertising.  A lot of ad purchasing, especially for national radio programs, is handled by ad agencies and placement companies that place ads according to demographics, ratings, and prices. Most advertisers on the Rush Limbaugh Radio Program, historically, have not made the affirmative decision to advertise on his show.

I don't think I've listened to more than 10 seconds of his program in more than 5 years.  There's just no point.  He's become radicalized in his views; his callers provide nothing but backstopping; and his rants have become increasingly incoherent.

My attention was drawn to his program today because his comments on Michael Sam made the news.  Sam, an All-American defensive end for the University of Missouri who is projected as a middle-round NFL draft pick, recently came out as gay in an interview on ESPN's "Outside the Lines" program.

The reaction was predictable; while Sam was hailed in many quarters for his courage in coming out, his status as a homosexual--he would be the first openly gay player in NFL history--was criticized by a bunch of anonymous cowards who happen to be affiliated with NFL teams.  In one comment that brings into sharp relief the prejudice Sam faces, his homosexuality was called an "off-the-field issue" that would be "a distraction" to NFL teams.

Of course, no one finds it a distraction when a heterosexual NFL player dates or marries a woman. 

As for whether Sam's homosexuality will be a distraction to his team, it has been noted that Sam was "out" to his team--the same Missouri Tigers who won the SEC East, played in the SEC Championship Game, and dismantled Oklahoma State in the Cotton Bowl--during the season.**

** - Who knows?  Maybe they would have won more if he'd kept his sexual orientation to himself. But if that's what you get when a player comes out, could we arrange for some of the Razorbacks to come out? 

I started this post by writing about Limbaugh because he talked today about Michael Sam.  But he really ran off the rails well into the rant.  The thrust of his complaint is that nobody is looking out for (presumably) straight guys like him.  "Heteros--you say heterosexuality may be 95, 98 percent of the population -- they're under assault by the two to five percent that are homosexual," Limbaugh said. "So why -- I'm just asking, I'm just throwing it out there -- why is there a political agenda attached to and driven by homosexuality and there is no corresponding heterosexual agenda?"

That is, indeed, a good question.  And we should leave aside the even better question of how Rush Limbaugh even dares to speak on such topics, given the amount of violence he's done to the institution of marriage (four marriages, four divorces).***

*** - After the last one he wised up and took his boner pills to a notorious child-sex vacation spot, the Dominican Republic, apparently in search of victims to whom he is merely a wealthy American sugar daddy and not a drug-addled ideologue who can't stay married.

But the answer to Limbaugh's question should be obvious to anyone who doesn't align themselves with an ideological movement predicated on the idea that equality for minorities is an assault on the majority.  No one needs to stand up for us "heteros" because the system already accommodates us in every way possible.  I didn't need to file a lawsuit against anyone to be able to marry my wife.  When we went to the county clerk's office, nobody had to check with a supervisor to see if our marriage license could be issued.

I can hold hands with my wife as we walk down the street and no one bats an eye.

When we "heteros" play sports, nobody freaks out if we have a significant other.


The silly thing about Limbaugh's comments is that there is very much a political agenda attached to heterosexuality.  The reason why he can't see it is that it's primarily attached to religious activism rather than heterosexuality per se.  More than thirty states have laws on the books prohibiting homosexuals from marrying. It was only 11 years ago that all laws that criminalized homosexual conduct between consenting adults were held unconstitutional.

When an NFL prospect will be judged according to his performance on the field and at tryouts, instead of whom he prefers to sleep with, maybe then there won't need to be a political movement attached to homosexuality.

But we don't live in that world yet.  It's getting better, but there is a long way to go.

Buh-bye, Jay

In 1992, I watched the last two episodes of The Tonight Show Starring Johnny Carson.  At 16, I was maybe a bit weird for my cohort; Johnny's show was directed at a much older audience, but I liked the show a lot.  The penultimate episode featured Robin Williams and Bette Midler.  The former was perhaps the best stand-up comedian to appear on the show during Johnny's run, and the latter was his favorite guest.  The last episode simply featured Johnny, reminiscing about the show, with clips.  It was a dignified end to an era.

Tonight is the last night of The Tonight Show With Jay Leno.  I no longer watch much late-night TV at all, but when I do, I have one rule:  Not Leno.

I quit watching Leno when NBC booted Conan O'Brien out and re-installed him.  I'm not a big fan of O'Brien, either.  He plays the "I'm not worthy of being here" faux-humility card just a little too much, his delivery is not polished, and the best lines--and the best sense of comedic timing on Conan's show--belong to Andy Richter.  But if you are going to turn over the franchise to a known commodity like Conan, you have to give him a chance to build an audience.  NBC, which was facing (and continues to face) a fall from TV grace, to the point at which it is debatable whether it is the fourth-best or fifth-best broadcast network, didn't think it had the luxury of time, and it terminated the experiment early.  I blame NBC for that, but Leno didn't have to be a part of it, and he has maintained for his whole time at the helm of "Tonight" that he lives on what he makes as a comedian and hasn't touched the NBC money in all that time.

Even though I change the channel when Leno appears, just as a matter of principle, I came to realize that even in the days when I did tune in, it had become a mostly unfunny mechanical exercise.  If it wasn't a "Headlines" night, I rarely laughed, and even then, you can only laugh so hard at yet another Chinese food menu misprint or police blotter entry. 

Leno was once a great comedian, and in the early years--the Johnny years, when Leno was the permanent guest-host--that was enough to cover up the fact that he was a horrible uninteresting interviewer.  But for years now, Leno has been committing the cardinal sin for a comedian.  He's just not funny anymore.

That's OK, of course--it's hard to stay at the top of that game for more than a few years at best--but it's not a reason to tune in.

After 22 years, Leno is hanging it up.  And looking back over that time, I have reached the inescapable conclusion.

It should've been Dave.

Out of the Global Village

If we were playing a game of word-association, and I said to you the name "Marshall McLuhan," you might look at me blankly, or, if you had managed to retain the right bits of trivial information, you might say, "The medium is the message," or you might say, "global village."

McLuhan was a Canadian and a communications philosopher who wrote a great deal about the impact of mass communications upon human culture.  He was perhaps most famous for coining those two related phrases.  The theme of both is that the manner of communications affects the culture as much as or even more than than the content of those communications.  For example, televising a global event such as the FIFA World Cup or the Olympics creates a situation in which wide swaths of humanity experiences the same content more or less simultaneously, regardless of how far the communications must travel.

At no time in human history but within the span of current lifetimes has that been true, and it affects us in ways we don't necessarily recognize.

Among those effects is one of the most obvious:  Events that once occurred very far away now seem to occur in our living rooms. That makes it more difficult for us to separate our societal norms from those that may be operating in the far-off place.

About six months ago, on this blog, I wrote to endorse a U.S. boycott of the 2014 Olympic Winter Games in Sochi, Russia, in protest of Russia's galling, backward, anti-humanitarian policies regarding what it refers to as "gay propaganda." 

In that post, I wrote:

I am ordinarily in the camp of those who think that sports ought to be about sports.  I don't particularly care what sports figures have to say about politics or social issues, at least not any more than any other person.  Having a particular talent for sport doesn't qualify someone especially for political wisdom any more than my in-depth knowledge of trademark law qualifies me to dance a ballet.  Even though the Olympic movement is, on some level, about peace and international cooperation through athletic excellence, it is mostly about competition among individuals and nations on athletic fields.  Those fields are hardly surrogates for battlefields; furthermore, the Olympic movement has coincided with the bloodiest period in human history, so it cannot be said that the Olympics themselves have been particularly effectual at peacemaking.  So a large part of me says that we should spare ourselves the high-minded geopolitics and leave diplomacy to diplomats instead of defensemen and downhill skiers.

And yet...

The history of the Olympic movement does involve politics and social justice.  During apartheid, South Africa was banned from the Olympics even though it promised to send both black and white athletes.  The IOC was one of the first international organizations to impose sanctions for that horrible policy.  Afghanistan, Rhodesia, and Germany all have faced exclusion from the Games as a result of human rights violations.

It is inescapable that sexual identity and orientation are core parts of a person's humanity.  A person is about more than his or her sex and preferences for sex partners, but those things color the world for all of us, blinding us to some stimuli and sensitizing us to others.  Factors that are essential to our individual humanity are essential to our freedom.  We cannot be free if we cannot first be.

I do not pretend to know what animates the heart of the Russian government against homosexuals, but I know that at best it is a misguided policy, and at worst it is a malicious persecution of "otherness" for the sake of purity.  Would we attend an Olympics in a nation that prosecuted blackness as a crime?  Would we send our athletes to compete in a nation that kept women enslaved?  Would we support the global showcase of a city where religious minorities were banned on pain of prison?

I'd like to think we wouldn't do any of those things.  I'm nearly certain that the IOC wouldn't force us to make that choice.

As a side note:  One thing that may be animating the heart of the Russian government against homosexuals is the perceived need in Russia to increase the birth rate.  The Soviet Union was once home to more than 300 million people.  Russia's population is less than half of that.  The theory, apparently, is that making it legally and socially acceptable for people to live as homosexuals tends to remove people from the reproductive pool who would otherwise be in it.  If you can stomach the essential sociopathy of that concept, it does make some sense.  If we can put enough pressure on gay-oriented people to suppress their innate nature, they might do so long enough to reproduce.  ("Do it for Mother Russia!")  But it exacts a terrible toll.

I have less influence on these matters than I would like.  The U.S. is not boycotting, of course.  But the outcry has not gone entirely unheard; we are sending several prominent gay athletes as official members of the delegation to the games, and several long-time corporate Olympics sponsors, such as McDonald's and Coca-Cola, have toned down their use of Olympics insignia in their advertising, at least in the U.S.

And when the Olympics get under way later this week, I won't be a part of the global village.  I'm tuning out.

YABF: Yet Another Bigoted Freakout

I suppose it should have been a clue that race relations haven't progressed quite as far as we'd like to think they have when the major pre-Super Bowl ad controversy involved a commercial from General Mills in which the venerable cerealist dared to hawk its top-selling product, Cheerios, using a perfectly normal-looking family of mixed race.

The freakout over this development has ranged from mild criticism to jaw-dropping hyperbole.  One commenter on the Cheerios Facebook page, for example, posted an infographic showing how social policies such as permitting mixed-race marriage, cross-race adoption, homosexuality, and abortion rights, along with declining white birth rates, amount to "genocide against the white race."  Yes, really.

It's a cute ad.  I'm not sure I would have noticed that the family--and yes, they're a family first--happened to be of mixed race, except that it was pointed out.  But judging from the reaction, this is clearly something we need more of, in order to hammer home the point that mixed-race families eat Cheerios, too.

Some MSNBC commentator whom I'd never heard of and whose name I can't be bothered at the moment to look up noted in a tweet, correctly, that this apparently brave* stand by General Mills would be met with criticism from the wingnut racists--you know, the same crowd that calls President Obama a monkey and his wife a cow.  This tweet was met with great umbrage by the professional conservative noiserage machine, who demanded everything short of summary execution of the commentator for daring to suggest that some conservatives have some rather backward views on race.**

* - I would not have thought, in 2014, that it would require any sort of courage to depict a mixed-race family in an ad, but apparently it does.

** - For some reason, MSNBC qualifies as the "liberal" cable news network, even though they hand three hours of their time each morning over to Joe Scarborough, who is a former Republican congressman from Florida, and have routinely fired or otherwise driven of a number of liberal commentators for comments that are quite mild in comparison to things that get said on Fox News Channel every day. I don't watch cable news, so I couldn't tell you much about any of them, to be honest.


I can't imagine what the commentator was thinking.  It's not like conservatives have spent more than 40 years pursuing a political strategy that plays into the racist attitudes of Southern whites, or are earnestly seeking, even today, to erect new roadblocks to minority voting.  Except that, wait, it is exactly like that.

But this whole topic might have escaped my attention were it not for an even more bigoted freakout.  Not content to leave the controversy to General Mills, Coca-Cola stepped in and upped the ante with an ad in which various people sing "America the Beautiful" in a variety of languages, including English, Spanish, and--gasp!--Arabic, against a backdrop that included a racially, ethnically, and sexually diverse cast of characters.

If the Cheerios ad was catnip to the racists, the Coke ad was, well, pure cocaine.  It is hard to think of a "diversity" button Coke failed to push in the space of two minutes--up to and including white, straight English speakers.  The horrified reaction of the right wing has tickled me in ways I haven't felt since Obama was elected the first time.

"American the Beautiful" isn't really my favorite patriotic song to say the least. This version of it didn't make a lot of sense musically, and on top of that, the ad itself came across as sanguine, jingoistic, and nationalistic in a way that's fairly out of step with a lot of what's going on in this country today.

But as an ad, it was dynamite.  This was a rare instance of a company taking what amounts to a political stand that is not quite against the more conservative part of its market but is likely to be seen that way by conservatives.  Against the backdrop of pending immigration reform, it's a not-subtle staking out of a position that stands clearly on one side of the argument.  That does require some measure of courage, not unlike the moves Starbucks took to advance marriage equality or, to pick a less recent example, when the Brooklyn Dodgers signed Jackie Robinson.  (Well, qualitatively, anyway; it's just an ad, after all.)  But no matter what happens now, Coke wins, because they have engendered enough controversy to create buzz.

And the wingnuts have risen to the bait.  I see where semi-professional dullard Glenn Beck, to pick an example, is complaining that Coke has effectively changed its slogan to "Have a Coke and we'll divide you."  By bringing a bunch of diverse people together to sing a song about how great things are here.  Seriously.  I sometimes wonder if they can hear themselves.  But what I don't wonder is whether we should hear a lot less of them and more of what Coke, and General Mills for that matter, have to say.  I'm sure of that.

To extradite or not, that is the question

The saga of Amanda Knox has played out as a major news story in this country over the last several years and has probably been the biggest story of the 21st century to date in Italy.  American media outlets have been fascinated by the story for its more prurient aspects:  the drugs, the sex games, the especially bloody murder of Meredith Kercher, the pretty college student inappropriately making out on camera with her co-defendant boyfriend in the aftermath of the death of her roommate.  I am told that the Italian media have been crazed by this story at each new development.

In case you've been living under a rock:  In the fall of 2007, Kercher, a Briton, and Knox, an American, were roommates in a house in Perugia, Italy, while both were students at the Università per Stranieri, or "University for Foreigners."  Knox, a University of Washington student, was taking a "year abroad."  On November 1, 2007, Kercher was found murdered in the house she shared with Knox and two others.  Under pressure from police, Knox confessed to the murder, but later recanted.  She, her then-boyfriend, and another man were charged with the murder, which was alleged to have occurred during a "drug-fueled sex game."

In 2009, Knox was convicted of the murder and related offenses and sentenced to 28 years in prison.  She appealed, and in 2011, the court of appeals set aside the verdict and fount her not guilty.  She was released from prison and quickly returned to the United States.  Later, however, the Italian Supreme Court overturned the court of appeals and ordered a new trial.  Knox was tried in absentia, and on Thursday of last week, she was convicted again.  She will no doubt appeal.

I have my doubts about both Knox's guilt and innocence, but it is fairly clear that we will never know what happened on the night Kercher died.  The investigation was bungled by the police, and Knox's mistreatment by the police and at the prison where she lived for four years has been well documented.  (Upon her arrival at prison, for instance, she was told--falsely--that she was HIV-positive and prompted to provide a list of prior sexual partners. Prison officials then leaked the list to the media in order to discredit Knox.)  But if not Knox, then who?  And it's not as though she was a minor at the time of the incident.  She was 20 years old--immature, to be sure, but grown-up enough to live abroad and to engage in some very adult behaviors.

The question now is, what do we do about her?

If Knox's conviction is upheld, Italy will no doubt seek to extradite her from the United States.  And although I am usually in favor of upholding our treaty obligations, in this case, we should decline Italy's request.  One of the fundamental, guiding principles of American justice is that of double jeopardy; a criminal defendant who is acquitted may not be retried for the same offense.  Knox has been acquitted; only under Italian law may she be retried.

That second point is important.  I have read the U.S.-Italy extradition treaty (it's only a few pages long).  Extradition for an offense is permitted "only if it is punishable under the laws of both Contracting Parties [U.S. and Italy] by deprivation of liberty for a period of more than one year or by a more severe penalty."  Under U.S. law, the offense for which Italy is seeking extradition is not punishable, as to Amanda Knox, because of her acquittal.

Indeed, by declining to request extradition, and trying her first instead in absentia, Italy is gaming the system.  The Italian authorities have essentially deprived Knox of any meaningful participation in her trial--something we require in our own trials.  Italy should not be permitted to benefit from Knox's absence and later insist that it has a claim upon her.

It is also unlikely that she could receive a fair trial in Italy at all.  The case is too sensational.  The fact that she could be convicted--again--among such substantial and basic questions about her guilt is circumstantial evidence of an essential corruption of the Italian justice system, informed more by sensation and emotion than by evidence.

Extradite?  No, I think not.