You gotta love Chief Judge Kozinski of the Ninth Circuit, who puts things pretty plainly most of the time:
Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid....
By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.
Several months ago, radio personality Michael Savage sued the Council on American-Islamic Relations (CAIR) for copyright infringement (plus some RICO charges) because they rebroadcast just over four minutes from his radio show on their website in order to point out his use of anti-Muslim messaging, encourage advertiser boycotts, and raise awareness and money for CAIR's activities. CAIR (represented by EFF and Tom Burke of DWT) moved to dismiss claiming among other things that the use of the clip was a fair use.
Today, Judge Illston of the Northern District of California dismissed the suit, agreeing that the use of the material for commentary and criticism was a classic fair use.
Specifically, Illston held:
The complaint affirmatively asserts that the purpose and character of [CAIR's] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts. To comment on [Savage's] statements without reference or citation to them would not only render [CAIR's] criticism less reliable, but be unfair to [Savage]. Further, it was not unreasonable for defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which plaintiff made the statements.
Check out the opinion here.
Three years after the president of Harvard, Lawrence H. Summers, got into trouble for questioning women’s “intrinsic aptitude” for science and engineering — and 16 years after the talking Barbie doll proclaimed that “math class is tough” — a study paid for by the National Science Foundation has found that girls perform as well as boys on standardized math tests.
Although boys in high school performed better than girls in math 20 years ago, the researchers found, that is no longer the case. The reason, they said, is simple: Girls used to take fewer advanced math courses than boys, but now they are taking just as many.
“Now that enrollment in advanced math courses is equalized, we don’t see gender differences in test performance,” said Marcia C. Linn of the University of California, Berkeley, a co-author of the study. “But people are surprised by these findings, which suggests to me that the stereotypes are still there.”
Check out this humdinger of study as reported by the UK's Telegraph:
Men have long been accused of judging women on looks alone, but even the plainest Jane can get their hormones raging, a study has found.
Research involving a group of male students found that their levels of the hormone testosterone increased to the same extent whether they were talking to a young woman they found attractive – or to one they didn't fancy much at all.
After 300 seconds alone in the same room as a woman they had never met before, and in some cases did not find particularly attractive, the men's testosterone levels of the hormone had shot up by an average of around eight per cent.
The study's authors believe the rise in testosterone may be an automatic and unconscious reaction that has evolved in man when faced with a woman, to prepare him for possible mating opportunities.
Seriously? Are we still in the 1960s world of sociobiology and determinism? I mean, I have no problem with the study concluding that testosterone levels increased for these men. (Note, however, that they did not survey what sexual orientation the men had or even how interested they were in sex or mating). But to go on and conclude that this increase was somehow correlated to mating behaviors seems ridiculous to me.
Testosterone is a general sex-related hormone (as opposed to sexuality-related). It is present in both men and women and increases and decreases for a variety of reasons. For example, when both women and men exercise or play sports, their testosterone levels will often increase. Making the leap between this physiological reaction and a sociological reaction (like willingness to flirt, date, or mate) is huge step.
Consider the same result in a different context. Say they tested men's testosterone levels before and after they played a game of football. My bet is that they would uniformly increase by the end of the game. Putting aside the homoerotic implications of football generally, does such a finding mean that the men are all preparing for possible mating opportunities with the opposing team? Of course not, or at least no more than this study shows they are preparing for possible mating opportunities with these women.
The study also fails to take into account any social information. I find this to be part of a constantly depressing trend amongst sexuality researchers, especially when they look at male sexuality. It's as if we are mechanical creatures, driven entirely by hormones and animalistic instincts. Biology equals destiny, period. No accounting for any social influence, cultural norms, religious or class upbringing, etc. The study doesn't even account for relationship histories or aspirations.
Rather, it seems to me that the researchers had some kind of preformed idea in their heads about how the men would act around the women and then went looking for biological evidence to support it, rather than truly looking at the ways in which biology might influence actual behavior.
In fact, one can see a bit of this in the careful caveats the researchers place into their findings to avoid scientific scrutiny while still implying biological determinism:
The rising levels may then fuel more visible changes in male behaviour that occur in the presence of a woman, including a squaring of shoulders, an upright posture, and greater use of hands - and even, it is suggested, a flaring of the nostrils.
The rise in the male hormone may also be the reason why men are more likely to tell women exaggerated stories about their job, career, education and earnings, the researchers believe.
Leander van der Meij, who led the study at the University of Groningen in Holland, said: "We found a testosterone increase after only five minutes of exposure to a woman. Our results suggest that the increase in testosterone levels that we found, may be an automatic male response that activates receptors in organs and the nervous system to prepare the human body for mate attraction."
The researchers believe the results suggest that one of the ultimate functions of testosterone may be to attract mates. One way it may do that is by orchestrating changes in appearance and behaviour that may increase their attractiveness.
Mr van der Meij added: "We showed that testosterone levels increased in men after contact with women. This increase is probably an important mechanism through which men acquire partners.
May, suggest, probably, believe. These are words of faith, not science. The only thing they know is that testosterone increased, not why, or to what effect.
Oh, and if that weren't enough, the fact that they think that "men acquire" women as partners about sums it up for me.
(Thanks to Zoe for the link.)
The Southern District of New York issued an order today in the Tiffany v. eBay case, where Tiffany had sued eBay under a variety of trademark theories over the actions of users who sold knock-offs using the "Tiffany" name in their auction titles or descriptions.
There's lots to write about this 66-page decision, including the standard for contributory trademark infringement, duties to police, etc., but I thought I would post a little on the issue of nominative fair use, since I thought the court's analysis was rather on point with some of the thinking I've been doing about information economics lately.
Nominative fair use is the doctrine that allows people to use trademarks when they are speaking or writing about those marks. So, for example, if I review the new Harry Potter movie, I can use the trademark "Harry Potter" in my review without fear of liability because it is both descriptive of the source of the film (the Harry Potter franchise co-owned by Warner Brothers and J.K. Rowling) and necessary in order for people to know what I am describing. Without the name, referencing the good or service you are describing become cumbersome at best and impossible at worst.
In the Tiffany case, Tiffany had accused eBay of infringing its "Tiffany" mark because the name appeared in various places on its home page, in its emails, and in search results. (Apparently, this was even for legitimate Tiffany goods, not just knock-offs). eBay defended this, saying that when Tiffany notified them that use of the name was associated with a knock-off, they removed it entirely and when it was associated with sale of a legitimate Tiffany item, the use of the name was necessary under the doctrine of nominative fair use because, as far as they were concerned, there was no other way to let users know something was a Tiffany good without using the name.
The Court sided with eBay. In doing so, it held:
[T]he Tiffany name is what gives the jewelry the cachet it enjoys. Absent the Tiffany brand, a silver heart necklace or a silver bracelet with an ID chain would simply be a piece of jewelry instead of a symbol of luxury. Indeed, were eBay precluded from using the term “Tiffany” to describe Tiffany jewelry, eBay would be forced into absurd circumlocutions. To identify Tiffany jewelry without using the term Tiffany — perhaps by describing it as “silver jewelry from a prestigious New York company where Audrey Hepburn once liked to breakfast,” or “jewelry bearing the same name as a 1980s pop star” — would be both impractical and ineffectual in identifying the type of silver jewelry available on eBay.
Besides showing a sense of humor (not to mention some good 80s pop culture trivia skills), the Court gets it exactly right here. Network architecture is premised on efficient descriptions of objects. Both people and machines like short, direct, and accurate names for files, images, links, etc. These can come both from the host of a site, but also from users in the form of tags, comments, and titles. Thus, one of the most efficient ways to describe something on the web that is trademarked is to use the trademark as the descriptor. To force web companies and users into "circumlocutions" -- as the Court suggests -- is not only inefficient but also obfuscating. No one searching the web wants to search for something using 1,000 different descriptions; they want to search for it using a single description, taking advantage of the network effects a single descriptor enables. Here, as the Court recognizes, that single best description is the brand name of the product line. Wisely, it holds that trademark law cannot and should not stand in the way.
Eric Goldman has his preliminary write-up here.
(Image from TulipFleurs)
Fox Reality has sunk to a new low with its "Battle of the Bods" show, which pits five women in bikinis against each other based on how each of their sexualized body parts "ranks" comparatively, while off-screen male judges view and rate them as well. The closer they rank themselves to what men think of them, the closer they get to the prize money.
Now I'm all for loving one's body, but this is exactly the kind of systematized sexism that drives me crazy. It's not about celebrating the physical or even learning how to feel good about being naked or sexy; it's about how your body sucks in comparison to someone else's if it doesn't meet the male-imposed standards of beauty. And not only that, but the women in the show must tear each other down first. Check out this clip:
Of course, Fox wants us to feed on all this drama, so it's no surprise that they've put these women in situations to elicit their worst instincts and responses. But that is my point -- this forces the women to objectify each other as much as possible and find the tiniest flaw to win the prize money and then re-enforces it as a culture norm by having the men join in, as if the men are simply helping settle a dispute about and between the women. Yet here's a clip that is even more revealing, so to speak:
Now, it's easy to write this guy off as a jerk and just hate him (again, part of the drama FOX uses to raise our adrenaline and get us hooked on the show), but what I find most fascinating about this is the way the interviewer interacts with him, sort of critiquing him but ultimately egging him on and agreeing with him. This is just another way of treating sexism as if it's just "bad behavior" by certain men that all men understand and tolerate instead of something bigger and more nefarious that should be shunned.
But perhaps the most interesting part is the fact that he's in only his boxer shorts. I'm sure they did this to appear as if they were somehow "equalizing" the power dynamics on the show. (Apparently all the male judges also come out at the end of the show to be ranked by the women but notably not ranked by each other). But this clip proves the difference. He is not afraid of being critiqued for his body because society (and especially other men) are not judging him as harshly and objectifying him constantly like we do to women. The threat, pressure, and intensity are just not there, so it's no big deal. That's not to say that men don't feel insecure about their bodies or objectified or degraded at times. But when it only happens to you every once in a while, it's very different than the constant unforgiving pressure to be physically perfect to which most women in our culture are subjected.
(Thanks to Lisa from Soc Images for finding this!)
Can we really keep pretending DRM does any good?
One-third of consumers in the US and UK have made a copy of a DVD within the last six months, according to a report from Futuresource Consulting. The firm surveyed 3,613 people in the US and 1,718 in the UK to discover their "home piracy" habits, and attempts to paint a somewhat ugly picture of casual copyright infringement even though a majority of users who make copies are doing so "legitimately" (for personal use).
36 percent of UK respondents and 32 percent of US respondents have made a copy of a DVD within the last six months, which Futuresource says is an increase from only a quarter of survey respondents in 2007. Respondents in the UK who copied DVDs primarily made copies of movies and TV shows, although movie copying dropped between 2007 and 2008 while TV copying went up.
Unsurprisingly, the preferred method of copying DVDs were some of the simplest. Roughly a quarter of both UK and US consumers who made copies of DVDs connected a DVD player to a DVD recorder using a composite/S-Video cable, while roughly another quarter of the two groups preferred using a single PC application for burning DVD copies.
Futuresource notes, however, that some 62 percent of US users and 49 percent of those in the UK are making "legitimate" copies of their own new release DVDs that they purchased. 58 percent and 54 percent of those who made copies of older movies made copies of their own DVDs too. Although the numbers for burned DVDs from those that were rented or borrowed are nothing to sneeze at, the large majority of those surveyed appear to be doing what they believe they have a legal right to do.
Of the remaining group (those who borrowed or rented the DVDs), Futuresource asked whether these consumers would have purchased a DVD if they were unable to make a copy. 63 percent of UK respondents and 77 percent of US respondents saying that they would have purchased at least "a few" of the titles, which Futuresource says is evidence of the "scale of the lost revenues to the home video industry from home copying."
I really really really hate pseudo science. Especially when it is used for political agendas and to undermine social movements for equality. For example, take this recent article from "Science Daily":
ScienceDaily (June 26, 2008) — The sexual and feminist revolutions were supposed to free women to enjoy casual sex just as men always had. Yet according to Professor Anne Campbell from Durham University in the UK, the negative feelings reported by women after one-night stands suggest that they are not well adapted to fleeting sexual encounters.
So from the start, the article sets up a struggle between feminism's goal of allowing women to be seen as full human (including sexual) beings and the idea that women might have negative feelings after a one-night stand. But feminism is not about forcing women to have one night stands. It is about allowing those women who want casual sex to have casual sex without judgment or retribution.
The real pseudo-science begins, however, in the second paragraph:
Men are more likely to reproduce and therefore to benefit from numerous short-term partners. For women, however, quality seems to be more important than quantity. Also for women, finding partners of high genetic quality is a stronger motivator than sheer number, and it is commonly believed that women are more willing to have casual sex when there is a chance of forming a long-term relationship.
The article says this as if it were fact. But there is no credible science or evidence to back up any of these statements. In fact, almost all the sociological, anthropological, and biological data suggests the opposite -- that the number and length of sexual partnerships is based far more on geography, culture, economics, and social structure than on gender. In some cultures, women have more partners than men; in others, men more than women. This whole "biology is destiny" argument has about as much basis as the argument against climate change. Yet it is perpetuated by the media without any investigation into its veracity.
Next, we have this gem:
Professor Campbell looked at whether women have adapted to casual sex by examining their feelings following a one-night stand. If women have adapted, then although they may take part in casual sex less often than men because of their stricter criteria when selecting partners, they should rate the experience positively. To test the theory, a total of 1743 men and women who had experienced a one-night stand were asked to rate both their positive and negative feelings the following morning, in an internet survey.
Okay, first, Internet survey? Yeah, that's scientific. Second, evolutionary adaptation takes at least a generation and often centuries to happen. Modern feminism has only been with us for 30-40 years. Thus, even if there has been an evolutionary effect from feminism, we would only begin to see it among the youngest feminists. This study fails to take into account any age variation.
Next, we have the really interesting bit:
Overall women’s feelings were more negative than men’s. Eighty per cent of men had overall positive feelings about the experience compared to 54 per cent of women.
Wait a minute. Stop the presses. 54% of women have positive feelings about one-night stands? Isn't that more women than not? Doesn't that mean that even this non-scientific, non-controlled, biased study suggests that most women have positive feelings about one-night stands and not the negative feelings suggested by the headline and the first several paragraphs?!?
Despite this, the article then goes on to reveal the real reason women are not enjoying one-night stands as much as they would like:
The predominant negative feeling reported by women was regret at having been “used”. Women were also more likely to feel that they had let themselves down and were worried about the potential damage to their reputation if other people found out. Women found the experience less sexually satisfying and, contrary to popular belief, they did not seem to view taking part in casual sex as a prelude to long-term relationships.
“What the women seemed to object to was not the briefness of the encounter but the fact that the man did not seem to appreciate her. The women thought this lack of gratitude implied that she did this with anybody,” Professor Campbell explained.
So the real reason women aren't indulging in one-night stands as much as men (even though over half of them have positive feelings about it) is because of exactly what feminism is fighting against: being exploited, being judged, and not being appreciated. What I take away from this is that if women felt respected by both their partners and society for having one-night stands, they would have overwhelming positive feelings about such situations. That, to me, says much more about our society and how we judge women than about how well women are "adapting" to casual sex.