This morning the House Judiciary Committee will undertake the markup of the Permanent Internet Tax Freedom Act. The Act would protect consumers from the increased costs in accessing and using the Internet by permanently extending the moratorium on Internet access taxes, and would prevent multiple and discriminatory taxation of Internet sales.
The legislation already boasts deep bipartisan support with 138 Republican and 76 Democrat co-sponsors. That’s 214 members of the House supporting it, and rumors of more to join soon would bring the total to more than 50 percent. The Senate version of the bill has 50 co-sponsors. So, there is already enough support for a permanent moratorium that doesn’t add extraneous elements that could cause the moratorium to fail.
The legislation also enjoys broad support of thought leaders and citizens, as was made clear in an April letter to Congress. But time to pass the measure is of the essence since the moratorium will expire on November 1 of this year. If allowed to expire, states would begin to collect taxes on Internet access, or apply other discriminatory taxes that may already be in place but which have been held at bay during the moratorium.
Scott Mackey, former chief economist for the National Conference of State Legislatures and currently a consultant to the wireless industry, has estimated that an average household’s taxes would increase by $50 to $75 a year if states decide to apply their sales or telecommunications taxes to Internet access. While that doesn’t seem like much, keep in mind that that’s about what a low-income family spends in a year on subsidized school lunches. Those who qualify for such programs are exactly those who will be most negatively affected by a lapsed moratorium.
Businesses also lose money when Congress doesn’t send a clear message. If Congress dallies—and history has proven that Congress rarely acts in time—telecommunications providers would need to prepare to collect the new taxes. That effort would be a waste of time and resources if Congress were to ride to the rescue at the last minute—a result of the cavalier attitude by government. Less economic growth and fewer jobs are the result.
Hopefully, the next step on the right path will be taken today with the House Judiciary Committee deciding that the moratorium must continue and refraining from introducing other issues which will end its progress in the House.
[Originally published at The Institute for Policy Innovation]
I have stopped trying to argue with someone who refuses to look at anything but that which supports his own position. It’s pointless. So in an effort to end a debate quickly, I now politely ask individuals to explain how CO2, given how small it is relative to all around it, actually changes the entire system. That usually stops it with most of the crowd. Like many things I see with new age forecasters today, they will jump on one weather factor and not understand its behavior is because of everything around it.
The second thing I do is put the ball in their court. This requires knowing what went on historically with weather/climate. So I ask what the perfect number is for CO2 in the atmosphere. An example: Dr. Bill McKibben – one of the people I am frequently amazed with because his comments indicate he either does not know and understand what the weather has done before, or does and refuses to let that get in the way – runs a group called 350.org. He and his team want CO2 at 350 ppm (parts per million). So let’s just go to 350 ppm and see what it was like.
First, here is CO2 on the “correct” scale, which is the percentage of the atmosphere. This is not what you commonly see, which is the amount of CO2 in parts per million, where CO2 is grossly over-represented. The scale should be from one to a million, not a tiny fraction of a million.
Now, by using the very tiny increment they do, and by not informing you that if you actually used the scale from one to a million, this would hardly show up, they’re guilty of creative distortion of reality. After all, aren’t we measuring this against the entire atmosphere? Just think how absurd it would be if we measured against the *entire system: ocean plus atmosphere. The oceans play a huge role in the climate. It’s the reason for Dr. William Gray’s spot on assessment of this whole charade.
Anyway, on the graph below, the numbers on the left are in part per million. We are near 400 ppm now, and the last time it was near 350 ppm was back around 1988.
Here are just a few samples of the weather that year.
Average since then:
That was the summer all the hysteria began on the upcoming climate disaster. But what about precipitation?
What about hurricanes? What did the ACE Index look like? Gee, about the same as now.
In fact after the peak when the Pacific and Atlantic were warm in tandem, it looks like this recent downturn is lower than the late ‘80s. This may be because whenever there is a “climatic shift” (in the late 1970s the shift was to warming because the PDO turned warm; it’s now opposite), the atmosphere needs to adjust so that the processes which leads to above normal activity can readjust.
What about ice caps? Look at the Arctic when the Atlantic was in its cold mode. 1988 had much higher anomalies than now.
But the Southern Hemisphere ice anomaly is much higher than it was then! In fact, it’s trying for a record!
1988 was as low against the averages in the Southern Hemisphere (more so, it dropped to -1.5) than it is now in the Northern Hemisphere, and the forecast continues to call for Arctic sea ice extent to rise above average against the late summer minimum. This would be the first time this has happened since the Atlantic went into its warm mode.
Globally we’re well above average. Are we not supposed to consider the whole globe on this crucial matter? It was the ice caps – plural – that were supposed to melt. Could it be like almost everything in nature – a cyclical back and forth swing?
So far, the Arctic “warm season” has been colder than 1988 (last year was the coldest ever recorded).
Here it was in 1988:
The fact is, most of the “global” warming has occurred in the Arctic during the winter seasons, where temps 5-10 degrees Fahrenheit above normal are frigid anyway. Given the amount of water vapor in such low temperatures – water vapor being the number 1 greenhouse gas (100x CO2) – it’s a stretch to think this is affecting the entire global climate against anything that can be measured against normal stochastic and cyclical events.
Now you may say, “You are cherry picking.” I can cherry pick any time and find it worse. The fact I can instantly bring up any time where weather has been more extreme says that in the past, the weather has been more extreme! We can go on forever, believe me. Here’s is another sample: How is it most of the states’ high temperatures and the greatest decade for low temperatures were in the 1930s, when CO2 was under 300 ppm?
We are not even close now. Anyone ever consider this? We have added considerably more weather stations, yet the state records set during a time with less stations than now have not been exceeded. And even though it was hotter in summer, it was colder extreme wise in winter.
Here’s a fact: CO2, like anything, has some effect on the weather and climate, probably relative to its relationship with water vapor, which is most likely influenced by the greatest store of heat (energy) to the system (and its also the greatest store of CO2) – the oceans. But can you measure it against the natural cyclical reactions driven by much greater forces and even stochastic events? Can you assign a value when every single point brought up by the AGW side can be easily countered by anyone who knows and understands what has happened in weather and climate in the past? How do you know? And given what is facing us today, is CO2’s value to the climate effectively rounded so close to zero that the whole issue is a red herring?
Look at this. The title says it all.
The answer is, you can’t.
Finally, from IPCC reviewer Dr. Vincent Gray:
Faith in things unseen defines something that is preached in religion. But with all the counter evidence here, it seems like this worship of CO2 as the climate control knob is more religion than science. I don’t force my religion on another man; why is it these folks seem to be pushing theirs on us? And like so many other religions that believe they must convert all men to their belief, this too is a recipe for widespread misery and as in most cases, disaster.
So just what is the perfect level of CO2, and who among men thinks they are fit to decide that, given the overwhelming evidence that nature is in control?
Joe Bastardi is chief forecaster at WeatherBELL Analytics, a meteorological consulting firm.
© Copyright 2014 The Patriot Post
[Originally published at The Patriot Post]
In the past two decades the Internet has come to be a dominant part of people’s lives. For work, pleasure, communication, and countless other uses, the Internet is an indispensable tool to many individuals. Without it, much of the information-based civilization that has been built up would stop working the way we are accustomed to.
As the Internet has become more important, so too have access to the most cutting-edge systems to provide high speed, security, and data storage facilities. Broadband Internet provides the fastest access to the Internet, and is now essential to the functioning of the American economy both globally and locally.
The Information Age
The increased importance of the Internet has spurred a significant debate over the nature of the rights to access it. Is Internet access now a fundamental right because it is a critical tool in the expression of other freedoms such as the freedom of expression? As yet there is no consensus on an answer. The United Nations special rapporteur on the freedom of expression has stated,
“Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States.”
Many countries, including France, Costa Rica, Spain, and Greece have all legally enshrined the right to Internet access. Most countries have not yet followed suit, though vigorous debate flourishes in many polities, including the United States.
If Internet access is a human right, or even recognized simply as being important for everyone to have, then how should it be ensured that everyone has access? Some suggest that governments have a duty to provide service through monopolies run by state companies.
This pro-government view is wrong-headed in the extreme. The truth is that the private sector should be allowed to provide these services; it is always the private sector, absent state bureaucracy, that provides the superior service.
The Disaster of State Monopoly
The imposition of a powerful state firm dominating the broadband market would serve to reduce the ability of private providers to compete. The greater resources of the state would be able to give it the power to dictate the market, making it less attractive to private investment. Creating a monopolistic provider would be very dangerous considering that this is a sector upon which much of future national development relies.
Crowding out private firms will make them less inclined to invest in new technologies, while the state provider is unlikely to fill the gap, as traditionally state utilities rely upon their power of incumbency and size rather than seeking novel services. An example of this is Eircom which, when it was the Irish state utility, provided broadband of a lower quality and at higher price than most private providers.
The end result of state dominance and reduction of private competitors is a loss of innovation, a loss of price competition, and an erosion of customer service.
Troublesome Servant, Fearful Master
Monopoly, or near-monopoly, power over broadband is far too great a tool to give to governments. States have a long history of abusing rules to curtail access to information and to limit freedom of speech. Domination of broadband effectively gives the state complete control of what information citizens can or cannot consume online.
If governments are the sole gatekeepers of knowledge, people may well be kept from information deemed against the “public interest.” It is harder for opponents of government regulations to voice their opinions online when they have no viable alternative to the state-controlled network.
The Internet is a place of almost limitless expression and it has empowered more people to take action to change their societies. That great tool of the people must be protected from any and all threats, and most particularly the state that could so profit from the curtailment of Internet freedom.
While our attention is focused on events in the Middle East, a domestic enemy of the nation is doing everything in its power to kill the provision of electricity to the nation and, at the same time, to control every drop of water in the United States, an attack on its agricultural sector. That enemy is the Environmental Protection Agency.
Like the rest of the Obama administration, it has no regard for real science and continues to reinterpret the Clean Air and Clean Water Acts. It has an agenda that threatens every aspect of life in the nation.
As Craig Rucker, the Executive Director of the Committee for a Constructive Tomorrow (CFACT) recently warned, “True to her word,” EPA Administrator Gina McCarthy, “is busily grabbing powers for EPA that Congress specifically chose not to grant, and that the Supreme Court has denied on multiple occasions.”
“The federal bureaucracy under the Obama presidency has a voracious appetite for more power. It despises individual liberty and drags down the economy every change it gets,” Rucker warns.
In addition to implementing President Obama’s “war on coal” that is depriving the nation of coal-fired plants that provide electricity, the EPA has announced a proposed rule titled “Definition of ‘Waters of the United States’ Under the Clean Water Act”, redefining, as Ron Arnold of the Center for the Defense of Free Enterprise reported in the Washington Examiner “nearly everything wet as ‘waters of the United States or WOTUS—and potentially subject us all to permits and fines.”
The President has made it clear that the rule of law has no importance to him and his administration and this is manifestly demonstrated by the actions of the EPA. “This abomination,” says Arnold, “is equivalent to invasion by hostile troops out to seize the jurisdictions of all 50 states. WOTUS gives untrustworthy federal bureaucrats custody of every watershed, creates crushing new power to coerce all who keep America going and offers no benefit to the victimized and demoralized tax-paying public.”
In response to the EPA’s new power grab, more than 200 House members called on the Obama administration in May to drop its plans to expand the EPA’s jurisdiction over smaller bodies of water around the nation. A letter was sent to EPA Administrator McCarthy and Department of Army Secretary John M. McHugh (re: Army Corps of Engineers) asking that the proposal be withdrawn.
“Under this plan, there’d be no body of water in America—including mud puddles and canals—that wouldn’t be at risk from job-destroying federal regulation,” said Rep, Doc Hastings (R-Wash), chairman of the House Natural Resources Committee. “This dramatic expansion of federal government control will directly impact the livelihoods and viability of farmers and small businesses in rural America.”
Nearly thirty major trade associations have joined together to create the Waters Advocacy Coalition. They represent the nation’s construction, manufacturing, housing, real estate, mining, agricultural and energy sectors. The coalition supports S. 2245, “Preserve the Waters of the U.S. Act” which would prevent the EPA and Corps of Engineers from issuing their “Final Guidance on Identifying Waters Protected by the Clean Water Act.”
What has this nation come to if the Senate has to try to pass an act intended to prevent the EPA from extending control over the nation’s waters beyond the Clean Waters Act that identifies such control as limited to “navigable waters”? You can’t navigate a water ditch or a puddle!
There are acts that limit agencies such as the EPA from going beyond their designated powers. They are the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act. The coalition says that the EPA and Corps “should not be allowed to use guidance to implement the largest expansion of Clean Water Act authority since it was enacted. Only Congress has the authority to make such a sweeping change.”
In two Supreme Court decisions, one in 2001 and another in 2006, rejected regulation of “isolated waters” by the EPA.
It does not matter to the EPA or the Obama administration what the Supreme Court has ruled Congress has enacted in the Clean Water Act, nor the Clean Air Act.
We are witnessing an EPA that is acting as a criminal enterprise and it must be stopped before it imposes so much damage on the nation that it destroys it.
© Alan Caruba, 2014
[Originally published at Warning Signs]
WASHINGTON (June 20, 2014) – Current design patent law provides incentive for frivolous lawsuits and abuse, said the R Street Institute in a policy paper released today.
Authored by Ned Andrews, the paper, “Is interactive design becoming unpatentable?,” lays out recommendations for modernizing the design patent system to allow smaller companies to enter the technological market.
“In order to have the kind of ornamental status that could be the subject of a design patent, an object must possess either some entirely nonfunctional feature or be the result of workmanship that does not contribute in any way to its function,” wrote Andrews. “Current definitions falsely equate the aesthetic merit of functionality with that of applied ornamentation. Thus, some inventors seek design protection for aspects of an object that are, in fact, functional.”
Andrews writes that the system creates an incentive for companies to acquire the patent rights for designs that are as aesthetically or conceptually simple as possible. They then wait for another company to develop a product that resembles the original and then file a claim of infringement, hoping that a manufacturer-defendant will agree to an early settlement.
“The parties that tend to come out on top are the biggest players – the Apples and Samsungs,” he wrote. “This interferes with smaller players’ ability to make headway on a useable portion of their own applications, because they can’t afford to risk a lawsuit from or pay the fees demanded by the trolls or big firms.”
Andrews recommends modernizing the design patent system in a variety of ways. First, impose a simple test: if the device would be less functional if the claimed aspect of the design were absent, the claim in question fails the non-functionality test. Second, courts should limit the findings of design infringement to cases in which the similar aspects of the article’s design perform an ornamental purpose, rather than a functional purpose. Third, both the U.S. Patent and Trade Office and the courts should renew their attention to the criteria of novelty and non-obviousness.
Finally, courts should make standard the practice that in “exceptional cases” of bad faith or misconduct, of awarding reasonable attorney’s fees to the prevailing party in a civil case.
The paper can be found here:
Murray Rothbark is R Street’s distinguished visiting office dog and director of canine policy.
Regulations have a way of growing like weeds: unless they are rooted out, they spread. Regulatory compliance has always been a headache for small business owners who do not enjoy the cozy relationships with big government that large corporations often develop. In fact, they are frequently ignored by legislators both in Washington and in the states.
John Lieber, chief economist of Thumbtack, recently joined our Steve Stanek on the Heartland Daily Podcast for a talk on the business climate in America today. Thumbtack is an online marketplace that brings together service providers and consumers who can negotiate and organize jobs.
Every year, Thumbtack conducts a survey of its customers to develop a “small business friendliness” index detailing the friendliness of each state government toward entrepreneurs and small businesspeople. This year, the survey included nearly 13,000 small business operators who were asked questions on 11 different metrics. The findings are very interesting.
The top three friendliest states were found to be Utah, Idaho, and Texas. The three least friendly states were California, Rhode Island, and Illinois. While not an overly surprising result in itself, the breakdown of the metrics revealed some interesting results about what factors make business climates unfriendly. It turned out that the main culprit was the complexity and difficulty of a state’s licensing regulation. In fact, those surveyed said this factor was twice as important as the level of taxation. Describing the previous surveys, Lieber said that this focus on regulatory compliance was persistently the most serious factor for small business owners in their assessment of their state’s business friendliness.
The big issues in the public consciousness tend to concern taxation. Yet it is not taxation that is really killing small businesses; it’s all the red tape. This is a very interesting finding, one that could have some real implications for policy-makers. For many people, regulation is not really something they think about. Politicians and voters have to be confronted with the true cost of compliance with overcomplicated and expansive regulatory regimes.
The interesting fact is that states looking to make themselves more attractive to businesses can do so without necessarily reducing taxes. What really attracts small businesses is “a tax code that is easy to understand and easy to comply with.” That is not too tall an order, and it should be something politicians across the political spectrum can get behind.
Listen to the podcast in the player above.
This paper has been accepted for publication in the International Journal of Environmental Research and Public Health.
A carefully structured Tobacco Harm Reduction (THR) initiative, with e-cigarettes as a prominent THR modality, added to current tobacco control programming, is the most feasible policy option likely to substantially reduce tobacco-attributable illness and death in the United States over the next 20 years. E-cigarettes and related vapor products are the most promising harm reduction modalities because of their acceptability to smokers.
There are about 46 million smokers in the United States, and an estimated 480,000 deaths per year attributed to cigarette smoking. These numbers have been essentially stable since 2004. Currently recommended pharmaceutical smoking cessation protocols fail in about 90% of smokers who use them as directed, even under the best of study conditions, when results are measured at six to twelve months.
E-cigarettes have not been attractive to non-smoking teens or adults. Limited numbers non-smokers have experimented with them, but hardly any have continued their use. The vast majority of e-cigarette use is by current smokers using them to cut down or quit cigarettes. E-cigarettes, even when used in no-smoking areas, pose no discernible risk to bystanders. Finally, addition of a THR component to current tobacco control programming will likely reduce costs by reducing the need for counseling and drugs.
- Does Netflix have any responsibility to help provide its users the streaming service that they paid Netflix for by connecting with ISPs in the high quality manner that most all other content delivery networks do? In other words, why is Netflix such an outlier here?
- More specifically, when Netflix customers pay Netflix for its video streaming service, does Netflix have any responsibility to its paying streaming customers to plan, arrange, and pay for widely-available, competitive, Internet paid-peering or content-delivery-network arrangements that are most likely to ensure the highest-quality Netflix customer-streaming-experience, or is it everyone else’s legal responsibility on the Internet, but Netflix’, to ensure quality streaming to Netflix’ customers?
- Why is it the financial responsibility of ISPs to automatically and immediately compensate for the streaming-quality implications of Netflix’ business decisions to serve its customers over the least-costly Internet access path for Netflix at any given time, when Netflix knows full well that its cost-cutting delivery strategy necessarily has negative streaming-quality implications for its paying customers?
- What law or court decision requires or obligates ISPs to overbuild their network infrastructure to handle whatever amount of industry-leading downstream traffic Netflix chooses to route wherever it wants to, without warning, and without any financial arrangement to pay for their extraordinary capacity surges?
- Is Netflix operating and negotiating in good faith, and in a commercially-reasonable way, with the ISPs about which it is complaining?
- Is it “commercially reasonable” to expect in a business negotiation that business A must pay all of business B’s business costs so that business B can profit at the direct expense of business A?
- Since Netflix appears to be involved one way or another in most all of the peering disputes covered by the media, could Netflix, (with the market power that comes with being the nation’s largest generator of downstream traffic — 34% per Sandvine), have any obligation under the FCC’s 706 authority to be as transparent in its network management decisions and delivery-quality-assurance choices as ISPs are?
- If only one side of a potential peering dispute, the ISP, were to have an FCC obligation to be publicly transparent, but not the Nation’s largest Internet delivery network, doesn’t that transparency imbalance perversely incent Netflix to arbitrage and game the PR situation because the public can’t know the whole story?
- Why does Netflix demand the ISP delivery mechanism pay for the whole cost of delivering Netflix’ one-third of downstream Internet traffic, when Netflix has paid the U.S. Postal Service hundreds of millions of dollars to deliver its DVDs to many of the same customers?
- If Netflix and others can use unlimited amounts of bandwidth and not pay their fair share of the Internet’s infrastructure costs, what economic incentive would there be to upgrade the Internet’s infrastructure to keep pace with their exploding demand, if Internet infrastructure costs were to be completely divorced from Internet infrastructure prices?
Netflix Research Series
Part 1: Level 3 & Net Neutrality – Ignorance Unleashed! [11-30-10]
Part 2: Level 3-Netflix Expose their Hidden Agenda [12-3-10]
Part 3: Sinking Level 3 Seeking FCC Internet Regulation Bailout [12-8-10]
Part 4: Netflix’ Open Internet Entitlement Hubris [2-1-11]
Part 5: Fact-Checking Netflix’ Net Neutrality WSJ Op-ed [7-8-11]
Part 6: Netflix’ Glass House Temper Tantrum Over Broadband Usage Fees [7-26-11]
Part 7: Netflix Crushes its Own Momentum [9-20-11]
Part 8: Netflix the Unpredictable [10-10-11]
Part 9: Is Netflix the AOL of Web Streaming? [3-9-12]
Part 10: Netflix’ Net Neutrality Corporate Welfare Plan [5-9-12]
Part 11: 5 BIG Implications from Court Signals on Net Neutrality – A Special Report [9-13-13]
Part 12: Video: Why FCC Title II Reclassification of Broadband is a Legal Non-Starter [9-22-13]
Part 13: Is Net Neutrality Trying to Mutate into an Economic Entitlement? [1-12-14]
Part 14: Exposing Netflix’ Extraordinary Net Neutrality Arbitrage [1-24-14]
Part 15: Net Neutrality is about Consumer Benefit Not Corporate Welfare for Netflix [3-21-14]
Part 16: Exposing Netflix’ Biggest Net Neutrality Deceptions [6-5-14]
[Originally published at Precursor Blog]
WASHINGTON (June 20, 2014) – The R Street Institute welcomed today’s passage of H.R. 4871, the TRIA Reform Act of 2014, by the House Financial Services Committee.
The measure, sponsored by Rep. Randy Neugebauer, R-Texas, calls for a five-year extension of the federal Terrorism Risk Insurance Program, a $100 billion reinsurance backstop originally passed in the wake of the Sept. 11, 2001 terrorist attacks. However, the bill includes important taxpayer-protection provisions that gradually shrink the size of the federal program.
“Rep. Neugebauer’s bill strikes the proper balance between ensuring that sufficient capacity exists for U.S. businesses to insure against catastrophic terrorism, while also guarding against government subsidies that would unjustly enrich insurance companies and major commercial real estate developers,” R Street Senior Fellow R.J. Lehmann said.
Under terms of the TRIA Reform Act, the trigger level for conventional terrorism attacks would be raised gradually from the current $100 million to $500 million by the end of 2019. For attacks involving nuclear, chemical, biological and radiological events, all of which must be covered by law under workers’ compensation policies, the program’s current terms would remain intact.
“Reinsurance broker Guy Carpenter recently issued a report finding that multiline terrorism reinsurance capacity is about $2.5 billion per program for conventional terrorism and about $1 billion per program for coverages that include NBCR,” Lehmann said. “Given those figures, and the continuing growth of capacity thanks to the influx of alternative sources of capital, we think the adjustments called for in the House bill are perfectly reasonable.”
The industry also would be asked to increase its co-payment share of conventional terrorist attacks from the current 15 percent to 20 percent, while individual company deductibles would remain at 20 percent of prior year premiums in a particular line of business. The industry would be asked to repay taxpayers 150 percent of funds expended, up from 133 percent currently, up to a floating retention level calculated by adding the aggregate amount of individual company deductibles.
Lehmann also praised a provision calling on the non-partisan U.S. Government Accountability Office to conduct a study on the feasibility of charging companies an upfront premium for TRIP’s reinsurance coverage.
“Much like the federal Riot Reinsurance Program of the 1970s, the way forward for federal terrorism reinsurance ultimately is to charge companies an actuarially adequate premium,” Lehmann said. “We can never know how much capacity the private reinsurance sector might be willing to commit to terrorism coverage so long as the government provides it for free.”
This is a YouTube video showing exploitation of kids for climate change taking place in Canada. Also displayed are a number of YouTube videos around the world showing the same exploitation taking place in other countries.
These movements may cause psychological damage to the young by giving them negative feelings about the future of the planet. For all of history, human’s have benefited by the gifts from the planet, in particular energy sources, that have uplifted each generation after the other. Bumps have occurred like WWI and WWII, but progress continued. The environmental movement may reverse this process.
This is a YouTube video showing exploitation of kids for climate change taking place in Canada. Also displayed are a number of YouTube videos around the world showing the same exploitation taking place in other countries.
These movements may cause psychological damage to the young by giving them negative feelings about the future of the planet. For all of history, human’s have benefited by the gifts from the planet, in particular energy sources, that have uplifted each generation after the other. Bumps have occurred like WWI and WWII, but progress continued. The environmental movement may reverse this process.
If 20th Century design was inspired by American architect Louis Sullivan’s 1896 pronouncement that “form ever follows function,” the key realization thus far of the 21st Century has been that this is merely a necessary – rather than a sufficient – condition for quality designs to flourish.
We have learned, and the market has confirmed, that an object should be designed in accordance not only with how it functions, but moreover with how it should function. Especially in the case of interactive technology, a description that has grown to describe just about anything, an object should function the way its user expects it to function.
As technology has become more powerful and flexible, the task of matching function and expectations has undergone a change akin to the philosopher Immanuel Kant’s metaphorical Copernican Revolution. For older generations of technology – in which scarce resources limited both what functions were available and the maximum complexity of users’ commands – the steps necessary for users to extract and refine what they could do with a device were explained in thick manuals. The prevailing strategy for more recent generations of technology has been to meet users halfway, competing to efficiently perform functions and effectively implement concepts that users have been had led to expect.
Today’s designs, however, are increasingly able to cut out the middleman, more and more closely conforming to their users’ preexisting intuitions and thought processes and less and less asking users to make those thought processes conform to products’ capabilities.
In other words, the key to success in modern interactive design does not lie in “creating” the best design possible. Rather, it begins with doing the best possible job of stripping designs down to concepts and procedures with which the user is already familiar, preferably through everyday use. Where there is no alternative but to require more input from a user, his or her options are laid out in terms the user already can be expected to know. While the fusion of design and utility has not yet been perfectly realized, industry has become more fully aware of both parts of this process and continues to pursue integration in earnest.
This coevolution of design standards and procedures has clashed, and continues to clash, with the structure of U.S. patent law. The first problem is the potential uncertainty that surrounds the scope and strength of a design patent’s protections. Even in the paradigm case of a design feature that has been aesthetically improved beyond what was required to give the feature its functional attributes, there remains the potential for overly broad claims about what aspects of a design qualify under the law as “ornamental.”
Under section 284 of the U.S. Code’s Title 35, triers of fact may award “non-statutory” damages for infringement of a design patent. But these same judges also may err in determining how much of an object’s value comes from the aesthetic appeal of its ornamental features and how much comes from other sources of value, whether ornamental or functional, and whether patented or unpatented.
The risk of error at each stage of the process – from the initial design patent application to the ultimate test of infringement in court – creates at least some incentive for a designer to overstate his or her case. Fortunately, these incentives are similar to the temptations to make overly broad claims about other grounds for patentability. Regardless what grounds are at issue, the remedy inevitably is better training for examiners and judges in traditional design standards and greater vigilance on their part about those standards’ application.
Ned Andrews is an assistant public defender with the Virginia Indigent Defense Commission and an associate fellow of the R Street Institute. He is a graduate of the University of Virginia School of Law, where he served on the managing board of the Journal of Law and Politics and the Virginia Journal of Law and Technology. He previously received a bachelor’s in philosophy from Yale University. Andrews was the 1994 Scripps National Spelling Bee champion and he is author of the 2011 book “A Champion’s Guide to Success in Spelling Bees: Fundamentals of Spelling Bee Competition and Preparation.”
Legislation regulating so-called “transportation network companies” in California passed the state Senate Energy, Utilities and Commerce Committee by a unanimous 8-0 vote earlier this week, amid a row between the TNCs, insurance companies and traditional taxicabs.
This bill, A.B. 2293, stems from a tragic New Year’s Eve incident in San Francisco in which a six-year-old girl was struck and killed in a crosswalk by a driver who was an UberX contractor.
Under the bill, which moved now to the Senate Insurance Committee, TNCs would be required to provide primary insurance for any driver currently logged in to use their service. The measure codifies the California Public Utilities Commission’s proposed minimum of $1 million of coverage.
The measure is sponsored by Assemblywoman Susan Bonilla, D-Concord, who said she presented the bill to fill a “gap” in insurance coverage and consumer protections, create clear definitions of when commercial and personal insurance coverage is primary, and ensure all drivers are adequately covered during all periods of TNC services.
Bonilla’s legislation defines three distinct “periods” of TNC service, between when a driver turns the application on to when it is turned off.
- Period 1: The driver turns the app on and waits for a passenger match
- Period 2: A match is accepted, but the passenger is not yet picked up
- Period 3: The passenger is in the vehicle
Insurance industry groups argue that the TNCs must be required to provide primary coverage for all three periods. For their part, the TNCs argue that during Period 1, a driver is not active and should not be required to carry the higher coverage standard demanded during the other two periods.
In addition to insurers, the bill also is supported by consumer attorneys, the California Airports Council and the San Francisco International Airport, who each argued for the measure on public safety grounds.
TNCs like Uber and Lyft raised opposed the $1 million minimum as too high and insisted the bill is anything but a compromise. Many Lyft and Uber drivers showed up to voice their opposition, most implying that A.B. 2293 would shut down the TNCs and therefore their livelihoods.
The other source of opposition came from taxi cab associations, who decried the bill for codifying TNCs as different from cab companies and subject to different regulations.
Committee Chairman Alex Padilla, D-Los Angeles, expressed support for the measure overall, although he felt it should be subject to further negotiation. He said he feared requiring $1 million coverage during all periods might be too high, but felt that was a matter on which the insurance committee should rule.This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Reverence and veneration of our national flag has long been profound in the United States, far more so than in other countries. Veneration of the Stars and Stripes has evolved beyond mere respect for it as a symbol of national identity, but as an almost religious emblem of American values and the American way of life.
That general reverence has led, over the years, to many state legislatures and the federal Congress passing legislation banning the desecration or burning of the flag. Such legislation generally follows similar language, effectively banning the desecration of the national flag in protests, or other acts of discontent. So far these bans have been struck down by the Supreme Court, which in 1989 described them as contrary to the principle of free speech. The last attempt at the national level was made in 2006, and popular support for such a ban remains high.
Proponents of a ban argue that the special symbolic value of the flag to the American people is such that it must be protected by law, and that the right to free speech does not extend to the desecration of the emblem of the nation. Yet that argument seems to curtail a form of free speech that could undermine the ability of people to protest the policies of the government.
A Visceral Action
There can be no doubt that the act of flag desecration is powerful. It causes anger, sadness, even shame in many patriotic citizens who recognize what it stands for and the sacrifices many brave men and women have made to keep it flying high.
Yet it is that very visceral quality that makes flag desecration such a potent, and important, expression of free speech or protest: it is an expression to which many people will respond.
Jarring statements grab attention, and can force attention onto an issue. A conventional protest can be overlooked, but images of a flag being burned immediately drag in media attention and start a commentary. While some of that commentary does inevitably center on the issue of flag desecration itself, it also brings focus to the cause.
When protesters are called to explain themselves, they get a chance to explain their views and promote their cause to a much wider audience than they might have been able to reach otherwise. For that reason, flag desecration can be very valuable for gaining attention, and if done thoughtfully, to generate meaningful discourse.
Burning a flag may not be an act of “un-Americanism”, in the sense of opposing widely held principles emblematic of the United States, at all. The flag can be burned as an act of patriotism. When individuals feel the state is doing something contrary to the ideals of the nation, the ideals that the flag represent, burning the flag can be symbolic of the state’s non-adherence to the values it is meant to defend. The act of desecration thus serves to connect the cause of the protestor to the very ideals of the nation, and shows that it is central to the discourse of what the nation’s values are and how they should be maintained, rather than simply being the ancillary opinions of a few people that can simply be discarded.
It is also important that a free society be able to question its values and how they are realized. Banning something on the basis of majority opinion and their easily offended sensibilities is little more than a heckler’s charter. If views are banned simply because the majority disagrees with them, it is little more than the tyranny of the strong over the weak. The very reason there are checks and balances in our government is to prevent such tyranny. This is exactly why the Supreme Court has stood against the laws passed by the federal and state legislatures banning desecration of the flag; they protect the rights of citizens with a minority opinion from the majority seeking to take them away.
The Right to Say What Others Despise
For society to be free and democratic it must have provision for the expression of views contrary to the mainstream, even views directly oppositional to it. This must extend to the means by which we convey such messages. Public disgust is certainly not justification enough to deny the right to expression.
The exercise of a right can only justly be denied to someone when there is a direct harm to others by exercising that right. Some people may have a great sentimental attachment to the symbolic significance of the flag, but they should not expect the law to enforce their sentiments on everyone. The flag, like all symbols of beliefs and groups, is not inviolable, nor is anyone’s piece of mind or health so attached to its wellbeing that the desecration or defacing of it could cause any true harm.
Furthermore, the patriotism of individuals watching a flag burning is not affected by it. This view is upheld by the Supreme Court opinion in Texas v. Johnson, when the opinion argued that there could be no better response to a flag burning by someone opposed to such an action than waving their own flag or saluting and paying respect to the burning flag. People can thus show their opposition peacefully without infringing the right of a protestor to burn a flag.
Banning flag desecration on account of a sense of moral disgust, or of the threat to public order caused by angry counter-protestors, is the prohibition of an otherwise lawful act for the reason that others will commit crimes in response. Clearly, these are not justification for banning flag desecration.
The strength of a free society lies in its ability to tolerate opposing views, even those that are antithetical to the constitutional or civil laws as they stand. The protections we enjoy and jealously guard for ourselves only have meaning if we extend them to all citizens.
Last year, Congress enacted 72 new laws and federal agencies promulgated 3,659 new rules, imposing $1.86 trillion in annual regulatory compliance costs on American businesses and families. It’s hardly surprising that America’s economy shrank by 1% the first quarter of 2014, our labor participation rate is a miserable 63% and real unemployment stands at 12-23% (and even worse for blacks and Hispanics).
It’s no wonder a recent Gallup poll found that 56% of respondents said the economy, unemployment and dissatisfaction with government are the most serious problems facing our nation – whereas only 3% said it is environmental issues, with climate change only a small segment of that.
So naturally, the Environmental Protection Agency issued another round of draconian restrictions on coal-fired power plants, once again targeting carbon dioxide emissions. EPA rules now effectively prevent the construction of new plants and require the closure of hundreds of older facilities. By 2030 the regulations will cost 224,000 jobs, force US consumers to pay $289 billion more for electricity, and lower disposable incomes for American households by $586 billion, the US Chamber of Commerce calculates.
The House of Representatives holds hearings and investigations, and drafts corrective legislation that the Harry Reid Senate immediately squelches. When questions or challenges arise, the courts defer to “agency discretion,” even when agencies ignore or rewrite statutory provisions. Our three co-equal branches of government have become an “Executive Branch trumps all” system – epitomized by EPA.
Some legal philosophers refer to this as “post-modernism.” President Obama’s constitutional law professor called it “the curvature of constitutional space.” A better term might be neo-colonialism – under which an uncompromising American ruler and his agents control citizens by executive fiat, to slash fossil fuel use, fundamentally transform our Constitution, economy and social structure, and redistribute wealth and political power to cronies, campaign contributors and voting blocs that keep them in power.
Even worse, in the case of climate change, this process is buttressed by secrecy, highly questionable research, contrived peer reviews, outright dishonesty, and an absence of accountability.
Fewer than half of Americans believe climate change is manmade or dangerous. Many know that China, Australia, Canada, India and even European countries are revising policies that have pummeled families, jobs, economies and industries with anti-hydrocarbon and renewable energy requirements. They understand that even eliminating coal and petroleum use in the United States will not lower atmospheric carbon dioxide levels or control a climate that has changed repeatedly throughout Earth’s history.
Mr. Obama and EPA chief Gina McCarthy are nevertheless determined to slash reliance on coal, even in 20 states that rely on this fuel for half to 95% of their electricity, potentially crippling their economies. The President has said electricity rates will “necessarily skyrocket,” coal companies will face bankruptcy, and if Congress does not act on climate change and cap-tax-and-trade, he will. Ms. McCarthy has similarly said she “didn’t go to Washington to sit around and wait for congressional action.”
However, they know “pollution” and “children’s health” resonate much better than “climate disruption” among voters. So now they mix their climate chaos rhetoric with assertions that shutting down coal-fired power plants will reduce asthma rates among children. It is a false, disingenuous argument.
Steadily improving air pollution controls have sent sulfur dioxide emissions from U.S. coal-fired power plants tumbling by more than 40% and particulate emissions (the alleged cause of asthma) by more than 90% since 1970, says air quality expert Joel Schwartz, even as coal use tripled. In fact, asthma rates have increased, while air pollution has declined – underscoring that asthma hospitalizations and outdoor air pollution are not related. The real causes of asthma are that young children live in tightly insulated homes, spend less time outdoors, don’t get exposed to enough allergens to reduce immune hyperactivity and allergic hypersensitivity, and get insufficient exercise to keep lungs robust, health experts explain.
But the American Lung Association backs up the White House and EPA claims – vigorously promoting the phony pollution/asthma link. However, EPA’s $24.7 million in grants to the ALA over the past 15 years should raise questions about the association’s credibility and integrity on climate and pollution.
EPA also channels vast sums to its “independent” Clean Air Scientific Advisory Committee, which likewise rubberstamps the agency’s pollution claims and regulations: $180.8 million to 15 CASAC members since 2000. Imagine the outrage and credibility gap if Big Oil gave that kind of money to scientists who question the “dangerous manmade climate change” mantra.
Moreover, even EPA’s illegal studies on humans have failed to show harmful effects from pollution levels the agency intends to impose. Other EPA rules are based on epidemiological data that the agency now says it cannot find. (Perhaps they fell into same black hole as Lois Lerner’s missing IRS emails.) EPA’s CO2 rulings are based on GIGO computer models that are fed simplistic assumptions about human impacts on Earth’s climate, and on cherry-picked analyses that are faulty and misleading.
In numerous instances, EPA’s actions completely ignore the harmful impacts that its regulations will have on the health and well-being of millions of Americans. EPA trumpets wildly exaggerated benefits its anti-fossil-fuel rules will supposedly bring but refuses to assess even obvious harm from unemployment, soaring energy costs and reduced family incomes. And now Mr. Obama wants another $2.5 billion for FY-2015 climate change models and “assessments” via EPA and the Global Change Research Program.
EPA’s actions routinely violate the Information Quality Act. The IQA is intended to ensure the quality, integrity, credibility and reliability of any science used by federal agencies to justify regulatory actions. Office of Management and Budget guidelines require that agencies provide for full independent peer review of all “influential scientific information” used as the basis for regulations. The law and OMB guidelines also direct federal agencies to provide adequate administrative mechanisms for affected parties to review agency failures to respond to requests for correction or reconsideration of scientific information.
Those who control carbon control our lives, livelihoods, liberties, living standards and life spans. It is essential that EPA’s climate and pollution data and analyses reflect the utmost in integrity, reliability, transparency and accountability. A closed circle of EPA and IPCC reviewers – accompanied by a massive taxpayer-funded public relations and propaganda campaign – must no longer be allowed to rubberstamp junk science that is used to justify federal diktats. Governors, state and federal legislators, attorneys general, and citizen and scientific groups must take action:
- File FOIA and IQA legal actions, to gain access to all EPA and other government data, computer codes, climate models and studies use to justify pollution, climate and energy regulations;
- Subject all such information to proper peer review by independent scientists, including the significant numbers of experts who are skeptical of alarmist pollution and climate change claims;
- Demand that new members be appointed to CASAC and other peer review groups, and that they represent a broad spectrum of viewpoints, organizations and interests;
- Scrutinize the $2.5 billion currently earmarked for the USGCRP and its programs, reduce the allocation to compel a slow-down in EPA’s excessive regulatory programs, and direct that a significant portion of that money support research into natural causes of climate change; and
- Delay or suspend any implementation of EPA’s carbon dioxide and other regulations, until all questions are fully answered, and genuine evidence-based science is restored to the regulatory process – and used to evaluate the honesty and validity of studies used to justify the regulations.
Only in this manner can the United States expect to see a return to the essential separation of powers, checks and balances, economic and employment growth – and the quality, integrity, transparency and accountability that every American should expect in our government.
[Originally published at Townhall.com]
The last few weeks have brought both good and bad news to supporters of patent reform looking to reduce system abuse.
Hopes for legislative action were dashed when a major bipartisan reform bill that enjoyed the endorsement of President Barack Obama was pulled from the Senate calendar.
Conversely, there are still opportunities for the executive branch to intervene directly, as well as courts, which have recently been tougher on plaintiffs pursuing patent claims based on suspected invalid patents or outright frivolous claims. It also provides an opportunity to expand the conversation to international trade.
A patent troll generally has one of two goals: to extract a dubious royalty payment or to block market entrance by a potential competitor.
In regard to the former, the troll often attacks a small business or start-up, claiming to hold the original patent on the product or process its target is selling. The start-up, lacking the resources for a long court fight, settles out of court because it’s the better of two bad options. The cost, nonetheless, is passed onto consumers in the form of higher prices.
This practice – albeit slightly different – has spilled over into international trade.
France Brevets, Taiwan’s Industrial Technology Research Institute, Innovation Network Corporation of Japan and South Korea’s Intellectual Discovery are all examples of state-sponsored patent pools. Over time, they have all accumulated thousands of patents, many for products that never made it market. Their aim is to use weaknesses in patent law to favor companies within their own countries while taking legal action against foreign competitors.
Call this a latter-day version of protectionism: If a product from a foreign company threatens your domestic player, sue, ideally in a place where there are legal weaknesses to exploit.
That results in convoluted litigation such as ITRI’s infringement suit against South Kore’’s LG Corp. (and its U.S. subsidiaries) in a U.S. District Court for the Eastern District of Texas – a preferred venue among trolls because it ranks among the highest in the United States in upholding patent claims. This is a further inducement for defendants to settle, even if they have a strong case that the suit is frivolous. And, at the end of the day, consumers pay.
With legislative patent reform dead for the time being, it seems for now the movement to curb this abuse will have to rely on the courts. This means slower movement toward general reform, as court cases often focus on one aspect of the wide range of patent law. But each new ruling in favor of defendants adds to the weight of case law and jurisprudence.
The U.S. Supreme Court dealt a setback to trolling in an early June ruling when it vacated an appeals court ruling of infringement brought by Biosig Instruments against Nautilus Inc., an exercise equipment maker, over heart rate monitors. The Supreme Court said the appeals court, by disallowing only patents that were “insolubly ambiguous,” still left the door open for claims based on vague or indefinite specifications.
For trolls, who in lawsuits often try to stretch broad definitions and descriptions as much as possible, this is a setback, because the Supreme Court essentially raised the standard for a judgment of infringement beyond mere ambiguity, and will force plaintiffs to be more specific about the definitions and functions of a product or device to make an infringement charge stick.
As these and other court decisions add up, the attractiveness of the United States as a venue for patent trolling suits may diminish.
At the same time, the White House can be more assertive in condemning state-sponsored patent pooling. The practice is questionable under current trade agreements, as it involves governments taking an ownership stake in commercial intellectual property. This creates a conflict of interest when the regulator has an interest in the jurisdiction over which it presides. The U.S. Trade Representative’s Office and the Department of Commerce need to be more vigilant in protesting these practices.
Legislation may be on hold for now, but that doesn’t mean pressure for patent law reform should stop. Otherwise trolls will continue to abuse weaknesses in patent law and be a drain on domestic and international economic growth.
President Barack Obama demeaned the dignity of the presidency by ridiculing tens of thousands of scientists for simply disagreeing with his lay opinions on global warming. While the political left throws shrill temper tantrums against anybody who “disrespects” the Office of the Presidency by asking Barack Obama a challenging question (something they had no qualms about during the Bush administration), Obama himself is setting the applicable ground rules for disrespectful political discourse and climate McCarthyism.
At a commencement address Saturday at the University of California, Irvine, Obama encouraged students to heap scorn on Ph.D. scientists at some of the world’s most prestigious universities and scientific research institutions if they disagree with Obama’s global warming policies.
“When President Kennedy set us on a course for the moon, there were a number of people who made a serious case that it wouldn’t be worth it,” Obama said. “But nobody ignored the science. I don’t remember anyone saying the moon wasn’t there, or that it was made of cheese.”
President Obama is correct that no Ph.D. scientists – and likely no sane individuals – seriously argued that the moon was made of cheese or was merely an illusion. Does that analogy apply to the global warming debate?
Distinguished professors and scientific researchers on the staffs of Harvard, Princeton, Columbia, MIT, NASA, NOAA, etc., have published research and publicly expressed their findings that humans are not creating a global warming crisis. More than 30,000 scientists, including more than 16,000 with post-graduate science degrees and more than 9,000 with Ph.D.s, have taken the affirmative step of signing a petition summarizing such science. Almost certainly, tens of thousands more – and likely hundreds of thousands more – similarly agree but are unaware of the petition or haven’t taken the affirmative step to read it, review it, and submit their signatures.
As host of the Heartland Institute’s International Conference on Climate Change, which I host approximately once per year, I routinely have to turn away dozens upon dozens of highly qualified university science professors who have heard of the conference and hope to secure a speaking slot. With a limitless budget and time schedule, I could easily have hundreds of university science professors and thousands more professional scientists give presentations calling attention to the flaws in President Obama’s global warming alarmism.
Indeed, multiple surveys of professional meteorologists and climate scientists reveal that if a consensus on the issue exists at all, it is that whatever global warming is occurring is of mixed natural and human causation and does not justify the economy-killing prescriptions championed by self-serving politicians like Barack Obama.
To the limited extent global warming alarmists publicly debate the issue, their track record for success is about the same as that of China at soccer’s World Cup. For those who are skeptical, take a look at how one the global warming movement’s most visible advocates, Gavin Schmidt, fared the one time he participated in a public debate. After getting beaten so soundly that even he admitted it was a mistake to debate other scientists on the issue (and blamed his loss on one of his opponents being taller than him), is it any wonder he and his fellow alarmists avoid public debates the way John Edwards avoids National Enquirer reporters? Perhaps forgetting how badly Schmidt fared in his one-time debate, a Florida State University faculty member who was trained by Al Gore’s Climate Reality Project agreed to publicly debate me on the topic and fared just as miserably. Here is video of the debate that climate alarmists claim “is over.”
This brings us back to Obama’s attempt to vilify and ridicule scientists who disagree with his lay scientific conjecture. Perhaps it is true that ridicule and vilification are common, if regrettable, aspects of contemporary politics. Most Americans would hope that the President of the United States would not demean the office by engaging in such mean-spirited and sophomoric behavior, but we have also come to realize that politicians will be politicians, no matter how much power they have attained. But this isn’t about one ambitious politician smearing another ambitious politician. This is about the President of the United States – a non-scientist – making a grossly dishonest mischaracterization and analogy at the expense of expert scientists and then encouraging our nation’s best and brightest to shout down those scientists utilizing further dishonesty and McCarthyism to further political agendas. And the moment somebody questions the President about such reprehensible conduct – no matter how calmly the question is asked – the political left goes into conniptions about how appalling and reprehensible it is to disrespect the Office of the President of the United States in such a manner.
Sorry, Barack, but you have only yourself to blame for so pitifully demeaning the Office of the President.
[Originally published at Forbes.]
By a two-to-one vote, a three-judge panel of the U.S. Patent and Trademark Office has issued a ruling that eliminates trademark registration for six current trademarks of the Washington Redskins NFL team (including for the “Redskinettes” cheerleaders).
Its argument is that the trademarks “were disparaging to Native Americans at the respective times they were registered.” It notes that its ruling does not prevent the team from using those words and symbols, but that it would prevent standard federal protections against others using them, including against companies, whether in a garage in D.C. or in factory in China, making unlicensed apparel and other items using the logos without paying a fee to the team or to the league.
The PTO refused all of the team’s defense arguments including laches — a legal term basically meaning that (due to equity concerns rather than something like a statute of limitations) the plaintiff waited too long to assert his/its claim. However, in a similar case in 1992 in which the PTO also revoked Redskins’ trademarks for nearly identical reasons, a federal court overturned the ruling based on laches, a decision that was eventually upheld after appeal and rehearing. The courts never addressed whether the trademarks themselves are disparaging to Native Americans, though the first court to hear the appeal ruled that the evidence to prove such a claim was insufficient.
The case was brought by five Native Americans of different tribes; the PTO’s decision does not specify the tribal affiliation of one of them, saying merely that she “testified that she is a Native American.” (Didn’t Elizabeth Warren do something similar?) That particular plaintiff’s testimony includes “that the use of the term REDSKIN is analogous to the term ‘n****r,’ and that people should not profit by dehumanizing Native Americans.” Others said they found the team name “disparaging” and “offensive.”
After a tedious analysis of whether the term “Redskin” is disparaging, including “expert reports” that say just what you’d expect them to say, the PTO references several letters to current and former Redskins’ owners, such as this gem to Edward Bennett Williams in 1972:
Since you continue not to believe that the term “Redskins” is not [sic] offensive to anyone, let me make this clear: The name “Redskins” is very offensive to me and shows little human interest or taste. I am a Comanche Indian from Oklahoma. Indians are having enough trouble trying to erase misconceptions about themselves without having to be hit in the face with it every day in the form of a football team or baseball team. If you think you are preserving our culture or your history, then may I suggest a change? To live up to your name, your team would field only two men to the opponents eleven. Your player’s wives would be required to face the men of the opposing team. After having lost every game in good faith, you would be required to remain in RFK stadium’s end zone for the rest of your life living off what the other teams had left you. (Which wouldn’t be much.) Since you would probably find this as distasteful as 300,000 Indians do, I would suggest a change in name. In sticking to your ethnic theme, I would suggest the Washington N*****s as a start.… This would start a fantastic trend in the league. We would soon be blessed with the San Fransisco [sic] Chinks, New York Jews, Dallas Wetbacks, Houston Greasers, and the Green Bay Crackers. Great, huh? Mr. Williams, these would be very offensive to many people, just as Redskins is offensive to myself and others. You can take a stand that would show you and the team as true believers in civil rights, or you can continue to carry a name that keeps alive a threatening stereotype to Indian people. People, Mr. Williams. We don’t want the Redskins!
The “findings of fact” include that starting in 1966, dictionaries began noting that the term “Redskin” is “offensive, disparaging, contemptuous or not preferred” as well as listing a litany of objections against the team name by Native American groups. The PTO also states that “at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging…” and continues to note that the law “prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group.” They add that even if views of the term change when used in the context of football, that does not change the underlying offensiveness to those who feel offended.Returning to the question of why the PTO would assume that a court would treat this ruling any differently than it did last time, the PTO notes that the 2011 America Invents Act “changed the venue for appeals” from the U.S. District Court of the District of Columbia to the U.S. District Court for the Eastern District of Virginia. Basically, they’re hoping that a new court will overturn the prior court’s ruling, and also hoping that something in the America Invents Act modifies the ability to use laches as a defense in the case. We’ll see. On one hand, courts do not love overturning precedent, especially when the second case is essentially identical to the first. On the other hand, this entire issue has become very political and, sadly, Chief Justice Roberts demonstrated that judges even at the highest levels can be influenced by what they read in the newspapers.
Administrative Trademark Judge Marc Bergsman dissented from the ruling noting that the case is not (or should not be) about “the controversy, currently playing out in the media, over whether the term ‘redskins’…is disparaging to Native Americans today.” (Emphasis in original.) Rather the test is whether the term was disparaging “at the time each of the challenged registrations issued.” Bergman also noted that the evidence used by the plaintiffs in the current case was basically just a resubmission of the evidence of the prior case, with the addition of brief testimony of a few current plaintiffs who said they found the term “redskin” offensive.
The district court that first reviewed the original PTO cancellation of the trademarks more than a decade ago ruled that there was insufficient evidence to do so, and Bergman wonders how using the same evidence could now somehow be sufficient. In short, Bergman says that while the term “redskins” may have been disparaging when the trademarks were registered, “the evidence petitioners put forth fails to show that it was.” Bergman also notes that up to at least 1978, only two dictionaries referenced the term as offensive and “two does not make a trend.”
For now, Harry Reid is happy to have 2 minutes to talk about anything other than his absolute failure as a Senate leader and his president’s absolute failure as a leader of any sort. (Who can lead with such tempting putting greens available and when we have pressing issues to deal with like climate change — while the planet isn’t warming — and LBGT discrimination among federal contractors?)
In today’s increasingly lawless America, it is no easy prediction as to whether the PTO’s ruling will be upheld or overturned by the courts.
If the law restricts the issuance of trademarks that are deemed to be disparaging at the timeby a substantial part of a substantially large group of people, then if that disparagement test can be proven the trademarks should indeed be cancelled. That said, one would think that the PTO would have considered the question of disparagement at the times the trademarks were applied for and found that it was not sufficient to stop registration. The burden of proof must be on the petitioners and must be quite substantial, especially given the enormous economic interests at stake and the sizeable investments in marketing and branding made by the Washington Redskins.
The legal issue is quite different, however, from the question of whether the team shouldchange its name and the issue of American hypersensitivity to everything. There’s no right not to be offended, and political correctness is an acid being poured on civil discourse and good government. Additionally, nobody seriously looks at the use of the name “Redskins” for an NFL team and thinks of anything other than strength and tradition (even when the ’Skins aren’t very good). One would think that a reasonable part of a test of whether a term is offensive is whether those using the term mean it that way. For these reasons, I hope that the PTO’s ruling is overturned.
If the trademark cancellations are upheld by the courts, Redskins’ owner Daniel Snyder might be forced, for financial reasons, to change the team’s name since the loss of license revenue (to himself and to the league) on a non-trademarked logo — sweatshirts and coffee mugs produced by pirate operations anywhere and sold as “official” gear without paying for the right to use the team name and related images — might be too expensive to tolerate (despite some suggestion that there may be other legal protections for the team’s use of those names and images).
While nothing would then be stopping anyone else from using the Redskins’ unprotected logos for their own purposes — perhaps even to tweak the PC police by using them for a new sports team — that’s not a particularly likely outcome.
Instead, if the PTO’s ruling stands, given the tendency of the forces of political correctness and “tolerance” to go too far, such as laws protecting workplace cross-dressing and allowing a boy who “believes” he’s a girl to use a school’s girls’ bathroom, one wonders whether every other Native American-referencing team name and logo — not only the many “Redskins“ around the country — will soon be under assault. And next will come any other corporate trademark that some “activist” wants to claim as offensive, to use as a punching bag to earn his own five minutes of fame.
For now, thinking like the trader that I am, perhaps a good investment would be a brand spanking new Washington Redskins jersey. It could soon be a collector’s item if the PC police, using a federal agency and spurred on by Democrats in Congress (much like the IRS Scandal), can end more than 80 years of Washington Redskins history.
Hail to the Redskins!
[Originally published at The American Spectator]