Talk about injury following insult. Stephen Ambrose has diagnosed with lung cancer. Having just lost my own mother to a likely similar diagnosis, I feel for the Ambroses. I guess it was one hell of a year for Dr. Ambrose between the HBO miniseries (arguably some of the best television ever created), the plagiarism scandal, and now this.

I wish him the best of luck. Hopefully the diagnosis will be better than most and he can beat it. I look forward to those books he still has left.

Julie Hilden writes that speech protections should be less on the internet. Her thesis seems to be that since far more speakers publish, and they tend only to support their own ideas, there isn't a healthy discourse because they only link to items that support their position.

I prefer another version of her thesis. Since the ignorant populace can now speak without moderation we shouldn't protect ignorance as well as we protected speech of the classic publishers. Can folks really think that the enabling of the masses to publish is somehow worse than limiting it to Hearst. The only real difference in speech on the internet is the compression of time and distance. After that, we can no better protect people from their own ignorance - and lack of desire to read countervailing arguments than we ever have. At least now the opposing argument is but a search engine away.

Mike at TechDirt and I had an interesting discussion regarding stock option accounting. Scroll down to the bottom to see the interchange.

I made the point that just because dilution is a hard concept for many, we shouldn't distort the P/L further. Mike made the point that the employees are getting the difference between the strike price and exercise price when a third party would have to pay full price for that equity in a financing.

I still think that expensing stock options double counts them. It makes them deduct from EPS twice.

The News & Observer has an article stating that a Federal District Court Judge in St. Louis has ruled that Video Games are not protected speech and thus St. Louis County can strongly regulate them. Of course he is totally ignoring a sister circuit case that overturned the Indianapolis ordinance that the St. Louis County ordinance was patterned after.

Do these guys just want to be overturned?

321 Studios, the makers of DVD Copy Plus, filed for a Declaratory Judgement Action in the 9th Circuit that their software does not infringe the anti-circumvention provisions of the DMCA. DVD Copy Plus allows a person to create a VCD from a DVD. Maybe the 9th will get this right where the 3rd has not.

Most everyone has seen the story about the case, but the real issue is the lameness of the CA Supreme Court. The situation here is that the 9th Circuit was hoping to not have to strike the local ordinance based on First Amendment issues and was hoping that the CA court would get them out easily on the state preemption or the separation of county and city powers. Now this just moves back to being overturned by the Federal Court on First Amendment grounds. I have, however, heard that the preemption ruling is wrong. More news on that once I have a conversation with folks who know.

Reason Online has a good article regarding Ashcroft v. Free Speech Coalition. For those that aren't familiar, this case regarded the extension of federal obscenity code to make it illegal to traffic in or posses pornography that simulated sex involving minors regardless of whether actual children were involved. The Supremes obviously found this an illegal prior restraint. There is one quote from the opinion that has interesting applicability to the DMCA anti-circumvention sections and the proposed CBDTPA.

To preserve these freedoms, and to protect speech for its own sake, the court�s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. The government may not prohibit speech because it increases the chance that an unlawful act will be committed at �some indefinite future time.�

Glenn Reynolds wrote a well balanced article on the state of the Second Amendment and the firearms debate. Quoting:

While some gun opponents and legal observers call Emerson a wacky outlier and an irresponsible act of judicial activism, the court may have pointed the way to a more reasonable approach to gun control. The gun issue is divisive in American politics largely because it is falsely treated as an all-or-nothing choice: Either homicidal maniacs will carry howitzers on Main Street, or jackbooted government thugs will confiscate revolvers at midnight. As the Emerson decision shows, however, the individual-right theory allows for neither of these extremes.

The right does bar efforts to disarm Americans as a whole and create a British-style society in which guns are limited to the military and police. But it wouldn't stop the government from passing laws to protect the safety of Americans. Regulations aimed at prohibiting criminals and people with histories of violence from owning guns will face no problems under the individual-right theory. If that view were generally adopted by the courts, a lot of political wrangling would come to an end. Gun owners confident that their rights would be protected would be less likely to oppose minor gun control as a step down a slippery slope.

Malcom Galdwell has a very even handed piece on airport security. He makes a lot of the good points. I feel much the same, but have a certain disgust for the current techniques. I support a rather radical re-thinking of searching for weapons that I fear will take another disaster to make people think about. I do certainly hope that the pilots finally get their wish and the intended sidearms from the recent airport security legislation.

Ernest Miller of Yale Law School's LawMeme has a hilarious and insightful annotation of Jack Valenti's ZDNet Interview.

Having been in the industry, I was shocked when I had real conversations with lawyers who didn't realize that Fair Use was more than a defense against copyright infringement charges (check out the 1972 Sound Recordings act and the Audio Home Recording Act to see Congress affirm that consumers have a right to fair use) or understand the prior restraint of free speech issues surrounding the anti-circumvention sections of the DMCA or the proposed CBDTPA.

I was perusing FindLaw. While reading a very good piece on the lack of compassion that the court showed in it's recent public housing ruling I happened upon an interesting story about a Kansas Supreme Court ruling that a post-op transsexual who converted to female could not legally marry a male, but inferentially could marry a female.... That in addition linked me to a story about the case of a California inmate who wants to Fedex his sperm to his wife for artificial insemination. His suit was filed under section 1983 of Title 42, Chapter 21, Subchapter I:

Section 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Some may remember news stories recently about a white water canoeist who was thrown from his canoe, screamed an obscenity, and was subsequently arrested. This AP Story on Findlaw says that a 3 judge state court of appeals threw out the law as too vague and thus a violation of the First Amendment.

Wired has a story about a federal judge striking down portions of a Virginia state law that banned importation of out of state wine. The whole host of these state bans that create quasi legal distribution monopolies had always seemed to be an indirect violation of the Commerce Clause of the Constitution. Unfortunately congress is currently playing along by specifically delegating authority to the states to ban certain alcohol imports. The Judge in this case stated that the law unfairly protects Virginia domestic interests and is thus a violation of commerce clause jurisprudence.

Since this is a 4th Circuit US District Court, state liquor import bans are likely to be subsequently invalidated in Maryland, West Virginia, North Carolina, and South Carolina. To bad that my buddy in Georgia is in the 11th District.

Daniel Pipes puts into words something that has just been outside of my grasp as it regards our policy in the Israeli/Palestinian conflict and the US fight with Al Qeada. Quoting from his article in The New Republic:

The shame is, this inconsistency is not even necessary. Even if the support of states like Saudi Arabia is truly essential to the American war on terrorism, muddling U.S. foreign policy won't help win it. Rather than put mock-pressure on Israel to appease the Saudis and others who can help in the Iraq effort, the administration would do better to understand that, as William Kristol and Robert Kagan put it, "at the end of the day, the Saudis will support the United States in Iraq not because they like us, and not because we promise them a Palestinian state, but only because we leave them no choice." In the president's own words, the Saudis are either with us or against us; and they should know they will pay a very large price for choosing the latter option.