Subterranean Homepage News

By Sheila Lennon

Bottom-up' journalism from the pros
Fair and balanced, too!

April 1, 2005, 6:45 p.m. -- Last week's weblog

The Storm that Wrecked Bernie Kerik's Career: In New York Metro, by Craig Horowitz. It's a well written parable about the price you pay for the life you choose.

The onetime top cop with the colorful background and the outsize ego, the tough, street-smart guy’s guy who leapfrogged his way to success and who sometimes bent the rules to get things done—the guy who would “break some china”—was portrayed as an out-of-control renegade with insatiable appetites, questionable judgment, and little respect for the rules most people live by....

Initially, Giuliani was right there with Kerik, vigorously defending him. They were, after all, brothers in arms, part of their own insular tough-guy subculture that is the product of some strange alchemy of cop, jock, and mob ethos. There are tribal rules and rituals as clearly defined as those of any gang. These are demonstrative, physical men who hug and kiss one another with bravado. They cover for one another. They help one another. When one succeeds, they all succeed. And the one invaluable attribute is loyalty, not competence. And it is precisely this anti-intellectual, indecorous, testosterone-soaked behavior that seemed to make Kerik so irresistible to Bush.

Both Kerik and Giuliani claim to have seen The Godfather more than 50 times, and the movie provides a bizarre code of behavior for them (as it does for gangsters) in much the same way that The Art of War serves as some weird manual for ambitious corporate climbers. But even in The Godfather, loyalty has its limits. And so by the third week, cracks began to appear in Giuliani’s resolve. He was quoted talking about Kerik’s “big mistakes,” and saying that Kerik would have saved himself and others some trouble if he’d dealt with the problems earlier.

Strangest of all, an amazing little story about the fellowship of the besieged:

Dick Grasso, the former head of the New York Stock Exchange, called.
(Grasso had) suffered through his own public flogging over the disclosure of his huge salary...

Grasso told Kerik to get his family together, pack some clothes for a few days, and drive out to the Long Island Expressway. “I asked where we were going, and he said, ‘Don’t worry about it, just do it.’”

So Kerik loaded the family into the car and followed his instructions. When he reached the expressway, he called Grasso, who told him to get off at Exit 40. “I’ll be right on the side of the road in a black Suburban.” When they hooked up, Grasso got out of his SUV and told Kerik to follow him.

“An hour and a half later, we were still driving,” Kerik says. “Finally we end up in Bridgehampton, and we pull down this road and these gates open up and there’s a really nice house at the end of the driveway.”

Kerik says Grasso took them inside, turned on all the lights, started a fire, and said the house was theirs for as long as they wanted it. Before he left, he took Kerik out to the garage, and in the back of his car was several thousand dollars’ worth of food. “He’d gotten everything we could possibly need,” Kerik says. “I thought, What is this all about" It was a trip. We stayed for three nights.

But Kerik may have been naive. Bush offered him the job, Kerik says, knowing his flaws, and without much discussion.

"He told me he wanted someone to go in there and "break some china.""...

"There were no policy questions," Kerik says. "His mind was obviously made up before I walked in."

Before leaving the White House, Kerik met with Bush chief of staff Andy Card in his office. "He talked to me a little about what would happen once the president announced I was the nominee. He said it"s going to be a difficult, grueling process."

The firestorm was probably the real job interview. Bush ignores bad press. If Kerik wasn't tough enough to tough it out, oh well....

There is great disappointment among those closest to Kerik in how things turned out—and disappointment with him. “A bunch of us have really mixed feelings about what’s happened,” says one close friend. “On the one hand, we believe he would’ve been great in the job, and he got screwed. But on the other hand, he should’ve shown better judgment and not left himself so vulnerable. He obviously got hurt the worst, but he wasn’t the only one. He let a lot of people down.”

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10 stories that could be pranks - but aren't: BBC lightens us up here, on the favorite holiday of everybody who loved Mad Magazine.

Today is 1 April, when jokers set out to fool and the rest of us are on our guard. Here is our annual round-up of some of the day's seemingly spoof news stories which are actually true.

April Fool

1. A Japanese inventor has devised solar-powered clothes which can top up the battery on an iPod or mobile phone....

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Added to Garden Blogs: Cybertoad's Garden is "in Houston, Texas, a nice hot & humid Zone 9A," writes Elaine of the toad clan. Very sharp photos, and lots of them, and a nice feel of wanting to inform make this a good read. Elaine is historian of her garden club, and it's clear why they elected her. She documents well.
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Lose an hour Sunday morning, but gain so much more: Turn your clock ahead before you go to bed Saturday night.

Reader Bill Marsland writes,

Here is a lighter thought for the day:

Most people think that moving the clock ahead for daylight savings time means a loss of an hour's sleep, but Red Sox fans realizes it's just one hour less they have to wait for the season opener at NY Sunday night!! GO SOX!!

And those long wonderful spring evenings are coming, when the sun won't set till nearly 9.
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March 31, 2005, 6:54 p.m.

Splintered nation: There's a reason we proudly call America "the melting pot." People of many races and religions from many lands try to live together in a great experiment.

I really don't want to see a civil war based on religion. The founders had enough of that in Europe.

The effort of any one splinter group to impose its views on the rest of us violates the terms on which the nation was built.

In Vermont, a Bid to Legalize Physician-Assisted Suicide
In California, New Order of Catholic Priests Is Forming to Fight Abortions, Euthanasia

Is it so hard to come together around the civic issues we have in common as citizens and leave private values and behaviors to the individual and his or her family?

Will America the melting pot be a failed experiment?
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Norm Olson: Parents' lawyer thwarted plan to send militias to aid Terri Schiavo: Petoskey (Mich.) News:

Norm Olson, senior adviser to the Michigan militia and pastor of a strong right-to-life church in Wolverine, said Tuesday he had put together an unarmed coalition of state militias that were prepared to storm the Florida hospice where Terri Schiavo has been left to die, and take her to a safe house.

Olson said he needed only the OK from Schiavo's father, Robert Schindler, either directly or through his attorney David Gibbs, to put the plan, called "Operation Resurrection," into action on Sunday.

But Olson said Gibbs contacted the FBI instead of passing his message on to Schindler.

Olson said the FBI had been monitoring e-mails within militia groups and on Tuesday, March 29, sent an agent from Traverse City to his home in Alanson and other agents to militia leaders in the South to question them about the plan.

That's Olson, photographed by AP, above. Here's one of the emails:

Wednesday, March 23:

"Are there militia in Florida who are willing to go rescue Terri?

"How about Georgia, Alabama, Mississippi and Louisiana?

"I've got some very angry Michigan militia folks chomping at the bit ..."

"Shall we save Terri Schiavo?

"The Courts say NO

"The Law Makers say NO

"The Executives say NO

"It's time for us to say: 'Let's Roll!'

On April 23, 1995, four days after the Oklahoma City bombing, I wrote a story for the Sunday Journal that began,

With cyberspace abuzz about the Oklahoma City bombing, the reaction on The Battlecry of Freedom computer bulletin board in Michigan was wary - and angry.

Regular callers to the board, which until February was the official BBS of the Michigan Militia, are anxious. Some fear that the tragedy will bring a crackdown on all groups that demand literal adherence to the constitutional right to bear arms and organize citizen militias.

"My god, the idea that Americans would knowingly BOMB other Americans in the name of Waco retribution is SICK]" said a message posted on The Battlecry of Freedom, based in Lake Orion, Mich., under the name of David Smith. (In cyberspace, names are not always those on birth certificates.)

"Are these the type of malcontents that are welcomed into these organizations? I think not. However, the media does," the message continues. "Today on CNN they described the Militia as a 'right-wing hate organization.' "

"Gary Gilmore" wasn't buying any of it: "Does the word 'treason' mean anything to you? If/when the Michigan loonies . . . er, 'militia,' goes up against the US Gvmt, it'll make Waco look like a weenie roast . . .

"You fight with a vote, not with a band of merry men hiding in the woods, playing 'soldier,' " the message concluded....

It can't get any weirder, can it?

R.I.P. Terri Schiavo, unwitting historical figure. I hope she's found peace at last.
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Flowers in ultraviolet: Great stuff at these Norwegian sites. The image at right is Meadow Flowers, by Bjørn Rørslett.

Take a break with Urban Wilderness, Front Pages, and much more at naturfotograf.com.
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"Why I'm Not Smoking the Podcasting Dope": Darren Barefoot spells out nicely the pushback against audio blogs -- it's linear, time-consuming, and, if you don't commute, there's enough time to listen to many of these. Intelligent comments on this post, too.

My sole podcast was kind of fun, though.
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How to Use the Dial Phone: A seven-minute 1927 AT&T Training film for users of the new dial telephones.

It's from that goldmine of history, the Internet Archive, via BoingBoing.
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The Man Who Saved the World Finally Recognized: MosNews.

...Stanislav Petrov was a Soviet army officer monitoring the satellite system for signs of a U.S. attack, the year was 1983, and his instructions, if he detected missiles targeting the Soviet Union, were to push the button and launch a counter-offensive.

He didn’t. Minutes later, no missiles came; months later, the frightening data across his monitor was determined to have been a system glitch. Today, the Association of World Citizens is calling him “the forgotten hero of our time,” a title befitting the man whose responsibility had been to start World War III.

Why Didn’t He Do It?

All the data checked out, to all appearances, the system was right on target — or rather, the missiles it reported were. A couple of thoughts flashed past Petrov’s mind.

“I just couldn’t believe that just like that, all of a sudden, someone would hurl five missiles at us. Five missiles wouldn’t wipe us out. The U.S. had not five, but a thousand missiles in battle readiness.” It just didn’t seem like any scenario considered by military intelligence before.

The second thought on Petrov’s mind every time he was on duty was this:

“I imagined if I’d assume the responsibility for unleashing the third World War — and I said, no, I wouldn’t.”

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Finding information: search engines: This is a chart, from "UK Search Guru" Phil Bradley, with links, that suggests what search engine to use for different kinds of searches. Examples include... I want a quick factual answer, I don't know how to spell what I'm looking for, I need search engines suitable for children, I need recent additions to search engines, I want to search the hidden web or the invisible web, I want to share or view bookmarks...
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The world's ugliest car?

I had a great time speaking to library students and faculty at URI yesterday about fact-checking. The other panel members were Scott Allen of turnto10.com and Brian C. Jones, a longtime Journal reporter now freelancing, often for the Providence Phoenix. Jim Kinnie did a great job organizing the event, the students asked lively questions, and dinner was a small gathering of nice, smart people. Thanks for inviting me, URI.

March 30, 2005, 3:15 p.m.

Van Google's birthday: Google has a tradition of altering the logo on its main search page on special days, and today, Vincent Van Gogh's 152nd birthday, they've outdone themselves.

Here's the inspiration, VanGogh's 1889 painting Starry Night, which hangs in the Museum of modern Art in New York..

Van Gogh was in the asylum at Saint-Rémy when he painted it -- indoors.
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Must we all die with a feeding tube? Pope's directive undermines patients' medical rights. I haven't blogged about Terri Schiavo. I profoundly believe it's none of my business.

But this headline strikes me as addressing questions about my own life, and death. It's almost a year old, before the current focus on feeding tubes, including the Pope's own. The author is Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania.

...recently the Pope proclaimed that feeding tubes should never be withdrawn from any patient and that health-care providers are morally obligated to provide nutrition and hydration regardless of a patient's wishes. The Pope's order spells trouble for your health care -- not only because it threatens to undermine a powerful social consensus in the United States about your right to refuse medical treatment, but also because it means you can no longer be sure whether a hospital will respect your request or that of your loved ones making a decision for you.

And now the Pope himself is being fed, but with a temporary and uncomfortable tube through his nose. Bioethics.net today leads with a link to Carol Eisenberg, at Newsday, asking, Pope's words his own "living will"?

"The closest thing we have to a living will for John Paul is this document he issued a year ago," said the Rev. Thomas Reese, a Vatican expert and editor of America, a Catholic weekly. "Clearly, it's going to be very difficult to disconnect any fluids or hydration from him because that can be interpreted as his will about how he would want to be treated."

There are no Vatican rules or traditions for who makes medical decisions for a pontiff. And many say that the prospect of a living, incapacitated pope is a medical dilemma with potentially disastrous implications for a church that is an absolute monarchy in which all power is vested in him. What would happen, for instance, if John Paul should become mentally unfit? What if he is attached to a respirator and can't be taken off? Who could — or would — disconnect the pope?

..."We've had a long-standing tradition that you can't kill, but you can remove that which prolongs your dying," said the Rev. James Keenan, a professor of theological ethics at Boston College.

"The big question is, what will the Vatican take off the list of extraordinary means next? What's to say you can't refuse a ventilator or a resuscitation? And how hard will it be to die in a Catholic facility — and in particular, how hard will it be to die if you're the pontiff?"

In the Pope's case, it may not come to this. The same weakening of the muscles which makes it difficult for him to swallow may also make it difficult for his lungs to allow him to breathe.
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Mail: I won't be blogging more today -- I'm speaking on a fact-checking panel at URI later today, and I'm heading out now. So, unadorned, here's the morning mail:

About yesterday's Topsy Turvy Upside Down Tomato, Flower and Vegetable Planter item, John Powers writes,

I've been growing my tomatoes like this for years. A farmer in MA turned me
onto the method years ago.

You don't need a special planter either - just a normal plastic pot with
wire hangers. I've grown large as well as cherry tomatoes. The size of the
tomatoes doesn't matter - they'll never tear from the vine because nature
made them to not tear from their own vine - right side up or upside down -
it's all the same to the plant.

Okay, John says you can grow beefsteaks this way. I'm going to try it, in part because my encroaching trees leave most of my sunny space up around eye level.

Noting my broken zucchini vines last year after I planted them in a very raised bed, Karen Anne Kolling notes,

Gardeners Supply are great folks, but I'm sure they and Territorial Seed are not claiming this is a new idea, I have seen it around for years.

If you want to prevent heavy fruit/vegetables from breaking vines, use old pantyhose or nylons (do sane people still wear those things?) to make a sling for the fruit/vegetables and tie it to the planter or frame or whatever. The hose (that's another word that makes me feel a million years old, as in the happy days when the Outlet existed) will support the fruit/veggie but expand as necessary. This is an old trick for growing particularly heavy things like cantaloupes, where the vine is growing on a vertical support to save garden space. I have never tried it myself. I suspect it takes some experimentation to see if the f/v should be completely inside the hose, like maybe this is suitable for a cantaloupe, or just supported by it, as a tomato may be too thin skinned.

If there is no hose around, probably unbleached muslin would work as a sling, although it doesn't expand. Maybe cheesecloth if it is strong enough.

(Later...)
It just occurred to me that the reason they do this with hose is that the sun penetrates it. So muslin or cheesecloth is probably not a good substitute.

I am far too lazy for this, and don't have a vertical support to tie anything to in this coffin-like bed, but for those with the grit, goferit. Thanks, Karen,.

And out of the blue, the random posey:

Hi,

I was just doing some obnoxious random newspaper research and I came across "subterranean homepage news" which is rad bc im a huge dylan fan. check out my site if you like...
www.webspawner.com/users/theslink

I just think you're really cool. That's all. Rock on :-D

AvIvA

What generation gap?
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March 29, 2005, 7:54 p.m. -- Last week's weblog

Radio David Byrne: David Byrne -- who dropped out of RISD to form The Talking Heads -- has a Web radio loop. He's playing the licensing fees to stream songs he's listening to these days. They'll change periodically. Sometimes. When he feels like it.

He writes a journal too, with a banner on the radio page that reads, "Don't call it a blog." It's got dated items, photos, archives, but no permalinks. Not a blog. In the photo below, Byrne is accepting an Esky award from Esquire Magazine for "Best Scribe."

BoingBoing's Xeni Jardin interviews Byrne:

...XJ: You've said that from an artist's perspective, one creative challenge of a cultural shift towards downloading individual songs is that when we're choosing what to download -- whether for free, or from fee-based services -- we tend to pick tunes we already know we like. Can you explain what you mean?
DB: I notice that the work of mine that tends to be downloaded most is the typical stuff, the hit singles, older Talking Heads material. From a creative point of view, the downside of that is that it becomes a kind of lowest common denominator -- you might not have as much of an opportunity to hear the full range of an artist's work as when you're buying an album. There's value in being exposed to things you didn't know you want. When you walk down the street, you have experiences that are unplanned and accidental that may expose you to new ideas, new things... it isn't just a matter of running an errand, or achieving a specific goal. It's about the accidental things that happen to you along the way.

XJ: So online radio is one way to invite that sort of pleasant accident?
DB: I think so.

XJ: How tough was it to put the radio project together?
DB: I was surprised at how easy it was. There were legal issues to consider, licensing fees to be paid. But there are a couple of companies out there who will do licensing for you, and the fees weren't too prohibitive. Probably a larger fee than an individual would be happy paying. The fee range means it's not like everyone will be happy to put the contents of their ipods online any time soon -- legally, anyway. ...

More at the link.
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Pandas at risk in bamboo crisis: Guardian (U.K.) reports,

Hundreds of giant pandas in western China could die from starvation because the bamboo plants they eat have begun to flower and die back, it was revealed yesterday.

Wardens at the Baishuijiang State nature reserve in the north western province of Gansu are to monitor the 102 pandas in the reserve for signs of hunger after the arrow bamboo in the region began a potentially devastating cyclical dying-back phase. This occurs about once every 60 years.

With bamboo die-back observed to some degree in all the regions where the endangered animals still live, conservationists gave warning that China's entire wild population could be at risk and appealed to local people not to drive off starving pandas if they entered villages looking for food.

Compelled to eat half their own body weight in bamboo each day to survive, pandas derive most of their nutrition from the shoots. But they refuse to eat it when bamboo forms flowers. The bamboo blooms then produces seeds before dying off, and it takes 10 years for a new crop to mature....

They're going to try to move the pandas to areas with other strains of bamboo at different points in their cycle.

I knew that all the bamboo of a single species die at the same time -- if you're looking to buy bamboo plants on the Web, sometimes you'll be told the date the species last flowered -- but I'd never see one till I found the photo at right. Arrow bamboo -- the type the Chinese panda above is eating -- is the type flowering in China now.

The International Network for Bamboo and Rattan (INRAR) in Beijing has an interesting site that includes photos of bamboo in flower, and a page titled, Stopping a flowering bamboo from dying. Nice place to poke around.

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Topsy Turvy Upside Down Tomato, Flower and Vegetable Planter: Gardener's Supply introduced this, and says it can be used to grow tomatoes, cucumbers, peppers, herbs and flowers. The blurb:

Vegetables growing upside down will "curl up" toward the sun. This creates fun, unusual looking plants. Flowers grown in the Topsy Turvy will "curl upward" too, taking on different appearances and looking almost like new varieties. We hope you have a lot of fun and success with the Topsy Turvy!

It's $19.95 there, although prices vary around the Web. Assembly required. Here are the instructions.

The Seattle PI went deeper:

It sounds crazy, but the hottest new idea in gardening is to plant a tomato upside-down from a hanging planter. The tomato grows out of the bottom of the container, but the vines grow upward. Fertilize and water from above. It only works with cherry tomatoes, since big fruits would be too heavy and tear the vines. There is no need to stake the tomato and you can simply reach up and pick one whenever you are hungry. You can make your own upside-down tomato container by cutting the bottom out of a plastic pot and putting sponges around the hole to hold the root ball inside, or you can do it the easy way and purchase the Topsy Turvy Tomato Basket from www.territorialseed.com ($16.95 It's $17.95 now). The container is fashionably tacky, but kids love it, and it is purported to produce a bumper crop.

I'm glad they brought up cherry tomatoes. (I didn't see any such warning on the GS site.) I grew zucchini in a very raised bed last year, and by late summer the overhanging vines were breaking from the weight of the squash -- a disappointment I hadn't foreseen. The same thing would happen here with a crop of big beefsteak tomatoes.
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Andy Maskin's Living Will: One of the best things about the Web is how easily an original piece of writing can be found and multiply. It begins,

I, Andy Maskin, being of sound mind and body, hereby grant authority over my handling should I enter a persistent vegetative state to the United States Congress pursuant to the following conditions:

...3 In the Senate, a tie shall be broken by a potato sack race between the eldest Senators for each side of the argument. If one such Senator is a Senator from Idaho, he or she is to be considered to have an unfair advantage and his spot will be passed to the next-eldest non-Idaho Senator. This race shall be no shorter than 50 meters and no longer than 100 meters.

4 If Congress is unable to make a determination based on the conditions set forth above, then the decision whether or not to keep me alive with machines shall fall to the Bush twins. If Jenna is unable to serve in this capacity, then Bjork may cast a vote in her place. If Barbara is similarly unavailable, her vote may be cast by a well-trained parrot of Jenna's choosing.

5 In the event of a tie between the Bush twins (or their aforementioned proxies) then that tie shall be broken by the oldest living descendent of Adlai Stevenson....

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Best of Photojournalism 2005: Still Photography Winners.. The National Press Photographers Association
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Computer Time: My colleague Tim Barmann sent this link, with the comment,

I ran across this software, which is being given away for free through
March 31.

I don't know how good it is, but I plan on trying it out with my kids.

The blurb:

In response to the Kaiser Family Foundation's recent study that shows children are using the computer, along with other media, 6 1/2 hours a day, SoftwareTime is giving away its award winning ComputerTime product (normally $39.95) for FREE for the remainder of the month of March.

Enter your name and email below, and a FREE ComputerTime Product Key will be emailed to you.

My first thought was that there must be a "crack" (i.e., a patch that would let kids override the limits) out there. The kid underground is probably passing it around.

Tim said, "Could be. But my kids aren't old enough to know about cracks and workarounds yet."

If you want to try it, Thursday is March 31.
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A few afterthoughts on this morning's MGM vs. Grokster links below:

Juris Pundit is maintaining links to more reports.

This comment from BoingBoing's interview above with Talking Head David Byrne is the business model the entertainment industry is defending:

XJ: How do you feel about the fact that some of your fans are downloading your music for free?
David Byrne: It's a mixed bag. Sure, I would love to have compensation for that. But the argument of record companies standing up for artists rights is such a load of hooey. Most artists see nothing from record sales -- it's not an evil conspiracy, it's just the way the accounting works. That's the way major record labels are set up, from a purely pragmatic point of view. So as far as the artist goes -- who cares? I don't see much money from record sales anway, so I don't really care how people are getting it.

The Solicitor General's position: "if a minority of the uses were infringing (that is, 50% minus one), the defendant should be off the hook"

Just how do you find out what percentage of people use any product for illegal purposes? Assault weapons? Cigarette papers? Fighting cocks?
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3:14 p.m.
Reports from the high court: MGM v. Grokster

A Few Notes from the Grokster Argument: DC appellate lawyer Timothy K. Armstrong writes,

Along with what seemed like about two-thirds all the lawyers in Washington, I attended today’s Supreme Court argument in MGM v. Grokster, the case on the legality of decentralized peer-to-peer file sharing.  It was the most crowded argument I’ve ever attended—I arrived before 6:30 a.m. and still ended up in the overflow seating, listening to the audio in the attorney lounge, which was standing room only.  Mostly industry and government lawyers in attendance, it seemed to me, which is surely no surprise given the dollar amounts on the line. ...

I would say the argument went a little better for Grokster than I would have expected it to. Not to the point where I’d actually predict victory for them, but to my mind at least, the questions Grokster got were not as difficult as those MGM got....

...MGM’s view was and is a little odd; their argument to the Court was that the legality of a technology should turn upon the type of business model the developer of that technology adopts to distribute it.  On this view, Sony is off the hook (i.e., the 1984 Betamax decision that made VCRs legal) because Sony is not a company that is primarily in the business of copyright infringement.  But Grokster should be held accountable because they intentionally founded a business based expressly on encouraging infringement of copyright.  It does not matter, in MGM’s view, whether the infringing use of Grokster’s system constitutes 90% or 10% of the total: because its whole business plan is geared around using the promise of infringing content to lure customers, it should be liable....

The SG argued that a defendant should be held liable if their business model is not substantially unrelated to copyright infringement. ... if a minority of the uses were infringing (that is, 50% minus one), the defendant should be off the hook, but anything beyond that and the court would have to look closely at their business model. The SG, in other words, called for a safe harbor that no extant, or reasonably foreseeable, service would ever be able to avail itself of.

Much more here, very clear and thorough. Best I've seen yet. Go there.

1:22 p.m.
SCOTUS blog: Court conflicted over file-swapping. Highlights:

In a one-hour hearing on the biggest Internet test case yet, Metro Goldwyn Mayer, et al., v. Grokster, et al. (docket 04-480), a number of Justices seemed attracted to the idea of letting copyright owners go after software developers on a theory that they are "actively inducing" theft of copyrighted works by computer users linked by that software....

Several members of the Court -- but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter -- seemed troubled about the potential impact of a tightening of copyright law on small inventors -- "the guy in the garage," as Souter put it.one of several members of the Court who seemed concern about potentially shutting down invention of new software if the copyright owners prevail in the Court...

Souter said: "The question is: how do we know in advandce that we can give the inventor -- that is, the developer -- the confidence to go ahead? How do we avoid the foregone conclusion that the Ipod developer is going to lose his shirt" in copyright damages?

Such developers would be protected, Verrilli suggested, unless they adopted "the business model" that he said Grokster and StreamCast had adopted: creating a giant "infringing machine" with their software that they not only know will be used to steal copyrighted works, but that they actively promoted such unlawful use.

Verrilli's argument placed the heaviest emphasis on this "business model" argument, premised on the claim that Grokster and StreamCast simply adapted the old Napster file-sharing software so that they could avoid copyright liability, even while profiting handsomely from it. But his emphasis upon that zrgument -- strongly seconded by Acting Solicitor General Paul D. Clement, arguing for the federal government as amicus -- led Justice Sandra Day O'Connor and others to suggest that the remedy should be an "active inducement" claim, rather than a secondary copyright infringement claim....

AP: Supreme Court Weighs in on File-Sharing:

WASHINGTON (AP) - The Supreme Court expressed concerns Tuesday over allowing entertainment companies to sue makers of software that allows Internet users to illegally download music and movies, questioning whether the threat of such legal action might stifle Web innovation....

Justice Stephen G. Breyer said the same software that can be used to steal copyrighted materials offered at least conceptually "some really excellent uses" that are legal.

Justice Antonin Scalia maintained that a ruling for entertainment companies could mean that if "I'm a new inventor, I'm going to get sued right away."

While seeming leery of allowing lawsuits, the court also appeared deeply troubled by efforts of the companies that manufacture so-called file-sharing software to encourage Internet piracy and profit from it.

Justice Anthony M. Kennedy pressed a software lawyer on the question of whether profits from trafficking in stolen property can rightfully be used to help finance a young technology business. "That seems wrong to me," he said.

Two lower courts have sided with the software makers, Grokster Inc. and StreamCast Networks. How the justices rule could redefine how consumers can watch television shows and films and listen to songs that increasingly are delivered in digital formats.

Supporters of file-sharing technology say a ruling against the software companies could effectively give the entertainment industry a legal veto over up-and-coming gadgets; they fear the threat of expensive lawsuits could hamper development of new devices....

Regardless of the outcome, it still won't be legal to download copyrighted materials over the Internet without permission, though tens of millions of computer users do so each day. And any ruling won't affect thousands of copyright lawsuits filed individually against Internet users caught sharing music and movies online.

But a victory for the entertainment companies would allow lawsuits that could drive companies that make file-sharing software out of business. It also would effectively overturn rules that have governed technology companies for more than two decades: Manufacturers can't be sued for copyright violations committed by customers using their products illegally....

I'll be updating this throughout the day.

Notes: It's ironic that Napster, the name that started file-sharing, has joined the suit on the side of the RIAA and movie studios. This is Napster only in name -- "new Napster."

Best lead on an advance of this story, from The Economist:

The music business should have stuck by Thomas Edison’s technology if it wanted to avoid the threat of piracy. His wax cylinders could record a performance but could not be reproduced; that became possible only with the invention of the flat-disc record some years later....

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March 28, 2005, 7:19 p.m. -- Last week's weblog

High court to hear file-sharing Tuesday; Mavericks' Mark Cuban financing P2P's defense: Wired, among many other sources, advances tomorrow's arguments before the Supreme Court (Supreme Showdown for P2P's Future)on the fate of peer-to-peer file-sharing software. The major movie studios and recording industry are seeking to hold software manufacturers Grokster and StreamCast Networks liable for illegal use of their products.

When Grokster and MGM Studios square off Tuesday in front of the Supreme Court, the lawyers will argue copyright law. But the court's decision will affect how people use entertainment and share information.

The highly anticipated case, MGM Studios v. Grokster, pits all the major movie studios and record labels against Grokster and StreamCast Networks, two operators of file-sharing services.

The entertainment companies petitioned the Supreme Court to take the case after the 9th U.S. Circuit Court of Appeals ruled in August that file-sharing companies are not liable for their users' copyright infringement. The decision upheld a lower-court ruling from April 2003.

The appeals court based its ruling on the 1984 Supreme Court Sony Betamax case. In that case, the court ruled Sony's videotape recorder was a legal device because it was "capable of substantial non-infringing uses," even though it could be used to violate copyrights. The case is credited with leading to a lucrative home-video and DVD market for the entertainment companies. The decision also provided innovators with a benchmark to support the development of new products....

Blogger, Dallas Mavericks owner and Internet billionaireMark Cuban will be helping to fund Grokster's defense -- even though he also owns movie companies and Landmark Theaters.

Cuban explains on his blog, (Let the truth be told…MGM vs Grokster):

..."We are a digital company that is platform agnostic. Bits are bits. We dont care how they are distributed, just that they are. We want our content to get to the customer in the way the customer wants to receive it, when they want to receive it, at a price that is of value to them. Simple business.

Unless Grokster loses to MGM in front of the Supreme Court. If Grokster loses, technological innovation might not die, but it will have such a significant price tag associated with it, it will be the domain of the big corporations only.

...It wont be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them.

Thats what is ahead of us if Grokster loses. Thats what happens if the RIAA is able to convince the Supreme Court of the USA that rather than the truth, which is , Software doesnt steal content, people steal content, they convince them that if it can impact the music business, it should be outlawed because somehow it will. It doesnt matter that the RIAA has been wrong about innovations and the perceived threat to their industry, EVERY SINGLE TIME. It just matters that they can spend more then everyone else on lawyers. Thats not the way it should be. So , the real reason of this blog. To let everyone know that the EFF and others came to me and asked if I would finance the legal effort against MGM. I said yes. I would provide them the money they need. So now the truth has been told. This isnt the big content companies against the technology companies. This is the big content companies, against me. Mark Cuban and my little content company. Its about our ability to use future innovations to compete vs their ability to use the courts to shut down our ability to compete. its that simple."

I don't steal movies, why should I care? The Electronic Frontier Foundation, which is defending the other file-sharing software in the suit, Streamcast Networks, is showcasing the devices that could become illegal if this suit, based on the original 1984 Betamax decision that made VCRs legal, strikes down the software that makes file-sharing possible because it is possible to violate copyright with it. So far, the devices include the VCR (again!), Xerox machine, TCP/IP (the technology that brings you web pages), the blog, email, silly putty (it can copy comics), the iPod, and the dual cassette recorder. Because they can be used illegally.

By this logic, steak knives and Drano -- among the many products that can be used to harm people -- should also be outlawed.

Whats being defended here is an old business model. There won't be a ruling until June but, as Wired points out,

...Whatever the outcome, observers think the issue may end up in Congress.

In Congress' last session, entertainment companies fought mightily to pass the Inducing Infringement of Copyrights Act, which would have held technology companies accountable for copyright infringement committed by people who use their products. Technology and consumer groups were staunchly opposed to the legislation, and the bill ultimately failed to pass in the Senate Judiciary Committee.

Related: Peer-To-Peer (P2P) and How Grokster Works

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State-of-the-art interactivity? Asked to judge name-brand ad-agency entries in an interactive Web design competition, Jeffrey Veen: -- author of "The Art & Science of Web Design" and "HotWired Style: Principles For Building Smart Web Sites" -- wondered,

...Why was all of this so bad? I mean, it was really bad. Could it be that what I have always believed to be good interaction differs dramatically from what "professionals" believe?

Most of what I saw was a strange blend of fast-paced television commercials and the "Choose Your Own Adventure" books I liked so much a kid. Everything was designed as over-produced "click here for the next Flash movie" interaction. Which is to say, it wasn't interactive at all. What I quickly realized was that the work I was seeing reflected designers refusing to let go of their perceived control.

Here are the trends I noticed. They read like a summary of web design in 1997...

Readers have made it clear they want to choose their own sources and assemble the pieces to their liking in RSS readers and browsers that block whatever you want them to. Flash movies, reducing interactivity with windows that open with no tools and no back button, unexpected sounds and pages that come in a piece at a time and assemble themselves like a jigsaw puzzle are among his top complaints.

I think most of us would agree with him, and it's good to hear it coming from someone with the influence perhaps to affect such user-hostile design features.

Related: Bud Uglly Design is a hoot.
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Survival Guide to Homelessness is a blog.

3:32 p.m
Quake magnitude rises to 8.7; Mauritius evacuating; no large wave expected

USGS has raised the earthquake magnitude from 8.2 to 8.7.

The official report (the link on the map below) suggests the time has passed for a major tsunami. Mauritius, four hours from Malaysia, is bracing for waves, however, and evacuations are underway, according to Peter Tan at The Digital Awakening:

I got Wuan to call Ros in Mauritius at 0330 just now. They have been alerted and advised to evacuate by the authorities. It is a relief to know that they are aware and are ready for any eventualities. If it comes, the tsunami is expected to hit the shores of this island within the next few hours. Mauritius is four hours behind Malaysia.

Tsunami wave reports trickle in: The South-East Asia Earthquake and Tsunami Blog (a large collaboration of bloggers with no affiliation) is collecting reports. Many links on the blogroll here from December's tsunami are active again. This blog also notes:

A Wikipedia portal and Wikinews portal are up.

NOAA Tsunami Bulletin No 002
THERE HAS BEEN NO MAJOR TSUNAMI OBSERVED NEAR THE EPICENTER.

THERE WAS HOWEVER A SMALL TSUNAMI OBSERVED ON THE COCOS TIDE GAGE. WARNING... THIS EARTHQUAKE HAS THE POTENTIAL TO GENERATE A WIDELY DESTRUCTIVE TSUNAMI IN THE OCEAN OR SEAS NEAR THE EARTHQUAKE. AUTHORITIES IN THOSE REGIONS SHOULD BE AWARE OF THIS POSSIBILITY AND TAKE IMMEDIATE ACTION. THIS ACTION SHOULD INCLUDE EVACUATION OF COASTS WITHIN A THOUSAND KILOMETERS OF THE EPICENTER AND CLOSE MONITORING TO DETERMINE THE NEED FOR EVACUATION FURTHER AWAY.
...

1:42 p.m.
Malaysian bloggers report quake, wait for wave: Project Petaling Street indexes blog posts from "Malaysians being Malaysian." At the moment, that means writing about the latest earthquake to hit Sumatra. Keep refreshing it for the latest reports.

The group blog Tsunami Disaster in Malaysia and Thailand braces. Blogger 5xmom asks, "Quake? So what do I do now?"

From the Annotations blog: Earthquake: Additional Updates: