Lessig

Old news: The President of Zogby on Thursday predicted Kerry. That may be because of this new news: As its headline reports,

Young Mobile Voters Pick Kerry Over Bush, 55% to 40%, Rock the Vote/Zogby Poll Reveals: National Text-Message Poll Breaks New Ground

This is the South Korea factor: Unpolled voters, with a radically different view from the norm. You can read Zogby's press release here.

It took me too long to finish this book. A very close friend had recommended it, writing to me in an email "it is an interesting lesson in how idealism and rationality can become naive in Washington."

That comment is as depressing as is the book. O'Neill is no idealist. He is, as I described before, a policymaker. He had had decades of experience in Republican administrations; he is a buddy of Greenspan, and had came to the Treasury from ALCOA, where he was Chairman and CEO. He joined the administration believing in the need for a tax cut. But he also believed that the Reagan administration had taught us one important lesson: That irresponsible tax cuts don't pay for themselves; they instead control the domestic agenda for decades.

O'Neill framed a tax cut to fit the facts as they existed when he arrived. He continued to recommend changes to those policies as the facts changed, and the surplus was eroding into astonishing deficits. But as he pushed reality-based policymaking, he was increasingly resisted by politics-based aparachicki. When the facts became useless, the facts were forgotten.

This is the essence of O'Neill's criticism of the administration. That they didn't do the work. They chose policies that drove us into this astonishing deficit, willfully ignorant of the consequences, because to know of the consequences they would actually have to confront the facts. But the Rove-types are allergic to policy-related facts. And the President is painted throughout the book as he always seems throughout: totally incapable of thinking through complicated, factual questions about what should be done.

O'Neill's portfolio was economics. But as a senior cabinet member, he watched the same evolve with the War. In a particularly depressing end, he watches as the President announces war on Iraq. As Suskind writes:

O'Neill listens to the speech and feels disembodied, as though the world he'd long known was untethered from its moorings. The President is showing conviction, but from what source? A little later, he attempted to make sense of it. 'Conviction is something you need in order to act,' he said to me. 'but your action needs to be proportional to the depth of evidence that underlies your conviction. I marvel at the conviction that the President has in terms of the war. Amazing. I don't think he has the personal experience ...' His voice trails off as he distills it one last time. 'With his level of experience, I would not be able to support his level of conviction.'"

"O'Neill ... was deeply fearful about the United States 'grabbing a python by the tail ... Trust me, they haven't thought this through,' he said. He was still hoping there would be 'a real evidentiary hearing and a genuine debate' before troops were committed. He knew that wasn't likely. 'When you get this far down the path ... you want to have a heavy weight of evidence supporting you. If the action is reversible, or if a generation can erase its effects, it's different than if you bring the world to the edge of a chasm. You can't go back.'"

And this, then, is the depressing part about my friend's email. Is it really "naive" to expect that senior policymakers would use facts to do policy? Has reality become "idealism"?

Recall Suskin's piece in the Times:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

Count me in the "idealist" camp. The sort that believes in "reality-based" policy making.

And count this as yet another Orwell moment.

So this site is a brilliant example of the brilliance of amateur (as in the Olympics) news on the net. And just today I realized: This is run by Andrew Tanenbaum.

Jamie Boyle has a fantastic response to Richard Epstein's fantastic (not) attack on what he calls "open source".

Wrong, wrong, yet again, I was, we are, wrong. I was on an airplane last night, from SFO to London, so at least I didn't suffer the minute by minute awfulness of this result. But it's 5am PST, and we should remember some principles: When Bush "lost" in 2000, we said it was because (1) he had lost the popular vote, and (2) he had short circuited the count in one state to win in the College.

Bush has won the popular vote. And it would take a freak of nature to imagine the 220,000 provisional ballots would fall strongly enough to shift Ohio. He will win the College. He is our President -- legitimately, and credibly.

Our criticism of this administration must now focus narrowly and sharply: on the policies, not on the credibility of the man.

Five out of the six candidates supported by IPac won yesterday, including most critically, Rick Boucher.

In a comment to this post, adamsj writes:

I’m going to spend time these next few days looking for the America in my heart. It may be a while before I see it anywhere else.

The six news organizations at the left contracted with two polling organizations at the right to provide exit poll information one week ago today. Those data were inconsistent with the actual results -- significantly so. Dick Morris says that "this was no mere mistake. Exit polls cannot be as wrong across the board as they were on election night. I suspect foul play." The aim of the evil doing in Morris' judgment was to suppress Bush votes -- which it apparently didn't. But the same data are used by skeptics on the other side, to suggest that those who had a hand in tallying the vote -- in particular, one company whose President had promised to deliver Ohio for the President -- changed the votes that the exit poll surveyed.

I think both claims are bunk -- I don't think there was a conspiracy to suppress the Bush vote, nor do I think Diebold stole the election for Bush -- but there are obvious puzzles that need to be resolved. First, there is Morris' point -- exit polls are just not that wrong. Second, there are the insanely inverted county votes in the many heavily Democratic counties in Florida that had their votes counted by optical scan (and tallied by Diebold machines among others). Why were the polls so bad? Why did Democrats in those counties overwhelmingly defect to the President while remaining "liberal" in their other votes?

These are questions of fact that can be answered, or at least understood, if the facts were known. The Exit Poll Consortium should enable that knowledge. It would be a relatively simple regression to map exit poll data against counties or precincts with suspect machines. More importantly, it would be relatively easy to isolate where, if anywhere, suspicion should be directed.

The Exit Polls have done enough damage to this election. My bet is that it was incompetence at Edison/Mitofsky. But those firms owe it to this Nation to release their data totally, so that a wide range of competent statisticians can evaluate whether and where the problem was.

And more importantly for the blog space: If blogs are going to be something more than the CB radios of journalism, we need an ethic to treat this sort of question ethically. Anyone who is surprised that a voting machine didn't work has been living on Mars for the last 100 years: Always, and in every election, voting machines fail. That fact should force us to a sensible architecture for voting machines -- one which we don't have just now for electronic voting machines. But it isn't, itself, evidence this election was "stolen."

No one can, or should, utter such words without the data to back it up. Instead, we should demand what, in this context, should be our right: to have access to the data. There is irresponsibility somewhere. Let us not add to it here.

So it's not quite as red and blue as they say, or so summarizes this site with a collection of election maps and cartograms (licensed Creative Commons).

The Free Culture Movement (started NOT by me but by the first to stand up to Diebold) now has over 13 chapters in colleges around the country. Read more at TechNewsWorld.

In 1991, according to The Patent Wars by Fred Warshofsky, Bill Gates said this about software patents:

If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.

Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter "smut" from films) would be read to deny fair use in other cases.

The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.

That bill adds some "Anti-Counterfeiting Provisions" to regulate counterfeit or illicit "labels." Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.

Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there's a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.

Senator McCain is thus floating an amendment, to limit the regulation of "illicit labels" to physical labels only. And he has proposed a savings clause, which states:

Savings Clause.--Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.

Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.

So months ago, I posted this odd post, titled "INDUCING gun control legislation". I had to pull the blog post because the Washington Post had accepted something close to this op-ed. At the time, of course, INDUCE was looming. Activists, including Public Knowledge, EFF, and industry has now of course succeeded in stalling the legislation for now.

The basic point of the op-ed is obvious: There's no difference in principle between regulating p2p manufacturers, and regulating gun manufacturers. Both make products that do harm; if you believe PK/EFF w/r/t p2p, and the NRA w/r/t guns, then both make products that do good too. If you want to be principled and distinguish the two, you'd have to say either that the harm caused by one is much greater than the harm caused the other, or that the good produced by the one is much less than the good produced by the other. By my reckoning, such an effort to distinguish would doom gun manufacturers, not p2p manufacturers.

Anyway, there's a bit more to the argument in the piece itself. But one point I want to make clear: My argument is about what a principled Congress would do. It is not a prediction. It is of course "naive" to believe Congress believes itself constrained by "principle." But if principle is absent, then please, let these Congressmen drop the self-righteousness as well.

Jamie's got a great new piece at the FT.

In September, I reported that Philadelphia was considering funding a WiFi service for the city. Sixty percent of the citizens have no access to broadband. The city elders believe that's no way to enter the 21st century.

But as Public Knowledge now reports, a bill on the Governor's desk would now make it impossible for Philadelphia to offer such a service, because it "competes" with private businesses offering the same service.

So, let's see: If I open a private street light company, selling the photons my lights give off, can Philadelphia offer "free" street lights? Or does the fact that Guards To Go offers services in Philadelphia mean we need to disband the Philly police department?

I am from Pennsylvania. I spent 4 wonderful years in Philadelphia. (Indeed, I was elected Youth Governor in 1979!) If you're connected to that freedom-loving state, please say something to the Governor.

So this is the beginning of some fascinating data. The graph represents the "shift" from 4pm exit poll data to final results. The puzzle is why the shift is so biased. It is an "academic" puzzle because it won't matter to this election. But it should be explained.