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Thursday, February 28, 2002

Ads, begone. A fine investment of the $12 that was burning a hole in my PayPal account. 'Fact, my goodwill toward the world of blogs, blogging tools and bloggers is at such a high I may have to donate to this fellow's Cadillac collection fund. (Doc, you're a wonder that you find these folks.) What could be cooler than being this guy's "Soul Brother" or just plain being a "Stone Pimp," I ask you? (I'd love to compile a list of the strangest things one can support via easy online payment - Fang comes to mind - if you have any ideas).

Wednesday, February 27, 2002

Color me Rainbow, with a Bite Just got the e-mail that the Mac is on its way. Shipped. Having departed from Apple. Wheee! And I have to pound Jeneane heartily on the back for her incredible feat today with Blog Sisters. To go from sending invites at 9.50 a.m. pst, to catching the eye of Gary, RageBoy® and Doc before midnight - you are a whirling, blogging dervish.

Tuesday, February 26, 2002

DeCSS decision under review California's Supreme Court voted last week to review the DVD Copy Control Ass'n v. Bunner case. In that case, the Sixth District Court of Appeal (San Jose, CA) held the dissemination of DeCSS - the code that breaks DVD copy protection - is constitutionally protected free speech, deserving of more protection than trade secrets: "DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSS-encrypted DVDs. Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about decryption of DVDs without CSS." By granting review, the CA Supreme Court has the opportunity to reverse the appellate court's decision and reinstate the trial court's injunction. Strange mirror site What do you suppose is up with this: Appears to take you to the Blogger home page.

Monday, February 25, 2002

History My husband started me thinking last night about when exactly the web became part of my daily existence (the implication being that I'm spending a good deal more time on it these days than once was the case). "You weren't on the internet when we got married," he argued (the implication being that if I had been, perhaps he would have known enough to rethink the whole silly enterprise). That was in May, 1997, and as I was quick to point out, hubby couldn't have been more wrong. I ("we") could not have pulled off our wedding without the internet, as it took place out of state and was aided throughout by online planning. This got me wondering how exactly I went from being web-free to web-dependent in less than a decade (seriously, I have no idea how I practiced law for several years without it), and the following time-line began to take shape. I set it forth here because it was illuminating to reflect, and I wonder whether others have wended their way to here and now in like manner. Fall, 1986; Los Angeles, CA. Discovered Honors Collegium computer lab at UCLA (a cubby-hole of a place in Kinsey Hall) while taking a course that looked a lot like this one. Put lab to use writing applications to get into law school and senior English thesis (WordPerfect 4.1 for DOS was hot stuff). Internet access? Maybe, 'cause UCLA was a trailblazer, but I'm betting this particular lab was too far north of Boelter Hall to have been wired. If it was, I never saw it. Winter, 1987 - Winter, 1990; Berkeley and SF, CA. Used (and misused) dad's 286 mHz, IBM-clone throughout law school. Modem free. It astounds me now that the Well was going on right under my oblivious nose, although my hip friend Jen tried to clue me in. Used a computer lab infrequently on-campus and noticed that folks there were using something called e-mail. Was intrigued. Used Lexis and Westlaw for research in Boalt's library, which at that time did not run on personal computers but on their own branded workstations. Winter, 1990 - Spring, 1991; Newport Beach, CA. Torture! Brought Dad's computer to work at new law firm. Still modem free, and no other online access. It boggles the mind how I accomplished any legal research. We begged library privileges off a firm upstairs, and when it was "really important" they'd let me on Lexis. My then-boyfriend's (now husband's) firm had better resources, so he helped out too. Spring, 1991 - Spring, 1994; Newport Beach, CA. Firm moved office space and upgraded (created) network. Tiny p-to-p LAN (do people still use LANtastic?) with a 9600 baud modem in the library for Lexis access (heaven!). File and print-sharing big benefit of network. 5 1/4 inch floppies and WordPerfect 5.1 for DOS the standards. Summer, 1994; Newport Beach and Los Angeles, CA. Friend's husband Peter using something called Prodigy. Couldn't get enough of it. Ol' 286 permanently donated to law firm. IBM PS1 486 sporting Windows 3.1 joined family. Exchanged first ever e-mails with Peter, first on Prodigy then on AOL (when it was still kinda cool and not a bit evil). We thought it was great we could now keep in touch and avoid toll calls. Loaded up Mosaic, then Netscape. I think we were able to get to Yahoo or some nascent form of it. Spring, 1996; Newport Beach, CA. Convinced law firm to do major network overhaul. Windows NT on the server side (we nixed Novell). Win. 95 and Netscape 2.0 on all the workstations. E-mail galore (periodically vicious intrafirm exchanges of it, which did nothing for the outfit's long-term health). Welcome to Word (6.0). One shared ISDN line for 20 users, which we considered faster than the Indy time trials. Couldn't believe how much you could do and find online, and began sending "WOW - Websites of the Week" to all the lawyers. Learned the hard way 'bout viruses (nothing fatal, just illuminating). September 20, 1996; Newport Beach, CA and Seattle, WA. My first-ever Amazon order (which frighteningly enough pre-dates the first Amazon page stored by the Internet Archive folks). Fall, 1996 to Present; Newport Beach and Los Angeles, CA. Web part of all personal and business aspects of daily life. Planned wedding online, bought car online, looked for house online. Husband actually started using e-mail (at work). In the fall of 1998, switched firms to specialize in appellate law. Audible turned me on to EGR, and EGR turned me on to blogging. Read Cluetrain in 1999 and sent copies to everyone I thought could would care. Read Gonzo in 2001 and did the same. Started getting TechTV on cable in 1999 and began love/hate relationship with The ScreenSavers (love most of the content and guests; hate the shameless promotion and the strange looks it draws from the husband). Tried Homestead and Bigstep for do-it-yourself web sites - good exercises but some scary results (my poor dad still has to live with his Homestead site, as his publisher put it on the book jacket). The proliferation of blogging tools holds such promise for folks like me, who have been spectating since early on and who may be inclined to participate. The question, I suppose, as Mr. Dvorak is apt to point out, is whether "we" hold promise for "you."

Saturday, February 23, 2002

Get Your Joy On Was out of town for a day or so. Just imagine the thrill at being welcomed home in this manner: (1) in the Outlook inbox: "Thank you for your recent order number XXXXXXXXXX for Apple's new iMac! We are very excited about the new iMac and the extraordinary response from our customers! We have started shipping the new iMacs to customers in the order they were received, and your iMac will be shipping within the next 5 business days." (2) in the curbside mailbox: the oh-so-swank Blogger "baby tee" from Cafepress. Snug yet stretchy, perfect with jeans. We must have these for Gonzo Engaged if a Cafepress store materializes; they're da bomb.

Friday, February 22, 2002

Audible Utterances Cluetrain got a plug from Leo Laporte yesterday, as did Audible. Audible is near and dear to my heart because that's where I first found this RageBoy fellow... Enter "christopher locke" in the Audible search box today and up will pop 11 double-barreled EGR issues, ranted into a mic by the man himself, as well as the audio versions of Cluetrain, Gonzo and a May '98 IDG recording that includes "On Professionalism, Writer's Block, and The Gonzo Manifesto: Christopher Locke, a.k.a. RageBoy, dismantles the trappings of adulthood to expose their seamy underside." Nothing like a little trapping dismantling to make a commute or flight hum right along, hmm?

Wednesday, February 20, 2002

B-2-Blog A dear friend is the head of communications for one of the mega toy retailers (not Toys-R-Us, but you get the gist). We have had some interesting discussions about weblogs lately, and I sent Gonzo Marketing along some time ago. Interest is high - but so is skepticism - as I make suggestions about how corporate/employee and corporate/customer relations might be strengthened if they begin using weblogs within the company and beyond. I am trying to assemble "further reading." Rebecca Blood's history is good, as are Pyra's comments about facilitating "team/department/company" communications. But hasn't Dave Winer written more extensively on this? (I'm coming up empty on And others, no doubt?

Sunday, February 17, 2002

You Don't Own Me But I'm Your Genome - A Primer On Why Genetic Material Is Patentable This post answers a call to the Bag and Baggage request line from Frank Paynter, who noticed that legal developments can sometimes divert me from more critical blogging concerns like whether Doc has made it safely home to the Southland (occupational hazard, both ways). Frank is interested in gene patents, and asks "How can they patent that?" This question continues to spark much debate in intellectual property and biotechnology circles. To understand the answer, it helps to break things down piece by piece. Patents. Patents protect inventions, and allow the patent owner to prevent others from selling, using or making the particular item, usually for a term of twenty years. The United States Patent and Trademark Office (USPTO) recognizes three types of patent: (1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof. (2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and (3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants. In addition to falling within one of the classes listed above, to qualify for a patent an invention must be new (something that no one has created and made public), useful (more than merely theoretical) and unobvious (something that others in the field do not generally know about or take for granted). Gene Patents. Most of the debate about patents for gene-based inventions has focused on whether they satisfy the usefulness prong. The widespread availability of modern gene analysis tools also raises questions about the obviousness of these inventions. The law in this area is far from settled and differs from country to country, but here in the United States the USPTO addressed the major challenges to gene patenting in commentary and guidelines issued last year. The USPTO presumably will continue issuing gene patents in accordance with these guidelines until Congress enacts contrary legislation, or until the Federal Circuit (the U.S. Court of Appeals that hears patent matters) or the Supreme Court takes issue with the USPTO's reasoning in a case involving a challenge to a gene patent. Specific Challenges To Gene Patents And The USPTO Response. "Discoveries are not patentable." The USPTO rejects the argument that while inventions are patentable, discoveries are not. It feels that discoveries are patentable as long as the various statutory requirements (of newness, utility and nonobviousness) are met. The USPTO points out that the U.S. Constitution uses the word "discoveries" where it authorizes Congress to promote progress made by inventors. It also notes that the patent statutes themselves authorize the issuance of patents to those who "invent or discover" new things. "Thus, an inventor's discovery of a gene can be the bases for a patent on the genetic composition isolated from its natural state and processed through purifying steps that separate the gene from other molecules naturally associated with it." One cannot patent the bare "nucleic acid molecular structure for a newly discovered gene." Instead, the inventor must provide "a specific, substantial, and credible utility for the claimed isolated and purified gene." When these requirements are satisfied, a patent may be granted. "Genes exist in nature, are part of our heritage and are not inventions." According to the USPTO, isolated and purified genes and synthetic DNA compounds do not occur in nature in those forms. Looking to historical examples, it observes that there is nothing new about patenting compositions or compounds isolated from nature, such as Louis Pasteur's patent on yeast. "A patent of a gene covers the isolated and purified gene but does not cover the gene as it occurs in nature. Thus, the concern that a person whose body 'includes' a patented gene could infringe the patent is misfounded. The body does not contain the isolated and purified gene because genes in the body are not in the patented, isolated and purified form. When the patent issued for purified adrenaline about one hundred years ago, people did not infringe the patent merely because their bodies naturally included unpurified adrenaline." Moreover, Congress intended patentable subject matter to be "anything under the sun that is made by man." The U.S. Supreme Court concurs that a patent may cover "a nonnaturally occurring manufacure or composition of matter - a product of human ingenuity." Thus, the USPTO concludes that "DNA compounds having naturally occurring sequences are eligible for patenting when isolated from their natural state and purified, and when the [patent] application meets the statutory criterial for patentability." "Genes are at the core of what it means to be human, and no person should be able to own/control something so basic." In response to this challenge, the USPTO tries to clear up a common misconception - that a patent confers "ownership." It doesn't. A person holding a patent simply has the right to "exclude other people from making, using, offering for sale, selling, or importing the composition for a limited time. That is, a patent owner can stop infringing activities by others for a limited time." (Sounds a lot like ownership, though, doesn't it?) The Biotechnology Industry Organization (BIO) is quick to make this distinction as well: "A patent on a gene ... does not confer ownership of the invention to a company or university. The patent protects their invention from third party theft by a second company or university engaged in commercial activity." "Gene patents are overbroad because they may cover uses which are unattainable, unproven or unforeseen." The USPTO responds that a patentee is required to disclose just one "utility" for the invention in order to obtain a patent. "The patentee is not required to disclose all possible uses, but promoting the subsequent discovery of other uses is one of the benefits of the patent system ... Other inventors who develop new and nonobvious methods of using the patented compound have the opportunity to patent those methods." Additionally, although a gene patent permits the patent owner to keep competitors from using the gene for any purpose during the life of the patent, when a new use is discovered "that new use may qualify for its own process patent, notwithstanding that the DNA composition itself is patented." "Patents on genes will delay or discourage medical research." The USPTO does not agree, and believes instead that "the incentive to make discoveries and inventions is generally spurred, not inhibited, by patents." For its part, BIO likewise asserts that "a patent has no impact on an academic researcher not engaged in commercial activity." Academic researchers are protected from patent infringement actions by an "experimental use" exemption. "DNA sequencing has become so routine that determining the sequence of a DNA molecule is not inventive." The USPTO rejects the argument that gene-based inventions should be assumed to fail the "obviousness" test. It prefers to review the applications on a case-by-case basis. "Whether a claimed DNA molecule would have been obvious depends on whether the particular structure of the DNA would have been obvious to one of ordinary skill in the art at the time the invention was made." "Genes only should be patentable when the complete sequence is disclosed and a function for the gene product has been determined." The USPTO thinks such a requirement would set the bar too high. It is enough to "adequately describe the compound" - such as by structure, formula, chemical name or physical properties - and disclose how to make use of it. Given the USPTO's positions on these and related arguments, genes are and will remain patentable in the U.S. unless Congress or the courts step in to impose broader limitations. For some thought-provoking further reading, check out Professor Lessig's The Future Of The Commons: The Fate Of Ideas In A Connected World, James Boyle's Shamans, Software and Spleens, and Seth Schulman's Owning The Future. And, in other words - all your [nucleotide] base are belong to us.

Tuesday, February 12, 2002

Fair Use Parameters For Deep Linking: It is pretty astounding, since most of the internet routinely relies on deep linking, that the legality of this practice remains the subject of such vigorous debate. Courts have had a difficult time determining when copyright or other laws might curatil links to other sites, particularly when the link circumvents a site's home page (where advertising, terms of use or disclaimers might be displayed). Last year, two federal trial courts in California reached opposite conclusions about how aggregation sites - like My Simon, or Best Book Buys, for example - are permitted to link to content within other sites. In one of those cases, Central District Judge Harry Hupp observed that purely factual material is not copyright protected, and providing a fact-based link - that states, for example, that Ticketmaster sells tickets for a given concert at a given price - is perfectly acceptable. According to Judge Hupp, "What is protectable is the manner in which the idea or knowledge is expressed. Thus, Longfellow was free to take the famous facts of the ride of Paul Revere and tell the story in his own incomparable words - no one can copy the words, but anyone may tell the story in his own words (if not as well). The major difficulty with many of plaintiff's theories and concepts is that it is attempting to find a way to protect its expensively developed basic information what it considers a competitor and it cannot do so." Judge Hupp's reasoning was not taken up, however, by his colleague Judge Ronald Whyte in considering a similar case involving eBay. Judge Whyte found the actions of auction aggregator Bidder's Edge to be a prohibited trespass, and granted a preliminary injunction against that company that played a role in its ultimate demise. Had either of these cases continued, the Ninth Circuit Court of Appeals would have had the chance to consider the legaility of aggregation and deep linking. However, both cases were resolved before appeal. The linking question thus has remained an open one in this jurisdiction and others. (To appreciate the global scope of this debate, pay a visit to Stefan Bechtold's Link Controversy Page.) Recently, the Ninth Circuit has helped clarify at least the copyright portion of the analysis. In its February 6, 2002 Kelly v. Arriba Soft Corporation decision, the Court considered whether the visual search engine - which displays results as images - infringed the copyrights of Leslie Kelly, who exhibits California gold country photographs throughout his web site. As a visual search engine Ditto displayed two types of images - thumbnails, and, when the thumbnails were clicked, full-sized images - by inline linking to their original location. In other words, Ditto did not download images to its own servers, but imported them directly from other sites. The Court concluded that Ditto's thumbnail links were a fair use under U.S. copyright law, but that displaying the full-sized images was not, and instead constituted copyright infringement. The Court's analysis turned on the four "fair use" factors identified by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1974), and applied those factors to the types of images that Ditto was displaying. Concerning the thumbnails, Ditto fell within the fair use doctrine because the use was "unrelated to any esthetic purpose," and instead functioned "as a tool to help index and improve access to images on the internet and their related web sites." Ditto's purpose in displaying the thumbnail links was not "artistic expression" - in contrast to Kelly's use of the pictures on his site to illustrate and add to the attractiveness of his presentation. The thumbnail image links did not "supplant the need for the originals," but rather benefitted the public "by enhancing information gathering techniques on the internet." The thumbnail links also did no harm to the market or value of the images as used on Kelly's site; in fact, they had just the opposite effect: "By showing the thumbnails on its results page ... the search engine would guide users to Kelly's web site rather than away from it. Even if users were more interested in the image itself rather than the information on the page, they would still have to go to Kelly's site to see the full-sized image." Ditto's use of full-sized image links was a different story, however, and did not fall within the fair use doctrine. Providing full-sized images did not increase the functionality of the search engine, and could - in contrast to the thumbnail links - discourage users from visiting the originating site. As the Court observed, "any user who is solely searching for images would not need to do so," since the search engine itself provided what the user was after. The Ninth Circuit thus has struck a reasonable balance in its Kelly decision by respecting copyrights while also acknowledging that links to copyrighted material can serve the selfsame goals. As the Court observed, "The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike." By finding Ditto's thumbnail linking to be a fair use, the Court helped ensure "the potential future use of artistic works for purposes of teaching, reasearch, criticism and news reporting," as contemplated by the overall framework of the copyright laws. Presumably as the result of the decision, the search engine no longer provides search result links in full-sized image format. (And, presumably because Ditto no longer wants to promote the site of someone who sued it, Ditto produces no results at all for "Leslie Kelly" or his "ShowMeTheGold" domain).

Sunday, February 10, 2002

Word/Works Compatibility: So, my dad the writer/fisherman has been known to disappear into the mountains for weeks on end, and last year bought a stripped-down e-Machine for his home away from home. He was a bit surprised to learn that the Works documents generated there won't open in Word when he gets back to the ranch. ("Whaddya mean they're not compatible? It's all Microsoft, right?" "Yeah Dad, lemme tell ya a thing or two about Microsoft...") Microsoft, of course, has no patch for the "older" versions of Word, but the folks at the Buffalo State University of New York were kind enough to step into the breach: their Works to Word converter does the trick nicely (supplements Word '97 and 2000 to cause Works docs to be automatically converted when launched). I love that people make such useful tools available for free (don't get me started on YACCS - how neat is that? And we mustn't forget Blogger...), and that Google lets you find them in two clicks -

Hooray for the YACCS comment feature, now appearing here.

Saturday, February 09, 2002

Ok, I really owe one to Gary Turner over at Blogstickers for ratting me out about my new co-counsel and trusted confidante, Teddy. Not sure what sort of retribution will follow, but it should be swift and severe.

Monday, February 04, 2002

This is a variation on something that has circulated before but it remains a howler, and is fun to creatively (?) supplement (see below): (Forwarded by Crosby IT guru Greg Holmes): Dear Tech Support: Last year I upgraded from Boyfriend 5.0 to Husband 1.0 and noticed a slow down in the performance of the flower and jewelry applications that had operated flawlessly under the Boyfriend 5.0 system. In addition, Husband 1.0 un-installed many other valuable programs, such as Romance 9.9, but installed undesirable programs such as NFL 7.4, NBA 3.2 and NHL 4.1. Conversation 8.0 also no longer runs and Housecleaning 2.6 simply crashes the system. I've tried running Nagging 5.3 to fix these problems, but to no avail. What can I do? Signed, Desperate. Dear Desperate, First, keep in mind that Boyfriend 5.0 was an entertainment package, while Husband 1.0 is an operating system. Try to enter the command: C:/I THOUGHT YOU LOVED ME and install Tears 6.2. Husband 1.0 should then automatically run the applications: Guilt 3.3 and Flowers 7.5. But remember, overuse can cause Husband 1.0 to default to such background applications as Grumpy Silence 2.5, Happy Hour 7.0, or Beer 6.1. Please remember that Beer 6.1 is a very bad program that will create Snoring Loudly.WAV files. DO NOT install Mother-In-Law 1.0 or reinstall another Boyfriend program. These are not supported applications and will crash Husband 1.0. It could also potentially cause Husband 1.0 to default to the program: Girlfriend 9.2, which runs in the background and has been known to introduce potentially serious viruses into the Operating System. In summary, Husband 1.0 is a great program, but it does have a limited memory and can't learn new applications quickly. You might consider buying additional software to enhance his system performance. I personally recommend Hot Food 3.0 and Single Malt Scotch 4.5 combined with such applications as TummyTuck 3.6D and that old stand-by . . . Lingerie 6.9 (which have both been credited with improved performance of his hardware). Good Luck, Tech Support (From me back to Greg): Thank you for your query to the Husband 1.0 Knowledge Base. We consider Out With The Boys 2.2 to be an acceptable work-around for these issues but only if used sparingly, as this application poses a virus risk similar to any of the commercial releases of Girlfriend. Along these lines, if you have not already done so please visit the Husband 1.0 Update page immediately and download the Critical Updates package. This security patch addresses a vulnerability in Husband 1.0 which may permit a malicious hacker to install and run the beta application Girlfriend OS X from a remote location. While Girlfriend OS X has received unprecedented positive feedback as to usability, the resulting denial of service attacks can be devastating.

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