What will Justice Kagan wear?

The famous David Lat points to a Slate article asking whether the newly-confirmed Justice Kagan will wear the frilly “jabot” neckpiece favored by other female justices O’Connor and Ginsburg, or if she’ll go the route Justice Sotomayor has taken and just pick discreet necklines under the robes.

Did you know that federal judges can wear anything they want? Slate notes:

U.S. Federal judges, including Supreme Court justices, can wear pretty much anything they like—they can even go in jeans and t-shirts—but the simple black robe has been de rigueur for those on the federal bench since the early 19th century.

Of course, given lifetime appointment during times of good behavior, there would be no legal consequence whatsoever if a judge chose to wear something other than robes – but they might subject themselves to critical opinions of the public, the bar, or other members of the judiciary. Former Chief Justice Rehnquist wore four stripes on the sleeves of his robe, inspired by a Gilbert & Sullivan opera, and there is perhaps no federal judge more famous for choice judicial attire. It earned him no small amount of scorn.

It seems that state court judges in Florida also have no formal requirement regarding judicial garb – although most don the traditional black robes, I have known at least one judge who wears a blue robe on the bench, and another who wears jeans under his robes. Unlike federal judges, state court judges in Florida are retained by election, so anyone who strays too far from tradition invites criticism and, in extreme cases, loss at the ballot box. However, I’m not aware of any Florida judge who’s ever lost an election due to choice of clothing.

A tag cloud of search terms people used to find this site this week.

That King George was a right bastard:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such disolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

We’re better off without him.

( Photo Source / Photo Rights )

Want to use a toll road, but don’t have change or a pre-paid device like SunPass? Soon, all you’ll need is a license plate – and a high tolerance for being tracked wherever you go.

The St. Pete Times reports that Tampa’s Lee Roy Selmon Crosstown Expressway will ditch all toll booths as soon as September.

[V]ideo cameras will snap pictures of vehicle tags as they travel at highway speed past collection spots. The tag number will be matched to vehicle owners, who will get a bill in the mail that can be paid with cash, credit card or money order.

“There’s still a cash option. You just don’t pay it on the road,” said Joe Waggoner, executive director of the Tampa-Hillsborough Expressway Authority.

From an innovation standpoint, this is great. It reduces costs, speeds up the toll-collection process, reduces traffic congestion, and will reduce the kind of accidents that occur at toll plazas. And while I’m fine with toll roads as a concept – self-funding roadways definitely appeal to me – I’ve always been a hater of the congestion caused by the collection process. So this solution fixes a lot of what I hate about tolls.

But it comes with a price. Before now, toll-road travelers who wanted to remain untracked had the option of just paying cash. They paid a higher price, both in terms of money and speed, than those who opted to pay electronically, but the choice always remained with the traveler.

Now? Sunpass or snapshot. No other options. If you use the toll road, you’re on record, and there’s no way to dodge it.

I’m not surprised that the tech is moving in this direction, nor do I think it will slow down. But when my children grow up, I know that their location will probably be tracked and recorded at all times, whether by video cameras, cell phone providers, or technology we might not even imagine yet. And that involuntary loss of privacy will make their world very different from the one I grew up in.

Need a fresh start? Want to live like Jason Bourne? Or just need a backup plan in case everything goes all to hell?

Apparently, one way to do that up until now has been to get a fake birth certificate from Puerto Rico, then leverage that into a United States passport.

“There are so many [Puerto Rican birth certificates] floating around… a lot fall into the hands of unscrupulous individuals,” said State Department Bureau of Consular Affairs spokeswoman Rosemary Macray. “We’ve uncovered many cases of people posing as Puerto Ricans” in applying for U.S. passports.

For whatever reason, Puerto Rican birth certificates were seen as easy to forge. So easy, in fact, that the government of Puerto Rico is taking a radical step: invalidating every birth certificate issued on the island before July 1, 2010. Everyone entitled to Puerto Rican documents will have to re-apply and get new ones issued.

Obviously, the government must have been moved to desperation to even consider such a bold move. Two big problems with it:

1. You’ve got until June 1, 2010 – just over a month – to apply for a U.S. Passport now using your not-yet-invalid – but perhaps fraudulent – documents. Got a real one? A fake one? Get your application in now. (Is the island still issuing birth certificates even though they’ll have to be re-issued in just a few weeks? Pity the kid born on May 31.)
2. The massive wave of re-issues offers its own opportunity for fraud. Someone who was born on the island, but left long ago, might have difficulty proving that fact. Government officials are going to have to err on the side of caution. lest they accidentally strip someone of citizenship. And with that implicit leniency, comes the opportunity for fraudulent applications, possibly supported by fraudulent witnesses.

Reminds me of something I read when I was younger:

“When a place gets crowded enough to require ID’s, social collapse is not far away. It is time to go elsewhere.” – Robert A. Heinlein

( Photo Source / Photo Rights )

Last year, I promised: “Next year, I’m writing about prison rape.”

Close your eyes and think of America

It’s tax time, and as always, our thoughts here turn to the forcible penetration of our wallets and our privacy by a government in full tumescence, turgid and needy, far too large for its proper place in our lives.

Taxes are…

While Oliver Wendell Holmes famously stated that “Taxes are what we pay for civilized society,” not everyone agrees that we’re getting our money’s worth, or even that the extraction is justified. “Taxes are theft!” they cry – if you don’t voluntarily pay, the government will use force – arrest, imprisonment, or just simple seizure – to make sure you do.

Of course, it’s not enough to say merely that taxes are theft – in some ways, taxation resembles a much more personal crime. Under our system, it’s not simply the extraction of property that our government seeks. All government do that, and have various ways to do so. But every April, our government compels its citizens not merely to pay, but to file. This filing involves the forced labor of millions of people, compiling information demanded by our government, figuring out complex forms and formulas, and confessing to the authorities virtually every type of activity we’ve been involved in during the previous year. Get married? Have a kid? Tell the feds. Move to a new state? Get dumped by your spouse? Tell the feds. Get an embarrassing STD and rack up a lot of medical bills? Uncle Sam wants to know. And Uncle Sam will make you tell – just ask Wesley Snipes.

In most relationships, if one party feels taken advantage of, they can simply leave – pack up, seek shelter elsewhere, even get a restraining order if one is necessary. But you can’t do that with your Uncle Sam. You’re trapped in that relationship just as surely as if Uncle had the top bunk in your cell. He can get a hold of you any time you like, and you can’t get out. (You can’t escape because U.S. citizens are subjects of the IRS no matter where in the world they live – and even renouncing your citizenship may not relieve you of your tax obligations to the federal government. )

Like a good cellmate, Uncle Sam will protect you from other threats in the prison yard, and may provide other signs of favor. But still, there is that price to be paid, whether you want to or not.

And don’t forget to look at the bright side: next time, it’s going to hurt worse.

( Photo Source / Photo Rights )

Once in a very great while, a lawyer gets to be part of something amazing. Last week, I got my turn, when I saw a judge take a complete 180-degree reversal of himself and throw out his own order granting a foreclosure sale, and pronounce his deep-rooted concern that many of the foreclosures granted by Florida courts in the past few years were probably illegal.

Some of the highlights:

• when the judge admits that he’s “pummeling” the plaintiff’s lawyer
• when the plaintiff’s lawyer admits he doesn’t even have a copy of the motion we’re arguing
• when the judge calls for an investigation whether many of the people who act as witnesses for the banks should be charged with perjury

Days like this make up for all the days that aren’t like this.

Easter Bunny

Originally uploaded by MikeWas

Have a Happy Easter, everyone!

(It’s worth clicking through to see the whole set)

Alex with his medal

Originally uploaded by MikeWas

Alex today entered his second-ever wrestling tournament. He’s just beginning, so the emphasis is on having fun – but who doesn’t think it’s more fun to win?

He earned a second-place finish today when he won for the first time by pinning his opponent. He hit all his moves the way he had practiced, and his determined, methodical approach paid off.

The look on his face when he got up from the mat, triumphant, is something I may never forget.

Pretty Lady

I turned 40 yesterday. A quick look around the dinner table – my parents, my wife and kids, my sister and her family – I reflected on what accomplishments are truly important.

These are mine.

Yesterday afternoon, sometime between 3 and 4pm, I tried to pull up the Florida Bar website, which was working fine – albeit with its usual lack of speed – earlier in the day.

What came up was a typical domain-squatter page that you’ve seen on any domain that was once used but let go by the owner.

So, what happened? Did someone forget to pay for the registration over there? Did they get hacked? Or did they abandon the site?

Web site management, ostrich-style

I called over to the Bar yesterday to alert them to the problem. The pleasant lady who answered the phone sweetly assured me that there was no problem with the web site. I told her that I couldn’t access it and if anyone else reported it, she might want to have someone check on it.

So today, almost 20 hours later, still no progress. Just another example of how the Florida Bar doesn’t understand technology .

UPDATE:

Others have noticed this too. Here are some of today’s search term hits:

• florida bar website
• florida bar website down
• florida bar website gets hacked
• florida bar hacked
• florida bar website hacked
• florida bar web site hack
• florida bar website problems

UPDATE 2:

The Florida Bar website – which I can now see – has the following message posted:

Access to our Web site is currently being affected by an incorrect DNS record on the Internet. The issue has been resolved, however, it is possible that access problems may continue for up to 24 hours. We apologize for any inconvenience.

(Thanks, Tiff.)

Automatic SEO on the fly

Think you know everything there is to know abut SEO? Think you’ve got everything SEO-wise covered with your blog?

Yeah, so does everyone else.

But every once in a while, you leave something important out of your title. Or you accidentally stuff too many keywords in a post. Or you overlook one of dozens of optimizations that would give your site a slight edge over the competition.

Wouldn’t it be great to have an automatic reminder? A helpful assistant looking over your shoulder, altering you to the opportunity to make your post even a little bit easer for people to find?

You know it would be. That’s why, if you have a WordPress blog (and later, other systems) and you want people to find the things you write about, you can benefit from signing up for the new SEO service from the same folks that brought you Copyblogger and Thesis. That service is ScribeSEO.

This is not an affiliate link.

My links to ScribeSEO are not affiliate links. That’s not how I make my money. (I’m a lawyer, not a pro blogger.) But this service is so neat, and promises to be so helpful for squeezing that last bit of SEO juice out of every post, that I want to write about it.

It’s simple to sign up: install the plugin, and then select a service plan. You’ll get an API key that you plug right into the Scribe settings page in your WordPress dashboard. And then, you’re ready to optimize.

Okay, but what does Scribe SEO do?

When you write a blog post, ScribeSEO first tells you if there’s something missing – a custom title, keyword selection, or – Heaven forbid! – actual content. Once you pass those initial three checkpoints, you can press the “analyze” button and ScribeSEO checks the post out for keyword density, keyword position, post length, title length, number of links, and so on… and then you how to fix any flaw in your post that would stop it from getting the best possible reaction from the most common search engines.

Easy-peasy.

But I’m not a blogger!

Guess what? Doesn’t matter. I have a non-blog website that runs entirely on WordPress, using that back-end as a content-management system. There are no blog posts – only “pages” of a more-or-less static variety. And ScribeSEO works on them too. Basic info pages? No problem. Landing pages? Just as easy, and even more important to get right. If you’re using WordPress and any theme or plugin that allows for SEO tweaking (such as the free All-In-One SEO plugin, or the Thesis or Headway themes, to name just two) then you you’re ready to roll.

Zealot-friendly license

Here’s good news for you folks who think the GPL applies to any PHP script that runs in or near a computer that’s ever had WordPress installed: the ScribeSEO plugin is released under the GPL. (It’s a service-based pay model.) So breathe easy.

This is STILL not an affiliate link.

Yup, I’m still not making money off this. And you can try out ScribeSEO for yourself without paying a dime – they’ve got a free test drive. (And if you’re both clever and unscrupulous, you can probably figure out how to get multiple test free test drives. But don’t be a jerk.) Try it for yourself – and if you don’t love it, I’ll refund to you every penny I ever make off your purchase. (In case you’re not paying attention… that’s none.)

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.

Citizens United v. FEC 558 U. S. — (2010) [PDF]

The Supreme Court’s decision striking many of the regulations of McCain-Feingold has been harshly criticized by proponents of campaign finance restrictions. Some have even called it the “worst decision since Dred Scott.” But when you actually read it… well, it’s pretty well-reasoned.

The part of the decision that has drawn the sharpest criticism is, ironically, the least controversial from a legal standpoint: the notion that corporations are “persons” under our constitution, with constitutional rights that the government may not infringe. This idea, controversial on this day the opinion was released, has been established as a matter of law since at least 1885. (I was too lazy to search beyond that.)

So why the outrage? Corporations are easy to hate. “Money in politics” is easy to hate. For some people, any conservative legal thought is easy to hate. (Free speech for me, but not for thee…) The ends – reducing the influence of the wealthy on political debate – justifies the means – legally prohibiting core political speech.

Now, at least for a little while, speech can breathe a little bit freer.

I did it.

Sometime after I started seriously running just under two years ago, part of me decided that it wasn’t enough to run a 5K, or a 10K – I would someday run a marathon. Nevermind that the longest I’d ever run before was 6 miles, back when I was 18 and invincible. Somehow, I’d do it.

And somehow, I did.

Last spring, I picked the 2010 Disney Marathon as the one I’d run. In late August, I began training specifically for this race, building up across a stair-step set of races (including a 15K and a half-marathon) throughout the late summer and early fall. I found friends to train with in early winter, and kept with them in the final month before the big race. And near the end of all that, I began to realize that the marathon was no longer a pipe dream, but was right there within reach.

Pre-race goals

My first and most important goal: finish the race, on my own two feet, under my own power. Based on my two half-marathon times, I figured I’d come in somewhere around 5:15. As my training came to a close, I thought maybe, just maybe, I could break a 5-hour time. And in the final days before the race, I embraced that as a goal, too.

Cold start

The week before the race, weather forecasts looked grim on race day: arctic blasts were sweeping through Florida, and the predicted temps would be in the 20′s at gun time. I prepared for the cold as best I could: tights, gloves, even a throwaway scarf buried under two layers of winter gear and a few layers of tech shirts. I also was able to grab a mylar blanket from the car, a relic from the Gasparilla half-marathon I’d run in March.

Sure enough, on race day, the weather was so cold it made national news. The runners in the previous day’s half marathon had suffered through sleet and freezing rain; for the marathon, our weather was colder, but less wet.

I had caught the bus over from our hotel. Disney is so jammed that you have to be on the bus by 4:00 am or, they warn you, you’ll miss the start. The buses dumped us off in the EPCOT parking lot, where I met up with Rob, a fellow Kickrunners member, and we walked together about a half-mile to the starting corrals.

Disney starts runners in multiple waves, based on estimated time – I was in corral “G”, only three ahead of dead last. As I waited in the dark for the fireworks to go off, I felt the first surge of emotion, one of several I’d experience in the the day, chanting to myself: I’ve got this. I’ve got this.

The first five miles

The fireworks went off at 5:40 a.m., and the first wave shot out. Our corral gradually got closer to the start. About fifteen minutes after gun time, we were finally off, and it felt great to be moving at last. The cold didn’t seem to be a factor at all – within a couple of miles, I had tucked my gloves into my pocket, and even unzipped my coat a little.

I felt strong, and even though the crowd was thick, I was moving right around my desired pace. I had previously calculated that an 11-minute-mile pace was both attainable (I had run 15 at a 10:30 pace a few weeks before) and gave me about a twenty-minute cushion to get me to the finish in less than five hours. So I used that 11-minute mile as my guidepost.

During the first five miles, as we looped around the main roads outside EPCOT, into the park, under Spaceship Earth, and back out to the road, I started at 11:00 on the dot for the first mile, slowing slightly to 11:20 for the next, then ripping off the next three miles at 10:30, 10:35, and 10:10. Part of that was the exhilaration of finally running the race, part of it was cruising through EPCOT pre-dawn, and part of it was that I got to see my family waiting for me just as I entered the park, in the crowds under the monorail.

As I finished the first five, I almost felt cocky.

That didn’t last.

Six through ten

About mile six, I started feeling like maybe I had done a bit too much carboloading the night before, and started looking for a place to start unloading. I ended up burning almost ten minutes total in two bathroom stops, one in mile 6 and one in mile 9. Aside from that, though, I felt pretty good – my pace was still pretty strong, between 10:30 and 11:00 when I was actually running, and the route was long, flat and straight as we moved from EPCOT to the Magic Kingdom. This was also one of three long stretches of uninterrupted road, so Disney had provided entertainment by the roadside – marching bands and DJ’s. By the end of mile ten, I was just about two hours in, and still feeling like I had a good shot at making it under five hours.

The Magic Kingdom to the Animal Kingdom: the middle distance

Entering the Magic Kingdom, running up Main Street to the cheers of the crowd, is like nothing I’ve ever done before. Have you ever been in the “Happiest Place on Earth,” with hundreds of people cheering for you? It’s an experience I’ll never forget, and one I highly recommend.

Main Street was all too brief but we moved right through Tomorrowland, around the carousel, and then up and through Cinderella’s Castle. This is one of the few places I stopped to pose for a picture, as I traded cameras with another runner so we could each take the other’s picture. Then it was up, through, and into Frontierland, then out the park through a “backstage” area behind Splash Mountain – appropriately used as a water stop.

Once we left the Magic Kingdom, the next few miles were another long stretch of road past a few of the resorts and then down past some truly “backstage” areas, like the sewage treatment plant. As I passed the Polynesian Resort, I strained to catch a glimpse of Dineen and the boys, who had planned to be in that spectator’s area. Unfortunately, I didn’t see them – as I learned later, I was “too fast” for them to catch me there.

At the time, I wasn’t feeling too fast. The cold air – still in the mid 30′s, which even in January is crazy for Orlando – was taking its toll, and as I passed the halfway point, I clocked in at 2:37 – a full seven minutes under my goal split and far off my 11-minute pace. Somehow, I had slipped to 12-minute miles and combined with the two restroom breaks that pace put me in the hole for a five-hour finish. I tried to pick up the pace a little, but by the end of mile 15, I was unable to maintain an 11-minute pace, which I would need if I wanted to make up 7 full minutes in the back half. But with the last three parks still to come, I put that thought out of my mind and hoped that warmer temperatures combined with more inspiring crowds would help me surge at the end. I passed the Disney greenhouse complex – overpowering fertilizer aroma, anyone? – and entered the Animal Kingdom.

Animal Kingdom to Hollywood Studios: in marathon, wall hits you.

I barely remember anything about running through the Animal Kingdom, except that I kept wanting to go faster than my legs would allow. I remember thinking that if I finished 18 miles in 3:30, I could still finish the last 8.2 in 90 minutes, and make my five-hour goal. But that wasn’t to be – the clock showed 3:36 as I finished that eighteenth mile, and then I started doing mental math on what it would take to finish in 5:05, or 5:15.

On the map, the stretch between mile 18, where you leave the Animal Kingdom, and mile 22, where you enter Hollywood Studios, looks deceptively straightforward – a long, straight shot down Osceola Boulevard, a short turnaround at mile 21, then turn north towards the park. Of course, this is also where the hardest part of the marathon begins – the part where you hit the wall.

It was still cold, and perhaps even colder than it had been earlier in the race. Many of the water stops were coated with ice where water had spilled on the still-subfreezing roadway. My legs felt stiff and leaden, and my pace went from 11:29 in mile 18 to a disappointing 14:19 in mile 20. I remembered being told that mile 20 was the mental and physical halfway point in the marathon, in terms of difficulty, and I could feel every bit of it by that point. My training plan had never taken me beyond the 20-mile mark – and if it had, I might have up and quit training – so every step was a new personal record for endurance, but they were victories I could not feel.

I remember trying to just gut it out, as if I could keep running just on sheer determination. Every time I tried to draw on that willpower, it kept me going for a hundred yards at a time, sometimes more, but at some point my legs would stop responding, except to tell me of their aches and pains, and I would slow to a walk. This, then, was the bleakest part of the race for me. I knew I could make it to the finish line under my own power, but I might spend another two hours on that last six miles, walking most of the way.

Sometime during this stretch, Jeff Galloway passed me. He was walking.

I kept plodding, and turned north towards Hollywood Studios.

The final push: Mile 23 and beyond

I don’t remember much of Hollywood Studios, either, except for brief flashes. Mile 22, instead of energy gels, they gave us little bars of Hershey’s chocolate. It was the best chocolate I’d ever tasted, even close to frozen solid. We passed through the “costuming” tunnel, where you could watch workers put together Disney costumes of all kinds – princess dresses, superhero outfits, and so on. I blurted out, “No capes!” and drew confused, concerned looks from some of the runners around me. Haven’t you ever watched The Incredibles? I wondered to myself.

Maybe they were right to be concerned.

At the Mile 23 marker, I paused for my only character pose of the day. All the previous picture stops had long lines, and I didn’t want to waste time in them when I still had a shot at a goal time. But now that all time goals were out of reach, I felt pretty good about grabbing a picture with Mike Wazowski – “With one eye!” – from Monsters, Inc.

After leaving Hollywood, the course followed the waterway leading around the Boardwalk Resort and into EPCOT. More and more spectators lined the course here, and I felt my energy, and my pace, pick up a little every time someone called me out by name – listed on my race number – and cheered me on. (Pro tip: if you need people cheering for you personally, stay away from the purple-clad Team in Training runners. They suck up crowd support like there are no other runners on the course.) Mile 25 melted away, and suddenly I was entering EPCOT.

The five hour mark had long gone, and I was looking at 5:30 or more, but as I started that last mile it suddenly sank in that I was about to finish a marathon. Running past China and Mexico felt faster than it really was, partly because I was on familiar ground and partly because I was so close to the end. Suddenly, I was running again, not just plodding. I looked every spectator in the eye, memorizing the faces as I savored the last few moments. The Mile 26 marker greeted us as we hit the parking lot, and suddenly I could hear the roar of the finish line.

Then I saw it.

Then I started really running.

The big finish

Anyone who’s run with me knows that I tend to finish strong. No matter how tired I am, no matter how much I’ve left on the course before, seeing the finish line somehow flips a switch in me, putting me in an involuntary overdrive. And my first marathon was no different. Once I saw the finish line, I drifted towards the side of the pack, and my arms and legs started churning as I picked up speed. In the last hundred yards, I passed runner after runner – my Garmin later told me I hit a top speed of 10mph (about 6:00 minutes per mile) – and crossed the line with my arms raised in triumph. Final chip time: 5:36:56 – far beyond my five-hour aspiration, but a substantial achievement even so, especially considering the extreme weather conditions.

Family and friends were in the gallery just beyond the finish line, and somehow we saw each other just as I slowed to a walk. The volunteers handed me a mylar blanket, put the fantastic medal around my neck, and I went to meet up with my family.

Post-mortem

Final time: 5:36:56.
Average pace: 12:40.
Overall finish: 11011 out of 16833 finishers (out of 24,000 registrants!)

It’s hard for me to believe, as I write this, that I’ve finished a marathon. I would have liked to do it faster, and maybe someday I will, but it’s all to easy to forget that not very long ago it was impossible for me to even entertain the idea of trying to run a marathon in any time, let alone a decent time. If I ever run a marathon again – and it’s way too soon to ask me if I will – I would aim for milder weather, but I’d probably prepare in much the same way as I did this one, although I’d adjust my training to accommodate a time goal, not merely aspiring to finish. Until then, I plan on training for and running multiple half-marathons to keep in fighting trim, and within a reasonable training distance away from a marathon should the spirit move me.

Check out my Disney Marathon picture set.

Only a tiny fraction of people on the planet have ever completed a marathon – by some estimates, only a fraction of one percent. On Sunday, I plan to join that elite club, with a goal of finishing in five hours or less.

Am I nervous? Hell, yes. Do I think I’ll do it? Same answer. On the way, I’ll face some challenges and enjoy some favorable conditions as well. Here’s what I’m thinking about.

The Tough Stuff

Here’s what’s working against me:

• First-Timer

  I’ve never even attempted this distance before – even in a solid training program, the longest run I’ve done was “only” 20 miles. I have no idea how my body will respond in mile 21 and beyond, because I’ve never asked it to.

• The Bitter, Bitter Cold

  As of today, weather projections for race time show temps in the low-to-mid 30′s, possibly colder. For my northern friends, running in that weather is not a big deal. For me, for shorter distances, it’s doable, but winter temps are pretty draining on me. I have no idea what the cumulative impact will be for long distances, but I’m sure I’d rather be running in the 50-60 degree range than this.

• Sleepy but not Dopey

  Race time is 5:40 a.m. To get up, change, catch the bus, have a small breakfast, and get to the starting corral on time, I’ll need to get up about 3:00 a.m. I doubt I’ll be able to sleep, anyway, given my nerves. I’m going to have to rely on whatever sleep I can get Friday night, not Saturday.

The Tailwind

Fortunately, I have a lot of things pushing me forward.

• Trusting my training

  While this is my first marathon, it’s not my first big race, or even my first big, long race. And what I learned from those races, I’ve put into practice this time. I crafted a serious, long-term training plan that I stuck with. I put in the miles every week, and figured out what worked for me and what didn’t. I learned how my body responds to the demands I put on it. (Eating a steak dinner the night before a long run? Bad idea. Stick to pasta.) I know what to eat, what to drink, how much sleep I need, and how fast I should expect to go. I have worked hard for to do this, and that hard work will pay off if I just rely on what I’ve learned.

• It’s a small world after all.

  It’s Disney. Underneath the smiles and joyous laughter, Disney is a seriously-tuned, well-oiled machine. Everything about this race is going be highly organized and professionally managed, from the pre-race transportation to the food and water stops to the supply of medals at the end. But besides the highly-efficient support structure that Disney brings, Disney also infuses this race with the one thing they do best: joy.

  Everyone who runs this race agrees that it’s fun. There is music, and entertainment, and Disney characters all along the route. The starting gun? Fireworks. The medals? Shaped like Mickey Mouse. And the race itself runs through all four major Disney parks – through Cinderella’s Castle, around the Tree of Life in the Animal Kingdom, next to the Tower of Terror, and around the World Showcase and Spaceship Earth. I don’t think you can ask for a better route to run a marathon. I’m glad my first will be at Disney.

• The friends and family plan

  Even though running is sometimes a solitary effort, there’s no way I could have done this alone. Along the way, I’ve trained with and relied on the wisdom of friends who have run this race before, and those who are joining me to run it for the first time. My neighbor Andy has been a great inspiration, running partner, and sometime coach. My friend Tim, who I hadn’t spoken to since we went to high school together, is running for his first time and trained with me in the “monster month” just before the race. The Blue Sharks, a group of total running fanatics, made it fun to run long distances at 5:30 on a couple of Saturday mornings.

  But most of all, my wife Dineen and my two sons, Alex and Nate. They have braved the early mornings and unpredictable weather to cheer me on, and have even started running races of their own. They have endured long absences when I’m out training, and suffered through my self-absorbed focus on training. Thinking of them standing by the roadside as I pass, even as I write this, provides a powerful emotional jolt – a runner’s high even when I’m not running. I cannot imagine doing this without them by my side, and waiting for me at the finish line.

I’m nervous, but I can’t wait to get my feet moving.

Bradford L. Graham, 1968-2010

Brad Graham has suddenly left us. If you can measure a man by the size of the hole in the hearts he left behind, Brad is a giant.

We’ll miss you, friend.

Training log – final long run

Originally uploaded by MikeWas

I’ve now completed my last long run before tapering for the Disney Marathon on Jan. 10. Today was a 20-miler in 3:57.

For the first time, I think I’m ready.

Eighteen miles, in a car, is not far at all. It’s a brief excursion; a side trip; a short jaunt.

On two feet, eighteen miles is brutal.

Thirteen? Doable. Fifteen? Challenging, but still enjoyable. Eighteen miles is pain – a totally different beast from the slightly shorter distances.

I’ve tried it twice now, once by myself, once with a friend who’s also training for Disney. Both times, I’ve hit a wall, where it seems like the body just refuses to obey commands to keep moving forward. Fifteen miles takes me, on average, about 2:45 to finish. Eighteen, I can’t finish under 3:35.

That extra three miles shouldn’t take 50 minutes.

And if eighteen is this hard, what’s going to happen in four weeks when I try to tack more than eight miles on top of that?

The one thing I know I can improve is my pre-run dinner. Both times, the night before my run was not the pasta-rich carbo-loading I have enjoyed before my more successful runs. So next week, I will not deviate from the pasta plan, and hope that makes a difference trying to run twenty. Something’s got to change dramatically between now and next week if I’m going to finish this marathon next month.

Experienced runners, feel free to chime in with advice.

( Photo Source / Photo Rights )

Back in the closing days of the last century, roughly a Spartan military unit of us tried our hand at this little thing called “blogging.”

One of those brave souls, who persists to this day, is Sean Hackbarth, the author of “The American Mind.” Now, Sean is clearly a bullshit artist and a suck-up where he claims to have been inspired by yours truly, but let the record show that new media was not always the province of the liberal; even in the early days of blogging there were guys like Sean giving the viewpoint from the right-of-center. (He’s so good, I once even handed him the keys to my own site.)

Five years ago, Sean said “Five years from now, I can see myself still posting, still commenting on political economy, sports, music, and whatever catches my eye.” Well, he still is, and five years from now, I predict he’ll still be at it. Happy tenth, Sean, and may the next decade be good to you.

A jury of your peers

The right to trial by jury is so precious in our legal system that there are not one, but two amendments in the Bill of Rights that protect it: The Sixth Amendment for criminal matters, and the Seventh Amendment for civil trials. The flip side of that jury right is the obligation of citizens to serve on juries when summoned.

A few weeks ago, I got summoned. Today was the date I was to report.

Who picks a lawyer to be on a jury?

Frankly, I knew it would be long odds that I would actually get picked. Few lawyers want someone on the jury second-guessing their every move. But it was certainly possible – after all, the lawyers on the case get a limited number of strikes, and there just might be someone one the panel they liked even less than me.

I was interested, though, to see the process from the inside. If not actually to be on a jury, to see what it was like from the other side of the rail. As it turned out, my experience was very limited but still somewhat informative.

The pool’s warm, come on in!

I showed up at the duly-appointed time this morning, and made my way back to the jury pool room. I showed my summons, got checked in by the very courteous and helpful courtroom staff, and sat down. There were about a hundred people there, out of more than two hundred summoned. (I was number 213.) Many people must have gotten excused, some others may have just not shown up. The people who were there were mostly white; the women were of all ages, but the men seemed to skew slightly older – more retirees. I have no idea how that reflects the demographics of eastern Pasco County, but it matches other juries I’ve seen in Florida.

At the front of the room, a large display screen played some early-morning news show apparently geared towards the slow-witted and easily entertained. Some were able to block out the noise enough to read; I put down my book and mostly observed. There was one thing I saw that stunned me.

A few minutes after 8:00 am, the jury administrator made a few announcements, then plugged in a DVD with the local clerk’s jury informational video. We learned all about the importance and history of the right to a jury trial – even invoking the Magna Carta – before explaining one-by-one who would be present in the courtroom. So far, so good.

Then the real trouble started.

One in four quadrillion

After the video, they turned the TV back on. To daytime TV.

Uh-oh.

First up: one of those fake TV-judges who mediate disputes between trailer trash of various types. The case on today’s show involved $538, an ex-girlfriend, cross-accusations of rape and prostitution, and a general sullying of what purports to be our legal system. Not exactly what you want prospective jurors to be seeing, if you’re a party on either side, right? To make matters worse, fully 2 out of 3 commercials were for local personal injury attorneys whose views on insurance companies were made very clear… not exactly something a defense lawyer wants to have fresh in the minds of his jury.

Then it got worse. A true crime show, about a cold case involving a rape/murder and one police department’s efforts to get a surreptitious DNA sample from a suspect. (Hint: it involved the police sending a fake letter from a fake law firm inviting the suspect to participate in a class action lawsuit against the city for parking tickets.) It concluded with a DNA expert talking about the “one in four quadrillion” odds that the sample donor could be anyone else but the suspect.

I hope no one watching that was about to go into a trial involving DNA evidence… because they’ve just been tainted by outside information.

Then, more lawyer ads.

Out of one hundred, fourteen.

When all was said and done, I was never even empaneled, let alone picked. There were only two trials, needing only 7 jurors each (six plus an alternate) and about a hundred of us had shown up. So most of us were dismissed.

Even though I was never called, I found my brief experience with jury duty to be educational. The biggest concern of most jurors is first the inconvenience of being called, then the boredom they suffer while waiting to be picked or released. The court staff makes it as pleasant as possible – after all, the clerk is an elected official and wants to leave these potential voters with a good impression – but there are limits to what they can do.

Any lawyer facing a jury should recognize these two concerns that juries have, and keep in mind that you never know what’s being shown on the TV screen in the jury room. I know that, for my next jury panel, I want to make sure that I’m not the one boring them anymore, that I acknowledge the sacrifices they have made to serve, and perhaps most important of all, I’m going to ask what they were watching in the jury pool room.

( Photo Source / Photo Rights )

Dear Seminoles:

When history looks back on the tenure of Bobby Bowden, it will remember three of his teams. The first two are obvious: they are the teams that won a national championship under his guidance, first in 1993 and again in 1999. The third team? By an accident of timing, that team is you – the one that will walk onto the field with him for the last time in a few short weeks.

It hasn’t been the year that any Seminole fan has hoped for. In fact, this year has seen the worst record that any Seminole team has posted in decades. Apart from a few highlights, like the upset of BYU, this season has seen mostly heartbreak and disappointment.

And the biggest disappointment? It’s the way that the administration has treated the man who built this legendary program from almost nothing. It’s as if they forgot that the man coaching this team is the same one to whom they erected a statute outside the field that bears his name. The way this administration has treated Bobby Bowden in the twilight of his career will be a permanent stain on the school, and may do more long-term damage than even a decade of losing seasons could have done.

But you, his players and his coaching staff… you have a chance to make everyone forget, if only for a day, everything that’s gone wrong with this year. You have one game left, a bowl game, probably against an opponent weaker than many others you’ve played this year.

This is your chance to do the one thing you must do: make it the game that Bobby Bowden wants to remember for the rest of his life.

Let your coach feel, just one more time, what it’s like to completely dominate an opponent. Offense, your job is to score 30, 40, even 50 points. You’ve done that once this season – dig deep and do it again. Rain pigskin-covered bombs into the end zone. Stuff five-yard and ten-yard runs down your opponents’ gullet. Break off a few razzle-dazzle plays that our current vocabulary cannot even describe. Make your opponent’s defense show first their fear, and then their acceptance of defeat.

Defense, don’t just stop your opponents; score some points of your own. You should tear through the offensive line like the paper covering the tunnel at the pregame. You should plant the quarterback in the backfield like a tree. You should pick interceptions out of the air like golden apples and convert them into six-point returns.

For this last game, you should bleed for your coach, and you should die for your coach, with nothing left at the end of the game but resounding victory.

In short, Seminoles, you should play like Seminoles.

Because when Bobby Bowden leaves the field of play for the last time, he should look at the scoreboard and forget, for a moment, that it’s no longer 1993. He should go into the tunnel soaked with Gatorade. He should leave, not on his own feet, but on the shoulders of the team he built from scratch, celebrated as the legend he is.

Seminoles, you owe this much to Bobby Bowden. Make him feel, just one more time, like a champion. Play like champions. Just one more time, let Bobby Bowden leave the playing field…

Unconquered.

(Source / Rights )

Note: this is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

How to piss people off with a legal argument

There are no atheists in a foxhole, it’s been said, and there are apparently no agnostics when it comes to the potential application of the GNU General Public License (GPL) to WordPress themes. My last post, which analyzes the matter from the perspective of copyright law (as it must) generated quite a bit of debate even though it’s been raging for far longer than I’ve been following it. I concluded that, under our current copyright laws, WordPress themes are not “derivative works” and therefore are NOT automatically covered by the GPL (unless, of course, the theme author deliberately chooses to release under the GPL).

And that pissed some people off, and pleased a few others. One even accused me of wanting the powers-that-be to “bless” my decision to go with a premium WordPress theme. (Um, no.) Others encouraged the sides to settle the matter in court. Some simply waved their hands and said, “There is no debate,” as if they weren’t debating by leaving their comment.

Whatever.

Your opinions don’t matter

None of your opinions matter… and neither does mine. Derivative work, independent creation, something in between… it doesn’t matter in the end. Why not?

Because whether the GPL applies to WordPress themes or not… whether they are derivative works or not… whether they are part of a “combined program” (as the Software Freedom Law Center advocates) or not, the WordPress GPL can’t stop you from developing, distributing, making money from, and asserting copyright in, WordPress themes.

Because the Fair Use Doctrine protects you when you do.

How can Fair Use apply to premium WordPress themes?

First, it’s important to remember that the GPL is a copyright license: it allows people other than the author the right to copy, distribute, and modify a work – in this case, a piece of software – that otherwise would be restricted to the author only under copyright law.

That means that anyone who already has the right to do those things under copyright law need not worry about the restrictions of the license. The terms of the license only apply to uses which copyright law reserves to the author. And if a use qualifies as “fair use“, then copyright law expressly allows it without a license.

How does use of a work qualify as “fair use”? The law sets out four factors to consider:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

Each factor weighs separately in the analysis.

Purpose of the use

As to the first factor, copying for a commercial purpose “weighs against a finding of fair use.” Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1523 – (9th Cir. 1992), citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). However, “the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use.” Sega, at 1523. Such factors include whether or not the use complies with the “primary objective of copyright law [which] is not to reward the labor of authors but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991).

In other words, commercial use is presumed to be unfair, but that presumption may vanish if the use also promotes advancement of science and art. Publication of premium WordPress themes, by definition, is commercial, but in many cases, arguably promotes that advancement of science and art when they help produce web pages that are more artistic or which function, in some way, better. Almost all WordPress themes are created with this intent, and would be difficult to sell as premium themes if they miss the mark.

Tha analysis finds support in the Sega case:

We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest…. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote.

Sega at 1523. (citations omitted) Like in the Sega case, WordPress themes promote a “growth in creative expression” by making WordPress easier to use or more aesthetically pleasing. I think a court would find this factor in favor of fair use in the case of WordPress themes. But just for sake of argument, let’s tip the balance on factor one slightly against fair use for now.

Nature of the work

For the second factor, the “nature of the copyrighted work,” we look again to the Sega case, which states:

The second statutory factor, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work.

Sega at 1524. (citations omitted) And, “To the extent that a work is functional or factual, it may be copied.” Because computer programs are largely functional, “many aspects” of computer programs are not even protected by copyright. Sega at 1525.

To be fair, the “nature of the work” analysis can be much more complicated than I can discuss here, but generally speaking, more protection will be provided towards fictional, fantasy, and entertainment works, with less protection being given towards largely functional works, and none at all to some types of works that are purely functional. As a computer program, WordPress is highly functional in nature, and therefore enjoys less protection than pure works of imagination. Based on that sliding scale, it is fair to tilt the second factor in favor of fair use where the nature of the work is a content-management system for web pages, such as WordPress.

Amount and substance of the copying

The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work.” In other words, how much of the protected work was used, and how important to the work was that portion? Both the quantity and the quality of the copies portion matter. Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987)(where copy was “essentially the heart” of a copyrighted work, factor three weighed against fair use).

In the case of WordPress themes, this factor weighs heavily in favor of a finding of fair use. No theme that I’ve ever seen incorporates any actual code from WordPress; instead, they rely on function calls to the main program, asking it to send data back to the program that comprises the theme. In other words, the only portion of WordPress “copied” are the names of the functions themselves. As a percentage of the total amount of code in WordPress itself, this is simply a tiny amount. Furthermore, the names of the functions are, in themselves, hardly the core part of the expression from a qualitative nature. Both from a quantity perspective and a quality perspective, there is almost no significant copying of any protected WordPress code. Factor three, then, weighs in favor of fair use.

Effect on the potential market

The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.

In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.

Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.

What it all means: Blow it out your GPL

Of the four factors of fair use, two weigh heavily for fair use, one slightly in favor, and the other we allowed to tilt slightly against even though it could easily go in favor of fair use. To be sure, changing the underlying facts could change the outcome of any individual factor, but based on the facts as I understand them, development and distribution of WordPress themes, to the extent they engage in any “copying” or derivation from WordPress code, are resoundingly fair use of that code. And if they are fair use, then federal copyright law expressly allows them to be made, copied, and distributed with no regard whatsoever to the GPL or any other license that may apply.

So all the hemming and hawing about whether themes area derivative work, or “should be” a derivative work, is completely irrelevant. Because the GPL need not apply in either case.

Note:

This is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

Why aren’t WordPress themes automatically covered by the GPL?

There’s been a firestorm brewing in the relatively small world of WordPress premium theme designers, after WordPress founder Matt Mullenweg broadly asserted that themes built to run on the WordPress platform – and by implication, plugins and anything else that hooks into the WordPress system – are covered by the GPL.

This is important, because if Matt is correct, then anyone who gets a copy of a premium theme then has the right to freely distribute it or modify it virtually without restriction (expect, of course, those restrictions found in the GPL itself). Understandably, even though some voluntarily release their themes under the GPL, many premium theme designers object to having their code distributed for free.

Matt, who is an outspoken proponent of open-source software, has explained that designers can still make money off GPL code by providing support and other valuable resources to users of that code. And he’s right – that model exists, and has been shown to work for some.

Are premium theme designers “evil”?

But he also goes so far as to call non-GPL premium WordPress themes “evil” – naming Chris Pearson’s Thesis as one such example. Now, I own a Thesis developer’s license and run several sites on the theme. I was happy to pay for it and would do so again. I also know Matt and have considered him a friend for several years now. I commend him for his support of open software and for the impact he’s had on the weblog community.

So it’s tough to say this: Matt, you’re wrong. Not only are these developers not “evil,” they provide a definite benefit to the community. And perhaps more important, the WordPress GPL does not, in most cases, require them to release their own themes or plugins under the GPL.

The argument for an expansive GPL

Here’s the argument for applying the GPL to all WordPress themes:

The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

In other words, the code created by theme developers, because it works together with WordPress code (and in most cases, cannot function without it) is a “derivative work” of WordPress under copyright law and therefore falls within the scope of the GPL. (The GPL, as a copyright-based license, applies only to the original work and those works that derive from it.) At least, that’s the argument.

The counter-argument to an expansive GPL

But is it enough to say that a theme calls to WordPress functions or that it is somehow “combined with WordPress code in memory”? Does that make it a derivative, and therefore covered, work under the law and the GPL?

There are plenty of reasons to disagree with the expansive GPL view expressed above. First and foremost, it’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Instead, copyright law takes a very pragmatic approach to determine what constitutes a derivative work.

The alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.”

In the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F. 2d 965 (9th Cir. 1992), a federal appellate court considered that very issue. Galoob manufactured a “cheater” cartridge that plugged into Nintendo games, between the game cartridge and the game unit itself, and allowed the player to change the game’s parameters – for example, players could give themselves unlimited lives using Galoob’s device. Nintendo sued Galoob, claiming that the devices violated Nintendo’s copyright in the games as a derivative work of the games.

The Galoob court rejected Nintendo’s argument. In order to be considered a derivative work, the alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.” Galoob at 969. Finding that Galoob’s device did neither, the court determined that there was no derivative work.

An important part of the court’s analysis was that “technology often advances by improvement rather than replacement.” Id. The court also noted that software often depends on other software to function:

Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone.

Id. Applying that theory to the Galoob device, the court concluded:

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recaste, [sic] a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges. Such innovations rarely will constitute infringing derivative works under the Copyright Act.

Using that rationale, the question of whether WordPress themes are “derivative” of WordPress itself becomes more clear.

1. Does a theme, rather than simply calling a WP function, incorporate actual code from WordPress?
2. Does it somehow supplant the demand for the WordPress software itself?

If the answer to either of those questions is “yes,” then the work is probably derivative, and the GPL probably applies. If not, then even a theme or plugin that entirely dependens on WordPress to run at all, or simply improves WordPress in some way, would not be a derivative work and the GPL would not apply. For the vast majority of themes I’ve seen, the GPL would not apply because the theme is not, in my opinion, a derivative work. (In fact, if any one thing “incorporates” another, it’s most likely WordPress incorporating the theme, by use of the PHP include() call, rather than the other way around.)

Should the GPL apply to premium WordPress themes?

Matt’s own experience with WordPress is a very convincing argument that it is possible to change the world, or even just make a living, by writing, distributing, and supporting GPL-based software. There are many premium theme designers – promoted and catalogued by WordPress – who choose to apply to GPL to their own labors. But those who choose not to? Not evil – at least not for that reason.

It’s great to talk about open source software as “free” and speak of the GPL – as Matt does – as a “Bill of Rights” – but what Matt seeks to do would reduce freedom by expanding copyright restrictions to non-derivative – and therefore legally independent – works . At its core, the GPL is simply a fancy way of controlling other people’s work through the imposition of copyright restrictions. Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.

Update: What WordPress itself says about derivative works and copyright law

I should have done this in the main article, but here’s what the GPL that came with your copy of WordPress says about the issue:

a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

(Emphasis added.) In other words:

1. Copyright law controls the definition of what constitutes a “derivative work” (and therefore, a covered work); and,
2. The GPL expressly invokes the standard embraced by the Galoob court, namely, that some part of the original work must be contained in another work in order for that work to be considered derivative.

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.”

I knew that WordPress itself was covered by the GPL. What I didn’t know was that themes, even commercial themes, built to run on WordPress, also fall under the GPL, according to some GPL experts.

In this vid, Matt Mullenweg talks about the benefits of the GPL at some length, even going so far as to call those commercial theme vendors who don’t release their code under the GPL as “evil.” (Looking for some commercial-grade but GPL-released themes? Find some here.)

Now, I’ve been using a commerical, non-GPL theme for this and some of the other blogs I maintain – the very slick Thesis theme – but I hardly consider it “evil” that Pearson, et al. maintain a non-GPL license regime. They might arguably be in violation of the WordPress GPL, but there’s nothing inherently “evil” about their product or what they’ve chosen to do with it. (Notably, Pearson offers a number of free themes for download at his site, including a couple which helped cement his reputation as a talented WP theme designer.)

Sunrises and dolphins

The lunatic ran along the edge of the bay, under the just-risen sun. It was 7:30 in the morning, and the lunatic was just finishing his eleventh mile.

The lunatic hit a milestone just before the fourteen-mile marker. It was the longest distance he’d ever run. As if to celebrate the accomplishment, a pod of dolphins waited there, splashing in the sunlit water, just ten feet from the seawall.

The lunatic and I could not be more different. He had risen long before the sun, then traveled twenty miles by car, to go downtown and run along the edge of Tampa Bay. He planned to run fifteen miles – something most sane people never do in their entire lives, let alone at 5:30 in the morning.

I, on the other hand, had a lifetime devotion to sleeping in. On a Saturday morning at 5:30, or 7:30, or even 9:30 for that matter, it was almost a guarantee you’d find me in bed, sleeping off the activities of the night before, whatever they had been. And running? For such ridiculous distances? I’d much rather sit on my ass.

But the lunatic was up, and out, and running. He was running along the southern edge of Davis Island, by the airport, when the sun came up and washed the sky from starry dark blue to pale gold. He was seven miles and just over one hour into the run.

Blue Sharks

Why so early? Why so far away? Because the lunatic wasn’t alone. For several years, a local running group called the Blue Sharks has run the same eleven-mile route every Saturday morning starting at 5:30. The organizer, a former runner himself, drives ahead of the runners to set out water and Gatorade every couple of miles. At the first water stop, he counted the participants: “… seventy-eight… seventy-nine… eighty… eighty-one…”

Runners in training for marathons and half-marathons run the eleven together, and those who need longer runs extend their routes further down Bayshore Boulevard. The lunatic, today, was one of those going the extra distance.

The transformation

I had known other people like the lunatic. I’ve had friends who were marathoners, who got up in the dark to run freakishly far. I would shake my head, firm in the conviction that I would never do something so ridiculous.

But then the lunatic took over. Now, I’ve run two half-marathons: Gasparilla and Blue Moon. I’m training for a marathon of my own in January. I need to get in long training runs of fifteen, eighteen, twenty miles in the next eight weeks.

So on a perfect November Saturday, I got up at 4:30 in the morning to join a bunch of other people of questionable sanity to run longer than I ever had before. I am the lunatic, and I run to beat the sun.

Alex and Nate started YMCA basketball this week. Here, Alex tosses up a shot.

(Posted on Flickr)

A few years ago, I was concerned that Apple wanted to boil the planet’s oceans by including the ZFS file system in a future release of OS X.

(I know that saying “ZFS file system” is like saying “ATM machine.” Not everyone knows what ZFS stands for; get over it.)

Apple has apparently reversed that decision, and thanks to Gruber, I found some speculation as to why. Unfortunately, the Gerbarg piece is totally devoid of the Armageddon theory.

“The most memorable epocha in the history of America.”

I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival…It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations from one end of the continent to the other from this time forward forever more.

John Adams to Abigail Adams, July 3, 1776

Enjoy and cherish your freedom this weekend.

( Photo source )

When Facebook let users pick nicknames for human-friendly URL’s, Wired Magazine’s John Abell didn’t care what name he got. Why? He’s already a got a domain name that he controls… along with unlimited subdomains that he can pojnt to any other location on the internet.

At the end of the day, you won’t know where to find someone on facebook even with your fancy name until and unless they tell you. In a world where you have sub-domains on an omnipresent brand, people can figure it out…. I will try for the Facebook name of my choice, of course — why not? I’ve done the same for a bunch of sites, half of whom I have forgotten and never use. But, if I don’t get it I don’t really care. No matter what site you might want to link up, you’ll always know how to find me: *.johnabell.com

So if you missed out on the great Facebook landrush, skip it and go buy your name with a .com at the end.

Soon, you’ll be seeing more of me out on the net than you might be used to.

Why?

I’ve decided to colonize some other blogs. Not literally, of course. You won’t see little virtual Mayflowers beaching on the shores of distant web sites. No, it simply means that I’ve decided to flex my writing muscles in a slightly different way than I do around here, and submit guest posts to some well-traveled, well-regarded sites.

Welcome, Visitors!

If you’re here because you saw one of those guest posts and wonder… “What the heck is this place?” I invite you to read, in no particular order:

• a little bit about this site
• my own personal favorite posts
• my other weblog, the Florida Foreclosure Fraud Weblog
• my Twitter stream
• some of my old stuff
• or some of my very old stuff.

When you find something that keeps you on the edge of your seat, go ahead and leave a comment.

Update

The first guest post is up: How Listening to a Waiter can Jack your Profits up 33%

And number two is up as well: Five Terrible Reasons You Failed To Incorporate Your Online Business

Now for number three: How Facebook is Gunning for Google (And Killing SEO)

Here’s the fourth: Unleash the Power of Guest Posting.

How has the legislature screwed Florida homeowners yet again?

In what can only be called a blunder of colossal proportions, the Florida legislature has imposed new fees on Florida foreclosure defendants that make it all but impossible for them to fight back against lenders who commit fraud, ignore federal lending regulations, or commit any other kind of wrongdoing.

The Florida Foreclosure Fraud weblog has the details, but here’s the nutshell version. Any foreclosure defendants who wants to file a counterclaim against a dirty lender – one who commits fraud, packs the loan with unlawful fees, fails to make all the required disclosures, or breaches the agreement with the borrower in any way – those homeowners have to pay a $1,900 filing fee before they can proceed with their claim.

Shutting the courthouse door on foreclosure fraud victims

You read that correctly – one thousand, nine hundred dollars. That doesn’t include attorney’s fees or any other cost of filing suit – that’s just the fee you pay to the court for the privilege of sticking the papers in the court file. Those who have fallen victim to foreclosure fraud – the ones most likely to have the kind of counterclaims that would be affected – are the least likely to have that kind of cash sitting around, waiting for the government’s outstretched palm. And if you don’t have the money? No pay, no play.

The lawmakers’ slush fund

To make matters worse, the money doesn’t go to the court system, to help hire more staff to offset the record glut of foreclosure cases. It goes into the state “general fund” – meaning that lawmakers can spend the money on just about anything they want. It’s basically a giant slush fund, built on the backs of the people who can least afford it.

To read the rest of the story, or to see the newly juiced-up fee schedule for non-foreclosure cases, head over to the Florida Foreclosure Fraud weblog.

(Photo source ) ( Photo license )

No takebacks

Last month, the official White House photo stream on Flickr switched from a Creative Commons attribution license to a brand-new “U.S. Government Work license” that Flickr created specially for this photostream, but which probably applies to almost all photos contributed by the federal government.

Why create a brand-new “license”? Because works of the U.S. Government are not subject to copyright. The new “license,” in reality, is simply an acknowledgement that the work is part of the public domain.

You cannot keep what you do not have.

But there’s a small problem. In the description for each photo, the following text appears:

This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way or used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House.

That’s all well and good, except that no one has the right to impose those restrictions. The work is in the public domain. No one may restrict its use in any way. What happens is you use photographs from the official photostream in a way that violates the supposed “terms” imposed in the comments?

Not a darn thing.

Of course, if you use them to commit fraud or some other crime, there may be consequences for that. But otherwise, you’re free to use these photos in any way just as if you took them yourself. So find yourself a picture like the one I’ve got here… and enjoy.

UPDATE

Welcome to the party, Slashdot and Instapundit.

Ever want to swim with sharks? If you were in on Saturday’s Tampa Tweetup you might have gotten the chance.

Mommy Musings and David Risley tell the story. So does Fox 13 news.

UPDATE: Forgot to link to my pictures, on Flickr.

This Memorial Day, take a moment to reflect on those who fought to protect the freedoms you enjoy today.

It’s amazing what you can learn in the doctor’s waiting room.

Nate was playing with the big toy – the one where you move all the beads back and forth across the wires – and I took a minute to check out a web design question I had, surfing the web on my phone.

I stumbled across this CSS tip for styling buttons… and, as it turns out, everything else.

I’ve been out of the loop on cutting-edge web design techniques, so I didn’t know you could now do rounded corners and drop shadows in CSS. And, as it turns out, you can use these techniques on more than just buttons.

You can style any element this way. Even block quotes. Or paragraphs. Heck, you could probably style a <span> this way.

And that’s pretty cool.

I’ve played around a little bit with the design. The theme hasn’t changed – I’m using the outstanding Thesis theme – and I’m taking advantage of Thesis’s ease of customization.

If anything breaks, let me know.

It’s the most important thing I’ve ever done in my life, and the one I’m proudest of.

Not just the getting married part. Heck, any two adults with the church-and-state approved mix of X and Y chromosomes can do that. What few people will tell you going in: it’s not the wedding – it’s the marriage that matters.

Nine years ago I married the love of my life. Today our relationship is as strong as its ever been, perhaps even stronger. And sometimes I wonder how it is that we managed to build this life together and why it feels so solid. I can think of two things.

First, we picked each other. Neither one of us, at first, met the arbitrary checklists we had in mind for potential mates – she wanted to marry a good Catholic boy and I was hoping to meet someone I could bring back to Florida quickly – but once we put all that aside, we discovered that we shared the fundamental values that we would eventually want to instill in our children. We don’t always agree, but we always respect each other and the little differences don’t matter much.

Second, we don’t consider failure an option. Both sets of our parents are still together after four decades of marriage. It’s not that our parents haven’t struggled at times, but they always chose the path that kept them together. The choices our parents made, we too have made. Even in our wedding, we chose symbols of life-long partnership. Instead of numbering tables, we named them after traditional anniversary gifts. Instead of tossing a bouquet, we gave it to the married couple that had been together the longest. (Uncle Lenny and Aunt Mildred – then at 55 years.) Small things – but over the course of a lifetime, it’s the small choices that decide how the course of your life flows. Dineen and I choose to be together because we cannot imagine doing anything else.

Someday, our children, in relationships of their own, will be able to look to us as an example and understand what it means to choose to share your life – your whole life – with another person. And if we keep doing what we’re doing, then our children will want to do it this way as well.

(Enjoy a few more wedding pictures)

UPDATE: Holy cow, our wedding page is still online!

I’ve been a Dreamhost customer since 2000. In that time, I found a lot to like about the service. It’s been convenient to use, packed with all the features I could want and then some, and seemed fairly reliable.

But if you were to search Twitter today for the word “Dreamhost,” you’d have found an uprising. Hundreds, if not thousands, of DH customers lost all their incoming emails this morning due to an unspecified failure of the spam filter… because when you upgrade a spam filter for thousands of users, you definitely want to do that first thing on a Monday morning. (None of those businesses needed their email, anyway.) Support? Completely non-communicative.

Well, that wasn’t all. A Twitter search for Dreamhost this evening shows that, not only had they failed to resolve the email problem for many users, literally dozens of web servers and database servers collapsed under the strain of… well, no one seems exactly sure.

Dreamhost did not cover itself in glory this day. In fact, I can’t imagine doing more damage to one’s own business than Dreamhost did.

As for me, I expect that I’ll be moving to a new web host mighty soon. Feel free to leave me recommendations in the comments.

(Photo source: niña mala under a CC License… see also Baby Chucky)

Instead of putting a generic URL in your Twitter profile, some folks think it’s better to have a custom “landing page” meant especially for Twitter users to learn more about you.

In lieu of actual fun, I thought I’d try that out.