There's something a little... disturbing about how gleefully Microsoft seems to want to sic antitrust regulators on Google. Given that the company went through its own long antitrust battle, you'd think that it would know better than to continually invoke the government's antitrust legal beagles against others. Instead, it seems to have taken the position that if it had to go through the antitrust rollers for so long, why shouldn't other successful companies. We've noted in the past Microsoft's fingerprints showing up on bizarre and silly antitrust claims against Google -- which have so far gone nowhere -- but Microsoft seems really intent on saddling Google with a long and costly antitrust battle. I guess Microsoft thinks it's easier to fight Google that way than, you know, actually innovating and competing in the marketplace. It's pretty sad just how anti-innovation these efforts are.

Either way, Microsoft appears to be stepping up its "saddle Google with antitrust charges" battle by hiring Randall Long from the FTC. Long was the key "anti-Google" lawyer within the FTC, who led multiple antitrust investigations into Google, and recommended that the FTC block Google's acquisition of AdMob (something he was outvoted on). Microsoft doesn't even seem to want to hide the fact that his role will be to lobby politicians in DC to hit Google with antitrust charges. The WSJ's report on the hiring is pretty explicit:

As part of his new job, Mr. Long will likely continue those efforts before the FTC and other agencies, a person familiar with the matter said.

Of course, if Long actually follows the rules, he shouldn't be allowed to do anything concerning any FTC investigations into Google for quite some time. The ethics rules are pretty clear -- even barring "behind-the-scenes" help on such investigations:

Except as provided in this section, or otherwise specifically authorized by the Commission, no former member or employee (“former employee” or “employee”) of the Commission may communicate to or appear before the Commission, as attorney or counsel, or otherwise assist or advise behind-the-scenes, regarding a formal or informal proceeding or investigation...

That certainly suggests that Long cannot and should not "continue those efforts before the FTC" for some time. Either way, it's yet another example of the questionable revolving door between government and the private sector, where ex-government officials end up in roles that have a very close connection to their former government role (or vice versa). Even assuming that Long follows all the rules, as I'm sure he intends to do, this kind of thing just looks really bad.

Over the last few months, there was a fascinating "real" experiment going on. A mobile apps guy named Jonathan Stark opened up his Starbucks mobile app code to the entire world so they could give or take (if there was any money available) at will. He was pretty clear that it was a "social experiment" and he did it to see what happens -- not because he necessarily wanted something specific to happen. The info was available for a few weeks without much happening, and then some blogs, followed by the mainstream press, picked up on it, and suddenly it got lots of attention and a fair bit of usage. That's when something really interesting happened. A guy named Sam Odio heard about it, set up a script that would monitor the amount of money on the card and alert him every time it hit a certain amount. While sitting at a Starbucks, each time the card had enough money on it, he transferred money to his own cards. He sat for about five hours in a Starbucks and was able to effectively "skim" $625 from the card.

And while he noted that $625 is the price of an iPad, and provocatively titled his post "How to use Jonathan's card to buy yourself an iPad," in this case Odio took the $625 he got and decided to put the cards on eBay with a promise to donate any proceeds to charity (eBay has a system to confirm that proceeds are donated to the charities named).

Suddenly, the social experiment got even more interesting from a variety of angles. The general sense of "the internet mob" was that Odio somehow "abused" the system or did something wrong. People have called for him to be arrested or physically harmed. Apparently some have reported him to the FBI.

As this was going on, Odio reached out to Stark and asked him if he was okay with how this was going. Stark upped the social experiment another degree by simply posting Odio's email and responding publicly that:

My impression is not the one that matters. The impressions that matter are those of the people who have been touched by and participated in Jonathan’s Card. If you’d like to speak to them, you can do so on their Facebook page.

Again, the general community response is that Odio is somehow evil. Others are arguing that he somehow "ruined" the experiment. To be honest, I don't see the logic in most of these arguments, though I understand the emotional place from which they come. Part of the reason why people jumped in to support the whole Jonathan's Card experiment is because people really do seem to like supporting these types of experiments where it allows people to "feel" altruistic in some ways while supporting the view that humans are "generally good." Odio's simplified skimming presents a bit of a shock to the system to a bunch of people who have bought into the argument that "here's an experiment that shows people are basically good," because it feels like he's taking advantage of the system.

I'd argue that emotional feeling, while a legitimate feeling, is misguided. Stark set this up as a social experiment and part of that experiment is what happens and how people react when things don't quite go according to plan. To some extent, Odio was also just tweaking the knobs on the experiment to see how more people reacted (and, in the end, one could make an argument that what he did may have a better societal benefit than what Stark did). But, obviously, the point that many people are upset about is not that aspect, but just the fact that someone didn't use the card as those other users thought it was intended to be used. But, the important thing is that Stark made no such restrictions, and Odio doesn't appear to have broken any laws. He did exactly what Stark allowed when he made the card public.

If anything, part of the social experiment's results was a reminder that someone could do things like this. But the flipside to the experiment is how the community of supporters reacted, generally acting to express clearly to Odio that they did not like his actions. While that sort of response might not really matter to someone who just wants to take money for free, community pressure can be quite effective in other cases. The real issue, to me, however is that community pressure can be good in some scenarios, but can border on going overboard and creating a "burn him" pitchforks & torches mob at times -- and in a few instances seemed to border on that in this case. While I'm a big believer in the ability of communities to police behavior, I do worry about when a community makes an emotional response that isn't always completely rational, as may have happened here.

All in all, if you view this very much as an experiment, there's a lot to learn from it. You can see some interesting group dynamics. How people respond to opportunities to be altruistic or to benefit from altruism. And how communities respond when "unwritten" or even "unspoken" rules may be broken, even if they don't actually violate any real rules. I find it hard to "side" with Stark or Odio or the community here, as it's one of those cases where I think (and hope) both Stark and Odio have viewed this mainly from an impartial "this is interesting, let's see what happens" standpoint, rather than any big moral claim.

Either way, for now the experiment is over. Last Friday, Starbucks finally realized what was going on and shut down the card. Still, I imagine we'll be discussing the implications of this and similar experiments for a long time.

When we talk about the differences between infringing on the copyright of content and concepts involving copying tangible goods, one of the examples we often use is the idea that if you bought a chair, and then decided you wanted a copy of that chair and went and made one yourself, that's usually perfectly legal (barring certain limited trademark or potentially patent issues). Of course, in an era where we've taught people that they get to "own" concepts, people get upset about these kinds of things and will try to twist laws to make it "wrong."

Reader Valerio points us to a truly bizarre lawsuit, filed by a small antiques shop, called Obsolete, in Los Angeles against the large retailer, Restoration Hardware. The complaint? That Restoration Hardware bought some lamps from Obsolete and then made similar lamps for sale in its own stores. Think about this for a second. These are not lamps that Obsolete made or owned any other rights to. It simply owned those particular lamps, which it then sold, meaning it no longer had any rights to those lamps.

There's no justifiable intellectual property claim here (because that would be laughed out of court in seconds), so the antiques shop owner tries to come up with ways to twist other laws into making this action illegal. He claims that since the buyer did not admit that she worked for Restoration Hardware, and it's Obsolete's general policy not to sell to retailers or competitors, this was intentional misrepresentation, fraudulent concealment, negligent misrepresentation, false advertising and unfair competition. However, on the website that Obsolete has set up about the case, the owner is more direct, claiming that it's about "ethics."

Funny, but I don't see anything whatsoever unethical about buying nice antique lamps and then making newer, cheaper versions for sale to people who want to buy them. I do however see plenty that's unethical in suing a company and twisting the law because you don't like what a company has done.

I can't see how any of these claims can really stand up. The first three charges rely on California civil codes 1709 and 1710. Both laws are clearly intended for outright fraud that causes harm. I can't see how either apply. This wasn't a case of fraud. This is a case of someone purchasing a product legitimately. That Obsolete doesn't want those products to end up at other retailers is not a legal issue. It's not something Obsolete really has control over. The "false advertising" claim appears to be based on Obsolete saying that Restoration Hardware implied it found these objects itself. It did. It found them from him. Just like he found them from someone else. I don't see how that's false advertising at all. The "unfair competition" claim doesn't seem to be clearly stated or explained at all. It's basically -- yet again -- Obsolete claiming it doesn't like this.

Furthermore, it's hard to see how there's any harm here. In fact, in the lawsuit itself, Obsolete admits that Restoration Hardware's versions of the lamps don't have "the quality, historical significance, artistry, or any of the other characteristics prized by Obsolete and its clients." In other words, in its own lawsuit, Obsolete flat out admits that these knockoffs don't harm Obsolete, because Obsolete's customers are discerning and want the real thing instead of the copies. Frankly, I'm sort of amazed that Obsolete completely undercuts its own argument directly within its own filing. This also completely refutes the unfair competition claim, since Obsolete itself admits that Restoration Hardware isn't competing for Obsolete's customers.

Either way, this is yet another example of the ridiculous results you get when you build up the belief that ownership extends beyond physical items to some sort of amorphous intangible "right." In this case, it's not intellectual property, but Obsolete's bizarre claim that only it can ever have any connection with such lamps.

About a month ago, we pointed out an effort by an anonymous concerned citizen who has been tracking the massive increase in these P2P file sharing shakedown lawsuits, that are all about sending "pre-settlement" letters and getting people to pay up, rather than really taking all these people to court. So far, the courts have been pretty good about dumping many of the cases that involved thousands of defendants, noting that it makes little sense to put them all together in a single case. The person who made that epic spreadsheet is continuing to keep it updated, and it shows about 110,000 people sued: Of course, what this also shows is that approximately 40,000 defendants have been dropped from these cases, mainly after judges pointed out how bogus it was to join so many defendants into single cases. However, the EFF is noting that it's received reports that some of the law firms involved in these schemes may still be sending subpoenas to defendants already dismissed from cases. Similar to Evan Stone's sending subpoenas before a judge had okayed it, this suggests a massive breach of legal ethics. Sending a subpoena on someone that a judge has already dismissed from the case? That seems like a strategy for trouble.

A friend passed on this Telegraph story about how 200 students in a Strategic Management class at the University of Central Florida came forward to admit to "cheating" on the midterm exam after the professor in the class, Richard Quinn, gave a lecture where he noted the evidence that about 1/3 of the 600 student class had "cheated" on the exam. He then gave them an option: saying that, if they admitted to cheating within a week,re they would be able to complete the class and the incident would not go on their record and they would not face discipline (they also had to take an ethics class). If they did not, and they were still caught, then they could face expulsion for violating academic integrity policies. You can watch the video of the lecture here: Not surprisingly, the story of 200 students "turning themselves over" made all sorts of headlines. It's a good story of "cheaters" being pressured into 'fessing up... right? It's leading to typical hand-wringing stories about what should we do about cheating in schools. But, as I watched the video, the whole thing started to feel just a little bit off... My main interest was to learn two things: (1) what the students did to cheat and (2) how the professor was identifying who cheated. Both points seemed like pertinent details.

The answer to that first one surprised me. The "cheating" was that students got their hands on the textbook publisher's "testbank" of questions. Many publishers have a testbank that professors can use as sample test questions. But watching Quinn's video, it became clear that in accusing his students of "cheating" he was really admitting that he wasn't actually writing his own tests, but merely pulling questions from a testbank. That struck me as odd -- and I wasn't really sure that what the students did should count as cheating. Taking "sample tests" is a very good way to learn material, and going through a testbank is a good way to practice "sample" questions. It seemed like the bigger issue wasn't what the students did... but what the professor did.

In looking around, it looks like a lot of the students agree. They're saying that the real issue is that Prof. Quinn simply copied questions from the publisher, rather than actually recreating his own test, and noting that this seems like a massive double standard. The professor is allowed to just copy questions from others for his tests? In fact, some of the students have put together a video pointing out that, at the beginning of the year, Prof. Quinn claimed that he had written the test questions himself. As the article notes:

Can the UCF students be blamed for using all the available tools to study for the test? How were the students to know that Quinn would take his questions from the test bank, when he explicitly said that professors do not do so any more? Moreover, why did Quinn tell his students that he is the one who creates the mid-term and final exams, when in fact it wasn’t so?

The students have put together a video pointing out where he said (in the first lecture) that he writes the questions himself: The local student news operation sent a reporter to speak to Quinn and ask him about the double standard and his copying of questions, and Quinn totally ignored him: Now, there's a pretty good chance that some of the students probably knew that Quinn was a lazy professor, who just used testbank questions, rather than writing his own. That's the kind of information that tends to get around. But it's still not clear that using testbank questions to study is really an ethical lapse. Taking sample tests is a good way to practice for an exam and to learn the subject matter. And while those 200 students "confessed," it seems like they did so mainly to avoid getting kicked out of school -- not because they really feel they did anything wrong -- and I might have to agree with them.

We've seen plenty of stories over the years about professors trying to keep up with modern technology -- and I recognize that it's difficult to keep creating new exams for classes. But in this case, it looks like Prof. Quinn barely created anything at all. He just pulled questions from a source that the students had access to as well and copied them verbatim. It would seem that, even if you think the students did wrong here, the Professor was equally negligent. Will he have to sit through an ethics class too?

There was some attention last week, to the fact that Digg had apparently allowed BP to step in as a sponsor on the site -- and I do admit that, at a first pass, the image presented does not look good: The article uses this example to suggest just how desperate Digg has become in the wake of its redesign, which resulted in many users revolting or going elsewhere. However, Chas Edwards from Digg, actually makes a pretty good point in responding to the article, in noting, first that the BP catastrophe is horrifying:

The deaths, the images of oil-soaked birds, and the enormous environmental and economic tragedy they symbolize, are deeply painful. For people above a certain age, they likely trigger traumatic memories of another gigantic and horrifying oil spill, when the captain and crew of the Exxon Valdez tanker crashed in waters off Alaska and spilled millions of gallons of oil into the ocean.

However, he then notes that the very same Atlantic article which mocks Digg for taking money from BP... happens to have been sponsored by Exxon: Edwards points out that there are always issues in ad-supported media, but the mocking tone was unnecessary and somewhat hypocritical given The Atlantic's own sponsorship practices.

At times, we've had the same sort of debate here. Do we take advertising money from companies we disagree with over certain things? There's one argument that says that you should never agree to allow advertising from a company you disagree with. The flip-side might be that if a company you don't like wants to give it's money to you, perhaps you can put their money to much better use. In the end, I tend to view it in the same manner as I view censorship of unpopular speech: I'd rather let everything be out in the open, clearly stated, rather than trying to suppress views.

When I was in Germany recently, speaking at an event, a German guy in the audience got up and read aloud a comment on Techdirt that said less-than-nice things about Germans, and demanded to know why I had not deleted the comment (noting that, under German law, I was legally responsible for those comments). Beyond the ridiculousness of German law that puts the liability on third parties for others' speech, I noted that free speech means allowing free speech for all -- and if that includes ignorant speech, it's better to let that ignorance out into the open where it can be countered and responded to, rather than trying to hide it and delete it. I said that blocking or simply deleting such speech only reinforces the ideas of those who make such speech that they're saying something so "truthful" the world can't bear to hear it. I don't think that pushes the conversation forward.

Now, obviously, advertising is not the same kind of "speech" as discussed in the paragraph above, but there is something to be said for allowing companies to advertise in an open manner, and allowing the discussion to then occur, even about that advertising -- something Digg tends to encourage openly. It's been said that the best response to speech you don't like isn't censorship, but more speech -- and I would argue that applies to advertising as well. Now, I'm sure some will cynically say that, of course anyone who accepts advertising will want to accept whatever ads they can to make money. But I think that sites like Digg, which have been pretty careful not to go down the road of really annoying advertising, show that they won't just do anything for money.

Plenty of newspapers who covered the BP oil spill -- including the NY Times, the Washington Post and the Wall Street Journal -- all accepted advertising from BP in the wake of the spill. I didn't see any sanctimonious articles condemning any of them for doing so. It may be tempting, at a gut level, to suggest this is somehow "wrong," but I think I'd rather BP was out there trying to talk to people -- and letting the people talk back -- than being told it can't spend its money that way at all.

Four years ago, the MPAA worked with the local Los Angeles chapter of the Boy Scouts of America to create a special "activity patch" for Boy Scouts to repeat propaganda about how evil file sharing is. For some reason, that story got renewed attention earlier this year, when a few sources came across the 2006 story without checking the date on it. While there's really nothing new on that story, it does appear that the Boy Scouts are making some absolutely ridiculous suggestions to parents about how to talk to your kids about copyright issues.

That link is to an article in the latest issue of Scouting Magazine, supposedly about the "ethics" of file sharing, and how parents should talk to their children about it. And, yet, it's entirely one-sided, quoting the RIAA's claims about "losses," but oddly leaving out the stacks upon stacks upon stacks upon stacks of research showing that musicians are making more money these days, via alternative business models. You would think that would be a relevant part of the discussion... but it's totally absent. Someone, apparently, failed their "research the facts" merit badge.

But where the article goes totally off the rails is in telling parents that their children are too stupid to understand the nuances of copyright law, and because of that, they should take an extreme position: one so extreme that they shouldn't even listen to legally burned CDs:

So how can Scouters teach ethical behavior related to music downloading? One way: Set a good example. When you haul around Scouts in your car, for example, only play CDs that you've purchased. If you play CDs that you've burned--even if they're legal--your Scouts may not recognize the difference between those and the pirated CDs friends have given them.

The article also tries to blame musicians who embrace alternative business models for making the situation more confusing:

Part of the problem, [Dr. Tony] Aretz says, lies in the Internet's free-for-all nature, where users get all sorts of content free--even information from newspapers that they would have to pay for in the real world. Bands like Radiohead have further complicated the situation by giving their music away or offering it on a "pay what you want" basis.

Note to Aretz and Scouting magazine: the internet is the real world too. And bands like Radiohead haven't "further complicated the situation." They've helped make it clear that there are smart business models that can be embraced while not turning your fans into criminals. It would seem like that's a rather important lesson one should teach Boy Scouts.

For many years I've argued that the economics of abundance is not a moral issue. This is in response to the typical moral and ethical arguments in favor of things like excessive copyright or patent law, with normative claims about how we must protect artists' or inventors' creations for moral reasons, in that it would somehow be "unfair" to have others make use of their creations or inventions. My argument, in response, has always been that the role of morality is in determining a different level of fairness, it's determining the allocation of harm. In other words, moral questions come up when there is a choice over who gets harmed. If you're in a situation where no one gets harmed, then there should be no moral question. So, in approaching an issue like intellectual property, my argument is that if you can create a solution in which the economics allow a greatly increased opportunity for everyone, then you preempt the moral question. Since everyone has a chance to be better off, if you understand the economics and apply it properly, then the only issue is one of economics -- how to best achieve that goal -- rather than morality.

However, if it's true that by doing away with the idea of intellectual property, you create greater opportunities for everyone, could you make the argument that intellectual property laws themselves are immoral or unethical in that they are actually what makes everyone worse off? Could you make the argument that by restricting the use of certain resources and restricting freedom of expression, those laws lead to unethical limitations? Put another way, if intellectual property is causing actual harm, then you could make the claim that there is a moral issue in discussing them -- in that the laws of intellectual property, by themselves, are immoral. That is, if taking away IP causes no direct harm, then there's no moral issue to discuss. But, if leaving them in place does cause harm, then that is a moral issue worth considering.

It's really not something that I had thought about, but Stephan Kinsella points us to a recent talk given by David Koepsell, who not so long ago wrote a book, Who Owns You?, all about the serious problems in patenting genes. I've actually had a few email conversations with Koepsell over the past few months, and it's worth paying attention to what he has to say. He's very deliberate and careful in his work, supporting his positions with deep levels of analysis and evidence. This talk appears to be a new area that he's taking on, trying to make the case that all intellectual property is, by its very nature, unethical: Now, I will be the first to admit that the talk itself is a bit dry at parts and rough around the edges, and at times seems to go off on tangents. But it certainly has some potential. The argument uses different language than we use here to describe some points, but they map back to the points we discuss on a regular basis pretty easily. He talks about the difference between real property and intellectual property, in that real property concepts predate the law -- predate "institutions" -- because of the brute facts of the situation. If you possess a physical good, there need not be any law saying that you are excluding others from using it. You have it. But if it's an idea or an expression, you need an institution or a law to try to exclude it from others. Effectively, he's distinguishing between what we refer to as scarce goods and infinite goods. Scarce goods, by their nature, are rivalrous and excludable. Infinite goods are not.

He also discusses that the concept of "the commons" is too simplistic, and that there are different kinds of commons. Again, there are the commons that are created through legal or institutional necessity -- such as national parks or the highway system. Without the institutions, then others would likely claim that land via possession. Keeping them as a commons is the legal attempt to avoid a "tragedy of the commons," where that property is allocated inefficiently. But, he argues, there's another type of commons as well: a commons that itself is normal that cannot be enclosed and possessed outside of the law. And that includes things like your genes, or any expression. He refers to the former as a "commons by choice," and the latter as a "commons by necessity," which is an interesting concept.

Thus, the key argument he makes is that intellectual property is an attempt to lock up the "commons by necessity," in the false belief that it is the same thing as the "commons by choice." And while he doesn't directly make this final point, what's clearly implied is this: the purpose of a commons-by-choice is to avoid the tragedy of the commons and to better allocate a scarce resource by letting everyone share it. But when we try to take a commons-by-necessity and pretend there's a tragedy of the commons when it might not exist, we actually make the allocation of resources significantly less efficient. And making a choice to limit the efficiency of a space -- such as by limiting your rights to expression or your rights to innovate or, perhaps worst of all, the rights to your own genes, you are creating harm -- and that harm is immoral.

It's definitely an argument worth considering.

Romenesko points us to a story of a West Virginia newspaper that photoshopped three politicians out of a bill signing photo that ran with a story about the bill. Here's both the original image and the one that ran: Even the photographer was shocked that his image was modified in this manner. But what's stunning to me is that the newspaper appears to be defending the decision and not backing down:

[The] reason the delegates were removed was due to the newspaper's policy not to publish pictures of candidates running for re-election during the political season....

In the newspaper, the photo caption includes the term "photo illustration" to indicate the photo had been changed.

This is a newspaper that won't run photos of candidates running for election? It makes you wonder how they report on those elections. With illustrations? And then to claim that it's okay to edit a photograph by then calling it a "photo illustration" rather than a photo that's been edited seems a bit questionable no matter where you stand on the question of journalistic ethics.

A few weeks back, we linked to the NY Times' Ethicist, Randy Cohen, explaining why it's not unethical to download a digital copy of a book, if you'd bought a hard copy of the book -- even though it probably violates copyright law. That created quite a lot of anger from folks who felt that it was clearly an ethical violation as well. Mitch Wagner, apparently missed that kerfuffle, as he's written up a short blog post for Computerworld asking people their thoughts on the ethics of downloading media that you purchased legally:

I recently got a hankering to re-read some of my favorite books. I already own them, in hardcover and paperback. But I'd like to re-read them as e-books. Do I need to buy the e-book versions, or can I download a pirated copy of the e-book for free?

The argument that says it's wrong is pretty simple, and clear-cut: When I bought the books, I bought individual copies of the books. All I own is that one copy. If I lost the copy, I wouldn't be entitled to a free replacement. It wouldn't be right for me to shoplift the book from the local Barnes & Noble. I'd have an obligation to buy a new copy, or borrow one legitimately, before re-reading the book.

On the other hand: I already paid for these books legitimately. They're my books. The shoplifting analogy is specious, because in that case, I'm depriving the rightful owner -- the owner of the bookstore -- of their copy of the book. If I download a copy of the e-book, nobody else is deprived of their copy.

However, he goes on to make another point that also deserves some scrutiny:

Every couple of years, TiVo hiccups and fails to record a favorite TV show. In that case, I have to decide whether to wait for the show to come out on DVD, or just download the episode from the BitTorrents.

Now there will be people who will claim that, due to the fact that it likely infringes on copyright to do so, it's automatically unethical. But morality isn't determined by the law. In general, I've always argued that if the economics increase the overall market and opportunity, then there's no moral issue to speak of -- and it's hard to see how someone downloading an episode their TiVo missed would harm the overall economy in any way. But, I'm guessing that some folks here will disagree...