We didn’t start the fire

How many people can say they were on the front lines of a revolution? Ten years ago, inspired by some pretty interesting people, I started a little blog. At that time, there were roughly three hundred webloggers in the world, and most of us knew each other. There were few enough that everyone knew when a new one started up.

Around that time, there were two camps of thought regarding weblogs: overly optimistic, and overly pessimistic. This quote sums both up nicely:

Weblogs are a “revolution.” They’re “journalism.” They’re “art.” They’re, again and again, the next New Thing. To which the only possible response can be: come on, people.

This is not to say that weblogs aren’t useful or fun. I read several every day, and have profited from the experience. I just love that Mahir guy.

But how can you not boggle at the level of self-delusion, of self-infatuation, it takes to declare that weblogs are going kill off traditional journalism? That the concept will be alive and well a decade from now? That weblog readership will increase a hundred-fold in that time? That they’re an art form?

Have weblogs “killed off” traditional journalism? Damned near. Is the concept alive and well ten years later? Hellooooo! Has readership increased a hundredfold? Closer to a millionfold. An art form? Well, you’ve got me there.

But clearly, we were on to something. And everyone else gradually caught on.

A new world order?

From 25-score bloggers to perhaps billions. Blogging has changed, and the world’s information flow will never be the same. But so, too, has the world changed over the last ten years. It’s fun to see some of the radical transformations:

Then: America’s first black president
Now: America’s first black president

Then: Waiting for the world to collapse
Now: Waiting for the world to collapse

Then: Evan Williams poised to take over the internet
Now: Evan Williams poised to take over the internet

Then: Toy Story 2 in theaters
Now: Toy Story 2 in theaters

Maybe not.

Well, maybe some things never change. But I feel pretty good about this: ten years from now, we’ll look back at 2009 and reflect on some of the things that did change, in ways we cannot even imagine today. And some of them? We might even call them “art.”

What sane person runs thirteen miles in a row, on purpose, on a Saturday, getting up before sunrise to do it?

Apparently, me. The Gasparilla Distance Classic Half and Full Marathon were March 1, 2009, and there I was, in the dark, waiting for the gun, surrounded by other crazy people getting ready to run.

I had begun this journey about a year before, when I picked up running as (I thought) a way to get in shape to get back into wrestling. I’ve run three short races and signed up for this half-marathon, but have yet to step on a wrestling mat. So we know how that worked out.

On this dark morning, I wasn’t alone. My neighbor, Sarah, was running the half too. She has multiple half and full marathons under her belt and was running for fun. I knew I wouldn’t see Sarah during the race, as she’s a faster and more experienced runner than me. The real fan club, the ones as crazy as I am, was my family – my wife, two kids, and even my dad, all of whom got up before daybreak to come cheer me on.

I had two goals on race day: finish on my own two feet under my own power, and do it in 2:30 or less. In prior, shorter races, I tended to start off too fast, so I found the pace group for the marathon (who would share the first seven miles of the course with the half) that seemed to be the fastest I would want to run the opening miles. That should have been the 11 minute/mile group, but for some reason I glommed onto the 10:18 minute/mile group, figuring if I ran faster than that, I knew I’d be in trouble.

The gun went off, and we crossed the start line about two minutes later. With the waiting over, and the race begun, my nerves had largely subsided, and I focused on sticking with the group in the densely-packed street.

The first mile, our “gun time” was just over 12 minutes, on pace with what I’d expected. We hit the bridge that would take us to our loop around Davis Island, and the crowd jammed together, faster runners jumping on the sidewalk to pass the pack. At the end of the bridge, Mile Marker 2 and the clock told us we were at 22 minutes. Suddenly, I realized I had made a mistake trying to keep up with this pace group – it was a long race ahead of us and I was already feeling a bit winded. I slowed down to a more relaxed pace, let the group fade into the distance, and just focused on getting my own rhythm.

That worked well for the next few miles. Davis Island is a fairly pleasant place to share with a few thousand other people before dawn on a Saturday. The next few miles ticked away, and by mile 5, I had clocked in at just over 56:00. I was feeling good, and looking forward to seeing my family who would be waiting for me once we got back off the island.

Around mile 6 we hit the bridge back to the mainland. I must have made some kind of noise reacting to the slope, because the fellow next to me thought I was complaining about the concrete. Not so – I train on plenty of sidewalks, but few hills. He was from upstate New York, he told me, and encouraged me to incorporate more hill training because it makes the flat parts seem much less difficult. (I have found a nice hilly area near St. Leo that I’ve run once and will do more of that in the future.) He sped away on the downhill, and I noticed he was wearing a “50 States Marathon Club” shirt.

Coming off the bridge, looping back past the eventual finish line to start Mile 7, we got to see the half-marathon winner – the improbably-named Richie Cunningham – coast to victory at 1:14. (He also won my age group – the Men’s 35-39.) I was still feeling pretty good at that point, looking for Dineen, Dad, and the boys by the road. I saw them – and the neon-green “Go Dad!” sign they had made during the wait – and pulled over for hugs, then took off again.

At Mile 8, the course curved around on to Bayshore Boulevard, and the discussion we had about hills suddenly became quite relevant. Not because Bayshore is hilly – it’s just a flat, wide, waterside avenue – but because that turn delivered me straight into the teeth of a forceful headwind that made it seem like I was climbing a steep hill. For most of mile 8, I had little choice but to walk, and made about as much speed as I would have running. The eventual marathon winner apparently lost about 10 minutes on his winning time from the previous year due to the windy conditions, so it was a real force to be reckoned with.

The wind, of course, was a harbinger of changing weather, and mile 9 brought cold, stinging rain but thankfully, less wind. I was able to pick up the pace quite a bit through here and made good time to the turn-around point in front of my old elementary school. At some point around there, I saw my neighbor Kyle (Sarah’s husband – he had run the 15K on Saturday) and got a high-five in passing.

The rain lightened up after the turnaround, and the wind was at my back now, so I was able to get back on a reasonable pace. At Mile 10, despite having walked much of Mile 8, I was only about 1:56 into the race – meaning I could still finish under 2:30 if I kept an 11-minute pace. The miles weren’t quite melting by, but my head was in just the right place – positive, feeling strong.

But fear shot through me a few minutes later – my calves began to twinge, threatening severe cramps. I slowed a bit, took a short walk break, and kept running. Everything seemed OK, and I was still on pace to beat 2:30.

Into Mile 11, the lead car for the marathon passed us, and the marathon leader with him. I joked to the woman next to me, “We’ve just been lapped!” She replied, “As long as I finish without needing medical attention, I’ll be happy.”

“Me, too,” I replied, and then let out a sharp yell. My calves had completely seized up and sent a stabbing pain through my body. I could barely move, let alone run. I stopped. Whoever that woman was, I feel bad for her now. She was clearly concerned when I cried out, and I can only image what kind of head games my sudden blowout played on her.

Of course, at that time, I had bigger problems. With just under two miles to go, my legs were frozen in agony. I tried relaxing the foot, and was rewarded with the kind of pain I would expect if I had detached the calf on one end, tied it to a tree, and kept walking. In a blind panic, I moved my foot all the way the other way, toes pointing up, and the pain gradually began to ease. After some trial and error, I realized I could walk without triggering more cramps as long as I kept my toes pointed up as far as I could. I walked for a bit.

With more trial and error, I developed a hobbling gait, toes pointed up and inwards, that allowed me to run in sort of stiff-kneed hop-shuffle. Every time I slipped out of that gait, more stabbing pain rewarded my lapse.

At this point, my goal of 2:30 was gone, and my only remaining goal was to cross the finish line under my own power – still within reach, unless the cramps totally shut me down. As I approached the 12 mile marker, I did not yet know what lay ahead of me that would dramatically change the end of my race.

Hobbling along, I heard a shout: “Mike!” I looked over, and my friend Andy was there. Andy had run his first marathon about a year before, and we sometimes trained together when schedules and injuries allowed.

Andy had secretly conspired with my wife that he would wait for me near the end of the race to cheer for me. And wow, did that work. Seeing a friendly face where I least expected it, someone who knew all too well what I was going through, sent a surge of relief through me. I told him about my calves, he offered advice and encouragement, and then ran ahead to get a couple of pictures.

Ah, vanity – the second factor that boosted me in that final mile. The course was suddenly crawling with photographers. These were pictures I knew I’d want to keep, so I broke out my best smile, kept trotting the best I could, and flashed the camera a thumbs-up. Then the next camera, then the next. I stopped counting miles and started measuring my progress in photographers.

Suddenly, the finish line was only yards away. My family was on the left, waving the sign they had made, and while I’d like to say I surged at that moment, the truth is that I simply didn’t quit – but that’s all I needed. Across the line, hands raised in triumph, I accepted a substitute medal (they ran out of the real ones) and a mylar wrap, and I had finished my first half-marathon, under my own power and on my own two feet. Chip time: 2:37:21.

A week later, I’m still sorting out my reactions to the race. They are uniformly positive, even though I missed my 2:30 goal. I know that I would have made that but for my cramps, and I’m pretty sure I could have avoided those had I trained a bit less timidly and put a few more miles in during the last weeks before the race. I knew going in that I’ve have to deal with the physical challenge of the race, but what has surpised me is how much progress I made in my head. During training, if something began to hurt, or if I ran into a problem of some kind, I was likely to just stop, because I didn’t want to injure myself and jeopardize the race. During the race, quitting wasn’t an option – I either had to fix the problem or fail. And with the pressure on, I found myself fixing problems as they cropped up – most notably, how to finish without the cooperation of my calves. The other mental block that fell away for me was the tedium that long runs usually bring. In the race setting, each mile marker was more of a data point – calculating my pace and goal time – where a mile marker in training brought up thoughts of slugging it out for the remaining distance. The miles in the race didn’t feel especially significant – passing mile 11, breaking into “never gone here before territory,” I didn’t even reflect on it, focused completely on the finish line. And in the days since the race, I still perceive distance differently than I did before – less of a burden than a waypoint on the ultimate path.

And now, I’m looking forward to my next race.

Ping, said the ball as it left the aluminum bat, and sailed over the head of the second baseman. I made it to first base before the outfielder could collect it, and so in three years of Little League, I can claim that one hit to my name.

I was ten, and my playing experience permanently colored my opinion of baseball. Playing outfield bored me; batting terrified me. Why would I spend any more time on a pastime that I didn’t enjoy?

The damage to my relationship with baseball endured long into my adulthood. I went to the occasional baseball game as a social event – Wrigley Field to get drunk watching the Cubs lose; Camden Yards to hobnob with my wife’s law firm in the skyboxes; even a couple of games here in Tampa because it seemed like a “cool dad” thing to do with my boys. Otherwise, baseball was not in my life and I didn’t miss it a bit.

Then, in late August, it looked like the Rays were going to make a run to win the division. I caught the beginning of one game by accident while having dinner with the boys; we went home and watched the rest. It was the first time I can remember intentionally watching baseball on TV. It wasn’t as bad as I had feared.

I started finding myself in water-cooler discussions about the Rays’ prospects, learning about magic numbers and checking team schedules. The Internet made it ever-easier to follow the game, and it seemed like the sport and the network were tailor-made for each other: a data-intensive national pastime, and a data-carrying international computer network.

When the Rays made it into the American League Championship Series, I was officially hooked. Exchanging glowers with randomly-encountered Boston fans, developing irrational dislikes for bat-waggling, kossack-bearded SOB’s like Kevin Youkilis, frantically checking scores on my phone when I couldn’t get to a TV – I became That Guy.

I’m not the only one in Tampa who’s recently acquired a taste for the Rays. After ten years of ambivalence, the whole town is wearing blue and, um, blue. And we’re the target of seething contempt from the long-suffering, hardcore fans of the Red Sox, the Cubs, the Yankees… even Blue Jay fans feel morally superior to us, and they’re Canadian.

And to be fair, they have a point. Those fans stuck by their teams through years, sometimes decades, of suck. And when success came, they had earned the right to celebrate. (Or throw rocks at police, which in Boston is the same thing.) Rays fans, they argue, don’t deserve a World Series appearance, because we weren’t around for the tough years.

But the first two games in the Dome sold out, even with the tarps off the cheap-n-sleazy seats. Rays fans may not have shown up during the lean years, but we’re definitely showing up now. As for me, I’ve jumped on the bandwagon. I’m cheering for a team I only cared about once it started winning. So I expect the contempt from Philadelphia fans, who seem to have contempt for everything. I expect loathing from Red Sox fans who patiently waited out The Curse for Rays fans who completely ignored the Devil decade.

All that, though, is past. Every fan has a first game. Whether that game comes during a winning streak or a deep slump matters less than how soon after that come the second, third, and successive games. For me, this winning season has opened my eyes about the beauty in baseball – the poetry of the numbers, the drama of defending a one-run lead with a monster hitter at the plate, the thrill of a ground-rule double driving in the go-ahead run. That means, whether the Rays win or lose the World Series, I’ll be checking out spring training next year. Headed for .600 or .400, I’ll be watching games. Ripping homers or watching as the third strike rolls in, I’ll be in the stands.

You see, it’s not so much a bandwagon as a baptism.

NOTE: I’m writing more about this at the Florida Foreclosure Fraud weblog.

Florida’s new Foreclosure Rescue Fraud law

Last week, Florida Governor Charlie Crist signed a new law which imposes broad-ranging restrictions on so-called “foreclosure rescue” service providers. The well-intentioned bill is meant to curb the worst abuses by bottom-feeding predators who use foreclosure as an opportunity to bilk money and property out of desperate homeowners. But some unintended consequences of the bill may leave homeowners out of luck when it comes to seeking legal representation.

Some of the protections in the new law will prevent con-artists from “rescuing” homeowners by signing them into predatory loans, getting them to sign over their property unwittingly, or just pocketing a fee to negotiate with the lender and then disappearing. Unfortunately, the broad scope of the law also means it applies some strict new regulations on Florida lawyers who are actually trying to help these homeowners – regulations which may prevent these homeowners from having access to any lawyer at all.

Scope of the new law

The new law, Fla. Stat. § 501.1377, [pdf] applies to all “foreclosure-rescue consultants” who provide homeowners with “foreclosure-related rescue services.” Those services include any service related to “Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property” or “Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.”

This broad definition appears to include lawyers who would represent homeowners defending a foreclosure suit; it may also encompass bankruptcy attorneys who help homeowners file for bankruptcy during foreclosure proceedings.

Disclosure and cancellation requirements

Among the requirements in the new law, these attorneys who may fall within the definition of “foreclosure-rescue consultants” would have to provide their prospective clients with written agreements containing certain disclosures – in uppercase type, no less – and also state “the exact nature and specific detail of each service to be provided,” and “the total amount and terms of charges to be paid by the homeowner for the services.” The “consultant” must also provide a copy of the agreement to the homeowner “not less than 1 business day before the homeowner is to sign the agreement.” The homeowner also has a three-day right to cancel the agreement after signing it.

The written disclosures and cancellation rights are minor impediments, but still, they present problems for the lawyer who might represent a foreclosure defendant. First, without spending time reviewing the documents, it may not be possible to determine in advance the “exact nature” of the services to be provided. And for lawyers who might bill hourly, it is not at all possible to calculate the total charges to be paid until the work is actually done. It would be difficult, if not impossible, for many lawyers to take on new clients if they had to comply with these requirements.

Also, the one-day advance copy requirements and the three-day cancellation requirement, effectively mean that any homeowner facing an immediate deadline may not be allowed to hire a lawyer. Have a court deadline tomorrow? Sorry, you can’t hire a lawyer until a full business day has passed. Have a court deadline in two days? Sorry, but most lawyers won’t enter a case until after the three-day cancellation notice has passed. (Otherwise, the court might not let them out of the case if the client cancels.) A homeowner who needs a lawyer in a hurry will have a hard time hiring someone before time runs out.

Deferred fee requirements

Besides the written agreement, the new law also forbids the consultant from asking for or accepting any fees from the homeowner “before completing or performing all services contained in the agreement for foreclosure-related rescue services.” What does this mean? It means that a lawyer who takes on a foreclosure defense case can’t even ask for a retainer – a deposit – until after he has already done all the work on the case, which may be months or even years later. It also seems to suggest that a bankruptcy lawyer cannot ask for or accept any fee from their client until after the bankruptcy case has concluded – which, my colleagues in that field tell me, means that bankruptcy attorneys effectively waive their right to collect any fees, whatsoever.

What effect would this have on the willingness or ability of lawyers to represent homeowners in foreclosure cases? For most, it means they can’t. To defer a fee on a foreclosure defense until the end of a case not only means they have to wait to get paid, in most cases it means they won’t get paid at all. Once a lawyer has provided his services, he can’t take them back – he has no leverage to persuade a cash-strapped homeowner to pay the bill for services that have already been provided. Faced with the choice of taking a long-deferred fee that might never be received, or refusing to take the case, most lawyers will refuse the case. And then the homeowner has to face foreclosure alone. This is helping?

Aiming at the wrong target

And the worst part is, there’s no need at all to apply these restrictions to lawyers who represent foreclosure defendants. Attorneys who, in good faith, take on these cases and litigate them can provide an enormous benefit to their clients. The rare attorney who takes a fee, pockets it, and disappears, is subject to the strict discipline of the Florida Bar. And, despite the rash of foreclosure rescue scams in Florida and across the nation, I know of none that involve lawyers representing homeowners in court proceedings. By lumping these lawyers in with everyone else, the legislature tried to fix a problem that doesn’t exist.

Is there any hope for the future?

I hope I’m wrong about the scope of the bill, but I’m afraid that it means exactly what I think it means. No doubt the consumer law bar will eventually figure out a way to modify these restrictions, but until then, homeowners seeking legal help are getting the short end of the legislative stick.

CONTACT: Those wishing to reach me about this article can use this web form to send e-mail.

UPDATE: Jacksonville bankruptcy attorney Chip Parker sees this bill the same way.

Do you know the significance of this number?

13,256,278,887,989,457,651,018,865,901,401,704,640

It’s currently at the heart of a battle over First Amendment rights. Some think it’s hexed.

FOR IMMEDIATE RELEASE: Florida lawyer Michael Alex Wasylik announced that he has filed suit today in U.S. District Court in Tampa against Chicago-based web application firm 37Signals. The suit alleges trademark infringement of the Perpetual Beta name and seeks damages in the amount of 13 signals – just over one-third of the company.

“I’ve ben using this name since 2000,” said Wasylik, “and then these guys come along and tarnish it by applying it to fly-by-night dot-coms like Google and Flickr. They’ve probably never had an original thought in their lives. I’ll show them!”

Citing a recent surge in online theft of intellectual property, Wasylik said the only remedy was to “sue the bastards. Sue them so hard that their grandkids feel it.” Asked how he filed the suit on a Sunday, Wasylik said that the court has special hours for the April 1st holiday

Contact: http://perpetualbeta.com/contact/

One of the most persistent myths in the area of copyright law is the notion that wrapping something in an envelope, mailing it to yourself, and then holding onto the delivered envelope somehow helps you protect your legal rights as the creator of a work. The “envelope method” not only doesn’t work, using it may result in you losing several important protections that other copyright holders enjoy.

The Theory

The argument in favor of the so-called “poor man’s copyright” goes something like this: under current U.S. and international law, copyright begins at the moment the work is created. No registration is required for a work to enjoy copyright protection under the law.

So far, so good. But proponents suggest using the envelope method as a way to prove that: 1) you are the author of the work; and 2) that you created it on or before the date of mailing. Once you can prove those two things, the argument goes, you can enforce your rights in court. Unfortunately, this part is wrong.

Your Envelope Doesn’t Prove a Thing

The only thing a postmarked envelope proves is that someone mailed an envelope. Not even a certified mail delivery can prove what was inside the envelope when it was mailed. But, some would say, opening a sealed envelope will show what’s inside. Yes, but that doesn’t prove that it was in the envelope when it was mailed. There are numerous tricks one can use, including sending the envelope unsealed, or steaming it open afterwards, or other tricks a careful Internet search might reveal, to put something in an envelope after it has been mailed. It still comes down to the testimony of the putative copyright holder claiming that the envelope contained what it appears to.

No authority will take the envelope method seriously. One federal court called it “bizarre” and “mysterious” when a songwriter tried to sue Mariah Carey, claiming that Carey had stolen a song the plaintiff wrote and had mailed to himself. The court ridiculed the supposed author, even saying, “As to the mysterious envelope purportedly containing a copy of the… composition, [he] has made no effort to explain why he would have mailed a copy of the composition to himself in 1989.” Even the Copyright Office advises the public that the envelope method has no legal significance and does not substitute for actual registration.

Registration Requirement

Not only is the envelope method lousy proof, it doesn’t save you the minor trouble of having to register your copyright if you want to sue an infringer. In order to enforce a copyright in court, the author must first register it. This registration is usually inexpensive, but an author who needs a quick turnaround time in order to file a lawsuit may have to pay as much as ten times the normal fee for an “expedited” registration. Ultimately, the envelope method costs much more money than it saves.

Benefits of Registration

Using the envelope method may also waive several important benefits. First, the registration itself provides proof of the date the work was created. Second, an author who registers a copyright before infringement can sue not only for actual damages, but also additional statutory damages, which in some cases may climb to the six-figure range for each violation. Finally, an author who registers before infringement can also recover the reasonable attorney’s fees incurred pursuing a lawsuit. The envelope method does not allow for any of these.

There’s Only One Place to Mail It

If you’re serious about protecting your copyright in something you’ve created, don’t cut corners by using the envelope method. For relatively small fee, and only a few minutes filling out a simple form, you can register your work with the Copyright Office itself, giving you the peace of mind to know that you can enjoy the full protections of the law if someone tries to steal your work. If you’re not serious, then don’t waste the time, the postage, or the envelope.

This document is for informational purposes only and does not substitute for the advice of an attorney licensed to practice in your area.

This work (this post only) is licensed under a Creative Commons Attribution-No Derivative Works 3.0 License. You may freely distribute this post as long as you do not change it in any way and you include this attribution: Written by Michael Alex Wasylik, 2007.

[PDF version available]

I have a metal comb. It’s the single material possession I inherited from my grandfather, Alex. His name I carry as my middle name, and have bestowed to my first son.

Grandpa Alex was a barber. He had a barber shop in his house in a small town in Ohio, and that metal comb is one of the tools of his trade. I don’t remember how it came to me, but either my grandmother or my father must have passed it along.

My son Alex knows the story of his great-grandfather, since I’ve told it to him several times. He likes to use the comb on my hair, especially when it’s wet from the shower, to comb it into a three-year-old’s version of a neat coif.

Today, as he walked over to me, comb in hand, Alex told his mother, “This is my comb, from when I was a barber.”

No one’s taught Alex about the wheel of life yet, but I think he gets it.

ZFS. Sounds innocuous, doesn’t it? But when Daring Fireball reported that Apple’s OS X 10.5, code-named Leopard, would include support the new file system, I had to do some poking around. Turns out that this method of storing your computer files will bring about Armageddon.

Don’t believe me? Just look:

ZFS is a 128-bit file system, which means it can store 18 billion billion (18.4 × 1018) times more data than current 64-bit systems. The limitations of ZFS are designed to be so large that they will never be encountered in practice. Project leader Bonwick said, “Populating 128-bit file systems would exceed the quantum limits of earth-based storage. You couldn’t fill a 128-bit storage pool without boiling the oceans.”

Boiling the oceans? Holy crap! That’s got to be hyperbole, right? Just an off the cuff remark? Nope. Turns out it’s more like a British-style understatement. Bonwick later elaborated:

Although we’d all like Moore’s Law to continue forever, quantum mechanics imposes some fundamental limits on the computation rate and information capacity of any physical device. In particular, it has been shown that 1 kilogram of matter confined to 1 liter of space can perform at most 10⁵¹ operations per second on at most 10³¹ bits of information [see Seth Lloyd, "Ultimate physical limits to computation." Nature 406, 1047-1054 (2000)]. A fully populated 128-bit storage pool would contain 2¹²⁸ blocks = 2¹³⁷ bytes = 2¹⁴⁰ bits; therefore the minimum mass required to hold the bits would be (2¹⁴⁰ bits) / (10³¹ bits/kg) = 136 billion kg.

To operate at the 10³¹ bits/kg limit, however, the entire mass of the computer must be in the form of pure energy. By E=mc², the rest energy of 136 billion kg is 1.2×10²⁸ J. The mass of the oceans is about 1.4×10²¹ kg. It takes about 4,000 J to raise the temperature of 1 kg of water by 1 degree Celsius, and thus about 400,000 J to heat 1 kg of water from freezing to boiling. The latent heat of vaporization adds another 2 million J/kg. Thus the energy required to boil the oceans is about 2.4×10⁶ J/kg * 1.4×10²¹ kg = 3.4×10²⁷ J. Thus, fully populating a 128-bit storage pool would, literally, require more energy than boiling the oceans.

Look, math is the reason I went to law school instead of doing anything that requires real brains. But this guy is saying that stuffing too much information in this file system will not only boil the oceans, it will leave us with plenty of leftover heat to spare.

Break out the marshmallows – it’s time for a great big ‘Smore!

So it’s 9:30-ish on Wednesday night, and my TV is off, because instead of Day Break, ABC is running repeats of the George Lopez show. As if that crap gets funnier with age, like Mad Dog or Night Train.

It seems that the dentally-disadvantaged inbreds used to determine the Nielsen ratings stopped watching the show after the wrap-up of its former lead-in, Dancing With Minor Space Debris (actual title may vary). Because, you know, that’s the target audience for a drama with a complicated plot, multiple levels of existential angst, and a cast that could turn in an honest-to-goodness acting performance (with the peculiar exception of the lead, Taye Diggs, whose primary method seemed to be emulating the whiny 16-year-olds on that MTV birthday party show instead of an actual tough guy like say, Jack Bauer. Or Jack Shepard. Or even Jack Black, for God’s sake. But I digress.)

Now, this is a show that ABC ordered for an entire run of 13 episodes. They’ve already paid for the whole run. Not just the season – the whole show. It ends after thirteen. (Well, six.) ABC didn’t have to axe the show entirely. They could have moved it to a different time slot, like Friday, or Sunday, or Saturday, when no one’s actually watching anyway but anyone with a TiVo could at least optionally catch the rest of the plot. Even four in the morning would work. It wouldn’t have cost them another dime, and they could have suckered some poor schmuck of an advertiser to but that slot. But no. They’re not showing it on the network at all. What are they doing?

Releasing it on the Internet. Well, guess what, ABC? The old TV-and-Internet combo sucked back when Microsoft called it WebTV, and it still sucks now. Let’s see… I could watch a mystery/action thriller on my Samsung widescreen with Marantz-powered surround sound pumping through Boston Acoustics subwoofer and surround speakers, or I could watch it on my 17″ laptop screen with 2″ speakers on either side of the keyboard – a keyboard which, since it’s on a PowerBook, glows.

Oh yeah, give me that show on the Internets, ABC! Me love you long time for that!

Well, screw you, ABC. You’re definitely getting Dick in a Box for Christmas this year.

And since ABC can’t be trusted not to cancel quality television in the face of a ratings sag – I don’t even trust them not to axe Lost if they thought they could save a buck – you can bet this means I won’t be watching the first, second, or any other episode of a serial drama on ABC until the entire current decision-making cadre has their dripping, severed heads impaled on six-foot pikes ringing the gate at Disney Studios, and their jobs filled by a random selection from the student facebook at the nearest junior high school, because a random group of seventh-graders would probably make better decisions than the folks doing that job now. So get cracking, ABC. You’ve got some pikes to fill.

In the wake of the elections it is now apparent that, even insulated from any potential electoral consequences, the outgoing Senate majority – of the President’s own party – will not even give him the courtesy of an up-or-down floor vote on John Bolton, the President’s nominee for U.N. Ambassador. This has more to do with the arcane rules governing the Senate than it does any act of political will, but I have no doubt that Senator Frist and his Republican colleagues could, if they really wanted to, get Bolton to the Senate floor. (For example, by replacing Lincoln Chafee on the Senate Foreign Relations Committee.)

In the wake of that failure by the Senate to even take a vote on whether or not they want to confirm Bolton, the President has limited options. He seems to really want Bolton to be his man, and the past year Bolton has served in that post by recess appointment have belied Bolton’s critics and pleased his supporters. If the President wants to keep Bolton at the helm after his current appointment expires this year, he has two options: designate Bolton as “acting” Ambassador or give Bolton a second consecutive recess appointment.

The first question has been discussed more thoroughly elsewhere; as a lawyer I was drawn to the issue of consecutive recess appointments. The Constitution does not expressly address the issue, and prior to the mid-1800′s, the practice was not unheard of. But the widely-reported catch to a second appointment is that Bolton cannot be paid out of the U.S. Treasury. (Apparently, such folks don’t qualify for a “living wage.”)

Some folks advocate paying Bolton out of private funds. But like the good patriots over at TPMCafe, I’ve conducted a legal study and in my opinion, that would be totally unnecessary. If the President wants Bolton as his man, and the Senate won’t give him an up or down vote, he has some very powerful options.

First, let’s look at the law in question, Title 5, Section 5503 of the United States Code. It says that:

Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate.

This is the provision widely mentioned by the media and our anti-Bolton patriot friends. But the statute does not end there; it goes on to say:

This subsection does not apply—

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.

If the President can trigger one of these three exceptions, he can appoint Bolton to a second recess appointment and even pay him for his work. The first exception doesn’t apply here, since the vacancy has existed for some time now. But what about two and three? Neither of them apply now, because they require the President to appoint someone other than Bolton to fill the vacancy first.

Well, we know the Senate’s not going to confirm Bolton. Why not withdraw that nomination and put someone else forward? If the President does this less than 30 days before the end of session, one of three things happens:

1. The session ends with an appointment pending. Exception two applies and Bush can use a recess appointment for Bolton with full pay.

2. The Senate rejects the nominee, within 30 days before the end of the session. Exception three applies and a reappointed Bolton gets paid.

3. The President’s other nominee gets confirmed.

No matter how you slice it, the President wins. Legally speaking, the President could use this technique at the end of every session where the Senate has refused to act on a nomination, and keep every vacancy filled until the end of his term. This technique could not only be used to get the President’s picks in the their slots, it could also be used as a tactic to induce the Senate to give a nominee an up-or-down vote. As long as the actual nominee is more palatable to the Senate than the prospective recess appointment (imagine U.S. Ambassador Robert Bork), the Senate would be under pressure to move expediently on the pending nomination, and by confirming the more palatable nominee eject the unpalatable recess appointment. Properly used, in the long term this technique could be a powerful antidote to the Senate’s structural tendency towards inaction. And in the short term, it could keep John Bolton in the U.N. and keep him in the money.

Torture works.

Thanks to ABC correspondent Brian Ross, we know that several high-level Al Qaeda members in U.S. custody broke down under expert interrogation – some lasting for mere seconds, none more than just over two minutes. In the process, they gave up valuable information leading to the arrest of several operative and the foiling of at least one major plot to blow up L.A.’s largest skyscraper. Thousands of lives were saved.

So torture, under the right circumstances, works.

This means we no longer have the luxury of refusing to torture our prisoners on grounds of mere efficacy. We can torture certain people, and in the process, win major victories in the war on terror. We can torture people, and avert future terror attacks of the same scope at 9/11. We can torture people, and in the process, save thousands and thousands of lives.

When you look at it like that, how can we not choose torture?

The bad news is that torture’s newly proven effectiveness almost compels us to use it as a tactic – not just in the context of national defense, but in almost any arena in which torture could bring about substantial societal gain.

Torture can protect us – and our children – from dreadful evils. Torture can stop child pornographers. Torture can stop the meth peddlers. Torture can stop rapists and murders. Why, torture might even stop the terrible threat of gay marriage.

It can stop everything except becoming the kind of country that is willing to torture people if the rewards are great enough.

Once we decide that yes, if the stakes are sufficiently high, torture is the kind of tool we should use, then to paraphrase George Bernard Shaw, we already know what we are, we’re just haggling over the price.

It seems to me that we’re not quite the society that is willing to condemn torture no matter what the circumstances, no mater what the risks or rewards. After all, Jack Bauer is immensely popular for his willingness to do whatever it takes. How, then, can our society guarantee that torture is and should be the ultimate last result, to be used only when the need is truly extreme and only when we are willing to pay a great cost?

(To my fellow legal scholars who rush to interject the Bill of Rights, I say… oh really? When torture is used not as a penalty and outside the realm of the criminal justice system, what relevance do the Fifth, Eighth, and even the Fourteenth Amendment have? Call me a cynic, but when temptation looms, the law will not be our moral refuge.)

I put forth a modest proposal. Any torture conducted by the government must be authorized by a designated official whose primary purpose is to evaluate every potential need for the application of duress, and to decide whether or not it will be authorized. Then, if this official decides torture is necessary, then that same official subjects himself to the exact same treatment, of the same intensity and duration, as that meted out to the interrogation subject. The torture stops when either the official or the subject breaks. Any rogue agent using torture without authorization would also be subjected to whatever treatment was doled out to the interrogation subject.

Economists call this “incentive.” If the interrogation would truly save thousands of lives, then the government official who authorizes torture — knowing that he himself will have to outlast the interrogation subject under identical inhumane conditions — would be a hero. If the objective isn’t so important that one of our own wouldn’t undergo torture to achieve the desired outcome, then less severe – and less morally hazardous — methods might be used instead.

Such a policy not only limits the temptation to use torture at all, it limits the extent and intensity of the methods used to those least severe which still accomplish the objective. After all, who among us wouldn’t be willing to try a little sleep deprivation to save lives? But most of us would draw the line at bamboo under the fingernails, or being broken on the wheel. So this policy would provide self-enforcing limits on the use and misuse of torture. There’s also a certain moral appeal to scrutinizing the use of torture under the microscope of the Golden Rule.

If torture works, there will come a time when we will really need to use it. But if we ever want to make sure we never become the nation that feeds its enemies feet-first into the wood chipper, we need to have very strong reasons to hate torture even as we acknowledge that sometimes it may be needed.

Cross-posted at RedState.

I got my Florida Bar News yesterday and while flipping through it this morning I have discovered that the Bar’s Board of Governors has voted to condemn the practice of viewing metadata in electronic files even though it does not fully understand exactly what that means.

If you’re unfamiliar with metadata, you are not alone. Several board members said they hadn’t heard of it until it came up at their December meeting.

The issue of metadata has been a topic of interest for lawyers for some time now. Evan Schaeffer and Dennis Kennedy are two among the many lawyers who have focused on the issue and what it means for the legal profession.

Described most simply, “metadata” is any data in a document which describes the document itself, as opposed to the data in the document which is the content. Any document created electronically has some form of metadata attached to it. This blog post, for example, contains the time and date of the post, the web location it can be found, the author, the category, the title, the number of comments, and so on. Even a simple text file will have file name, file size, date created, and so on. None of these are really controversial.

The problem comes when document creators use more sophisticated software to create documents. If you have Microsoft Word on your computer, open a recent file. Under the “File” menu, select the “Properties” option. You are now viewing the metadata for that Word document. File type, location, size; dates of creation, modification, and access; a “file summary” that lists the author, company, and other optional information; number of revisions and even total editing time.

To make matters worse, Word and some other document creation software actually contain metadata about edits and changes made to the document – either incidentally, such as a “Fast save” that copies the clipboard to a file, or intentionally, such as when the user enables the “Track Changes” feature. Either of these could cause real problems for an attorney who unwittingly sends out a file with this information.

One such example is when an attorney drafts a letter to one party, then uses it as a template for a letter to another party. If revisions to the first letter are accidentally included in the metadata of the file, and then sent to a another party, the lawyer may be disclosing one client’s confidential information to another client. Even worse, he might be sending it to opposing counsel. This occasionally happens in the analog world as well. Many years ago, my secretary send a letter to opposing counsel that was meant for my client’s eyes only. Little harm resulted, as the letter was a perfunctory notice and the other lawyer, a stand-up guy, stopped reading as soon as he realized it wasn’t meant for him.

Ultimately, each lawyer has the responsibility to ensure the confidentiality of any confidential information in his care, whether that information is on paper or disk. This vote by the Board of Governors seems designed to protect lawyers who have failed to take the necessary measures to do that, including developing an adequate understanding of the technology they use.

The article basically says that the president-elect of the Board got burned by Word (“track changes” anyone?) and it sounds like he is freaking out over it.

The biggest problem here is that the Board of Governors has no idea what it’s just done. No serious argument can be made that it’s unethical to use metadata which is knowingly released by another lawyer – such as file dates, file names, and so on. The Board clearly means to shield unwitting lawyers from the consequences of their unknown disclosures, but have stated their case too broadly. Furthermore, attorneys who aren’t aware of the metadata in their own documents will be unaware of the possible sources of evidence in metadata from other sources that wouldn’t be protected – thereby failing in their obligation to their clients to uncover such information if they can. In the very short term, it may be common for lawyers to lack an understanding of the importance of metadata. in the long term, every lawyer must develop an understanding of metadata and its significance, both to protect their clients’ confidences but also to figure out how metadata affects their clients’ legal matters in their day to day affairs.

First we hit some clubs down in Ybor City, finally ending up in a champagne-soaked, half-naked orgy of New Year festivities where we caroused until the sun came up.

Wait, that’s not what happened.

For reasons that will be obvious to even the most casual readers of this site, we all celebrated the arrival of the New Year in full-bore domesticated style, butts planted on the couch watching TV. Drinking and nudity were had in abundance, but primarily in the form of nursing and diaper changes. Some drug use, too – with cough syrup as the drug of choice for the three of us fighting off sinus infections.

The real excitement of the evening was skipping all the Times Square tripe on the tube and catching up on the first half of the first season of Lost. I highly recommend it, by the way; both the show and the DVD set as a means of watching it. We scoffed at the commercial breaks; we popped episodes one after another like crack-flavored potato chips. The power went out shortly after midnight – probably the result of a badly-supervised teenager with too many fireworks at his disposal – so we switched the DVDs over to my laptop until the battery was almost dead. The power came on just as we crawled into bed about three in the morning.

The biggest change of the coming year, my newborn son, continues to be an enigma to me. The tricks of handling a newborn have long faded from my memory as Alex has grown up into a wonderful boy with ever-better communications skills. When Nate is unhappy, Nate just screams or cries, and there’s almost nothing Daddy can do to console him. Even Alex, who has been very loving so far, muttered at one point, “Baby go home!”

Dineen will be taking a few weeks off work and her mother is staying with us for a bit longer, so between the two of them they’ll be able to get Nate adjusted to living here, which will allow the rest of us to adjust to Nate living here. In the meantime, we’ll all be struggling to get enough sleep. I may end up taking involuntary naps at work.

The couch, it beckons.

Tom points to the debate between Jeff Harrell and Derek Powazek about taking pictures in public places where they are supposedly prohibited. Jeff says:

Derek clearly sees this as an issue of civil rights; I see it as an issue of basic civility…. More and more, we’re hearing the “I’m going to do whatever I want, and asking me to stop is a violation of my God-given rights” idea being expressed, and that’s simply wrong. Life in a pluralistic society is about compromise; there are no absolute liberties. We all sacrifice some measure of our liberty in order to secure the benefits we gain from living together as a group. We get things like roads and schools and art and culture, but in return we have to accept some basic responsibilities. Like the responsibility to be civil toward each other.

Jeff argues that photographers foisting themselves where they are not wanted exercise bad manners and breach that civility he values so highly. Derek’s philosophy is one of civil liberties:

In a post 9/11 age of paranoia and suspicion, public photography is increasingly seen as threatening, or mistaken as criminal. And we here at JPG are sick of it. The theme [is] meant to remind everyone that amateur photographers are the documentarians of real life. People with cameras bear witness to the everyday dramas of ordinary people. We capture our world to help us understand it.

Neither side is absolutely right, but I think the truth is closer to Derek’s side than Jeff’s. Paparazzi who hound and harass well-known figures, even in public places, in order to get the front page picture for the glossy newsrag, may be exercising their civil rights but intrude into the rights of others to do so. In such a case, Jeff is right: don’t be an ass. But that’s not the point of the “Photography is not a Crime” event. Pictures of public places, public buildings, public landscapes and the like are fair game even in a compromise-dependent civil society.

Jeff’s foundational assumption is wrong. Just because someone puts up a sign or posts a security guard does not mean they have the right to prohibit photography, to confiscate cameras, or to destroy or delete pictures or film. Any idiot can have a policy, but civility doesn’t demand that we respect that policy if it’s wrong. Part of civility is that we shouldn’t post security guards to prevent public photography. Part of civility is not overreaching, not imposing your will where it doesn’t belong. Jeff’s theory of adulthood – “don’t be an ass” – applies equally to the picture takers and the picture banners.

Ultimately, civility demands that we put incivility in its place. Being an adult does not require us to be sheep. It requires us to take responsibility for our own actions and also for our freedoms. When those freedoms are unduly restricted, everyone loses. Not everyone answers the call to defend those freedoms, but everyone benefits from those who do. Our country was founded by people who risked their honor, their lives, their fortunes standing up to the world’s most powerful sovereign in the name of freedom.

Does taking a picture in the subway rise to that level? Only in the rarest of circumstances. But civil society is just a little bit poorer if no one goes for the shot when the shot is there.

So let’s say I drive up to a McDonald’s drive-through window with my son. The boy, who is two and a half, typically ges the kid’s meal. Being two and a half, he pretty much eats anything in nugget form, and disdains foods not available as nuggets (unless they serve as a vehicle for ketchup – but that’s a story for another day).

Let’s further imagine that my son sees Chicken Little serving as their spokes-animal for thier childrens’ meals – which of course include the Chicken McNugget variety my son loves so well… with ketchup.

What happens when he inevtiably figures this out? What do I tell him when he asks why a chicken is trying to persuade him to eat chopped, deep-fried, ketchup-smothered chunks of himself?

I guess I’ll have to tell him that Chicken Little just isn’t as smart as the Chick-fil-a cows.