Monthly Archives: March 2017

SJR 34, Update


In yesterday’s post, I suggested consumers of internet information should consider copyrighting their search histories to counteract passage of Senate Joint Resolution 34 by the GOP-controlled Congress.  SJR 34 allows internet service providers (ISP) to sell  user personal information, including search history, without the user’s permission.

I am not a lawyer, nor do I play one on television.  So I asked a friend who is a respected intellectual property lawyer if this concept had any validity under the law.  He pointed me to a 1991 Supreme Court decision in the case of Feist Publications, Inc. v. Rural Telephone Service Co.  Feist had included data from Rural’s local telephone directory in its regional white pages.

Prior to Feist v. Rural, courts had used what was referred to as “sweat of the brow” or “industrious collection” doctrine as sufficient justification for claiming copyright protection.  In other words, an individual or organization was given credit merely for the time and effort required to collect information.  In this decision, Justice Sandra Day O’Connor, writing for the Court, made a distinction between the collection of facts and the way they are presented.

Many compilations consist of nothing but raw data — i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. … The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality.

Justice O’Connor further argued the originality standard for copyright protection should be extremely low.  A work must “possess a spark or minimal degree of creativity to be protected by copyright.” This distinction, particularly as I believe it applies to one’s internet search history, becomes even clearer when Justice O’Connor concludes:

Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.

Under this legal standard, the fact that individuals surfing the internet choose the information and order in which they view web pages meets the “selection and arrangement” test outlined in Feist v. Rural.  If I had written a paper titled, “Best Internet Sites to Understand Intellectual Property,” listing the URLs and order in  which I compiled the information, such paper would be clearly protected under copyright law.  The “selection and arrangement” are original.  One can therefore argue a search history stored on one’s computer or in the cloud is merely a digital representation of that paper.

If you believe your search information is being sold to a third party by your ISP, the first step is to issue a “cease and desist” letter documenting the infringement.  If the ISP fails to act on the letter, you have the option of taking them to court.  The ISP may be liable for the actual dollar amount of damages and profits, ranging from $200 to $150,000 for each work infringed.  The infringer also pays all attorney fees and court costs. (Source: Purdue University Law Library)

So, if like Howard Beale in the movie Network, you’re mad as hell and you’re not going to take it anymore, there is a course of action.  If, and when, there is a legal challenge of SJR 34, I will update this information.  Stay tuned.

For what it’s worth.


Washington, Inc.


On Monday, Comrade Trump appointed his son-in-law Jared Kushner to head a new Office of Innovation.  Upon accepting the position, Mr. Kushner told the Washington Post:

The government should run like a great American company.  Our hope is that we can achieve successes and inefficiencies for our customers, who are the citizens.(Source: Washington Post, March 27, 2017)

First of all, we are not just customers.  We are also investors by virtue of the taxes we pay to support government operations and members of the board of directors as we determine who runs the company.

But let’s assume, for argument sake, there is something to be learned from the private sector. If only Comrade Trump had followed good business practices during the first 70 days of his administration.  Let’s start with  Mr. Kushner’s appointment as a special assistant to the president.  How would a publicly-held company respond to this situation?

According to leading human resource legal consultants, there is NO federal or state law which directly prohibits the hiring of family and friends.  However, most public companies have adopted nepotism rules as part of their human resource policies.  Such rules generally state the company may employ individuals with personal relationships to current employees under specific circumstances such as the following draft rules recommended by ADP to its clients.

  • They may not create a supervisor/subordinate relationship with a family member.
  • They may not supervise or evaluate a family member.
  • The relationship may not create an actual or perceived conflict-of-interest.

 Kushner reports directly to his father-in-law.  His father-in-law supervises and evaluates his performance (e,g, Trump already chastised Kushner for taking a ski vacation during the health care debate).  Without a clear understanding of the financial relationship between the Trump organization and Kushner’s real estate business, there is a perceived conflict-of-interest.  In other words, the circumstances surrounding Kushner’s hire as special assistant to the president violates several standards followed by most private sector organizations.  I guess that private sector practice does not fit the Trump world view of government as a business.

Next comes health care.  Every major public corporation provides universal health care for its full time employees.  Why?  Because the company knows investment in work force health care is an investment in the company’s productivity.  If Comrade Trump means what he says about wanting every American to reach their productive potential, Washington, Inc. would champion universal, affordable insurance coverage for all Americans.  Businesses which believe the private insurance markets do not offer the most cost effective coverage for their employees have the option of creating self-sponsored plans.  Sounds a lot like a single payer option.  Maybe government should try it!

Finally, as Kushner suggests, successful companies are customer focused.  Revenues and profits rely on the ability of the business to identify customer needs and provide goods and services which respond to those needs. In business courses, this is referred to as “market pull.”  I raise this topic because the GOP-controlled Congress took action this week which seems to be in direct violation of this tenet.

On Tuesday, the House of Representatives, by a party-line vote of 215-205, passed Senate Joint Resolution 34 which nullifies a December 2016 ruling by the Federal Communications Commission (FCC) which prohibited internet service providers (ISP) from selling a customer’s personal information, including search history, unless permission was granted by the customer.  The Senate  passed the same resolution on March 23, 2017 by a party-line vote of 50-48.

Now, I find it hard to believe, any internet users contacted their senator or congressman and said, “You know.  I really want my ISP to be able sell my personal information to other parties without my permission.  Is there any way you can overturn that onerous FCC ruling which prohibits that?”  The customer be damned.  For whatever reason, the GOP does not think ISPs make enough money off our monthly services charges.  In essence, they gave a green life to media giants like AT&T, Verizon and Comcast to turn OUR data into THEIR revenue stream.

LEGAL FOOTNOTE:  Every internet user should claim their search history is copyrighted intellectual property.  Therefore, an ISP could be sued for unauthorized distribution of material which meets the following definition of protected intellectual property under the Copyright Act.

A work that is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by and under the authority of the author, is sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.  (Source: Wex Legal Dictionary)

There are a lot of reasons government is not run like a business.  Primary among these is the difference in desired outcomes.  For business, the profit motive drives most decisions.  In the public sector, the primary objective is the common welfare whether that be safety and security, education, the free flow of commerce or health care.  We can only hope Comrade Trump and his clan of “nepotites” understand this.

For what it’s worth.


Que Sa-RAH! Sa-RAH!


Comrade Trump considers himself to be a great prognosticator.  “Obamacare repeal will be easy!”  “The Mexicans will pay for the wall!”  With that track record, one might think His Orangeness would consult a more talented soothsayer before making future predictions.  And fortunately, for Trump and his GOP compatriots, there is one.

I can’t believe I’m saying this, but it’s time to let Sarah Palin out of the closet.  Take health care for example.  On August 7, 2009, the Queen of Wasilla posted the following on her Facebook page.

Seniors and the disabled “will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care.”

And damned if she wasn’t correct except that the death panels she envisioned are comprised of elected Republican officials (and one member of unknown origins) rather than civil servants.  In the case of the failed American Health Care Act, the death panel consisted of the following.


Donald J. Trump, Occasional White House Occupant
Tom Price, Secretary of Health and Human Services
Paul D. Ryan, Jr. (WI), Speaker of the House
Dave Reichart (WA), Chair, House Ways & Means Committee
Bob Latta (OH), Chair, House Energy & Commerce Committee
Steve Bannon, Assistant to Comrade Trump

There’s one other major difference in Palin’s original forecast.  This death panel chose a much broader target than just seniors and the disabled.  Based on data available on Medicaid recipients, research published in the New England Journal of Medicine found one life was saved for every additional 455 people with insurance coverage (Source: NEJM, September 13, 2012).  Therefore, if the GOP death panel deprived 24,000,000 individuals of health care coverage over the next five years, one could expect approximately 52,750 resulting deaths.  I guess we owe Sarah a debt of gratitude for warning us about this star chamber of grim reapers.

Palin made one other prediction to which we should also pay attention.  In a September 11, 2008 interview with ABC News anchor Charles Gibson,  Ms. CPAC-MAN touted her foreign relations bona fide based on Russia’s proximity to her home state.  “They’re our next-door neighbors, and you can actually see Russia from land here in Alaska, from an island in Alaska.”  This line became a parody when Tina Fey, portraying the then vice-presidential nominee on Saturday Night Live, claimed, “I can see Russia from my house.”

As the pieces of the Trump/Russia puzzle start to fall in place, we now realize we don’t need to go to an Aleutian Island or even Sarah Palin’s home to see Russia.  There is an unbelievably clear view from the oval office.

For what it’s worth.

If I Only Had the Nerve


Unlike Comrade Trump, sometimes you have to admit you made a mistake.  After spending so much time creating MacTrump, this morning I realized a better parody might have been the Wizard of Oz.  This admission was triggered by an article in today’s Los Angeles Times which chronicled a somewhat innocuous promotion by His Orangeness of a Fox News show  which aired last night.


According to the LA Times, the program had been promoted throughout the day as “reveal(ing) ‘stunning new details’ about Trump’s claim that the Obama administration wiretapped his phones, according to a tweet from Business Insider’s Oliver Darcy.” (LA Times, March 26, 2017)

In a classic bait and switch, host Jeanine Pirro opened the show as follows.

Paul Ryan needs to step down as speaker of the house. The reason? He failed to deliver the votes on his healthcare bill, the one trumpeted to repeal and replace Obamacare, the one that he had seven years to work on, the one he had under lock and key in the basement of Congress, the one that had to be pulled to prevent the embarrassment of not having enough votes to pass.

Forget Vietnam or, when face to face with Mexican President Enrique Peña Nieto, Trump could have demanded our southern neighbor pay for his wall.  I can just hear Comrade Trump’s explanation now.  “I didn’t know she was going to attack the Speaker.  I thought it was going to be about ‘wire tapping’ Trump Tower. That’s what they said. How was I to know she was going to call for Ryan to step down?” Just one more example of Nance’s law, “Coincidence takes a lot of planning.”

We know Comrade Trump lies.  Now he once again demonstrates he is a coward.  Less than 24 hours earlier, the cowardly liar had praised the Speaker for his efforts.  In his personal call to Washington Post reporter Bob Costa, Trump said, “I don’t blame Paul.  He worked very hard on this.  I don’t blame Paul at all.” (Washington Post, March 24, 2017)  Instead, Trump and the White House propaganda machine uses a a former county court judge, to do their dirty work.

If only Pirro had stopped there.  Trump would have been cast in Bert Lahr’s role as the cowardly lion.  But later, Pirro added:

I want to be clear, this is not on President Trump. No one expected a business man to completely understand the nuances, the complicated ins and outs of Washington and its legislative process. How would he know which individuals upon which he would be able to rely?

Now I’m really confused.  Not only does Trump not have the nerve, Pirro confirms he doesn’t have a brain either.  The good news is, much like Ray Bolger in the original Wizard of Oz, it is now clear the GOP crows are not intimidated by this scarecrow’s presence in the political cornfield.

I’ll save his many qualifications for playing a tin man without a heart for later.  Let’s just leave it at this.  The yellow brick road is going to be a little less crowded with one, instead of three insecure individuals, accompanying Dorothy to the Emerald City.  Speaking of Dorothy, that part will be played by Melania Trump who reminds us all she wants is to return to her own bedroom in her own home.  So far, she’s the only one who seems to have been granted her wish.

For what it’s worth.


The Ruble Does Not Stop Here


Everyone deserves a second chance.  Even MSNBC. Last night, in the wake of Comrade Trump’s major defeat on a flagship issue, I ventured back to MSNBC to see how the network was covering this event.  At that moment, Greta van Susteren was interviewing CNBC political analyst John Harwood. At the 38 minute 31 second mark in the show’s transcript, the following exchange takes place.

Van Susteren: I thought he was rather humble.

Harwood: Well, he’s been humbled.

Van Susteren: I was surprised by that.  I thought he looked quite presidential taking that defeat.

Harwood:  But he deflected blame on the Democrats.

Van Susteren: There was that.

As Maya Angelou reminds us, “When people show you who they are, believe them.”  In a single moment, Susteren demonstrated both her innate willingness to put a positive spin on Trump’s political defeat, revealing how tough it is to cure Fox News syndrome even after you leave the infection zone, and her complete lack of understanding what it means to be presidential.

The best evidence His Orangeness knew he was behind the eight ball were his personally initiated calls to two entities he had previously labelled “enemies of the people,” the Washington Post and the New York Times.”  The message was clear.  This is not my fault.  The Democrats are to blame.  In the Times call, he also expressed his frustration with the House Freedom Caucus ( i.e. members elected with Tea Party support).

This is just the latest of many instances during the first 64 days, Comrade Trump has shifted blame or responsibility to anyone other than himself.  The Muslim ban.  Flynn firing.  Sessions lying during his confirmation hearing.

We all need to pay attention as these are only the opening acts.  The main event is, and should continue to be, Trump campaign and White House ties to Russia. The blame game has already started.  Obama’s deep state.  Leakers.  And yesterday a new conspiracy theory from the originators of the Lee Harvey Oswald/Rafael Cruz bro-mance.  The new issue of the National Enquirer includes the following headline.  “Trump Catches Russia’s White House Spy!”  And it turns out to be none other than (drum roll) former National Security Adviser Michael Flynn.

As former Navy intelligence officer Malcolm Nance warned us, “The target is getting buggy.”  The National Enquirer was a consistent mouthpiece for the Trump campaign, not surprising considering the long-time friendship between Trump and the tabloid’s CEO Dylan Howard.  Occam’s razor (the best explanation is the simplest) leads one to the conclusion the most likely reason the White House is willing to put this on Flynn is they would rather admit they hired a Russian spy as national security adviser (so much for extreme vetting) than take responsibility for what might emerge from the FBI investigation and congressional inquiries.

House and Senate Democrats proclaimed the TrumpCare defeat as “a great day for America.”  In reality, the true winner was none other than Harry S. Truman.  If you think Barack Obama looks more presidential in the rear view mirror, look again.  Truman is in clear focus.  Greta, when Trump puts a sign on his desk that says, “The Ruble Stops Here” then you can spin it as presidential.

For what it’s worth.