How bad is gerrymandering in US congressional races?

TimesCommunity.com reports on Prof. Colleen Shogun’s research:

It used to be that having 50 competitive races in the 435-member U.S. House of Representatives was low, but that number has now fallen into the low teens, noted Colleen Shogun, associate professor of government and politics at George Mason University.

Under the current system, incumbents are likely to face a real challenge only from within their own party, according to Shogun, and most likely by someone with an even more extreme political view than their own.

“What you get are not only incumbents who sit on their seats but more liberal Democrats and more conservative Republicans because where these races are won and lost is at the primaries. And who comes out for the primaries? The hard-core partisans,” Shogun said during an interview last week with Times editors and reporters.

What are some of the prospects for change? Not good, says Professors Shogun and Rozell:

Mark Rozell, a fellow professor of public policy at GMU, suggested that states adopt a more independent process of redrawing the districts every 10 years following the census. But he and Shogun acknowledged change is not likely to happen when there is no incentive for politicians to do it.

“You’d have to have a suicidal politician,” Shogun said. “Anyone who pushes for this risks alienating their own party, and they may get what they ask for with a bad reallocation.”

What advice does Shogun offer for the Democrats?

Shogun said that, for Democrats to be competitive in future presidential races, the party is either going to have to turn its back on its liberal heritage in a ploy to reach out to Southern voters or shift its focus to the Midwest and Southwest where wins in states like Colorado, Arizona, New Mexico and Nevada can overcome losses in Florida and Ohio.

You don’t need to be Carnac the Magnificent to know which strategy will look appealing to the Democrats in three years. Or sooner.

What could a corporate death penalty look like?

Karyn Strickler proposes a corporate death penalty (or read a copy with more links) which kills people, but leaves the corporation intact: (emphasis mine)

“The Corporate Death Penalty Act could provide that every member of the Board of Directors and executives of a corporation who knew, or should have known about the likelihood of their product or services to cause death, will be subject to the death penalty if their product or service results in the death of an individual or group of individuals.”

I’m sympathetic to her claims and to the general rationale that as corporations gain the kinds of power usually reserved for people, corporations must also take on the responsibilities and penalties people endure.

However, it is disheartening that in an effort to reign in corporate power, the country would resort to state-sponsored killing (or public executions which Timothy G. Hermach, President of the Native Forest Council, endorses as part of a corporate death penalty). Both of these acts are roundly criticized by progressives for good reasons. I think this recommendation is a consequence of buying into the “bad apple” defense which seeks to direct attention toward the individuals which behave badly and away from a system built to allow the bad behavior. It was used quite widely in the most recent spate of corporate crime, fraud, and abuse highlighted in mainstream news media for a few weeks last year.

Strickler quickly dismisses the current death penalty as “badly administered” yet wants us to expand this system instead of shutting it down. Consider some of the reasons why the current death penalty is bad policy, and consider how a corporate board would behave:

  • Individuals don’t see others being killed by the state in the way that death penalty proponents would like. The Death Penalty Information Center tells us that the death penalty doesn’t deter people from murdering. Why should we believe that a board room of people will be less likely to kill?
  • How many disempowered people in the corporation will we accidentally kill? The current death penalty has been used to kill people without adequately pursuing their guilt. US states that still have the death penalty will undoutedly repeat this mistake again. Some people on death row are acquitted before they are killed. We know this yet we allow states to continue to sentence people to death. This system is completely intolerant of mistakes. This alone is sufficient to bring fair-minded death penalty supporters to question, if not move to end, the death penalty.
  • How will we avoid bias favoring certain corporations over others? The current death penalty is racist; An African-American man is more likely to receive a death sentence (“[…] in Philadelphia […] the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black”). The decision makers are overwhelmingly white men (“the key decision makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.”). These patterns of bias in the system makes the death penalty unfair and unjust.
  • What lessons are we teaching about the power the state ought to wield? Is it wise to raise more generations of Americans with the idea that the state ought to have the power to execute its people? Will killing more people engender less behavior of the kind that results in this non-educational punishment (dead people can’t learn)?
  • Have we exhausted all avenues for rehabilitation? Strickler’s remarks about corporate power are compelling and they clearly justify doing something to prevent any organization from acquiring that amount of power. But corporate power was not always so great. In the early days of incorporation, one corporation could not buy another. Corporations were held to their charters—descriptions of what they would do—charters were reasonably specific and they laid out a plan that had an end. This is described quite well in the opening scenes of “The Corporation” (either in the book or, more succinctly, in the movie). This is not to say that the past were the halcyon days of corporate activity—there was a clear need for a living wage where equal work was paid equally, a clean, egalitarian, and safe working environment, to name a few improvements.

So, taken together, I’m not convinced that killing people is wise, necessary, or going to solve our current problems. A more progressive framing for the debate over corporate power is needed. For example, corporations should be subordinate to the people. We should only give corporations as much power as we’re willing to trade away. We must be able to give a corporation a power and, if we don’t like how that power is being used, recall it. We should have the ability to stop giving corporations additional power after the people find that it cuts too close to the bone (or that what we gain in exchange is less important than what we give up). Let the businesses complain and threaten to leave. They’ll either be replaced (we got along without Wal-Mart, currently the US’ largest employer) or we’ll find that there’s plenty for the remaining businesses to do while earning a reasonable profit.

  • We could decide that lifeforms are not subject for patent power. This would put a significant dent in the plans of the largest agribusiness giants like Cargill and Monsanto (which recently acquired another seed company which held many patents, undoubtedly a major reason for the purchase). The patent office would issue no more patents which are useful for stifling biological organisms and seed saving, and as a bargaining chip, we could let the biological patents which have already been issued expire. We could either slow the progress of finding new ways to grow more food (instead investing time and money in ways to distribute the food we can grow to the people who need it most), or pay researchers to do comparable R&D work with government money (money either raised in taxes or cut from military spending which currently takes over 50 cents of every government dollar). When we pay for the result, we have every right to demand its free and unencumbered use.
  • We could repeal the Taft-Hartley Act in the effort to allow workers to more easily organize.
  • We could institute a national living wage.
  • We could give every American publicly-financed, privately-delivered health care instead of paying outrageously high sums for unevenly distributed health care. This would be one less thing to negotiate in labor contracts.
  • We could tell the corporations what goods and services to provide and list tighter constraints on how to provide desired goods and services. Innovation would be needed to make the business work within these constraints. If, for example, there aren’t enough available trees to turn into paper, we need ways to live with reduced dependence on paper goods.

If we need a corporate death penalty, we could confirm progressive ideas instead of fighting for bargain-basement equality (where everyone is equal because we all ostensibly live at the edge of the state’s knife). I’d have to think more about all of the specific terms of such a deal, but here are some of the broad strokes I’d look for in a more progressive policy concerning curbing corporate power:

  • Place financial liability in the hands of those who run the corporation (typically the board and the top executives) so that they are liable for their mistakes in a way that will make them pay attention. Incorporation is chosen, in part, to free oneself from fiscal responsibility for bad business decisions. Perhaps Coca-Cola executives would be less eager to take water from Indians to make soda, or perhaps executives would be more responsive to the people if they had to pay for their most profound mistakes. Innovation might not happen at these organizations as much as it did, but I’m not convinced that we should trade away so many of our rights for innovation. And I’m not convinced that the largest corporations (which are the worst offenders) are innovating to build things we don’t want and have no opportunity to reject (does anyone need a word processor that locks them into a program they can’t inspect, share, or modify? What was so profoundly bad about corn without built-in herbicide that compelled us to eat so much unlabeled genetically modified food?).
  • Don’t grant corporate power to charters that don’t deserve it. Thus, we avoid granting corporate power (no matter how broad that power is) before that organization grows to become a social menace. Holding corporations to their charters seems like a fine idea to me as well.
  • Proceedings must include freezing the corporation’s assets to prevent corporate leaders from getting rid of everything valuable if they learn that their corporation is on the chopping block. There has to be something to recompense victims of crime, fraud, and abuse, or distribute to the public.
  • Forcible disincorporation must be possible for more than not paying taxes. In an interview with Jennifer Abbott, one of the directors of “The Corporation”, Abbott said that revoking incorporation happens frequently but it happens most often for not paying taxes. The needs of people need to rank higher and qualify for forced disincorporation. In late 1984, the Union Carbide plant in Bhopal leaked methyl isocyanate gas killing around 3,800 people, and disabling almost 3,000 more. Union Carbide claims that what happened was sabotage—”An independent investigation by the engineering consulting firm Arthur D. Little determined that the water could only have been introduced into the tank deliberately, since safety systems were in place and operational that would have prevented water from entering the tank by accident.”. Union Carbide’s chairman, Warren Anderson, is sought by the government of India, which has asked the US for extradition, but Anderson remains a free man in the US today. This lethal incident did not stop Dow Chemical from making Union Carbide a subsidiary in February 2001, so now Dow Chemical has more money to draw upon to fight the bad PR and pay any future fines. Dow Chemical says that they spent US$470 million in a settlement with the Indian government, but one has to wonder if there is any point at which complete dissolution of the corporation would be an adequate remedy. The money taken from Union Carbide could have been doled out to victims families, start hospitals, and fund grants without Union Carbide’s assistance. If so, one has to wonder why this has not happened and what could be done to bring it about. Killing more people is not the answer.

Why can’t the Democrats fight when it counts?

What are the Democrats waiting for? How does supporting a liar to retain her high office credentials help convince the country that the Democrats care about telling the truth?

A majority of Democrats voted to confirm Condoleezza Rice. If all the Democrats had voted not to confirm her, it would not have changed the outcome of the confirmation vote. However, by supporting her, the Democrats threw away a chance for a signal vote, a chance to tell the country that they care about telling the truth and that they deserve to send a member of their party to the White House in 2008.

I understand a few of the Democrats’ votes:

  • Sen. Joseph “I never met a weapons contract I didn’t like” Lieberman (D-CT) has shown unwavering support for the invasion and occupation of Iraq. Objecting to (now Secretary of State) Rice would have meant “flip-flopping” and possibly making friends with a few anti-Iraq-war people, or anyone who knew that the evidence used to support the war was bogus (this would be millions of people around the world and in the US, probably a lot in his home state of Connecticut).
  • Sen. Barack Obama (D-IL) is treating this Senate gig as a stepping stone to becoming President. And the Democratic Party fans don’t seem to care that he’s in favor of economic sanctions against Iran (again, I remind you, dear reader, that the economic sanctions against Iraq during Clinton’s administration killed an order of magnitude more children than civilians that have been killed in the Iraq war so far). Then, after the sanctions have killed Iranians, he would, however reluctantly, be willing to fire missiles against Iran. Sen. Obama will do whatever he can get away with, and so far that seems like a lot (right Oprah?). He was shamed by Sen. Dick Durbin, Illinois’ other senator (“In the end, I could not excuse Dr. Rice’s repeated misstatements.”).
  • Sen. Byron Dorgan (D-ND) who was critical of the lies from media organizations when the FCC media deregulation issue went before the Senate committee, somehow found the strength to give a pass to Rice for her lies.

I love the unintentional punch line from the AP in the above linked article (“In addition to mending fences among Democrats on Capitol Hill […]”).

It’s confirmation votes like these that make one wonder what the Democrats are really doing and whether they deserve to continue to be in office. An “opposition” party that doesn’t oppose much of anything can’t be that useful to the people. It reminds me of the hearings where Antonin Scalia was unanimously sent to the US Supreme Court. Back then, the Democrats knew much of what they know now: that they wanted to be seen as the pro-choice party and that Scalia was adamantly not pro-choice. Regardless of your thoughts on the issue of abortion, look at this from the perspective of how well the Democrats are supporting their own goals.

Criminal corporations—still a bumper crop.

It seems that death, taxes, and criminal corporations are three things you can count on. Russell Mokhiber and Robert Weissman released another of their annual top 10 criminal corporations lists this year covering just some of the 2004 lot.

It appears that Coca-Cola is killing, abducting, and torturing workers and their families in the Colombian bottling plant for threatening to organize. Unethical behavior is not new to Coca-Cola: they did business in Germany during World War II. As Coca-Cola sold the famous red-labeled sodas in the US with the then-familiar advertising featuring the patriotic image of a soldier enjoying a refreshing beverage, Coca-Cola made money overseas with Fanta. The syrup to make Coca-Cola was difficult to transport to Germany and the ingredients to make the syrup locally weren’t available. Enter Max Keith, who headed up the successful German Coca-Cola bottling plant. Keith invented a way to make a new beverage from the byproducts of locally-made goods including whey from cheese. Fanta was born. Fanta provided Coca-Cola with money during a time when doing business with Germany would have been considered a huge PR disaster. But most American Coca-Cola drinkers had no idea that the corporation leveraging patriotism at home was also profiting from doing business with a country the US was fighting abroad.

It’s not surprising to learn that multinational corporations don’t mind repressive regimes because repressive regimes drive down the price of labor.

  • IBM‘s early computer business focused on selling Hollerith cards (punchcards) and custom-programming services for their card-sorting computers to the Nazis through IBM’s German subsidiary Dehomag. In the hands of the Third Reich, these machines were used to efficiently process data concerning Jews, Gypsies, homosexuals, and other “undesirables” captured by the Nazis. The goal was to learn which individuals were good for work or better off dead in the eyes of the Nazis. The bluntness of how the cards are arranged and the results gained from processing the cards really are that stark. You can read “IBM and the Holocaust” by Edwin Black for details about this; even if you believe that the Holocaust would have been possible without these early computers, there’s no denying that the machinery and related services made the job of killing much easier. See “The Corporation” for a summary of Black’s work on this subject and be sure to watch for a still of Thomas J. Watson, Sr. and Adolf Hitler at the same table while the voiceover of an IBM representative explains how Watson allegedly never knew Hitler. IBM says that they didn’t control Dehomag starting from the beginning of WWII (the Nazis took over Dehomag in 1939). However, Watson knew what was going on, he profited from the venture, and he was indifferent to the Holocaust victim’s suffering he had helped to expedite.
  • Volkswagen employed about 7,000 Holocaust victims as slave laborers between 1941 and 1945. These workers made mines, V-1 missiles, and anti-tank rocket launchers. As the BBC reported in February 1999, “many of the workers died in the appalling conditions in hidden military complexes.“. Only recently did Volkswagen admit this and pay some former Holocaust slave laborers an undisclosed amount. Volkswagen says they will participate in a Holocaust slave laborer fund, but they and the other companies participating in the fund want the lawsuits against them to be dropped in exchange for their participation. This behavior may not rise to the level of criminal offense today, but it does make one think about how many other businesses got to where they are by leveraging slave labor. I co-own a 2001 Volkswagen GTI 1.8L Turbo 2-door. In other areas of my life, I take pains to try and do the right thing. Apparently I did not succeed here: If I knew then what I know now, I would like to believe that I would not have agreed to purchase this car. There are plenty of other cars to choose from, many made by organizations without a history of building value on slave labor.

    Update [2005-01-29]: Ironically, Volkswagen claims to be upset about the bomber ad where a man wearing a bomb drives a Volkswagen car up to an outdoor café and blows himself up from inside the car. The explosion shakes the car slightly but never goes outside the car, thus nobody else is hurt. The closing frames of the ad show the Volkswagen logo and that the car is “small but tough”. Volkswagen, predictably, would like to distance themselves from the ad, but is it really so hard to believe that a company that would leverage slave labor would employ ads (even so-called “viral” marketing campaigns where ads are passed from person to person) depicting this?

At home and abroad, the US promotes anti-worker policy to maintain an impoverished working force:

  • Wal-Mart benefits from the underpaid laborers they employ in the US and the underpaid laborers abroad who make the products sold by the local floor employees. Wal-Mart is currently losing a number of the class action lawsuits against them which allege worker mistreatment and illegal wage discrimination. As these cases show, there’s a reason why prices are always dropping at Wal-Mart—so are wages, and the taxpayer is left to pick up the slack. Locking employees into the store, making employees work after punching out, denying employees break time, and paying most employees so little they can’t afford the Wal-Mart health care plan is just a sample of what Wal-Mart does to the local townspeople who have to work at Wal-Mart because their “low low” prices have driven local stores out of business. The costs of Wal-Mart stores are borne by the local taxpayer: “A February 2004 report issued by Representative George Miller, D-California, tabulated some of those costs. The report estimated that one 200-person Wal-Mart store may result in a cost to federal taxpayers of $420,750 per year — about $2,103 per employee. These public costs include free and reduced lunches for just 50 qualifying Wal-Mart families, Section 8 housing assistance, federal tax credits and deductions for low-income families, and federal contributions to health insurance programs for low-income children.”. Keep this in mind the next time you think you see an inexpensive good on Wal-Mart’s shelves.
  • Nike is famous for employing Indonesian and Mexican sweat shop labor to manufacture its famous sporting goods which are sold at exhorbitant profits. Nike pays by the fraction of a second, according to documents recovered from one of their trash bins by an anti-sweatshop labor organization interviewed in “The Corporation”. The US “free trade” zones are made through treaties including NAFTA, CAFTA, and with the help of organizations including the WTO which were formed for promoting anti-worker trade. These treaties open poor countries up for multinational corporations to economically compel people there to work for sub-living wages.

None of this is an accident. It takes considerable planning and long-term oppressive thinking to put together the strategy for making sure the world’s poor never earn enough money or control enough political power to threaten the rich.

Shifting baselines indeed.

According to their press release, Media Matters for America says there is “No Room for Progressives on Cable News Inauguration Coverage”. They list the few “Democrats or Progressive Commentators” who appeared on TV to cover Pres. Bush’s second inauguration.

This is similar to the Fairness and Accuracy in Reporting (FAIR) survey which concluded that during two weeks of coverage (1/30/03-2/12/03) surrounding then Secretary of State Colin Powell’s February 5 presentation at the U.N. (where he lied about the presence of illicit WMD in Iraq—a major justification for the US invasion and occupation of Iraq):

“More than two-thirds (267 out of 393) of the guests featured were from the United States. Of the U.S. guests, a striking 75 percent (199) were either current or former government or military officials. Only one of the official U.S. sources– Sen. Edward Kennedy (D.-Mass.)– expressed skepticism or opposition to the war. Even this was couched in vague terms: “Once we get in there how are we going to get out, what’s the loss for American troops are going to be, how long we’re going to be stationed there, what’s the cost is going to be,” said Kennedy on NBC Nightly News (2/5/03).”

It is with this framing of the issue that I read Media Matters’ press release. I understood the issue they’re raising and I also cringed at what they had revealed—They lumped together Democrats and progressives as opponents to Republicans and conservatives on the inaugural coverage. This is odd to me because one of the most major issues in the election was the war against Iraq and there is significant agreement amongst the majority of Democrats, progressives, and Republicans that goes uncovered:

  • Democrats supported the invasion and occupation of Iraq and, overwhelmingly, still do.
  • Democrats supported giving Pres. Bush the unexpiring unilateral power to make war on foreign countries, skipping Congressional oversight. I see no evidence that the Democrats have changed their view on this. To the contrary, recently Sen. Kerry (D-MA) said he thought this authority was appropriate for the US President to have. Of course, he said that back when some believed he had a chance to win the presidency. He knows what a hassle it can be to convince Congress to go along with something and he’d like to skip that hassle himself.
  • Many people who consider themselves progressive on the issues voted in gerrymandered states, including Illinois and New York. In these states, a majority of states, progressives had an opportunity to vote for an anti-war candidate and a majority of them instead chose to support Sen. Kerry who clearly backed the war.
  • In three years, you’ll see these same progressives echoing the Democratic Party line on the war (“Can’t cut and run”, “…delivering democracy to Iraqis…”, “People of good conscience can disagree on the war…”, etc.) even though there is no way we can ethically justify this invasion or occupation (certainly not on the basis the US Government sold the war to us).

So, Democrats and progressives aren’t looking too starkly dissimilar from the Republican and conservative commentators which Media Matters uses as points of dichotomy. I’m sure one can find conservatives and progressives who have consistently disagreed with the war and the war-making power the president now has, but such people are in the minority on TV.

I’m reminded of a public service announcement I saw on local TV some time ago (called the “Ocean symphony PSA”); you might have seen it, it’s a national PSA. It has a number of celebrities holding symphonic instruments, playing them poorly, while Jack Black gestures as an over excited conductor might. The narrator tells us that if we let our standards slip, the noise these non-musicians produce will become the norm and we’ll come to believe this is a proper performance. So it goes with the sea—if we don’t remember what the sea used to look like we’ll never notice how polluted the sea has become. As a result, we run the risk of accepting a certain amount of industrial pollution as the norm. This organization calls this phenomenon “Shifting Baselines”.

When we leave out people with serious objections to the war, we shift the entire discussion to those who agree at some level that the war was justified. They disagree on the particulars (how many bombs to drop, how many killed civilians constitute an unacceptable number, etc.) and fill the airwaves bickering over the trivia on how best to kill Iraqis. Even the name “anti-war” is not quite right, as many people who are against this war thought other wars were acceptable (like the war against Afghanistan which started before the invasion of Iraq).

Obama disappoints…again?

Today, newly-elected Sen. Barack Obama (D-IL) voted to endorse the nomination of Condoleeza Rice as Secretary of State. The darling of the Democratic Party cast his vote after it was clear the ‘yeas’ (pronounced “yays”) would have it (and after a couple of ‘yea by proxy’ votes). The final vote from the US Senate Foreign Relations Committee was 16-2, Senators Kerry (D-MA) and Boxer (D-CA) against.

Speaking of Sen. Kerry, where was Kerry’s moxy on the campaign trail where it would have mattered?

Massachusetts considers “open formats”, but are they asking the right questions?

Groklaw.net says that “Eric Kriss, Secretary for the Executive Office of the Administration of Finance for the Commonwealth of Massachusetts, has kindly given us permission to share with you audio of his recent speech on Open Formats […]”. I’m glad to see a warm reception for OpenOffice.org‘s work on OASIS (their upcoming portable and freely implementable file format) and their software. I appreciate how hard it is to speak extemporaneously and be as precise as Kriss said he wanted to be. I host a radio show on my local community radio station, WEFT 90.1 FM, called Digital Citizen where I talk about these issues live on the air, taking phone callers as well, every other Wednesday night from 8-10p. (I’m working on putting together a website where you can download past episodes of the show.)

What Kriss wants to accomplish is difficult. I think the lack of conditions on the aforementioned audio file distribution permission (the file was originally distributed as an MP3) show just how tricky it is to accomplish what he and his team set out to do.

Consider Kriss’ definition of an “open format”: (emphasis mine)

“Open Formats, as we’re thinking about them, and we’re trying to be precise with the language, because people use different English words for different technical terms, in our definition, “Open Formats” are specifications for data file formats that are based on an underlying open standard, developed by an open community and affirmed by a standards body; or, de facto format standards controlled by other entities that are fully documented and available for public use under perpetual, royalty-free, and nondiscriminatory terms.”

The free software community can see the irony of distributing an MP3 copy of the recording ostensibly meant to be attractive to the free software community, but I was curious if MP3 qualifies as an “open format” according to this definition?

MP3 is covered by patents. Fraunhofer Gesellschaft, through Thomson, distributes licenses under uniform per-unit terms or as a one-time flat fee. Per-unit terms are incompatible with free software because it is impossible to know exactly how many copies of the ostensibly free software MP3 program are distributed (free software allows you to share and modify the software, hence the use of the word “free” not as a reference to price but to freedom). To my knowledge, nobody has paid the alternative $50,000 one-time license fee because nobody developing what would be a free software MP3 program can afford it. Therefore, in countries that have software patents (such as the US), there is no free software MP3 encoder or decoder.

This situation drove the creation of Ogg Vorbis which, functionally, is a complete replacement for MP3, albeit an incompatible replacement—Ogg Vorbis files and MP3 files are not the same format and the methods to make the files are different. Vorbis is also considered a superior codec for its intended use. As far as I know, neither the Ogg encapsulation format nor the Vorbis lossy audio compression codec are covered by patents. The specification for Ogg Vorbis is in the public domain and free software reference encoders and decoders are available. These are other reasons why Ogg Vorbis is a superior choice to MP3.

Reasonable and non-discriminatory licensing (also known as “RAND” licensing) can discriminate against free software implementations of the patented idea. The FSF reminds us, “that makes [RAND] unreasonable”. MP3 licenses are available on so-called RAND terms, terms which are probably better described by the replacement term the FSF suggests: UFO for “uniform fee only”. MP3 licensing is uniform for a particular use according to the terms described on their licensing page.

So, has anyone asked Kriss or his organization if they considered the problem of RAND licensing?

IBM’s non-agression patent pledge: what are you gaining? What are you giving up?

IBM recently made a pledge to what they call “open source software” developers. If you’re new to this concept (or if you think you understand what the term “open source” means), I strongly encourage you to read about the differences between the open source and free software movements. Fellow blogger featherston has commented on the IBM patent pledge as well.

What’s the catch?

Read the final paragraph of the patent pledge and consider how many rights you have to agree to not prosecute over before you take IBM up on their promise.

Warning: knowingly infringing upon a patent carries a higher penalty than unknowingly infringing upon a patent. You might not want to read the original document (which lists the 500 patents covered in IBM’s pledge) but instead read only the revocation clause on the last page of the pledge. I’ve quoted the last paragraph of the pledge below for just this reason. All spelling and punctuation is in context. Emphasis is mine.

“IBM’s Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.. Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software. In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software

Typically, you want to keep the power to assert your rights under law. This is not something you should trade away without serious consideration. Asserting your “intellectual property” rights is no different.

To remain in IBM’s good graces, you would have to give up asserting your rights against another “open source software” developer. Perhaps some other “open source software” developer is distributing copies of your blog in a way that you haven’t licensed them to do. Maybe someone is building on a photo you’ve taken or an essay you’ve written but they’re doing so without your permission. In other words, perhaps an “open source software” developer is doing something to you that is illegal, should be litigated, and has nothing to do with computer software.

It’s quite easy to gain a copyright (commonly viewed as one of the so-called “intellectual property” rights) on something. All you have to do in most countries is write something in a fixed form (saving your document on your computer’s hard drive, writing a letter on paper, writing your digital photo to a storage medium, etc.). Since the ratification of the Berne Treaty, copyright assignment is automatic, even if you haven’t placed a copyright notice on the work. It’s quite easy for others to infringe upon your copyright. By default, copyright says “no”: no copying, no distribution, no preparation of a derivative work, no public performance. Your license is what grants others these things (and perhaps you are granting permission conditionally).

Are you willing to let “open source software” developers infringe in exchange for not opening yourself up to an IBM patent infringement lawsuit concerning any of the 500 patents in IBM’s non-aggression pledge?

What about the threat from IBM’s many other patents? IBM has tens of thousands of patents (I’d estimate over 90,000 patents)—they hold more patents than any other patent holder. In 2004 IBM gained over 3,200 patents. IBM says they have no plans to change their patent acquisition policy. 500 of IBM’s patents are listed in IBM’s non-aggression pledge. Are you ready to give up enforcing all of your “intellectual property” rights against “open source software” developers in exchange for access to less than 1% of IBM’s patents? Are you aware that you could lose a lawsuit over any of the other 89,500 or so patents?

What do patents have to do with me? I just run the programs.

You say you only run computer programs, you don’t develop them? That doesn’t matter. In the US, patents are 20-year government-granted monopolies. All patents cover ideas. Software patents cover ideas used in the production of computer software. It doesn’t matter that you only play MP3s, you probably owe Fraunhofer (or Thomson, Fraunhofer’s patent licensing partner) a fee. Perhaps you paid the fee when you bought the software that plays the MP3s, perhaps the fee was paid for you, perhaps nobody paid the fee. If Fraunhofer/Thomson says you haven’t paid, it’s your job to show otherwise. Not too long ago, Paul Heckel held patents which he claimed were implemented in Apple’s Hypercard. Apple didn’t negotiate a license for Heckel’s patents until Heckel threatened Apple’s users. Apple knew that Heckel could get money from the users (or at the least put them through a legal wringer) and Apple didn’t want to be known as the company that introduces its users to losing patent lawsuits, so Apple paid Heckel off.

Isn’t IBM’s pledge worth anything?

I don’t want to paint IBM’s promise as worthless, it is 500 more patents than you probably had access to before, but how valuable is it to the free software community? How much does it really change what free software users have to deal with? It’s not a patent license you negotiated for. It’s a revokable pledge to not sue under conditions where you give up your ability to enforce your rights—effectively the same as taking away those rights—for a certain audience for the duration of the patents’ lifetime.

Please don’t go into this blind; don’t forget to consider what you’re giving up.

Care about your health care?

Read the Socialist Worker‘s interesting article on health care in the US—U.S. health care in Critical condition.

Some money quotes:

“Real health care reform—not more corporate welfare for the insurance and drug industries—is possible. The evidence lies in the creation of Medicare and Medicaid, a key legacy of the civil rights movement–or Canada’s dismantling of the private insurance industry in the early 1970s to establish a universal, government-administered program.”

and later: (links are added)

“Winning this kind of reform won’t happen by writing to our representatives in Congress, as [Dr. Marcia] Angell recommends at the end of The Truth About the Drug Companies. Republicans and Democrats alike are the architects and beneficiaries of the current system–from Republican Bill Frist, who became a millionaire thanks to his father’s for-profit hospital chain; to Democrats Birch Bayh and Henry Waxman, who co-authored the major legislation creating huge public subsidies and near-monopoly rights for the big pharmaceutical companies.

Democrats as much as Republicans are beholden to the pharmaceutical and insurance industries that reward them with generous campaign contributions–and that money has been on the rise. In the 2004 election, for example, the health care industry gave nearly four times more in donations to candidates than it did in 1990. And 44 percent of total contributions went to candidates of the Democratic Party.

No wonder, then, that when he geared up to “reform” health care, Bill Clinton didn’t look to the proposals of, say, Physicians for a National Health Program. Instead, he turned to the insurance industry-funded Jackson Hole Group, with its plan for rationing care and boosting profits. “Clinton didn’t try and fail,” say Harvard Medical School’s Steffie Woolhandler and David Himmelstein. “He refused to try.”

The PNHP endorses H.R. 676.

Senator Kennedy might get it, but can you take him at his word?

In a speech to the National Press Club, Sen. Kennedy said

“We cannot become Republican clones. If we do, we will lose again, and deserve to lose.”

Coverage from Democracy Now! (listen to Amy Goodman read the headline), and CNN.

At first, this seems hopeful, as though at least one Democrat gets what progressives have been asking for for a long time. I remain reluctant to believe this message will stick around for another 3 years because I’m not sure he really means it now.

But it is interesting to see how the Democrats adopt Nader’s reasoning without giving Nader credit; Democrats losing because they become just like Republicans—how many Leftists were quick to chide Nader for citing this just a few months ago, essentially hiding behind the lame over-literal argument that the Democrats are not exactly like Republicans? Democrats don’t need to be duplicates to be offensively similar.

Around election time, the Democrats pay more attention to campaign funders and they march to the corporate right. And for some reason I don’t completely understand, corporations in the US aren’t clamoring to outsource the cost of health care to the American taxpayer in the form of a universal single-payer national health care program.

Kennedy went on (in the words of the DN! headline):

“He called on Medicare to be gradually expanded to cover all citizens […]”

Maybe the weasel word is “gradually”, but Kennedy had a chance to take a step in the right direction and I don’t see any evidence that he did.

During President George W. Bush’s first term, Reps. Dennis Kucinich (D-OH) and John Conyers (D-MI) introduced H.R. 676—a single-payer universal health care plan that expands Medicare to cover all Americans. It was called “United States National Health Insurance Act” (or the Expanded and Improved Medicare for All Act). USNHI covered all medically necessary health care and served as Rep. Kucinich’s health care plan for his presidential campaign (although for some reason he was reluctant to list the details of the bill number on his speaking tours and in debates). Kennedy did not support the bill in any speech or remark I can find.